Mitchell and Comcare [1999] AATA 17 (14 January 1999)

Last Updated: 29 January 1999

DECISION AND REASONS FOR DECISION [1999] AATA 17

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1996/332

GENERAL ADMINISTRATIVE DIVISION

)

Re

RONALD JOHN MITCHELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President T E Barnett, OBE Dr P A Staer (Member)

Date 14 January 1999

Place Perth

Decision

(1) The decision under review is affirmed. (2) There be no order as to costs.

..............(signed).........................

Deputy President

CATCHWORDS

COMPENSATION - whether applicant suffering from fibromyalgia, depression, anxiety or related disorder - whether applicant suffering from effects of viral infection - whether applicant incapacitated for work - whether condition "work-caused" - whether applicant suffering from "injury" - stress factors at work including failure to gain position and adverse comments relating to applicant's work efforts.

Safety Rehabilitation and Compensation Act 1988 s.4, 14

REASONS FOR DECISION

14 January 1999

Deputy President T E Barnett, OBE Dr P A Staer (Member)

1. This is an application for the review of a decision of the respondent dated 10 September 1996 which denied liability to pay compensation for stress, mental illness and fibromyalgia alleged by the respondent. The applicant was represented at the hearing by Mr G Stubbs of Dwyer Durack, and the respondent by Mr J Lenczner of Counsel.

2. The applicant is claiming that he suffered work-caused stress from a series of incidents between August 1995 and 20 February 1996 which rendered him fully incapacitated for work from 20 February 1996 until December 1996, when he resumed his employment on a graduated return to work basis. He seeks compensation for incapacity during the period until he resumed full time employment, and for medical expenses.

3. The claim is made under s. 14 of the Safety Rehabilitation and Compensation Act 1988, subsection (1) of which reads as follows:

"14(1) [Comcare liable] Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

Subsections 14(2) and 14(3) are not relevant in this case.

4. Pursuant to s. 4(1), "injury" means:

(a) a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."

Under s. 4(1), "disease" is defined to mean:

"(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation".

5. The respondent denies that the applicant suffered any work caused stress condition and submits that he suffered a non work-related viral attack on 20 February 1996, the sequelae of which accounted for all the applicant's symptoms and any incapacity for work which he may have suffered, which incapacity is not admitted by the respondent.

6. On 16 September 1997, a few days before the hearing commenced, the applicant filed a booklet of "Supplementary Medical Reports and Other Documents" (Exhibit A6) ("SD") which included new material in the form of "Progress Notes" from the applicant's General Practitioner.

7. During the proceedings, the parties agreed that the medical evidence would be confined to the numerous medical reports which had been filed with the Tribunal, without calling oral evidence from the doctors and medical specialists, but the respondent was later granted leave to file further medical reports in response to the new material included in Exhibit A6. The hearing of the matter was adjourned at the close of business on 25 September 1997 and further reports from Doctors Mustac and Galton-Fenzi were filed by the respondent in February 1998. The applicant was granted leave to cross examine on these reports.

8. The hearing was resumed on 26 and 27 October 1998 to allow the cross-examination of Doctors Mustac and Galton-Fenzi and for submissions to be taken. During the proceedings oral evidence was taken from the following people:

(a) the applicant, Mr Ronald John Mitchell;

(b) Mr Rod Norton;

(c) Mr Timothy Gerard Beech;

(d) Mr Paul Fahie;

(e) Mr John Alistair Hawking;

(f) Ms Sally Rowena Hodgson;

(g) Ms Marisa Campanella;

(h) Ms Jennifer Margaret Binns;

(i) Dr Zelko Mustac; and

(j) Dr Brian Galton-Fenzi.

9. In addition to the documents filed by the respondent pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975, the Tribunal had before it the following documents:

Exhibit R1: Selection Report for ASO5 dated /2/1996;

Exhibit R2: (a) Letter from Delta to Applicant dated 6/10/1995;

(b) Letter from Applicant to Delta dated 9/10/95;

Exhibit R3: Letter from Rowena Hodgson to Delta dated 11/10/1995;

Exhibit R4: Blank New Work Opportunities "Full Project" Application form;

Exhibit R5: Summary of evidence of Mr Hawking;

Exhibit R6: New Work Opportunities Project Sheet and Schedule;

Exhibit R7: Summary of evidence, summary of further evidence and witness statement of Rowena Hodgson;

Exhibit R8: Summary of evidence of Ms M Campanella and Full Project Application;

Exhibit R9: Summary of evidence, summary of further evidence, witness statement, diary note and letter of Ms J M Binns;

Exhibit R10: Letter from the Australian Government Solicitor to Dr Mustac dated 25/11/1997;

Exhibit R11: Medical report by Dr Zelko Mustac to the Australian Government Solicitor dated 16/12/1997;

Exhibit R12: Letter from Australian Government Solicitor to Dr Galton-Fenzi dated 26/11/1997;

Exhibit R13: Medical report by Dr Galton-Fenzi dated 1/1/1998;

Exhibit A1: Facsimile from J Binns to Applicant and M Campanella dated 5 /12/1995;

Exhibit A2: Summary of evidence of Mr Mitchell stamped 11/9/1997;

Exhibit A3: Summary of evidence of Mr Norton stamped 11/9/1997;

Exhibit A4: Summary of evidence of Mr Beech stamped 19/9/1997;

Exhibit A5: Summary of evidence of Mr Fahie stamped 11/9/1997; and

Exhibit A6: Applicant's supplementary medical reports and other documents.

FACTUAL BACKGROUND AND FINDINGS

10. Before turning to the major contested matters of fact, it is convenient to set out in chronological order, the Tribunal's findings of fact.

11. The applicant was appointed to a temporary position in the Department of Employment, Education and Training ("DEET") on 15 January 1993, after a career in private enterprise where he had held positions of responsibility, including Food and Beverage Manager in the hospitality industry, and he had been the owner/manager of taverns. He became a permanent officer of the Commonwealth public service on 1 November 1993, at an "ASO3" level. By June 1995 he was performing higher duties as an "ASO4" (a level above the ASO3) in the Employer Services Section. The Tribunal accepts the evidence that the applicant was then ranked first on the Order of Merit list and from references provided for him by his superiors, the Tribunal finds that, at that stage, his work performance was of a high calibre.

12. In June 1995, the applicant's immediate supervisor was Mr Paul Fahie who was a personal friend. The applicant also worked in close association with Mr Rod Norton, a more senior supervisor. The Regional Manager CES at Victoria Park was Ms Sally Rowena Hodgson. The Regional Manager CES at Cannington was Ms Jennifer Binns.

13. As the existing Order of Merit for ASO4 acting positions had lapsed in early 1995, officers at ASO3 and Acting ASO4 levels were invited to apply for Acting ASO4 positions and to indicate work preferences.

ROTATION TO YOUTH ACCESS - JUNE 1995

14. The applicant, who was first on the Order of Merit, applied for an Acting ASO4 position indicating that his preference was for his present job in Employer Services. Ms Hodgson consulted some of the supervisors involved and then appointed the applicant, as an Acting ASO4, to the Youth Access Centre, his second preference. All applicants for HDA ("Higher Duties Allowance") positions were appointed to their first or second preference.

15. Ms Hodgson did not herself notify the applicant that he was to be "rotated" (moved), at the same level, to Youth Access, but arranged for his supervisors, Mr Norton and Mr Fahie, to advise him. They met with him on 15 June 1995 and told him of the decision to rotate him to Youth Access. The applicant was unhappy at this course of events and wrote a "Submission to Supervisors Regarding Rotation from Employer Services Section ..." (T3, p.13-18) dated 21 June 1995 pointing out why his skills and experience were best suited in the Employer Services field, suggesting there may be ulterior motives behind the rotation and complaining that there had been no prior consultation, which he said was a breach of the "principles of industrial democracy". The alleged lack of consultation before being rotated is now claimed to be a "stressor" contributing to the applicant's claimed work-caused stress condition.

16. On 16 June 1995, the applicant applied for a month's leave without pay to commence on 10 July 1995, and continue until 4 August 1995 (SD p.1114) This was granted. The applicant claims that he spent the first two weeks resting in bed feeling weary and tired, but there is no corroborative evidence for this. On the strength of his own evidence, however, the Tribunal finds that the applicant did not consult a doctor in the 25 day period between 15 June 1995 and the commencement of his leave on 10 July. Nor did he do so during the leave period. The second two weeks of his leave he spent on a pre-planned holiday with friends in Onslow.

17. On 3 July 1995 Ms Hodgson replied to the applicant's complaints, reassuring him of his worth as an employee, conceding that the manner of advising him of the rotation was "not well handled", and assuring him that the other contenders had also not been consulted. She gave a careful explanation of other reasons, in addition to relative efficiency in the job, which were validly taken into account in allocating HDA positions.

18. While on leave the applicant applied for and was appointed to one of two six month appointments as a New Work Opportunities ("NWO") officer, acting at an ASO5 level. The other appointee was a substantive level ASO4 officer, Ms Melissa Campanella. On return from leave on 4 August, the applicant took up his new position, never commencing work in the Youth Access Centre. On his own evidence and that of his superiors, the applicant handled the "extremely hectic work rate" well, obtaining considerable job satisfaction. He felt he was well suited to the required task of promoting the CES role in funding employers' projects which provided job opportunities for CES clients. The applicant rated his own performance in this role highly.

19. The Tribunal finds that the applicant was not consulted prior to his rotation to the Youth Access section in June 1995 being decided (indeed, on the evidence of Mr Hawking such consultation would have been inappropriate). However his belief that he was not afforded equal and fair consultation is not factually correct, as none of the other applicants were consulted either.

20. Looking at documents written by the applicant at the time, the Tribunal also finds that the applicant was concerned by the fact of being rotated out of a position he coveted to enable another to gain experience in that position, rather than the lack of consultation per se. He gave the alleged failure to consult far more prominence after his workers' compensation claim had been rejected. The Tribunal was influenced by the applicant's claim for compensation and annexed statement and his written complaint to his superiors dated 21 June 1995 in reaching this finding, as well as the written histories recorded by Dr Zilko and Mr McEvoy. On this finding it is clear that this alleged stressor relates to the "failure to obtain a ... benefit in connection with his ... employment" and is thus exempted from the definition of "injury" provided by s. 4 of the Act.

21. In any event, the Tribunal finds that the applicant did not manifest significant signs of mental disturbance as a result of this alleged stressor. Some 15 days after the decision he took a months leave without pay during which he sought no medical advice or counselling and took no medication. He claims to have spent the first two weeks of the holiday in bed but there is no corroboration nor medical explanation for this, if it occurred. During the period of leave he was psychologically well enough to apply for one of two positions at ASO5 level in the Employer Services section. He won the "promotion" and proceeded to perform with vigour and effectiveness in this job which, on his own evidence, he really liked.

THE PART B STATEMENT ISSUE - AUGUST 1995

22. In August 1995 Ms Jennifer Binns, the Regional Manager Cannington, requested him to give her employers' information on various projects he was working on. This information, which was provided by employers seeking funding for employment opportunity projects, was in two parts, Part A and Part B. Ms Binns wished to be able to provide all of this information to the Area Consultative Committee ("ACC") which was to consider the applications. The applicant, correctly, pointed out that there were standing directions that the Part B documents, which contained confidential financial information about the employer applicants, were not to be handed to the ACC which contained employer representatives who may be business competitors. The Tribunal finds that at a meeting with Ms Campanella and the applicant on 21 August 1995, Ms Binns requested the two officers to seek approval of the employer applicants that their Part B statements could be handed to the ACC. The applicant refused to do this unless directed to in writing, and the matter was referred to departmental headquarters in Canberra.

23. Within a week of that meeting, Ms Binns went on a month's leave and while she was away, there was a direction from a visiting headquarters officer, Mr Beattie, that Part B statements were not to be provided to the ACC. The applicant claims that he suffered stress as a result of being directed to disobey policy directives on this issue. (Where there are differences between Ms Binns and the applicant about the date of the meeting and its content, the Tribunal has preferred the evidence of Ms Binns, who was able to refer to contemporaneous diary entries during her evidence).

24. Although the applicant claims that Ms Binns' alleged pressure on him to hand over the Part B statements was another of the key stressors leading to his claimed work-caused stress condition, his evidence on the subject was not consistent. He first said that over "a period of three or four weeks Jennifer Binns kept demanding that I give her the Part B information she was seeking." (Exhibit A2, p.8). In evidence in chief he said "I spoke to her on at least 3 occasions where she made the demand again" (Transcript p.33). When confronted with the fact that Ms Binns went on leave a few days after the request he adjusted his evidence to say that she "never withdrew the demand". He also said he felt pressured by Ms Hodgkinson saying that the documents were still required.

25. The applicant's claims that Ms Binns persisted in demanding the documents are untrue as the Tribunal accepts her statement that she departed on leave within a few days of the incident. The pressure allegedly placed on him to provide Part B statements to Ms Binns to provide to the Coastal ACC in August 1995 was not significant. The matter was quickly referred to Canberra and resolved in his favour. The applicant's claim that he felt stressed by Ms Hodgson's indication that the statements were still required did not satisfy the Tribunal that he felt under great stress about the situation. The direction that he hand over Part B statements caused him some brief but temporary stress.

DISCONTINUANCE OF NEW WORK OPPORTUNITIES HDA POSITION DECEMBER 1995

26. On 4 December 1995, the applicant attended a meeting with two regional managers (Ms Nicki Kelly and Mr John Hawking) and was informed that for the remaining month of the Higher Duties appointment only one Acting ASO5 would be required in the NWO section. He was told that Ms Campanella had been selected to stay on and he would return to his initial (pre-rotation) position as Acting ASO4 in the Employer Services section. The applicant took this decision very hard, becoming very upset and aggressive. On 7 December 1995, he made a written submission (T7 p.23-26) which pointed out that he was higher on the ASO5 Order of Merit than Ms Campanella and had performed more effectively in signing on employers' projects for funding. This was responded to by the applicant on 22 December 1995 (T8 p.27-28).

27. The Tribunal heard evidence about some of the applicant's projects, comparing them with projects put together by Ms Campanella. It is not necessary to refer to this evidence in any detail. It suffices to say that, on the evidence of the regional managers, the Tribunal finds that the applicant's work at this time was recognised as being very satisfactory. For other, valid, reasons, one of the Acting ASO5 positions was abolished one month earlier than intended, and while they agreed that both Acting ASO5 officers had been working effectively, the management team held an honest opinion on reasonable grounds that it was in the Department's best interests that Ms Campanella continue in the remaining NWO position.

28. When the applicant was advised that his 6 month NWO appointment was to cease one month early, he took the news very badly. He felt an unjust decision had been made because he was a far better officer at the job than his rival, Ms Campanella. He claims that he was upset because he later found out that the appointments committee had been told that he was considered to be biased towards employers and because Ms Campanella had accepted "illegal" instructions to hand over Part B financial record forms of employers. On the evidence, the Tribunal finds that both these beliefs were incorrect. In any event, his emotional disturbance was again clearly related to a failure to obtain a benefit, and his claim that he was not fairly treated is not born out by the evidence.

29. The applicant claims that the decision to prefer Ms Campanella over himself caused him extreme frustration and distress. He does not claim that, per se, it was a stressor leading to his alleged stress condition, but claims that other matters related to the decision to discontinue his appointment were more stressful, in particular: his perception that his former HDA position in Employer Services was not properly managed while he was absent, and issues arising in relation to the Burswood and Delta projects.

FINDING A "MESS" AT HIS FORMER POSITION / FAILURE TO PROPERLY MANAGE THE BURSWOOD PROJECT - DECEMBER 1995

30. The applicant claimed that when he returned to his previous HDA position in Employer Services he found that certain aspects of the job had not been kept up to date in accordance with his own standards and that it "was in a mess", which he had to clean up. The Tribunal accepts that as the applicant's honest perception.

31. He was also extremely disappointed that the project of recruiting trainee croupiers for the Burswood Casino, which he feels he had pioneered, had declined substantially and he attributed this to mismanagement in his absence. The Tribunal finds that there had been a significant drop in demand from Burswood and that the applicant was upset about this. It also accepts the explanation by Ms Hodgson that this decline in demand had always been expected to occur when Burswood's requirement for a bulk recruitment of croupiers had been satisfied (Transcript p. 406).

32. The Tribunal finds that there was probably some merit in the perception of a failure to properly manage the Employer Services position in his absence. However, the applicant was soon provided with an assistant to put it in order and, even on his own evidence, this does not seem to have been a major stressor for him. The Tribunal accepts the evidence of Ms Hodgson, as confirmed in the statement of Paul Fahie, that the Burswood project was always intended to be scaled down.

THE DELTA PROJECT

33. In relation to the Delta project, the applicant claimed that the committee for assessing matters for presentation to the ACC failed to even examine a proposed project he submitted on behalf of Delta. On this matter, the Tribunal finds that it is true that the Delta proposal was not considered but it is also true that the proposed costing was so far outside the approved policy guidelines that failure to consider it was justifiable in the circumstances.

34. In response to a request by Delta for written notification of the refusal of their project and advice about their rights of appeal (Exhibit R2(a)) the applicant drafted a letter in response dated 9 October 1995 (Exhibit R2(b)) which he placed before Ms Binns to settle. Ms Binns rejected the draft and wrote a more formal response, deleting the attempts in the applicant's draft to express some sympathy with Delta's position.

35. After the alleged shock he suffered at hearing about his superiors' "perceptions" about him he was well enough to take positive action to seek out other references to continue with his application for the position at Coastal ACC. He favourably impressed an interview panel and was selected for the position.

PERCEPTION OF APPLICANT'S BIAS IN FAVOUR OF EMPLOYERS - FEBRUARY 1996

36. The final major stressor claimed by the applicant occurred after he asked Ms Hodgson for a reference in support of his application for an advertised position at Coastal ACC. She pointed out that the more appropriate referee would be Ms Binns, but suggested he should check with her about some negative perceptions Ms Binns held about him before requesting a reference. Ms Hodgson referred to the draft letter to Delta (Exhibit R2(b)) as the basis for a perception that the applicant identified more with the employers than with DEET. The applicant spoke with Ms Binns about this in February 1996 and she wrote notes of the interview which are in evidence (Exhibit R9). They discussed four of the applicant's projects in the NWO position and she told him why she had some reservations about his performance on each project. In general terms, the criticism seems to be that he acted more like a salesman of DEET's funding projects, without playing the firmer, less popular role of ensuring that the details of the proposals conformed with policy guidelines.

37. This revelation upset him and he met with Ms Binns. She gave evidence that during this interview the applicant was forceful and articulate in putting his own case. She saw no signs that he was in a state of anxiety, stress or depression, in fact quite the contrary. She saw him again about 10 days later at a promotional lunch, at which he sat at a table of businessmen and appeared quite normal.

38. The applicant claims that he was devastated to find that a perception had existed for some time that he was biased towards employers, with questionable loyalty to DEET, and he felt under great stress because he felt that such a perception could affect all future job applications. The Tribunal accepts that the applicant was disturbed to hear of these perceptions. On the other hand the Tribunal is favourably impressed by Ms Binns' well documented evidence and finds that she genuinely held the opinions she expressed and that they were formed on reasonable grounds. It accepts her evidence that she did not discuss these doubts about the applicant's attitude with Nicki Kelly or John Hawking before their meeting on 4 December 1995 which agreed, unanimously, that Ms Campanella should continue as the sole NWO officer for the remainder of that project.

39. One of the applicant's claims is that Ms Binns' failure to give him early feedback about her growing perception regarding his allegedly sympathetic identification with employers was one of the major stressors leading to his alleged stress condition. Ms Binns accepts that she could have given the feed back earlier but the Tribunal accepts her explanation that Ms Hodgson had already discussed the letter to Delta with the applicant and that her concerns about the other matters did not arise until January 1996. The matter was fully discussed with him in February 1996.

40. The discovery that his superiors had a perception that he was biased in favour of employers caused him some concern and anxiety which he acted upon in a healthy and positive way.

OVERVIEW OF EVIDENCE ON MEDICAL ISSUES

41. It is conceded by the applicant that he did not consult any medical practitioner or therapist about stress nor did he take time off work (apart from the month's unpaid leave from July to August 1995 previously discussed) prior to February 1996.

42. On 30 January 1996, the applicant visited Dr Wolman complaining of right elbow tendonitis and a stomach problem. The doctor has noted in the Progress Notes (SD, p.37) "long chat about issues at work". The applicant recalls that he mentioned various incidents at work including rotation without consultation, the discontinuance of his NWO job and the other events that had occurred in December 1996, when he discovered his supervisors' perception that he was biased towards employers. The applicant concedes that he did not at that stage attribute his symptoms to work-caused stress and nor did Dr Wolman do so. He proceeded with his application for a position at Coastal ACC, in which he was successful.

43. On 20 February 1996, on the first day of his 9 week appointment to Coastal ACC, the applicant developed pharyngitis which quickly developed into symptoms of a severe viral infection affecting his joints and muscles and digestive system. He took sick leave and during this period he was very weak and fatigued, requiring frequent treatment from his general practitioners, Doctors Wolman and Denz.

44. He was referred to Dr A Hayes for a dynamic whole body bone scan in an unsuccessful endeavour to find a physical cause for his problems. Dr Wolman also obtained various test results which eliminated any rheumatoid factor, Ross River Virus and inflammatory arthritis. On 10 April 1996 the applicant saw Dr Paul Zilko whose specialty is listed as "clinical immunology / allergy / rheumatology". Dr Zilko took the following history:

"...of musculoskeletal pain and fatigue over the last four months. He initially developed pain in his right elbow and forearm which never totally resolved and then about four weeks later came down with an illness which may have been due to an initial viral infection. He had a sore throat, myalgia, arthralgia and mild fever. Despite the throat symptom settling quickly the joint and muscle pains persisted and he later had transient diarrhoea and vomiting. His aches and pains have worsened and have been widespread particularly involving his wrists, elbows, shoulders, knees and ankles. He has never noticed any obvious joint swelling. He denies much in the way of early morning stiffness in his muscles and joints. He notes his symptoms tend to exacerbate as the day progresses. Inquiry reveals that his sleep is poor having trouble going to sleep often waking once or twice during the night and generally feeling unrefreshed in the morning. He has been bothered by persistent fatigue in recent months. He has noted weight loss of about one and a half stone in the last six weeks. He denies skin rash, mouth ulcers, eye inflammation or dyspnoea. There is no other past history of note and no family history of relevance. It is notable that he is a public servant working in the CES and there have been some major work stresses in recent months. He has been off work for the last four weeks because of his current symptoms."

45. Noting the "normal" tests results, Dr Zilko thought the clinical features were "most suggestive of generalised fibromyalgia and prescribed "a trial of prothiaden 25-50mg in an evening dose to see if this will improve his sleep quality". Dr Zilko expressed the opinion that:

"It seems likely that his symptoms started after a major unresolved conflict in his work activities. If this is the case it is likely that his recent illness is covered by workers compensation."

46. After receiving this opinion the applicant filed a claim for workers' compensation on 24 April 1996 for work-caused fibromyalgia. He described the history of the condition beginning with a "sore elbow then flu symptoms and then severe joint and muscle pains with almost complete lack of energy and some lack of eye focus". He described the effects as: "severe discomfort unable to lift, cannot concentrate, overall tiredness and lack of `staying power' ". He named Dr Zilko, Rheumatologist as his specialist. In an appendix to the claim form he wrote a detailed history of stress caused by failure to retain his temporary ASO5 appointment with NWO and by being told by a regional manager that "there is a widely held perception among Regional Managers that you (Ron Mitchell) tend to take the cause of the employer/sponsor over and above the DEET agenda ... and that view will pervade any application you may now make".

47. On 1 May 1996 Dr Zilko confirmed this diagnosis, after having excluded other possibilities by obtaining further "normal" test results. He increased the Prothiaden dose to 75mg at night to try to improve his sleeping.

48. On 5 May 1996 there is the first clear mention of work stress in the general practitioner's Progress Notes and Dr Denz (who from this date has managed the applicant's medical treatment) referred him to a clinical psychologist. The notes record that he is:

"4/5/96 Still not well, has depression, stress induced, related to Work Stresses, Physical Symptoms including myalgia, severe fatigue, poor sleep habit, eating OK, but losing weight, lost 10 kilos, still losing weight, Sex drive - poor. Present Meds - Prothiaden 25mg iii nocte (8pm) - Aurorix 300mg i bd 10am, 4pm. PLAN: Stay on Prothiaden at 75mg - i nocte. cease Aurorix gradually, i mane 7/7, then cease. Add Imovane 1/2 - i notce 20 R2. see me in 1 week. WP - "

49. On 9 May 1996 the applicant saw Mr Paul McEvoy, Clinical Psychologist. Mr McEvoy reported on 7 June 1996 that the applicant was:

"visibly tense, and recounted a sequence of events in his work over the past year which he believes have contributed significantly to a current high level of stress, exacerbating his fibromyalgia and susceptibility to repeated infections".

50. In the first part of his report he noted a history of the stressful events given by the applicant on 9 May as, firstly, the rotation from Employer Services about which Mr McEvoy recorded:

"He understood that he performed very well in this position, and was distressed when advised, in June 1995, that he was being removed from this area. He experienced his removal from this job as a slight on his achievements."

51. The second stressful event was noted as the discontinuance of his NWO appointment and he recorded the applicant's complaint about this as:

"When a review of resources resulted in a staff reduction in this area, Mr Mitchell was not appointed, he again experienced this as a slight, and devaluation of the efforts and achievements of his time in the position.

52. The third and final stressful event recorded by Mr McEvoy on 9 May concerned the perception of his bias in favour of employers which:

"came as a shock to Mr Mitchell and once again, was experienced as a severe slight."

53. Before his next visit to Mr McEvoy, on 31 May 1996, the applicant had been notified of the rejection of his workers' compensation claim and he showed documents related to that rejection to Mr McEvoy. Mr McEvoy completed his report of 7 June 1996 by, obligingly, noting his understanding of Comcare's reasoning that the legislation precludes payment of compensation if a stress condition arises from failure to obtain promotion. He then gave his own view that a:

"sequence of events has lead to his growing stress and disenchantment at work ... and involves broader issues than simply Mr Mitchell's failure to gain desired promotions".

This view was supported by reading the applicant's submission to supervisors dated 21 June 1995 (T3).

54. In September 1996, his Prothiaden was increased to 125mg. By October he was walking daily and suffering less fatigue but still suffered pain, referred to as myalgia, in his arms. In November 1996 the applicant visited Europe with his fiancé and Mr and Mrs Fahie, during which time he took himself off all medication. In cross examination he described his condition during this holiday as better, with less symptoms, but not totally resolved. He said that initially he had not considered himself fit for the trip but that Dr Denz suggested it might be good for him. He was recorded as being on recreation leave during the trip but considered himself to be still on sick leave.

55. After returning from the holiday he saw Dr Denz and discussed return to work. He was then examined by the Commonwealth Medical Officer Dr Dennis who reported on 13 December 1996 that he was fit to return to work at his new ASO4 level on a graduated basis. This occurred and after a few minor difficulties he resumed full time employment which he has continued with occasional time off.

56. Since the applicant's return to work several medical reports have been obtained in preparation for the hearing of his compensation claim. These include reports from:

* Dr B Singh (reports 2 and 30 May, and 11 July 1997) who diagnosed "mild obstructive sleep apnoea with upper airway resistance syndrome".

* Dr P Zilko (reports of 14 and 22 May 1997) who confirmed his diagnosis of fibromyalgia with, possibly, "low grade inflammatory synovitis contributing to his symptoms".

* Dr Galton-Fenzi, Specialist Occupational Physician dated 8 February 1997 and 1 January 1998 (Exhibit R13). Initially Dr Galton-Fenzi accepted the history given to him by the applicant and previous medical diagnoses and said that

It would also appear that Mr Mitchell is suffering from anxiety, apparently arising out of a stressful situation (from his perspective)"

although he seemed psychologically normal on the date of the consultation showing no "overt symptoms of depression or acute anxiety". On the physical level from his own examination and after reviewing other reports, he diagnosed localised

"musculo tendinous pain, specifically in the left levator scapulae muscles and the left long head of the biceps muscle, most likely caused by an increased psychological concern for general diffuse symptoms while under some distress"

The prognosis was that the situation could resolve in a few months or two to three years depending on the work environment. When writing this report Dr Galton-Fenzi was not aware of the existence of the doctor's progress notes at SD p.36-45.

* Dr Z Mustac (report 5 February 1997) Dr Mustac consulted with the applicant during the graduated return to work period, when he was working 3 hours per day. After examining previous medical reports and conducting a full consultation, Dr Mustac wrote a detailed report concluding that although psychologically normal at the time of the interview, the applicant had suffered from a mental illness - either a major depressive illness or an adjustment disorder with depression, which had been caused by stressful events at work which he detailed. The mental illness remitted spontaneously during November 1996 while he was overseas. When writing this report, Dr Mustac was not aware of the matters disclosed in the doctor's progress reports at SD p.36-45.

57. After the doctor's Progress Notes (Exhibit A6) were filed in September 1997, during the break in the proceedings, the respondent sought a further opinion from Doctors Galton-Fenzi and Mustac in the light of those progress notes. In a letter dated 26 November 1997, written to both doctors, the respondent enclosed the Progress Notes and relevant passages from the transcript of proceedings and asked the doctors for a fresh opinion. In response both doctors revised their previous written opinions substantially. Mr Stubbs sought leave to cross examine the doctors at the resumed hearing on 26 October 1998, and this was granted. He did not seek to file any further medical evidence on behalf of the applicant following these revised opinions.

58. Dr Mustac reported on 16 December 1997 (Exhibit R11) that in view of the new material, particularly the Doctors' Progress Notes, he now felt that the applicant had suffered from viral infection and not a depressive illness. Dr Mustac explained that he had previously understood that there had been a gradual onset of symptoms. When he saw, from the Doctor's clinical notes, that there had been a sudden onset on 20 February 1996, accompanied by a severe viral infection, he recognised a different pattern to the illness. He found that there were contra indications to a diagnosis of depressive illness, and that viral infection, post viral symptoms and mild sleep apnoea provided likely alternative explanations for all the major symptoms. He also noted that the dosage of Prothiaden of 75-100 milligrams was far below what would be required to control depression. It was a dosage suitable to assist sleep as frequently prescribed by rheumatologists and immunologists.

59. Despite rigorous cross examination, Dr Mustac remained quite confident that the applicant's symptoms from February 1996 onwards were attributable to illness arising from his viral infection - not depressive illness.

60. Dr Galton-Fenzi's report, in response to the respondent's letter of 26 November 1997 enclosing the doctors progress notes and other materials, is dated 1 January 1998 (Exhibit R13). Like Dr Mustac, Dr Galton-Fenzi changed his opinion after studying those materials and concluded that the applicant suffered and continues to suffer the after effects of:

"a moderate to severe viral infection causing arthralgia, myalgia and other features of chronic fatigue syndrome"

61. He changed his previous opinion that the applicant's condition was work related. On reconsideration, he was of the opinion that the applicant's distress was not caused by events in the work place but by the arthralgia, myalgia and fatigue which was not work related. Dr Galton-Fenzi remained firmly of this revised opinion throughout cross examination. Referring to his mention of anxiety in his earlier report, the doctor pointed out that he had been relying on the applicant's own statements and that he was not using the term in a psychiatric sense, as it was beyond his field of expertise.

62. After seeing the progress notes, both Dr Galton-Fenzi and Dr Mustac concluded that it was likely that all of the symptoms previously linked to a work caused stress condition were in fact the sequelae to the severe viral infection causing a condition of chronic fatigue and depressed mood. They maintained and firmed up on that view during cross examination in October 1998. They were both of the opinion that there was no medical or scientific basis for the proposition that work stress caused or acted as a contributing factor to the viral infection which in turn resulted in post viral fatigue and depression.

63. After exhaustively studying the Tribunal Documents, and all materials accepted into evidence, and after full consideration of the oral evidence and the submissions by both counsel, the Tribunal makes the following additional findings in relation to the applicant's medical condition.

STRESS AND OR DEPRESSIVE CONDITION PRIOR TO 20 FEBRUARY 1996

64. The Tribunal is not reasonably satisfied that the applicant suffered fibromyalgia or a medically recognisable stress, anxiety or depressive condition prior to 20 February 1996. There is scant mention of any symptom suggestive of stress, depression or anxiety in the clinical notes maintained by his general practitioners who treated him for a variety of physical complaints prior to February 1996, the first such mention being in Dr Wolman's notes of 30 January 1996.

65. He was not referred to the psychologist Dr McEvoy until May 1996, after the claim for worker's compensation had been made. The Tribunal puts considerable weight on the general practitioners' notes contained in Exhibit A6, pp. 36-45, covering the period to 20 February 1996.

66. The evidence concerning the applicant's workplace shows that there were several matters which disturbed him but there is insufficient evidence to show he demonstrated signs of severe stress or anxiety. On the contrary, the evidence is that he continued to work effectively and felt he was performing well, applying for and winning promotions. He sought and received favourable references from his superior officers during this process.

1. SYMPTOMS AFTER 20 FEBRUARY 1996

67. On 20 February 1996 the applicant did became seriously ill with some form of viral infection. The primary symptoms lasted for several weeks, after which he suffered on-going symptoms of fatigue, depression and aches and pains in his limbs and joints. He lost weight, while maintaining a reasonably good appetite. He also continued to have poor sleep patterns and was treated for the virus and with small doses of Prothiaden, an antidepressant, in an attempt to improve his sleep. The Prothiaden was later increased to 125ml as a way of improving the quality of his sleep. On the evidence of Dr Mustac, the Tribunal finds that this dosage of Prothiaden is well below that which would be prescribed for treatment of a depressive condition. His condition gradually improved towards the end of 1996, becoming much better during his overseas trip in December 1996 and he returned to work in early 1997. On the 2 May 1997, he was diagnosed as suffering from long standing sleep apnoea and treated for it with some success.

68. On the strength of the opinions of Drs Galton-Fenzi and Mustac and after re-examining the reports of the other doctors, the Tribunal is not reasonably satisfied that, during the period for which the claim is made, the applicant suffered from any medical condition arising out of, or in the course, of his employment. There is insufficient evidence to indicate that the stressors caused or contributed to the viral infection which manifested on that date.

69. Mr Stubbs points to references about depression, stress and stress caused by fibromyalgia in the medical reports of doctors and specialists who examined the applicant after he lodged his claim for workers compensation in April 1996. He asks the Tribunal to find that there was such a condition and that it was related to work place stress prior to 20 February 1996. He submitted that depressive symptoms during the applicant's viral condition, and continuing symptoms suffered after the virus had apparently run its course (by March 1996) arose from, or were contributed to by, the pre February 1996 stressors referred to above. When pressed by the Tribunal, Mr Stubbs found it very difficult to put a medically recognised name to the condition which was initially claimed as fibromyalgia.

70. He concedes that the relatively minor stressors, which he claims all occurred before 20 February 1996, had not resulted in any form of stress, anxiety, depression or fibromyalgic condition by 20 February, but says that the definition of an injury under the Act encompasses a situation where one may be suffering from a non work-related viral infection which is then aggravated by a prior spiral of work related stress, the stress and the viral condition then feeding off each other. He conceded that the applicant was not able to prove that the viral infection was work-caused. He asked the Tribunal to find that his state of health during his post viral condition caused the earlier minor work stressors to take on greater significance in the applicant's mind and that this resulted in the stress/fibromyalgia/anxiety/depressive condition which caused the incapacity to work (Transcript, p. 643-644). He seemed to be submitting that the earlier minor work stressors in some way created the necessary nexus between the post February 1996 symptoms and the employment. If that is the import of Mr Stubbs' submission, the Tribunal rejects it. If those were the circumstances (which is not the finding of the Tribunal), the cause of the incapacity would still be the viral infection which has caused earlier minor work-caused stressors to take on added significance in the applicant's mind.

71. Mr Lenczner, for the respondent, submits that the symptoms (which he does not admit) suffered by the applicant are more probably the familiar sequelae to some types of viral infection, which symptoms are sometimes referred to as chronic fatigue syndrome. He says all the claimed symptoms are easily attributable to the viral infection and its sequelae, with no contribution from the applicant's employment. He also submits that some of the alleged injuries are in any event not compensable. For instance, he asks the Tribunal to find that any stress related to the rotation of the applicant into a different position and to the curtailment of a Higher Duties position are excluded from the definition of "injury" as they relate to the failure to obtain a benefit. He also submits, on the facts, that some of the applicants' alleged stress arose from his erroneous perceptions about events and accordingly are not compensable.

72. It seems probable that between 20 February 1996 and November 1996 the applicant was suffering from a serious viral infection and its sequelae which included something like chronic fatigue and depression. During his overseas trip in November/December 1996 he made a substantial recovery from this condition which enabled him to undergo a graduated return to work, resuming full duties early in 1997. During 1995, decisions and incidents at his workplace caused the applicant some emotional disturbances, including anger, a feeling of frustration, resentment, and disappointment. These feelings did not amount to a medical or psychological condition of stress, anxiety or depression or any similar or related medical condition. He continued to function effectively in his work and neither sought nor obtained psychological counselling or treatment for a stress related condition prior to about May 1996, when he was referred to Mr McEvoy.

73. After he began to claim compensation for a work related stress condition, his initial complaints concerned failure to obtain a benefit, and it was not until rejection of his claim with reference to the definition of "injury" in s. 4 of the Act, that he began to put significant emphasis on the alleged failure of consultation (see para. 20 of the statement submitted by the respondent pursuant to s.37 of the Act). The Tribunal acknowledges the references by several doctors to the history of work place stress given to them by the applicant and diagnosed respectively: "susceptible to stress" (Mr McEvoy, who accepted Dr Zilko's diagnosis), fibromyalgia (Dr Zilko), "depressive illness, now resolved" (Dr Mustac) and "anxiety arising out of a stressful situation and myofacial pain - not fybromyalgia" (Dr Galton-Fenzi). These specialists relied upon the history given to them by the applicant and the referral from the general practitioners. They were not shown the general practitioners' notes detailing the viral condition and were not given that history (in any detail) by the applicant. In fact, Dr Wolman provided an open report dated 2 June 1996 which linked the applicant's fatigue and depression with work-caused stress, but did not mention the crucial fact that he had been treating the applicant for a severe viral infection just prior to the onset of these symptoms. The symptoms now claimed as work-caused resulted from the viral infection and its aftermath.

74. In summary, then, the Tribunal finds that:

(a) between June 1995 and 20 February 1996, the applicant was subjected to a number of stressful situations (stressors) arising out of his employment with DEETYA. These stressors caused him some emotional disturbance but as at 20 February 1996 had not caused the development of any medically diagnosable stress-related condition, and he remained capable of full time employment with DEETYA, and was so employed.

(b) On 20 February 1996, he suffered the sudden onslaught of a severe viral infection of unknown causes not arising from or in the course of his employment. He took sick leave until December 1996 during which he was treated for the virus and for subsequent symptoms of fatigue, depression and aching joints.

(c) In April 1996 he claimed worker's compensation for fibromyalgia and related the history of the alleged pre-February 1996 work-caused stressors.

(d) During December 1996 he substantially recovered from his symptoms and made a graduated return to full time employment commencing in January 1997.

(e) The claimed stressors did not cause him to suffer a stress related condition of any description and he was fit for work and functioning effectively until smitten with the viral infection on 20 February 1996.

(f) In the light of these findings it is not necessary for the Tribunal to make more detailed findings about the truth or otherwise of the applicant's statements about the various alleged stressors.

75. For the reasons set out above the Tribunal is satisfied that the applicant did not suffer an injury or disease, including stress, anxiety, depressive or fibromyalgic condition, arising out of or in the course of his employment by the respondent. Accordingly, the respondent is not liable to compensate the applicant under the Act.

DECISION

76. The decision under review is affirmed.

77. There be no order as to costs.

I certify that this and the 24 preceding pages are a true copy of the decision and reasons for decision herein of Deputy President T E Barnett OBE, and Dr P A Staer (Member)

Signed: ................ R Johnston...........................

(Associate)

Date/s of Hearing 22, 23, 24, 25 September 1997;

26, 27 October 1998

Date of Decision 14 January 1999

Counsel for the Applicant Mr G Stubbs

Solicitor for Applicant Dwyer Durack

Counsel for the Respondent Mr J Lenczner

Solicitor for the Respondent Ms A Van den Brun,

Office of the Australian Government Solicitor