Arulanantham and Comcare [2000] AATA 92 (11 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL )

) N^o V1998/197

GENERAL APPEALS DIVISION )

Re Alvappiliai ARULANANTHAM

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member, Mr A Argent, Member

Date 11 February 2000

Place Melbourne

Decision 1. The Tribunal sets aside the reviewable decision and in substitution decides that the episode of depressive illness for which the applicant first sought medical treatment on 9 November 1996, including the attempted suicide on 3 January 1997, is an injury within the meaning of that term in s 4 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). 2. The applicant is entitled to compensation for incapacity for work and the cost of medical treatment in respect of that condition from 9 November 1996. 3. The Tribunal reserves liberty to the parties to apply should clarification of any aspect of this decision be required in order to calculate the compensation to which the applicant is entitled. 4. The Tribunal orders under s 67(8) of the Act that the respondent pay the costs of this application incurred by the applicant.

(Sgnd) Joan Dwyer

Senior Member

COMPENSATION - stress, depression, physical injury - attempted suicide - whether injury intentionally self-inflicted - whether condition contributed to in a material degree by applicant's employment - prior incident of depression - whether condition pre-existing - decision set aside

WORDS AND PHRASES - Commonwealth as Model Litigant

Safety, Rehabilitation and Compensation Act 1988 s 14(1) and (2)

Federal Broom Co v Semlitch (1964) 110 CLR 626

Re Wilson and Reserve Bank of Australia (AAT 13449, 16 November 1998)

Australian Telecommunicasions Commission v Tzikas (1985) 5 AAR 173

Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533

Lees v Comcare (1999) 29 AAR 350

Re Polites;Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78

REASONS FOR DECISION

11 February 2000 Mrs Joan Dwyer, Senior Member Mr A Argent, Member

1. This hearing commenced on Tuesday, 7 September 1999 and continued on Wednesday, 8 September 1999. At the conclusion of the applicant's case on the second day of hearing the matter had to be adjourned. The respondent's solicitors in a hearing certificate, and by telephone on 27 September, advised that two further hearing days were required. It was not possible to find suitable dates until 7 and 8 February 2000. Unfortunately the term of Mr Brassil, one of the three members of the Tribunal, expired on 1 February 2000. The Tribunal contacted the parties on 15 November 1999 asking whether it was possible to find resumed hearing dates before his appointment expired. The Tribunal was informed that this was not possible, but the parties consented in writing to the matter proceeding before the remaining two Members, Senior Member Dwyer and Mr Argent, Member. When the matter resumed less than one further day was required as it transpired from the statement of evidence of the respondent's witnesses that there was no dispute as to the circumstances which existed in the workplace. The matter could have concluded in one additional half day. It should have been possible for that half day to have been found long before Mr Brassil's term expired, and without subjecting Mr Arulanantham to such a long delay in the finalisation of his application.

2. The application is for review of a reviewable decision made under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") on 16 February 1998. That decision affirmed an earlier determination of 17 September 1997 denying liability to pay compensation in respect of "stress, anxiety and depression".

3. Mr L Paine of Counsel appeared for the applicant. Mr M McInnis of Counsel appeared for the respondent. Mr Arulanantham gave evidence. Evidence on his behalf was also given by his treating general practitioner, Dr Owen, and by Dr Cooper, a psychiatrist, Dr Epstein, a psychiatrist, and Dr Sathia-Nathan, a general practitioner and second cousin of Mr Arulanantham. The respondent called Mr Shatte, who had been Mr Arulanantham's team leader at the relevant time and Mr Carfi, a psychologist, as well as Dr Strauss, a psychiatrist. There was short cross-examination of Mr Shatte. Mr Carfi was not required by Mr Paine for cross-examination. At the hearing the Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits lodged during the hearing. The T documents included an incomplete copy of T23. A full copy was provided at the request of the Tribunal and has been added to the T documents at the appropriate place.

4. Mr Arulanantham on 1 July 1997 claimed compensation for incapacity for work resulting from work related stress, anxiety and depression and also for physical injuries and permanent scarring resulting from an attempted suicide by burning. Mr Arulanantham at the relevant time was employed by the Australian Tax Office ("ATO") in the Child Support Agency ("CSA"), as an Administrative Services Officer. He had been employed by the ATO since 27 April 1987. In 1996 that he was promoted to an ASO 3 position with the CSA. In his claim he stated that he first sought medical treatment for the condition on 9 November 1996. Tragically, on 3 January 1997 he attempted suicide by self immolation. He was admitted to the Alfred Hospital until 1 April 1997, with 23% burns to his body. He was then transferred to the Caulfield Rehabilitation Hospital from which he was discharged on 12 May 1997. He then had further hospitalisations for skin grafts. At the time of the first two days of hearing Mr Arulanantham had made a very substantial, although not complete recovery. He was back working with the ATO but in a different position, working four full days a week. By the time of the resumed hearing he was working full-time but still on alternative duties.

5. In his statement in support of his claim for compensation Mr Arulanantham wrote:

I was promoted to the Child Support Agency Box Hill ATO in June 1996. From the onset, the pressure of the work, the lack of adequate training, the pressure cooker nature of the work (in particular the telephone enquiries) became horribly apparent.

This placed me in a situation of continual stress leading to anxiety and eventually to deep depression.

As a result I attempted suicide early this year by self immolation. I now am permanently scarred on my upper torso, neck, ear, the side of my face and my scalp.

6. It was clear from the T documents that Mr Arulanantham's team leader, and other staff at the CSA, were aware that Mr Arulanantham (who was known at work as "Arul") found his telephone duties stressful. This was set out in a statement by his team leader, Mr Shatte (T11 pp21-23) dated 25 July 1997, which reads in part:

Sometime between the 23 September and the 4 of October 1996 it was agreed that Arul should perform a shift on the enquiry phones. Arul performed about half of the shift and explained to the Complex Case Officer that he was experiencing difficulties answering the clients queries on his own. The Complex Case Officer completed the shift on Arul's behalf.

Upon the completion of the shift the complex case officer and I spoke briefly about the situation and it was thought that Arul didn't finish the shift because he felt he was not in control of the situation as the clients were calling in with various questions at random which did not give him a great deal of time to prepare a response.

Subsequently Arul and I had further discussions about the fact that he had not completed his phone shift and again it was my understanding that he felt he had insufficient knowledge to deal with all the queries. I again explained this was not required of him, that he should advise the client immediately he was relatively new to CSA and if he experienced further difficulties in responding he should simply say that he would need to seek advice and request the client wait while he obtain the information from a more experienced staff member.

At this point in time discussions with Arul were becoming quite difficult as he was not responding to my questions and on occasions he would simply stare past me as if I was not even in the room.

I spent some considerable time with Arul working out systems of how to go about dealing with incoming calls and how he should not feel embarrassed about admitting he did not have all the answers.

Arul told me he was not a person who shirked his responsibilities and that in every position he had held previously he considered himself to be a hard worker and had always been an integral part of the team.

I assured Arul that I did not think he was shirking his responsibilities and I also assured him that the team did not consider that he was not pulling his weight. I also pointed out that team one in fact was most supportive and were only too aware that new staff sometimes required assistance with the enquiry phones and that they were prepared to extend this assistance.

It was agreed after this conversation that Arul share a shift with a part time employee in team one. Between them they would complete the four hour phone shift.

This arrangement commenced on 8 and 9 October and this system stayed in place through to November. It appeared to have solved Arul's problem.

However it was brought to my attention that Arul had taken sick leave on some of the days he was rostered onto the enquiry phones. These dates were the 18 and 19 of November.

When Arul returned on the 20 November we again talked about the situation. Arul again was not very talkative and it took some considerable time before he told me he was experiencing difficulties with the work in a manner that it was upsetting him to be involved in other peoples problems of this nature.

We had a very long discussion about this as a number of staff come across this problem and that it was a good thing that he had discovered this early. Recognising that there was a problem was half the battle and Arul seemed to take some comfort from the fact that other CSA staff had at one stage or another experienced these feelings.

We again went through the process of how to deal with the situation and how he could develop some ways in which to be able to switch off from work and leave it behind at the office. We developed a system whereby he could place clients on hold while he went about discussing the problem with other staff and I assured him I was always within reach and would be available should he require any assistance.

7. In rejecting Mr Arulanantham's claim for compensation the primary decision-maker relied on a psychological report from Mr Gus Carfi, a consulting psychologist and rehabilitation provider, who spoke to Mr Arulanantham and to his treating general practitioner, Dr Owen, and psychiatrist, Dr Cooper, as well as his team leader, Mr Shatte, another colleague, Mr Robertson, and the ATO Box-Hill Case Manager, Ms Bradley.

8. Mr Carfi's report as to the information given to him by Mr Shatte was essentially similar to that set out in Mr Shatte's own statement at T11. Mr Carfi set out Mr Shatte's summary of the problems as follows:

Mr Shatte stated that when Mr Arulanantham was the one who contacted clients he coped well, but if he was to be on enquiries and receive calls from clients he did not cope. He was concerned that he did not have enough knowledge to effectively deal with ad hoc enquiries. Mr Arulanantham also felt as a result of his lack of knowledge he was not "pulling his weight on the team". However Mr Shatte told him he was functioning effectively and he was not expected to be able to handle all the enquiries.

9. Mr Robertson who was a colleague of Mr Arulanantham within the CSA and also the union delegate, told Mr Carfi that he had observed that Mr Arulanantham had difficulties taking calls by himself, and that he had been given extra training and support and reassurance. Mr Carfi wrote that Mr Robertson told him:

. . . [D]espite great support from colleagues complex case managers and the team leader [Mr Arulanantham] continued to worry about his performance. Late in 1996 Mr Robertson stated that [Mr Arulanantham] went off work but gave no indication that he would do this, nor did he give any indication that [he] would be self destructive.

Mr Robertson stated that he believed working at CSA caused [Mr Arulanantham] to be stressed but he further stated that [Mr Arulanantham] was never forced to do the work, was given ample support and was not pressured to take phone enquiries. He stated [Mr Arulanantham] was given ample opportunity to take his time in learning and undertaking the work and that as the Union delegate he would have ensured this would have happened anyway.

10. Mr Carfi concluded at p8 of his report, T docs p39:

[Mr Arulanantham] on two occasions had perceived his work environment as difficult and has on two occasions suffered severe depression that has caused him to behave in an irrational and psychotic matter. His current illness is as a result of [Mr Arulanantham] feeling placed under pressure at CSA and fearing he could not cope he began to suffer depression which ultimately led him to attempt suicide by self immolation.

In regard to his work environment, I found that the work environment at CSA was in fact a difficult one, as acknowledged by staff I spoke to at CSA. However, I was greatly impressed by the effort and resources that had been put in place by the ATO to provide support to staff who worked in the demanding CSA area. I was greatly impressed by the efforts of Mr Shatte and those like Mr Robertson who made great efforts to support CSA staff generally and [Mr Arulanantham] specifically. I found that [Mr Arulanantham] was given ample support in undertaking his role at CSA and that no undue pressure was placed on [Mr Arulanantham] to undertake aspects of the work that he found distressing.

Given the degree of support that existed and the lack of pressure which mean that [Mr Arulanantham] did not have to undertake phone enquiries if he felt unable, I find it difficult to comprehend why [Mr Arulanantham's] Psychological [sic] state deteriorated to the extent that it did. It would appear that the demands of the work that he was doing are not commensurate with the degree of distress [Mr Arulanantham] felt and the eventual action he took in trying to end his life.

I would suggest that [Mr Arulanantham] has suffered and continues to suffer a vulnerability to work pressure that sees him lose his ability to function rationally and sees him develop great anxiety which then manifests itself as a severe depression. This illness is likely to occur when he is placed under pressure regardless of whether the pressure is generated by work issues or personal issues. [Mr Arulanantham] does not appear to have enough personal coping skills to assist him to deal with crisis situations effectively and this appears to be a long standing issue for [Mr Arulanantham] that predates his employment at CSA.

11. The primary decision-maker stated (T docs p42):

In determining your claim, I must consider whether your condition was contributed to in a material degree by your employment - specifically, out of something that you were reasonably required, authorised or expected to do in order to carry out your duties. I must also consider whether it has been established that there has been any breach of due process, or any unreasonable expectation placed on you in the workplace. This is based on the High Court's interpretation of employment in Federal Broom Company Pty Ltd v Semlich (1964) CLR 626.

There is nothing in Federal Broom Company Pty Ltd v Semlich (1964) CLR 626 which limits a worker's entitlement to compensation to circumstances where there has been any breach of due process or any unreasonable expectation placed on a worker in the workplace. Halsbury's Laws of Australia Sydney Butterworths 1991- 1^st edtn at [450-17] states:

[450-1] Definition Worker's compensation is a statutory system of compensation for work related injuries. It does not depend on the existence of any form of fault.

12. As the Tribunal pointed out in Re Wilson and Reserve Bank of Australia (AAT 13449, 16 November 1998), it is inappropriate that primary decision-makers should refuse claims for compensation because of a mistaken understanding as to basic compensation law. It was no part of Mr Arulanantham's case that there was any fault or blame to be attached to his supervisor or manager or colleagues. He said his supervisor, Mr Shatte, was always supportive and his other work colleagues were helpful. But it was his case that there was an aspect of the work he was required to perform, namely his duties answering telephone enquiries, which caused him to worry excessively and to suffer stress, anxiety and depression.

13. Mr Carfi's comment that there had been two occasions when Mr Arulanantham had perceived his work environment as difficult and had suffered severe depression, was a reference to an earlier incident in 1990 when Mr Arulanantham was working at the ATO. No claim was made in respect of that incident but Mr Arulanantham was hospitalised at Plenty Hospital for six weeks. He subsequently resumed his normal duties. From April 1990 until mid 1995 Mr Arulanantham was prescribed Prozac.

14. The respondent in its Statement of Facts and Contentions alleged first that Mr Arulanantham did not suffer an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). Secondly, the respondent contended that any ailment or aggravation of any ailment suffered by the applicant was not contributed to in a material degree by the applicant's employment by the Commonwealth. Thirdly, the respondent contended that the applicant's injury was intentionally self-inflicted and therefore under s 14(2) of the Act compensation was not payable in respect of the injury. Section 14(1) and (2) provide as follows:

14. (1) 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.

(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.

15. Dr Strauss in his report of 22 July 1998 (R1) wrote:

When he attempted suicide he was acting irrationally in my opinion and he was not in control of his own volition and this led to his suicide attempt.

Thus the respondent's advice from its expert witness was that the injury was not intentionally self-inflicted. It is difficult to see what the basis was for the respondent's third contention.

16. Mr McInnis cross-examined Mr Arulanantham at some length about the circumstances of the attempted suicide. He also cross-examined Dr Epstein about the issue. Dr Epstein explained that these events are really outside the whole area of logic. He said:

. . . I have the view which is discussed in the literature that some people seem to be overcome by a suicidal storm and commit suicide often quite unexpectedly and often in quite a bizarre way and that by contrast people who I see as in the midst of a high level of distress are doing what is called a cry for help, generally they do things like slashing themselves often not in a particularly severe way, taking a small overdose, getting very drunk, maybe driving the car off at high speed but the behaviour in itself is not necessarily going to necessarily lead to any harm. It is like there is still some logical activity going on that says well, I am doing this as a cry of help but don't want to actually hurt myself in the process. Now, clearly this was not in this category. (Trans, p.18)

That reference to "a suicidal storm" seems an apt way to describe the irrational conduct of Mr Arulanantham when he attempted to commit suicide at a time of severe depression. Dr Epstein and Dr Strauss agreed that the conduct was not that of a man in control of his own volition.

17. Mr McInnis said in his final submission that in view of Dr Strauss' opinion expressed in his report of 22 July 1998, the respondent no longer relied on the s 14 point. We consider the concession was clearly correct. We do not understand why it was not made earlier.

18. The central issue is whether the episode of depression, for which Mr Arulanantham first sought medical treatment on 9 November 1996 was contributed to in a material way by his employment with the CSA, and in particular by his telephone duties dealing with client enquiries and complaints. Mr Arulanantham said he started with the CSA in the first week of June 1996. He had some training which included training for telephone duties called "buddying". It consists of listening into experienced officers answering telephone enquiries. Mr Arulanantham did not actually commence on the telephones answering clients questions and complaints himself until 2 October (Ex. R10 Attachment 4). When he was asked "how did it go on the phones?" he replied (trans. p25):

I found it I couldn't answer many questions because I was not sure of the answers. I found I had to seek some assistance from other people, disturbing them all the time.

Did this worry you that you had to seek assistance?---It worried me because of my past record I always very good earlier and all - I had a very good record where I did my duty to the best, and here I found that I was not able to cope.

Mr Arulanantham said that he told his team leader, Mr Shatte, that he was finding it difficult. Mr Shatte explained that this happened to many people, but not to worry about it. He also offered to reduce his time on telephone shifts from four hours to two hours, and this was done.

19. Mr Arulanantham said that with the two hour shifts he felt a bit better than he had with four hour shifts. He said if he did not know the answer to a question he would get up and see which staff member was free. He would then explain the question to the staff member and ask what the correct reply would be. He said he had clients who would raise their voice and complain that he was slow in answering his questions and he found that unpleasant. It concerned him "a big lot" (trans. p26).

20. Mr Arulanantham described one occasion in October 1996 when he was by himself on the telephones, because the other staff were at a meeting. He said that one particular person asked a number of questions, one after another, and he could answer the first with difficulty, but as the person kept on asking, the questions became more difficult. Mr Arulanantham said (trans. p26):

So I kept on going, going, until in the end I found it was terrible.

He said he told people at work that he was not ready with answers for telephone enquiries and they understood that was a problem for him. He also sought medical help. Mr Arulanantham saw Dr Owen on 9 November 1996 and told him that he found work troublesome because of the stresses. He said he was having difficulty sleeping and that made it worse. Dr Owen's clinical notes of 9 November 1996 confirm that account. They read:

Increase in depression with some negative recurring thoughts, rumination trouble sleeping, got promotion at work but more stress.

Dr Owen gave Mr Arulanantham a medical certificate for time off work from 11 to 15 November 1996. He also told him to resume taking Prozac which he had ceased in mid 1995.

21. Mr Arulanantham said he took some time off work and he also tried to avoid days when he was rostered for phone duties by taking sick leave on those days. He returned to Dr Owen on 15, 19, 26 and 28 November and on 3, 7 and 19 December. Dr Owen asked Mr Arulanantham to increase his dose of Prozac to two a day and raised the possibility of a referral to a psychiatrist. Mr Arulanantham found that two Prozac a day made him feel funny. He continued working for about four weeks and then a roster was passed around asking people to indicate when they would be working over the Christmas period so they could be rostered on the telephones. Mr Arulanantham explained that he put his name on the roster. He said (trans. p27):

I thought it's not proper for me as a member of the staff there to avoid this. So I put my name in a couple of shifts and then I thought: oh, I can't cope with that, and I went to Dr Owen and sought a medical certificate, that if I remain it will be worse and he gave me a medical certificate for a longer duration.

22. On 19 December 1996 Dr Owen's notes read:

Seen alone, taking two prozac a day, still trouble sleeping, still has difficulty coping with work, diagnosis still depression.

Mr Arulanantham was given a certificate for time off work on 19 and 20 December.

23. Mr Arulanantham said that in the middle of December he was given a certificate for time off work until 10 January 1997. That is not apparent from Dr Owen's notes but the sick leave records (R5) show that Mr Arulanantham was on sick leave and public holidays from 19 December 1996 until after the incident on 3 January 1997.

24. Mr Arulanantham said that by the time he stopped work in December he had lost a considerable amount of weight. He said he had gone down from 85 to about 50kg, he could not sleep and he was worried about everything (trans. p28), "about my life, about my future, all I'm going back to work . . . I was in a mess. . . . specially at the time when Christmas was around and all the people were rejoicing. I found it very, very painful." The attempted suicide occurred on 3 January 1997 before Mr Arulanantham was due to return to work.

25. Mr McInnis in cross-examination emphasised the fact that during the 1990 episode, Mr Arulanantham was first treated by his relative, Dr Sathia-Nathan, and even stayed for a short time with him and his wife, who is also a doctor, rather than in his small flat with his wife and two children. The evidence establishes that Mr Arulanantham was then admitted to Plenty Hospital, where he remained for approximately six weeks. We see no significance in the fact that prior to that admission he had obtained advice and support from Dr Sathia-Nathan. A letter of referral from Dr Shields, a psychiatrist, to Dr Owen was received in evidence (part of exhibit A5). It is undated but was sent about September 1994. It confirms that Mr Arulanantham had a first major depressive episode in 1990 which required a six week admission to Plenty Hospital from 24 April 1990 to 14 June 1990. It reads in part as follows:

Arul has a psychiatric history of a first major depressive episode in 1990 which required a six week admission to Plenty Hospital 24/4/90 - 14/6/90. This was apparently precipitated by work stress. Response to T.C. As was inadequate, but at least partial remission was attained with nine E.C.Ts.

He has been followed up at this Clinic ever since. He was maintained on Amitriptyline 175-250mg/d till November, 1993, when this was changed to Clomipramine 250mg/d, supplemented by irregular small doses of Alprazolam.

When I took over his medical management in February, 1994, it was apparent that he was still suffering from chronic mild major depression, with persistent depressive ruminations and obsessional concerns about work performance. . . .

Clomipramine was withdrawn uneventfully in March, 1994, and Fluoxetine 20mg mane commenced 23/3/94. Within two weeks the residual mild major depressive symptoms had resolved completely and Arul was saying he felt his best in years. . . . These improvements have been maintained at follow up in May and June.

In my opinion Arul will need continuation and probably maintenance antidepressant medication for some time, particularly in view of the previous duration of symptoms, but as our service is now directed by government policy to concentrate on providing case-management to individuals with serious mental illness, and he clearly now does not fit this category, I have asked him to obtain follow up in the private sector. If you could continue to prescribe the Fluoxetine for now, I would suggest referral to a private psychiatrist, say early next year, to advise on the need for continuing medication.

26. Mr Arulanantham agreed in cross-examination that when he applied for the job with the CSA he knew it involved dealing with queries from the public on the telephone, and that one of the questions asked during the interview process was "what would happen if you had an aggressive client on the phone or at the counter".

27. Mr Arulanantham confirmed in evidence that he did not have any problems with Mr Shatte or with any of the other people with whom he was worked. He said (trans. p65) "Mr Shatte was a very nice man, gentleman, very helpful and all the other officers they were good to me." Mr Arulanantham also agreed that there was a buddy system where a new person on the telephone enquiry line could sit with an experienced operator who took the call, so that the new person could listen. Then, at the end of the conversation the experienced officer discussed what had happened, and the advice given, with the inexperienced officer. Mr Arulanantham agreed in substance, but said that one cannot always have that discussion with the experienced officer because sometimes other calls come in before the explanation of the last one.

28. Mr Arulanantham agreed that it was probably not until 2 October 1996 that he logged on to take telephone calls himself. He agreed that even in that situation there were people around of whom he could ask questions at any time, simply by putting the caller on hold except for the one occasion in October when everyone else was at a meeting. He also said that even when he answered calls a more experienced officer would sometimes sit next to him and listen while he took the call, and dealt with it, and help him if necessary.

29. Mr Arulanantham did not dispute that after he had told one of the complex case officers, Ms Paris, that he had difficulties answering questions on his own, she completed the shift on his behalf. He confirmed that he had a discussion with Mr Shatte in which he told him that he was not feeling in control of the situation and felt uncomfortable about not knowing the answer to questions. Mr Arulanantham said that he explained to Mr Shatte that he had never had to shirk his responsibility in the past, and that he wanted to do a good job and did not want to give off-hand answers and unprepared answers or half answers. He explained that he himself was not happy with his own reaction to the clients.

30. Mr Arulanantham did not disagree with Mr Shatte's statement that he probably only did six two hour shifts on the telephone on his own. However exhibit R10 attachment 3, to which reference is made later in these reasons, indicates that is an understatement of the number of shifts and that some were more than two hours. Nor did Mr Arulanantham disagree with what Mr Robertson is reported as having told Mr Carfi, namely that he was good at undertaking processing work and appeared to cope well with enquiries on the telephone when partnered by somebody else, but had difficulty taking calls by himself. Mr Arulanantham said that Mr Robertson suggested to the team leader Mr Shatte, that he be removed from the telephones and be given extra training. That was done by providing a special computer program where he could study the CSA system chapter by chapter.

31. When Mr McInnis put to Mr Arulanantham that Mr Robertson had told Mr Carfi that he thought Mr Arulanantham was stressed by the work, but was never forced to do the work and was given ample support and not pressured to take telephone enquiries, Mr Arulanantham responded (trans. p80):

Yes, I was not pressured but I was under pressure.

32. In re-examination Mr Arulanantham said that once his time on the enquiry line was reduced to two hours per shift, there was no buddy sitting with him. The Tribunal asked Mr Arulanantham how often he had to put somebody on hold while he went to ask somebody the question. He said that unfortunately he may sometimes have had to put one client on hold a couple of times during the same conversation. He said he felt that was very bad. He said sometimes when he had somebody on hold, all the other staff close to him, whom he could ask for advice were occupied, so he had to walk to the other side of the area to find somebody who was free to advise him. Mr Arulanantham said people could be abusive and aggressive if he did not answer a question properly, or if the arrears of child support were high, or if they did not have money and were in dire necessity. He said a significant proportion of the calls received in the CSA were from people who were complaining about the system.

33. Mr Arulanantham said that you were not supposed to get somebody's telephone number and then get the necessary information and ring them back. He said what you were meant to do was leave them hanging on while you went to find the answer. He said he had never rung somebody back because, "we are not expected to do that." He said the normal practice was that you give them their answer and solve the problem during their telephone call.

34. We are puzzled as to why there was any dispute before us as to the fact that Mr Arulanantham's duties, when he was required to deal with clients' telephone complaints and queries, caused him stress and anxiety as he claimed in his claim form. That was clearly acknowledged by Mr Shatte in his statement of 25 July 1997 (T11), quoted in paragraph 6 above, and by Mr Shatte, and Mr Robertson, in their discussions with Mr Carfi (T15). It is true that Mr Shatte and Mr Robertson also pointed out that Mr Arulanantham was given every possible support, and that the degree of anxiety he developed seemed out of proportion to the stress of the employment. But those matters, as we would expect the respondent to be well aware, do not reduce an employer's liability under s 14 of the Act. The caring and supportive approach of Mr Shatte and others within the CSA is to be commended. It may, with a less vulnerable employee, have enabled him to cope with the stress and anxiety without suffering injury. But if it does not do so, then any resulting incapacity is clearly compensable.

35. During the hearing Mr McInnis submitted that Mr Arulanantham's credit was in issue in that he had exaggerated the stress he was under in his claim form, and had further exaggerated his case by stating that he had lost significant weight before his hospital admission. The comment relied on as exaggeration in the claim form was that set out above in paragraph 5 of these reasons. Mr Arulanantham wrote that "from the onset" of his transfer to the CSA, "the pressure of the work, the lack of adequate training, the pressure cooker nature of the work (in particular the telephone enquiries) became horribly apparent". Mr Arulanantham agreed with Mr McInnis that he did not work on the telephone lines on his own until October 1996, and that that was the aspect of his work which was most stressful to him. However it is clear from the statement of evidence of Mr McInnis' witness Mr Shatte, paragraphs 12, 13, 22 and 24 (R9) that the work in the CSA can be stressful and that he noticed, as early as July that Mr Arulanantham was having some concerns about the telephone work, even though at that stage he was buddying rather than answering telephones on his own.

36. As to the issue of Mr Arulanantham's weight loss, he said he had lost weight from 85 to about 50 kilos, before he was admitted to hospital in January 1997, a loss of 35 kilos. Dr Owen said he had not noticed any loss. Mr McInnis asked us to find that Dr Owen would have noticed such a loss and thus that Mr Arulanantham was exaggerating his loss. In the absence of any evidence as to Mr Arulanantham's weight on admission to hospital we make no such finding. We do not know how accurate Mr Arulanantham's evidence was. Nor do we know whether or not Dr Owen is observant of matters like weight loss in a patient. Our impression of Mr Arulanantham is that he did not exaggerate his evidence in any way. On the contrary, he seemed to downplay his problems, not only in his evidence, but also in his discussions with Mr Shatte and in his attendances on Dr Owen. Had he been able to convey the full depth of his anxiety and depression earlier, action may have been able to be taken to avoid the tragic incident on 3 January 1997.

37. Another submission made by Mr McInnis was that Mr Arulanantham did not perform enough telephone shifts on his own to result in the consequences he attributed to that aspect of his employment. In view of the confirmation of Mr Arulanantham's account and evidence contained in the statements of Mr Shatte (T11 and T15) and Mr Robertson (T15), we do not see that there was ever any factual basis for that submission. But the statement of Mr Purchase (R10), although very confusing, does show, in attachment 2, that between 2 October 1996 and 31 December 1996 Mr Arulanantham was logged on to his ACD (Automatice Call Distribution Group) line for 16 shifts totalling 99.36 hours and that he answered 127 calls of which he "abandoned" 5. Attachment 3 indicates that on 2, 3 and 4 October Mr Arulanantham took 3, 5 and 9 calls and that on 22 October 1996 he was logged on for six hours and answered 9 calls. Similarly he is shown as having been logged on and answering calls on 1, 4, 6 and 7 November and as answering 12 calls on each of 6 and 7 November. Those two days are very shortly before 9 November, when Mr Arulanantham first attended Dr Owen reporting stress at work. Mr Arulanantham then does not appear to have returned to telephone duties until 14 November when he answered 7 calls. Then on 15 November he returned to Dr Owen. On 22 November 1996 he answered one call which seems to have taken 11 minutes 42 seconds to handle. He then seems to have answered significant numbers of calls again on 11 December and on 18 December, when he was logged on for 4hrs 15 minutes. He also answered fewer calls on other days in December. He was on sick leave from 19 December 1996.

38. We find that there was ample opportunity for Mr Arulanantham to become stressed and anxious about the performance of his telephone answering duties in the course of his employment with the CSA and about the need to continue performing that role, for example by putting his name on the roster. Mr Shatte's statement of evidence (R9 para 44) confirms that "staff needed to understand that at the ASO3 and ASO4 level, their roles were to partake in the inquiry line."

39. The next issue is whether the medical evidence supports Mr Arulanantham's claim that he suffered an injury namely an episode of depressive illness, resulting in incapacity and a need for medical treatment, as a result of the stress and anxiety associated with his telephone answering duties.

40. Dr Owen, Mr Arulanantham's treating general practitioner, gave evidence. His evidence shows a clear link between Mr Arulanantham's telephone duties and the onset of the depressive episode in November 1996. Dr Owen had not seen Mr Arulanantham in respect of his psychiatric problems at all between 27 January 1995 and 9 November 1996. He then saw him 7 times between 9 November and 19 December 1996. Medication was prescribed and on all occasions, except for one, work stresses were mentioned.

41. Dr Owen first saw Mr Arulanantham on 27 September 1994, on referral from the North Eastern Metropolitan Psychiatric Services to which Mr Arulanantham had been referred on discharge from Plenty Hospital, after his admission in 1990. Dr Owen said that Mr Arulanantham had very little by way of symptoms of depression when he first saw him. Dr Owen, referring to his clinical notes (A5), said that on 27 January 1995, Mr Arulanantham had discussed with him some worry about his daughter and a course she was doing (trans. p29) "and he was a little bit stressed out by it but he didn't seem to really have much in the way of depression". Dr Owen noted that he thought Mr Arulanantham's depression in January 1995 seemed to be well controlled. He gave him a prescription for Prozac for a further three months. Dr Owen did not see Mr Arulanantham again until 19 February 1996 when the reason for the attendance was a strain in the right biceps muscle. Although Dr Owen's clinical notes for 17 February 1995 recorded that another three months supply of Prozac had been prescribed that day, when Mr Arulanantham returned to Dr Owen on 19 February 1996, he told him that he had stopped the Prozac about eight months ago, which would have been mid 1995. Dr Owen said that he did not prescribe any more Prozac when he saw Mr Arulanantham in February 1996.

42. The next time Dr Owen saw Mr Arulanantham was on 9 November 1996 when, as stated earlier, he noted "increase in depression with some negative recurring thoughts and rumination" and "trouble sleeping". He also noted that the changes were associated with a promotion at work which had caused more stress.

43. The next attendance was on 15 November 1996. Dr Owen noted (trans. p31):

Still depressed, still trouble sleeping, still some rumination and negative thoughts, some pressure at work, some passive suicidal thoughts.

On that day Dr Owen also suggested that Mr Arulanantham increase his Prozac to two a day, and talked about seeing a psychiatrist if he did not improve. Dr Owen asked Mr Arulanantham to return on 19 November 1996.

44. On 19 November when Mr Arulanantham returned, he told Dr Owen that he had not increased his Prozac. Mr Arulanantham explained to the Tribunal that was because of the side effects. He told Dr Owen that he had further rumination and poor concentration. He also mentioned that he had been upset by a relative the previous day, and that he felt he could not cope with work. Dr Owen gave Mr Arulanantham a certificate for two days off work and asked him to return with his wife in a week. Dr Owen said in evidence that he did not think the upset involving the relative had been a "particularly big issue" in that attendance.

45. When Mr Arulanantham returned for review on 26 November 1996, he said he had returned to work on 23 November 1996 and had coped "OK". He explained to Dr Owen that he had not taken the extra Prozac as that made him feel funny. On that day Dr Owen noted that he intended to review Mr Arulanantham in one week and was considering a referral to Dr Cooper, a psychiatrist. Dr Owen saw Mr Arulanantham again on 28 November 1996, when he asked him to continue his Prozac, and gave him two more days off work.

46. On 7 December 1996 Mr Arulanantham returned to Dr Owen with his wife. He still had symptoms of depression with rumination and negative thoughts and some passive suicidal ideas. Dr Owen encouraged him to take a more positive outlook and prescribed more Prozac. He talked to Mr and Mrs Arulanantham about seeing a psychiatrist. On 19 December 1996 Mr Arulanantham attended Dr Owen alone. He was taking the two Prozac a day, but was still having trouble sleeping and having difficulty with work. He was still depressed. Dr Owen gave him a referral to Dr Rasalam, a psychiatrist, and asked him to continue taking the Prozac. He also gave Mr Arulanantham a certificate for further time off work. Because of the Christmas holiday, Mr Arulanantham was not able to obtain an appointment with either Dr Cooper or Dr Rasalam before 3 January 1997.

47. When Mr Paine explained to Dr Owen the changed circumstances in the workplace, in that Mr Arulanantham had begun answering telephone queries on his own in October 1996, Dr Owen said that history was very suggestive that work had caused a recurrence of depression.

48. Mr McInnis, in cross-examination, read to Dr Owen, Mr Carfi's summary of his conversation with Dr Owen. That summary did not have the same emphasis as Dr Owen's own note of his conversation with Gus Carfi. Mr Carfi emphasised the mention of an upset with a relative on 15 November 1996 and omitted Dr Owen's opinion that work was a significant contributing factor. Dr Owen's note of 19 August 1997 reads (A5):

Phone from Gus Carfi.

said had depressive illness reasonably controlled with Prozac, then recurrence of depression associated with changes at work giving an exacerbation of depression. Query compliance with medication. Therefore I felt that work was a significant contributing factor on a background of underlying depressive illness. [trans. v2 p56]

49. Mr Arulanantham's treating psychiatrist, Dr Cooper, also gave evidence. He first saw Mr Arulanantham on 27 May 1997 after his discharge from hospital following the attempted suicide. In a report (A2) dated 21 April 1998 he gave a detailed summary of the history he had obtained from Mr Arulanantham. It reads as follows:

When I first saw him he gave a history of depressive symptoms that dated to approximately October, 1996 arising in the context of increasing work related stress. He had obtained a work promotion in June, 1996 and began work in the Child Support Agency. He intially coped over the first few months but found the job became increasingly demanding, to the point that he was constantly worried about his work performance. Fearing a relapse of depression requiring hospitalisation he applied for leave in December, 1996.

The aspect of Mr Arulanantham's work that he found most stressful involved answering telephone calls and dealing with problems presented to his department by the general public. Despite receiving routine training he felt increasingly "clueless" and felt that he was not performing his job properly. He said that he informed his supervisor that he did not want to answer the telephones and received some support and was advised to obtain assistance from more experienced colleagues and to learn from them. Mr Arulanantham also gained access to additional computer based training. Despite this he felt increasingly incompetent and unable to perform the required duties. Concurrently he felt guilty and "sorry" for his workplace as he felt there was a lot of absenteeism and in order to cover the workload he volunteered his name onto a circulating roster in order to assist by doing extra work. Although worrying about his ability to do any extra work Mr Arulanantham felt increasingly guilty about his inefficiency. In addition to not being able to cope with the problems presented by the public over the telephone, he felt that he was ill equipped in understanding the appropriate family law.

Mr Arulanantham denied having any other stressors present in his life at that time.

In the context of these difficulties Mr Arulanantham became increasingly depressed and began to suffer insomnia. In December he developed suicidal ideation and felt unable to face the world. Having taken leave from work he felt he was unable to resume and couldn't face his supervisors or the general public over the telephone. At the same time he felt increasingly guilty that he had been promoted but was unable to do the work required of him. Mr Arulanantham developed additional symptoms of physical weakness to the point of being barely able to walk, he felt unable to operate a computer or to do "hardly anything". He developed symptoms that included burning in his head, agitation, anorexia, loss of weight, and he felt doomed. He had memories of his previous illness and hospitalisation and felt that he could not cope if the same situation were to recur. He began increasingly to think and believe that death was his only solution and escape, and in that context saw self immolation as the best solution available to him to bring about a quick death.

50. Dr Cooper gave evidence on 8 September 1999. He said that he had most recently certified Mr Arulanantham as able to work four full days a week, but not to receive general in-coming phone calls from the public. He was still seeing Mr Arulanantham on a monthly basis. He said he had seen him less frequently earlier in the year, but as the return to work commenced, he increased the frequency of appointments so that he could keep an eye on the situation. He said it had gone well so far.

51. Dr Cooper explained that Mr Arulanantham, when he first obtained a history from him, emphasised the telephone contact with the public as being what stressed him. Dr Cooper explained that he regarded that as reliable because it was in the history he took when he first saw Mr Arulanantham for treatment. He said that was prior to any requests for medico-legal reports. His notes of that time highlighted the role that Mr Arulanantham perceived his work had in the cause of his depression. Dr Cooper pointed out that he had also received a copy of a psychiatric report relating to the 1990 episode, again in the context of normal clinical process, from a previous treating psychiatrist. That psychiatrist also identified work as causing depression, in regard to the first episode in 1990. The evidence in this matter establishes that there was never any medico-legal process in respect of that first incident of depression in 1990.

52. Mr McInnis explained to Dr Cooper the supports that were offered to Mr Arulanantham from the first occasion when he explained to his complex case officer that he was experiencing difficulties with his telephone shift. Dr Cooper said one interpretation of those measures is that they were there because of the stressful nature of the job. He said it follows that a stressful job of that sort can provoke the type of illness and problems that Mr Arulanantham suffered. Dr Cooper explained (trans. p71):

My understanding is that he first noticed and complained of difficulties with the nature of the work in about October and after that there was a gradual deterioration into depression, that he took further measures to try and relieve the stress associated with his work in order to cope with his depression, but despite those measures he still became depressed, and in that context sought treatment and before that treatment could work he made a serious attempt on his life. That's my understanding of the way it evolved.

Did you in that context understand that in fact he was coping, according to his doctor coping with his work on 26 November '96 but still had some depressive symptoms, did you get the history from him? ---I got the history that Mr Arul tried everything that he could; in fact, I think I have notes that say that he went to extra lengths to volunteer for absentee shifts because of his desire to do his job as best he could and not to let down the team with which he worked.

53. We accept Dr Cooper's opinion as an accurate analysis of the situation. We do not understand why, after Dr Cooper provided his report on 21 April 1998, the matter was not resolved by accepting the opinions expressed in his report. They were consistent as to the facts on which they were based with the statements of Mr Arulanantham's work colleagues, which the respondent already had.

54. The Tribunal also received reports and heard evidence from consultant medico-legal psychiatrists for both the applicant and the respondent. We place somewhat less reliance on those reports, as they were obtained in the context of medico-legal proceedings, and at a time more removed from the events in issue. However both those reports also provide support for Mr Arulanantham's claim that his episode of depression in November 1996 was triggered by stress and anxiety resulting from the duties he was called on to perform in the course of his employment.

55. Dr Epstein, who was called on behalf of Mr Arulanantham, had prepared a report dated 23 July 1998 (A3). He set out the relevant part of the history he obtained as follows:

In June 1996 he was promoted to an ASO3 position at the child support agency in Box Hill. He was part of the client support team no. 1.

He stated that it was recognised that there was strong feeling about the child support agency and he worked behind closed doors with a high level of security, including a security guard in the foyer. He was processing applications for child support and at times contacting solicitors and the spouses and their partners. At times he was dealing with people who were very angry but no direct threats were being made against him.

He had no specific difficulty during the first three months and in September 1996 he began having to be on the phones to deal with inquiries, two hours twice per week. Very quickly he was aware that he did not have the fund of knowledge to be able to answer the questions that were being asked and he felt very embarrassed and awkward in this siutation. On one occasion there was nobody else to speak to as the rest were at a meeting. Within a few weeks he found that he was dreading going on the phones, he was becoming increasingly frustrated and distressed and he was not sleeping well. He was normally working from 8.30 a.m. until 4.30 p.m. on flexi time.

He was becoming very irritable, both at work and at home, and at the end of October 1996 he asked to be taken off the phone work and felt slightly better having done so. He still felt worried that he had not been able to master his situation and was beginning to become increasingly distressed that he may not be able to keep his job because of his lack of knowledge.

In September 1996 he had done a half day course and completed an examination successfully but had little other training. He found that lack of staff to train meant training courses were being cancelled and he felt that any training he received was only ad hoc and did not seem to be systematic. He was losing weight and was not eating, dropping from 80 kilograms to 55 kilograms over a period of two or three months, and began experiencing increasing panic attacks which were occurring most days, he was having difficulty sleeping, and was worried about being able to look after his family.

In early December 1996 he began doing a self study course on the computers for a week or two but was having difficulty coping with this.

In early December 1996 he was given a form indicating what times he would be available to work on the phones. He felt obliged to fill out the form as he thought this was expected of him, although he was dreading doing so.

He found this began praying more on his mind to the extent that he was having increasing panic attacks and anxiety and depression, and on 15^th December 1996 he saw his general practitioner as he felt he could not cope. He was feeling very panicky at night and was placed off work and was due to return to work on 10^th January 1997. From the time he stopped work he was praying regularly and speaking with his pastor and was referred by his general practitioner to Dr Raslam but in the meantime the events of 3^rd January 1997 overtook that referral.

He was becoming increasingly depressed, feeling helpless, hopeless, useless and worthless, his self esteem and self confidence had dropped and he could forsee no future and began ruminating about suicide.

Dr Epstein expressed the following opinion:

Although he may well have had a tendency to develop Depressive Disorder, there has been no Depressive Disorders in his family as far as he is aware, nor has he suffered from Depressive Disorder himself in the past. On both occasions he regards his work as being a significant contributing factor to the development of this condition. On this most recent occasion the factors that contributed to this was [sic] that he felt poorly trained and uninformed about the various facets of working in the child support agency and he was placed on the phones dealing with various inquiries and he felt embarrassed and unable to cope with his continuing ignorance and this appears to have been the factor that contributed to the development of his Depressive Disorder on this occasion.

56. Dr Epstein, when cross-examined by Mr McInnis, said that it was his understanding that Mr Arulanantham did not have any difficulty with workmates or superiors and that no one ever objected to answering his questions or helping him. He said that it was also his understanding that Mr Arulanantham worked on telephone shifts for two hours twice per week from the end of September to some time about the end of October, when at his request he was taken off that aspect of the job and "felt slightly better having done so" (trans, p.11).

57. When Mr McInnis put to Dr Epstein that the attempted suicide was certainly out of proportion to the work circumstances as described, he agreed and said that it was clear that at that point Mr Arulanantham was in the midst of a severe psychiatric disorder. When Mr McInnis suggested that the real question was what had led to the depression becoming so severe, Dr Epstein explained:

Both these episodes of depression [1990 and 1996] seem to have occurred from his statement and he impressed me as a genuine man, an honest man, a man who was endeavouring to give a fair account of the situation, as much as he could, were ones in which he regarded, not all the employment but a particular aspect of the employment, as one he found very difficult to manage and it just got to him and it maybe that he has a tendency to develop depression. That may well be but it is also certainly true in my experience that people with that tendency to develop depression are often - there is an environment trigger that brings about that tendency. (Trans, p.13)

58. Dr Epstein in evidence agreed that, as he had stated in his report (A3), Mr Arulanantham was fit to return to duties with the ATO, but not in the area where he had previously been working. He also confirmed his opinion that it was appropriate that Mr Arulanantham continue taking prescribed medication and see a psychiatrist occasionally.

59. The respondent called Dr Strauss. Dr Strauss has provided two reports dated 22 July 1998 (R1) and 20 May 1999 (R2). In his first report of 22 July 1998, Dr Strauss set out the relevant work history at the CSA as follows:

He said that he had some training and he said that at no time while he worked with the Child Support Agency did he have any difficulty with work mates or superiors. He said everyone was very helpful. He said that in retrospect he believes that his training may have been inadequate. He said that although he was trained in certain areas there were other areas that he was not particularly aware of and he felt when he was dealing with problems that he relied too much on other workers within the Child Support Agency.

He said that although no one ever objected to him asking questions he felt that he was being intrusive and troublesome by asking questions and he said that he felt that he was in a bind because of this situation. He emphasised that no one ever objected to answering his questions or helping him but he did not like being so intrusive and he felt that this caused him some pressure and upset.

He also said that he had never dealt directly with the general public before over the phone. In previous jobs with the Tax Office he had dealt with Tax Agents but he said they had always been polite and helpful. However with the Child Support Agency he said that he often had to deal with the public who were aggressive rude and abusive because they were people under pressure.

He did not like this aspect of his job.

He said that after his formal training was over he asked for more training and he said he was given some more training but as stated above he still felt that he did not know all aspects of his job and this caused him concern.

On further questioning he stated that there was only one occasion and that occurred in October 1996 when he could not ask anyone for help. He said that all the other staff memebers were at a meeting and he said this was stressful and caused him some concern.

He said that he began to become upset and distressed late in 1996. He spoke to his team leader and as a consequence he was taken off his phone enquiry position and was offered more training. He continued to do this and then late in 1996 it was suggested he go back to his old job. He said that the thought of going back to his old job overwhelmed him and he became increasingly upset and distressed.

60. Surprisingly, in spite of setting out that history of Mr Arulanantham having difficulties at work which overwhelmed him, and led to him becoming increasingly upset and distressed, Dr Strauss concluded, in that report that it was Mr Arulanantham's "perception of circumstances" that brought about his psychiatric problems. He wrote that he believed work "was the setting in which his depression manifested". Dr Strauss in reaching that conclusion wrote:

In 1996 he again obtained a promotion and he did not cope with his job in the second half of 1996. There is no evidence to suggest that he was not assisted appropriately while working for the Australian Taxation Office. From the reports that I had available to me it seems that this man did require training and he received adequate and extensive training. He also received a good deal of support and encouragement to seek help if he needed help in his job. Mr Arulanantham admitted that no one treated him poorly and that all his questions and queries were answered appropriately. It is my impression then that employment in itself did not contribute to his psychiatric problems. It was Mr Arulanantham's perception of circumstances that brought about his depression. He found that the job caused him a good deal of concern and he did not like the nature of the job. He did not like dealing with abusive people and although in my opinion he received adequate support and reinforcement from other workers he felt that he was not coping and he became increasingly upset and distressed.

I therefore believe that his psychological decompensation came about because of his personality type, his perception of circumstances and his predisposition to developing depression. There is some suggestion that he may have had some personal problems with relatives but I have no real evidence of this. The work itself was difficult for this man but I do not believe that he was treated unfairly or unreasonably.

In my opinion taking all factors into account it was this man's personality type and his perception of circumstances that brought about his psychiatric condition but obviously whether or not employment has contributed to his problems is a legal issue and not a psychiatric issue. Certainly this man found the work difficult and it was his perception of the difficulties at his workplace that brought about his psychological decline to a certain extent but I cannot say that he was treated unfairly or unreasonably in regard to his employment and it is apparent that he received adequate training and support.

His depression led to his suicide attempt which has left him with significant burns and a good deal of self consciousness. (emphasis added)

61. Dr Strauss seems to have had the impression that it was only if Mr Arulanantham was treated unfairly or unreasonably in regard to his employment, or if he did not receive adequate training and support, that depression resulting from that work was compensable. It is unfortunate that the lawyers acting for Comcare did not advise Dr Strauss as to the legal position, about which he had, not unnaturally, expressed some doubt. Clearly, as stated earlier, entitlement to compensation does not depend on any form of fault on the part of the employer. If Mr Arulanantham found his work difficult and unpleasant, particularly when he was dealing with abusive people, and when he did not have the knowledge to answer people's enquiries, and when he had to frequently seek advice from his colleagues, and when he felt he was having to intrude in people's private lives; and if those factors about his work resulted in him suffering a recurrence of a depressive illness, then that illness is compensable. Dr Strauss may well not have known that, but we would have thought that Comcare and its legal advisors should have been aware of it.

62. In his second report of 20 May 1999 (R2), Dr Strauss seemed to have forgotten his reservation that whether or not employment contributed to Mr Arulanantham's problems was a legal issue. He concluded more firmly than in his previous report that employment itself did not contribute to Mr Arulanantham's psychiatric problems. That is quite inconsistent with the history Dr Strauss himself set out in his first report.

63. Dr Strauss, in his first report, had written that Mr Arulanantham should continue with psychiatric treatment and anti-depressant medication until his surgery for his burns had been completed, and he had been back at work for at least six to twelve months. He wrote that Mr Arulanantham should never go back to working with the general public again and would have a partial incapacity for work. In his second report, and in his evidence, Dr Strauss said that it was his opinion as at 20 May 1999 that Mr Arulanantham was no longer suffering from a psychiatric condition. Although Mr Arulanantham had not, at that stage, yet gone back to work he wrote, in contrast to what he had written in his earlier report, that once Mr Arulanantham was back at work his anti-depressant medication could be ceased.

64. In Federal Broom Co v Semlitch Kitto J said at pp632-633:

Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation, etc. It is in that sense that I should understand the language of the definition.

Windeyer J said at p641:

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.

65. In this matter it is quite easy on the evidence of every medical witness, and on the evidence of Mr Arulanantham and the statements and evidence of his team leader and other CSA employees, to identify the factor to which he was exposed in the performance of his duties, which contributed to his recurrence of depression. We find that the factor was the need to deal with telephone complaints and enquiries from the public. That is something Mr Arulanantham was required to do, and would have been required to continue to do, as stated by Mr Shatte in paragraph 44 of R9. It is something which caused Mr Arulanantham to suffer stress and anxiety, and which we find on the medical evidence, eventually resulted in a depressive episode. We find on Dr Owen's evidence that Mr Arulanantham had recovered from his earlier episode of depression at least by 19 February 1996 to the extent that he no longer had symptoms and did not require medication. We find that the depression which was diagnosed on 9 November 1996 was a separate episode.

66. Mr McInnis relied on Kirkpatrick v Commonwealth of Australia (1985) 62 ALR p533. That case concerned a man with a compensation neurosis. It was found by the Tribunal that he had resigned from work because he felt tired, and had then developed a compensation neurosis because the Commonwealth failed to pay him compensation for a leg disability which the Tribunal found had nothing to do with a work injury. We see no parallel between that case and the facts of the matter before us. There is no evidence that Mr Arulanantham's perception of the telephone answering work he was expected to perform was delusional. For similar reasons we do not derive assistance from Australian Telecommunicasions Commission v Tzikas (1985) 5 AAR 173 to which we were also referred by Mr McInnis.

67. We find that Mr Arulanantham's depressive episode which commenced in late 1996, and for which he first sought medical treatment on 9 November 1996, was an ailment that was contributed to in a material degree by his employment by the CSA. It was therefore an injury within the definition of that term in s 4 of the Act. Mr Arulanantham is entitled to compensation for incapacity for work resulting from that injury under s 14 of the Act, and for the cost of reasonable medical treatment under s 16 of the Act.

68. We find that the attempted suicide on 3 January 1997 resulted from the compensable depressive illness, and that compensation is payable for incapacity and medical expenses resulting from that incident as part of the compensation payable in respect of the episode of depressive illness first diagnosed on 9 November 1996.

69. Dr Cooper said he was still seeing Mr Arulanantham to supervise the return to work. That has proceeded well, and both Mr Arulanantham and those at the workplace are to be commended. Mr Arulanantham said at the last day of hearing that he was working full-time on alternative duties. There was no evidence as to whether he was still suffering any loss of income. We prefer Dr Cooper's assessment of whether or not Mr Arulanantham still requires ongoing psychiatric treament to that of Dr Strauss. First we were impressed by Dr Cooper and his approach to Mr Arulanantham and by the recovery Mr Arulanantham has made under his care. Secondly, Dr Cooper is familiar with Mr Arulanantham's treatment requirements as his treating practitioner. Thirdly, there was an unexplained change of opinion between Dr Strauss' two reports as to the need for ongoing treatment after any return to work. We find that any treatment and medication provided or prescribed by Dr Cooper has been reasonably required by Mr Arulanantham. We find on Dr Owen's evidence that from February 1996 until November 1996 Mr Arulanantham suffered no incapacity and had no need of treatment because of his previous episode of depressive illness. We find that he was not incapacitated or in need of psychiatric treatment or medication until the compensable recurrence in November 1996. We find that Mr Arulanantham's medical treatment and medication for depressive illness since 9 November 1996 has been reasonably required.

70. The decision under review will be set aside. In substitution the Tribunal will decide that the episode of depressive illness for which Mr Arulanantham first sought medical treatment on 9 November 1996, including the attempted suicide on 3 January 1997, is an injury within the meaning of that term in s 4 of the Act and that accordingly Mr Arulanantham is entitled to compensation for incapacity for work and the cost of medical treatment in respect of that injury from 9 November 1996. We will reserve liberty to the parties to apply in case clarification of any aspect of this decision is required to calculate the compensation to which Mr Arulanantham is entitled. We will also order under s 67 (8) of the Act that the respondent pay the costs of this application incurred by Mr Arulanantham.

71. Mr Arulanantham in his statement (T4) attached to his claim for compensation (T3) had referred to his permanent scarring and had stated that he sought compensation for both "stress/depression" and "physical injury". We were informed that no separate claim for compensation for injury resulting in permanent impairment had been lodged, and that no primary or reviewable decision had been made as to that aspect of the claim. If Mr Arulanantham wishes to proceed with that claim it will be necessary for a further claim to be lodged. The Full Court of the Federal Court explained in Lees v Comcare (1999) 29 AAR 350 that unless there has been a reviewable decision as to a claim for compensation for permanent impairment, the Tribunal has no jurisdiction to consider that issue.

72. There is one final matter which we consider it appropriate to mention. At the commencement of this hearing the Tribunal, having read the T documents in the matter, as is its custom, said to Mr McInnis that there was so much information in the T documents that the condition was related to work that it found it hard to see how Mr McInnis could be intending to argue that there was no contribution from work. The Tribunal referred to the documents T11 and T15. Mr McInnis then applied to have the Tribunal disqualify itself on the basis that it had expressed a pre-conceived view based on its reading of the T documents, without hearing evidence. The Tribunal dismissed that application referring to Re Polites;Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78 at pp86-87. The Tribunal was of the view that it had done no more than express a preliminary view, as a specialist Tribunal, of the material contained in the T documents.

73. Of course, if there was to have been evidence called by the respondent to the effect that Mr Arulanantham's statements as to him suffering stress in the course of his employment were inaccurate, that material should have been in the T documents or contained in statements of evidence lodged with the Tribunal before the hearing commenced. In fact there was never any evidence contradicting Mr Arulanantham's evidence which was supported by Mr Shatte (in T11), and by statements by Mr Shatte and others reported in Mr Carfi's report (T15), and by the statements of evidence (T9) and (T11) lodged just prior to the resumed hearing. In those circumstances we are left wondering why Mr Arulanantham's claim was contested. It would seem to us, having now heard all the evidence, to have been a claim which should have been resolved without litigation, in accordance with the Commonwealth as Model Litigant policy.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Mr A Argent, Member

Signed: .................................

Associate

Date/s of Hearing 7 and 8 September 1999 and 7 February 2000

Date of Decision 11 February 2000

Counsel for the Applicant Mr L Paine

Solicitor for the Applicant Slater & Gordon

Counsel for the Respondent Mr M McInnis

Solicitor for the Respondent Barker Gosling