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Administrative Appeals Tribunal of Australia |
Last Updated: 7 February 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
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Re |
PETER JOHN CARSON |
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And |
COMCARE |
Tribunal |
Senior Member J. A. Kiosoglous MBE |
Decision
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The decision under review is affirmed. |
(signed)
J. A. KIOSOGLOUS
COMPENSATION - injury of "depression or aggravation of depression" accepted as compensable - whether injury has caused permanent impairment - apportionment of impairment - whether impairment was wholly or partly pre-existing due to a paranoid personality disorder or paranoid personality traits - whether impairment suffered in workplace was wholly or partly caused by applicant's personality - whether possible to isolate non- compensable proportion of impairment under Guide - non-economic loss
Safety, Rehabilitation and Compensation Act 1988 ss 4, 13, 14, 17, 18, 62
Re Brereton & Australian Postal Corporation [2001] AATA 594
Comcare v Amorebieta (1996) 22 AAR 539
Comcare v Ticsay (1992) 38 FCR 181
Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626
Re Hardy & Comcare [1998] AATA 944
Re Hill & Comcare [1998] AATA 350
Re Kary and Comcare [1999] AATA 687
Re Martin and Australian Postal Corporation (1997) AAT No 12502
Martin v Australian Postal Corporation (1999) 29 AAR 420
Re McManus & Comcare [1998] AATA 837
Whittaker v Comcare (1998) 86 FCR 532
Re Williams and Australian Postal Corporation [1998] AATA 154
6 February 2003 |
Senior Member J. A. Kiosoglous MBE |
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1. The applicant, Dr Peter John Carson, seeks review of the decision of an Independent Review Officer given on 21 November 2000 that rejected Dr Carson's claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The applicant had alleged that an injury, namely stress and depression, which arose out of his employment with the Defence, Science and Technology Organisation (DSTO), has led to permanent impairment and non-economic loss under the Act.
2. In addition to the material documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T48), the Tribunal has received from the parties ten exhibits, three from the applicant (Exhibits A1-A3), and seven from the respondent (Exhibits R1-R7). The Tribunal heard oral evidence from Dr Carson and three psychiatrists: Dr K. Le Page, called by the applicant; and Dr A. T. Davis and Professor R. D. Goldney, called by the respondent. Dr Carson was represented by Mr P. Amey, of Counsel, and Comcare was represented by Ms K. Bean, also of Counsel.
ISSUES
3. It has already been established by this Tribunal (decision no. 13150, 3 August 1998, presidential member von Doussa J presiding) that Dr Carson suffered a compensable injury, "namely depression or an aggravation of depression" in the course of his employment with the DSTO. Pursuant to that decision, the parties agreed that the questions to be answered by the Tribunal are:
a) The degree of the permanent impairment suffered by the applicant;
b) The percentage of that impairment which results from the applicant's compensable injury; and
c) The amount of compensation to which the applicant is entitled in respect of non-economic loss as a result of any compensable permanent impairment.
LEGISLATION
4. Section 24 of the Act states that Comcare is liable to pay compensation for a permanent impairment suffered by an employee. It relevantly states:
"...
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
a) the duration of the impairment;
b) the likelihood of improvement in the employee's condition;
c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
d) any other relevant matters.
3. Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
4. The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
5. Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
6. The degree of permanent impairment shall be expressed as a percentage.
7. Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
...
9. For the purposes of this section, the maximum amount is $80,000."
5. Section 27 of the Act provides for compensation for non-economic loss. It states:
"...
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee."
6. The amounts stipulated in the Act are increased annually in line with the Consumer Price Index, pursuant to section 13 of the Act.
7. Section 4 of the Act contains the following relevant definitions:
""impairment" means the loss, the loss of the use, or the damage or malfunction, of the body or of any bodily system or function or part of such system or function."
""permanent" means likely to continue indefinitely".
""non-economic loss", in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware."
8. Section 28 of the Act provides for the issuance of the Guide to the Assessment of the degree of Permanent Impairment ("the Comcare Guide", "the Guide"), which Guide is referred to in the above provisions. The relevant parts of the Guide are Table 5.1 of Part A, in relation to permanent impairment, and Part B, in relation to non-economic loss. Table 5.1 was referred to throughout the psychiatric evidence.
BACKGROUND
9. As stated above, a previous Tribunal decision determined that the applicant's employment caused him injury under the Act. The matter before the Tribunal is whether this accepted injury has caused permanent impairment and thus non-economic loss. The parties agreed that the Tribunal is in this instance bound by the findings of fact in the earlier decision. For this reason, that is set out at some length. The following background is taken from that decision, and was based largely upon a Statement of Agreed Facts:
"(1) The applicant was born on 4 February 1947, and joined the Defence Scientific Research Centre in 1978 initially as a Clerk but transferred to the position of a Research Scientist in which field he has worked since. (He was awarded a PhD by the University of Adelaide in 1974).
(2) In July 1981 there was an advertisement for the position of Senior Research Scientist and the applicant was unsuccessful in obtaining the position and appealed against the promotion of the successful party Dr Rye.
(3) In June 1982 the applicant was assessed and found not to be eligible for classification as a Senior Research Scientist and as such his appeal was unsuccessful, on the basis that he was not qualified for the promotion he sought.
(4) In June 1982, the applicant suffered a severe motor vehicle accident with some head injury including amnesia and a blackout as well as serious physical injuries including the loss of his spleen, fracture of left forearm and 7 ribs on the left side. He spent 18 days in the Royal Adelaide Hospital. (In the latter half of 1983 the applicant consulted Dr Tottman, a psychiatrist in relation to symptoms of depression on a number of occasions).
(5) After returning to work, in mid 1984, after several months writing technical publications the Applicant refused to continue work on a particular project and was counselled and taken out of the group that he was then working. He experienced difficulties with his associates.
(6) As a result of this motor vehicle accident attempts were made for the Applicant to be retired on account of invalidity, and he was examined by Robert J Hall, Neurologist, Robert D Goldney, Psychiatrist, Mr M W Reid, Clinical Neuropsychologist and others.
(7) In the report of 10 May 1985 by Robert D Goldney, Psychiatrist, Dr Goldney noted the Applicant's "continual blaming of others for interpersonal difficulties which he may have" and indicated his belief that "at the very least he has marked paranoid personality and may, at times be out of touch with the reality of the situation". He recommended a very strong case could be made for immediate retirement on incapacity.
(Dr Goldney considered Dr Carson was appreciably disabled at that time, and attributed his disability to three contributing factors:
"Firstly, he has a rather sensitive, guarded personality, in fact some might say that he adopted a paranoid stance towards the world...The second contributing factor is, of course, the motor vehicle accident...
A third issue which is important is a significant component of depression...")
(8) Dr Goldney indicated that if suitable work were available then it could be better for the Applicant psychologically to remain employed. He did indicate his belief that there may well be "continuing difficulties".
(In a report dated 12 June 1985, Dr M W Reid, a senior clinical neuropsychologist, reported as follows:
"Considering his initial performance and his improved performance now, I believe that this improvement has been due to an organic improvement and that there is now no indication of organic brain damage affecting intellect. On the other hand he appeared to have greater difficulty in coping psychologically with the stresses at work. This may, at least partially, be secondary to the car accident in that his injuries would have reduced his ability to cope with his work conditions he did not enjoy even before the accident. His multiple anxiety related symptoms and his pre-occupation with thoughts about work, raises the possibility that he has developed a mild paranoid reaction as part of his attempts to cope."(In a report dated 22 August 1985 Dr Robert J Hall, a neurologist, reported that:
"My impression is that his symptoms are almost certainly due to chronic tension and depression and more than likely his feelings of dysequilibrium and dizziness have a psychogenic basis.)
(9) A claim for compensation dated 11 July 1985 for work related stress which became apparent in March 1985 but was also present before, was made by the Applicant and a Determination of 22 August 1986 determined that there was liability for aggravation of depressive illness. By a further Determination dated 20 October 1986 liability was backdated till 20 March 1985.
(10) Further medical examinations were conducted in 1986 and Dr Goldney in a report dated 5 February 1986 indicated "...I am firmly of the view that his psychological difficulties are contributing to the work problems..." and that he "still has a rather sensitive and indeed paranoid personality by which I mean he is particularly sensitive to any interpersonal reactions...".
(In a report dated 30 April 1986 Dr Goldney confirmed his earlier opinion that Dr Carson suffered three conditions. The paranoid personality disorder and the motor accident were unrelated to his employment. However, Dr Goldney said:
"I believe that on the balance of probabilities, his feelings of depression were certainly attributable to his employment, and the contributing factors as perceived by him were his difficulty in relationships with his superior officers. As noted above, these difficulties are very much also related to his lifelong paranoid personality traits and there is obviously an intermingling of the paranoid personality and depressive symptoms, but it cannot be denied that his perception of interpersonal relations would certainly have contributed to his depressive condition.")
(11) The Applicant was absent from work for a period of approximately 6 months and on 4 March 1986, returned to work because the interpersonality conflict had been reduced by a change of work area.
(12) In 1992/1993, the Performance Management Scheme at DSTO was commenced. The applicant was rated on a scale of 1 to 5 and was rated a 3.
(The Performance Management Scheme was introduced as part of the RS Structural Efficiency Principle pay case in late 1992. The scale of ratings was:1. Unsatisfactory (leading immediately to formal inefficiency procedures).
2. Marginal (leading to a remedial period of 3 to 6 months, at the end of which the officer is rated at least Fully Effective, otherwise immediate inefficiency procedures).
3. Fully effective.
4. Superior.
5. Outstanding.
The scheme provided for two levels of dispute settlement, the first a management review conducted by a senior line manager, and the second, if the officer were still aggrieved, a review by an independent panel of two senior officers plus a union representative if requested)
(13) In 1993 Mr Fogg commenced as supervisor for the Applicant and there were clashes between Mr Fogg and the Applicant and the Applicant maintains that as a result of this criticism of his approach to a particular task he began to be victimised.
(14) In March 1993 a new supervisor for the Performance Management Scheme was appointed, a Mr Hood and there was some difficulty in settling the Applicant's Performance Management Scheme agreement.
(15) In April 1993, a formal re-moderation of the Applicant's rating in the Performance Management Scheme was made reducing him to a 2. This led to the implementation of an inefficiency process. The Applicant was found to be inefficient by that process of which Mr Fogg was the sole supervisor and assessor.
(When Dr Carson was advised of the new rating of 2, he had the assessment referred to the first level of dispute resolution. The outcome of the review was adverse to him, and he sought a second level review which was also decided against him.)
(16) A report by Psychologist Enza Belperio identifies the Applicant's belief in respect of victimisation by Mr Fogg from 1993 and indicates his belief that the inefficiency process would not be a fair one.
(17) In February 1994, the Applicant submitted a research paper for vetting, part of the publication process and this was stopped by Mr Fogg in March 1994 whilst the Applicant was on leave.
(18) By a claim dated 24 March 1994, the Applicant claimed for eye irritation. Liability was not initially determined in favour of the Applicant and he took an application in the AAT to review the decision denying liability. Liability was determined by Comcare before the matter was progressed to hearing.
(19) In March 1994, Mr Fogg became the Head of the Simulation Assessment Group at DSTO.
(20) In May 1994, the Applicant took a Regulation 83 Appeal against Mr Fogg stopping the publication of the research paper and viewed the outcome as unsatisfactory and then lodged an application with the MPRA [Merits Protection Review Agency] whose findings agreed with the internal departmental decision.
(21) The Applicant indicated that he was not happy with the method or process followed or the capability of the MPRA Officer. He indicated "there was confession from Fogg that he erred in his claims of Thompson's opinion".
(22) On 4 July 1994, the report resulting from the internal investigation into the Applicant's grievances was handed down. There was no finding of victimisation by Mr Fogg. A transfer of the Applicant to another area was recommended.
(Notwithstanding the outcome of the investigation, Dr Carson continued to feel that the actions of Mr Fogg were completely unjustified and constituted an act of victimisation. Publication of a paper was important to him. He had been told that he had insufficient publications. Further publications were necessary to establish his efficiency. He considered Mr Fogg had deliberately prevented him achieving a publication to support a finding that he was inefficient. Dr Carson gave evidence before the Tribunal that he felt very angry, perplexed, worried and helpless by the rejection of his grievance.)
(23) As a consequence of the poor rating in the Performance Management Scheme, an inefficiency trial was put in place for the applicant which took place over 5 months. Mr Fogg was the supervisor as well as the assessor. At the end of the process the Applicant was found to be inefficient.
(Mr Fogg gave evidence before the Tribunal that the task assigned to Dr Carson to establish efficiency was not fully or properly performed. This led on to the implementation of formal inefficiency procedures referred to in paras (27) and (28) below.)
(24) The MPRA Report on the Applicant's grievance was handed down on 21 September 1994. It found that there was no victimisation by Mr Fogg but that there was a "difference in academic opinion".
(This report was the result of the application referred to in para (20) above and followed a review of the outcome of the internal investigation referred to in paras (20) and (22) above.)
(25) On 4 October 1994, the formal report by Mr Fogg on the inefficiency trial was handed down.
(26) On 14 October 1994, the report was handed down in respect of the investigation into the Applicant's grievance regarding his rating in the 1993/1994 Performance Management Scheme.
(27) On 12 December 1994, the rating of 1 for the Performance Management Scheme 1993/1994 Year was upheld by the Chief Scientist and this was notified to the Applicant on 20 December 1994.
(28) By letter dated 12 January 1995, the Applicant was placed under a 3-months work performance assessment and the assessing officer was given as Dr V Sobolewski.
(The assessment was to be carried out over the period 12 January 1995 to 11 April 1995. Dr Sobolewski came from a section both geographically and functionally removed from that in which Dr Carson worked, and there is no reason to doubt his evidence before the Tribunal that he approached the task assigned to him in a completely fair-minded and dispassionate way. However, Dr Carson was highly suspicious of the process and felt threatened by it as he perceived Mr Fogg to have a critical role in the implementation of the procedure. He held this view as the "Method of and Procedures for the Assessment of Work Performance" laid down by Dr Sobolewski specified Mr Fogg as the "assessee's supervisor; originator of work assignment for assessing; and assignment (technical) assessor/referee".. The assignment which the procedure required Dr Carson to perform satisfactorily was set by Mr Fogg, and the written report which Dr Carson was to prepare was to be delivered to Mr Fogg on or before 11 April 1995. Moreover, the report was to be assessed in the first instance by Mr Fogg, and the procedure provided for Dr Sobolewski, as the assessing officer, to obtain documents, records and comments from Mr Fogg.)
10. Von Doussa J found that:
"5. The evidence establishes that if Dr Carson failed the inefficiency procedure test he would be dismissed. The Tribunal does not doubt Dr Carson's evidence that he felt threatened by this procedure. He said that he again felt helpless and trapped by the situation in which he found himself. He felt that the victimisation and harassment which he had already suffered at the hands of Mr Fogg would carry through into the assessment process. Whether that perception was justified or not, that is how he felt about it. He gave evidence that his eating pattern was affected and his sleep seriously disturbed. He suffered an acid stomach, headaches, and difficulty concentrating. He attempted the task set by Dr Sobolewski but on 24 January 1995 he suffered a visual disturbance and could not see his papers. He left work and consulted his general practitioner who referred him to Dr Le Page."
11. Dr Carson lodged a claim for compensation in relation to stress on 8 February 1995. On 7 June 1995 Comcare denied the applicant's claim. An Independent Review Officer upheld this decision on 4 April 1997. Dr Carson appealed that decision to this Tribunal. The decision in relation to that application is the one quoted above.
12. In that matter, von Doussa J found for the applicant. In reaching his conclusion, Von Doussa J heard evidence from Mr Fogg and Dr Sobolewski, who supervised Dr Carson at the DSTO. He also heard oral evidence from two psychiatrists, Dr K E Le Page and Professor R D Goldney, and had regard to various medical reports.
13. The respondent argued before the Tribunal in that matter that the applicant's depressive illness was not materially contributed to by his employment. They argued that it was, rather, the result of his paranoid personality. On this view, problems that occurred in the workplace occurred solely as a result of the applicant and his personality. This view was supported by the testimony of Professor Goldney.
14. The applicant argued that he had a sensitive personality, and that the stresses of his work environment operated on this sensitive personality to produce the injury in question. The applicant relied on the evidence of Dr Le Page.
15. The Tribunal found that Dr Carson did suffer an injury, or an aggravation of a pre-existing injury, in the course of his employment and was thus entitled to succeed under the Act. In so finding, the Tribunal stated:
"23. The medical evidence establishes that Dr Carson was markedly depressed in and about January 1995. He had suffered depression in the period from 1983 to 1986. It may have continued, although at a reduced level, in the intervening period leading up to 1995. The medical evidence is scant in respect of this period. It is not essential to determine whether the depression abated completely during this time or continued at a low level. Either way, depression had returned by January 1995. Dr Le Page attributes the condition he diagnosed in February 1995 to the work environment and in particular to the ongoing conflict which Dr Carson perceived he had with Mr Fogg, and to his perception that the inefficiency procedure was designed to bring about his dismissal. Professor Goldney's evidence does not disagree that Dr Carson's depression was related to his perception of his work situation, but he adds the further consideration that the perceptions were due to his paranoid personality disorder rather than to the reality of the workplace. Even on that view, the events at work, and in particular the inefficiency procedures contributed in a material degree to the ailment. As Professor Goldney observed in his cross-examination, the formal inefficiency procedures, coupled with the prospect of dismissal upon failure, would be threatening to anybody, and even more threatening and likely to precipitate depression in someone who had a paranoid personality.
24. It is not suggested by the respondent that the proviso to the definition of injury applies so as to exclude the ailment suffered by Dr Carson from the definition of "injury".. The inefficiency procedure did not constitute disciplinary action, nor did it relate to a failure by Dr Carson to obtain a promotion, transfer, or benefit in connection with his employment. On the contrary, it was a procedure undertaken to ascertain if he should be dismissed from his employment on the ground that he was not able to effectively discharge the requirements of his position.
25. The Tribunal finds that the evidence establishes a clear case of Dr Carson suffering injury, namely a disease constituted by an ailment or an aggravation of an ailment that was contributed to in a material degree, which led to incapacity on 24 January 1995.
26. It is not necessary to support that conclusion to investigate the objective reality of the complaints of harassment and victimisation made by Dr Carson. Indeed, even if it were possible to satisfactorily reach conclusions on those issues after a thorough investigation of the allegations and counter allegations, that would not necessarily answer the important points made by Dr Le Page, namely that it is possible to have conflicts between a sensitive person on the one hand and assertive persons on the other hand which give rise to feelings of persecution by the sensitive person which do not justify a diagnosis of a paranoid personality disorder."
In his decision Von Doussa J made the proviso that in relation to the injury suffered by the applicant, "the Tribunal is not concerned with the duration or extent of that incapacity."
16. Von Doussa J based his reasoning on the principle common to the law of worker's compensation and the law of negligence, that a wrong-doer takes his victim as he finds them. In particular, he relied on the case of Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626. That matter concerned a woman with a history of mental illness which predisposed her to delusions. She sustained a muscular strain in the course of her employment, which formed the basis for a delusional condition, whereby she imagined the injury had caused a derangement of her internal organs. The High court found that the incident which precipitated the mental illness, that is the particular delusion, was the muscular strain. Her predisposition to delusions constituted a proneness to this sort of injury. The injury was, however, caused by the incident in the workplace, and it was immaterial that sooner or later some other event would probably have precipitated a similar condition. Hence, she was entitled to compensation. Von Doussa J held that even if the workplace was not, in reality, as the applicant perceived it to be, nevertheless he was entitled to compensation.
17. The applicant subsequently claimed that this accepted injury has led to him sustaining permanent impairment and non-economic loss. In a decision dated 11 September 2000 (T38), a delegate of the respondent found that Dr Carson had, as a result of the accepted injury, sustained a permanent impairment by way of "depression".. The delegate assessed the degree of this impairment as 10% under the Comcare Guide. In coming to this conclusion, the decision-maker relied on a report of Dr Davis. Damages for the permanent impairment and non-economic loss totalling $16,016.96 were awarded.
18. In a facsimile dated 5 October 2000 (T43) the applicant's solicitors sought a reconsideration of the assessment of Dr Carson's entitlements, arguing that his impairment should have been assessed at a higher level, and that several factors in the Comcare Guide relating to non-economic loss were assessed at levels that were too low.
19. The respondent treated this request as a request for reconsideration of the whole decision of 11 September 2000. (The respondent certainly had the power to reconsider its decision, whether at the motion of the applicant or of its own motion, pursuant to s62 of the Act.) On 21 November 2000 an Independent Review Officer revoked the decision of 11 September and denied that Dr Carson was entitled to any compensation under the Act (T48). The Officer relied on psychiatric reports dating back to 1985. However, the decision relied heavily on a new report of Dr Davis. Based on that report, the Officer found that Dr Carson had a level of permanent impairment of 10% under the Guide. However, the greater part of this was due to constitutional factors, not the applicant's workplace. Hence the Officer concluded that the level of impairment due to that workplace was less than 10%. Consequently, it was not compensable under the Act. Dr Carson appealed to this Tribunal, and this is the matter currently under consideration.
20. In the evidence brought before this Tribunal, much was already to be found in the findings of fact of the previous Tribunal. As has been noted, both parties agreed that the Tribunal should now be bound by those previous findings. Thus, some evidence, which simply repeated what has been set out above, is not duplicated here.
DR P. J. CARSON, THE APPLICANT
21. Dr Carson's testimony concerning his employment with DSTO is consistent with the facts found by Von Doussa J in the matter previously heard by the Tribunal. He did however add some details, as set out below.
22. The applicant stated that he was advised not to appeal the promotion of Dr Rye (see paragraph 9(2) above), as it might jeopardise his chance of future promotion.
23. Dr Carson stated that shortly after he started work at DSTO he was working on mortar design. He outlined a new mortar design that greatly outperformed current designs. Initially the paper he wrote outlining this plan was not accepted. Later the paper was published at a lower category.
24. Dr Carson stated that in about 1982 he designed a new propellant for ammunition used in combat aircraft. He stated that the results of this research were ignored.
25. Dr Carson stated that following his car accident (see paragraph 9(4) above) he faced an efficiency review. He described this as a "step in the salary scale".. He stated that at the time he thought this was a routine procedure, but he later found out that "people didn't actually see the panel unless they were predestined to fail."
26. He stated that elements of the Defence establishment revived interest in a mortar design project. Dr Carson intimated that he was the only one with the requisite expertise to work on this project, and as a consequence the DSTO could not find him inefficient.
27. Dr Carson has not worked since 1995. He stated that he was invalided out of the DSTO in February 2002. He said that he now does "nothing terribly useful" with his time. He occasionally trades shares, estimating that he does so perhaps six times a year.
28. Dr Carson stated that he suffers stress most days. Sometimes he gets "a depressed felling that is literally like being pressed downwards, weight on your shoulders and head." This is his worst symptom. He grinds his teeth and "bangs" them together. He suffers from itchiness and skin rashes, for which he applies moisturiser several times a day and uses a steroid cream. He stated that he had some skin itchiness in the early nineties, and had a serious bout at around the end of 1996.
29. Dr Carson stated that he experiences migraine headaches or "stress headaches." He stated that these began after his car accident, and were initially very frequent. He now suffers about twelve per year. He further suffers about three "ferocious" migraines a year.
30. He used to suffer from gastric reflux but this is now controlled by medication. However he stated that he will have to continue taking this medication for the rest of his life. This condition, prior to finding a satisfactory medication, caused oesophageal scarring to the applicant, which he stated is of concern as it can be a precursor to oesophageal cancer.
31. Dr Carson stated that he feels a "background" of stress "all the time." However more severe stress is triggered by, for instance, seeing reports concerning the Defence Forces in the media. He described, by way of example, a recent news story of the Defence Forces "running over budget and over time, as usual". He had a migraine headache the night he heard this story. In general, reports concerning the Defence Forces remind the applicant of his employment experiences, causing him to relive those unpleasant memories. Furthermore, he sees people in the media who were treated preferentially to him, but who have now attained high positions in the defence establishment. This causes him stress. But regardless of such triggers, the applicant stated that on most days he thinks about his unpleasant work history. Dr Carson stated that he had just moved house, to be further away from his former workplace and colleagues. However his new neighbour is an ex-employee of the DSTO. This man mentioned former colleagues of the applicant, which triggered stress and anxiety on the part of Dr Carson.
32. The applicant stated that he now experiences dizziness and chest pains with physical exertion, which he attributes to stress.
33. The applicant stated that his sexual function is unimpaired, but that sexual frequency is markedly reduced, because depression and worry reduce his sexual drive.
34. The applicant finds it difficult to concentrate. He at one stage tried to work on a theory he had, involving some complicated mathematics, but was unable to concentrate on it and has not worked on it for some time.
35. Dr Carson stated that all his appeals within the DSTO have been unsuccessful, but that all his appeals that have been heard externally have been successful. It was put to Dr Carson in cross-examination that he when he appealed his efficiency rating his second appeal went to the MPRA. Dr Carson agreed his appeal to that agency was unsuccessful.
DR K. E. LE PAGE, PSYCHIATRIST
36. Dr Le Page first saw the applicant on 7 February 1995, on referral from Dr K. Soo, a general practitioner. He has now seen the applicant on thirteen occasions at fairly regular intervals. Several reports of the psychiatrist were before the Tribunal, dated 7 April 2000 (T10), 31 January 2000 (Exhibit R6), 12 August 2002 (Exhibit A2) and 26 August 2002 (Exhibit A3).
37. In his report of 7 April 1995 (T10), Dr Le Page noted that the applicant "presented as a rather passive, inhibited and depressed person" who "continued to suffer from anxiety and depression." He stated that Dr Carson reported work problems related to clashes with his supervisor. He wrote that the applicant::
"...said that his emotional reactions to the work-related problems are frustration, he feels that he is going around in circles, is ideas are rejected which makes him feel confused, he is depressed and burnt out and experiences a loss of energy."
38. In his report dated 31 January 2000 (Exhibit R6), Dr Le Page wrote that the applicant's emotional state had not changed appreciably. He described the applicant's symptoms as:
"...
- Depression,
- Tension,
- Headaches,
- His motivation is low,
- His concentration is impaired,
- He has dizzy periods,
- Suffers from skin problems which are stress related,
- Suffers from paraesthesiae in his hands and legs.
He also suffers from teeth-grinding which is due to uncontrolled tension during his nocturnal hours. This has caused him to have his teeth recapped recently." (Exhibit R6/5)
Dr Le Page stated that Dr Carson remained incapacitated for work. He estimated that Dr Carson's level of incapacity under the Guide was 5%.
39. Dr Le Page wrote an open report dated 12 August 2002 (Exhibit A2) at the request of Dr Carson. In it, he wrote that Dr Carson:
"...has never suffered from a paranoid personality disorder.... None of Dr Carson's personality deficits fit the criteria, or any ingredient of the diagnostic criteria for a paranoid personality disorder."
40. Dr Le Page wrote that Dr Carson has a sensitive personality, and he had reacted to what he saw as excessive destructive criticisms and obstructions in the workplace. The psychiatrist stated that, on the other hand, Dr Carson had always responded well to constructive criticism and had worked productively when not exposed to excessive stress in the workplace. According to Dr Le Page, this is
"...in marked contrast to the normal reactions of those who suffer from a paranoid personality disorder who are unable to distinguish between constructive and destructive criticism."
41. Dr Le Page rejected the opinion expressed by Dr Davis that only one third of Dr Carson's impairment was attributable to workplace stressors, with the remaining two-thirds attributable to "constitutional personality factors." He pointed to the fact that Dr Carson had worked productively for many years, but became "dysfunctional" on two occasions, in 1984-1985 and from 1993 onwards, when exposed to "identified and validated stressors which exceeded his coping limits." In an "appropriate emotional environment" he has been "constructive, creative and productive." The fact that Dr Carson had recovered from his initial bout of stress showed that it was external factors that caused his incapacity, not constitutional factors.
42. Dr Le Page provided a definition of psychological stress as
"...a particular relationship between the person and the environment which is appraised by that person as taxing or exceeding his or her resources and endangering his or her well-being".
Dr Le Page concluded that Dr Carson's "residual disability is related to the unresolved environmental stressors interacting with his previous personality".
43. In his report dated 26 August 2002 (Exhibit A3), prepared at the request of the applicant's solicitors, Dr Le Page stated that he diagnosed Dr Carson as suffering from a "Reactive Anxiety Depressive State, superimposed on a sensitive personality" [bold in original]. He stated that he had maintained this diagnosis since he first saw the applicant in April 1995.
44. Dr Le Page wrote that he disagreed with Dr Davis's opinion that Dr Carson had no significant depressive disorder, and that Dr Carson had "prominent paranoid personality traits which could possibly amount to a paranoid personality disorder". Dr Le Page stated that Dr Carson had "always been depressed both subjectively and objectively" during consultations, though the level of depression had fluctuated. This depression had "always been associated with considerable symptoms of stress with psychosomatic manifestations."
45. Dr Le Page wrote that Dr Carson meets none of the criteria for paranoid personality disorder. In support of this conclusion, he remarked that:
"In all the documents which have been provided, I have not seen any validated information which would contradict the allegations of persecution by the people Dr Carson has named".
46. Dr Le Page wrote that Dr Carson's condition was caused by his workplace. That condition, wrote the psychiatrist, is now permanent. He assessed Dr Carson's permanent impairment under the Comcare Guide as being 10%.
47. Dr Le Page again rejected the opinion of Dr Davis that two thirds of the applicant's permanent impairment was due to underlying personality factors and one third due to workplace stresses. In so doing, Dr Le Page referred to the applicant's work history. He wrote that the applicant had "functioned well with his basic personality disorder" until he suffered workplace stressors in 1984. When he returned to work, he again worked productively until exposed to another set of stressors in 1993. Dr Le Page wrote that:
"...Dr Carson's basic personality performed in a constructive, creative and productive way when he was not exposed to what he perceived as environmental sterssors which exceeded his limits.
He subsequently became dysfunctional in 1993 when he was exposed to the identified stressors which exceeded his coping mechanisms."
48. According to Dr Le Page, Dr Carson's basic personality remained constant, and two periods of illness, caused by the stressors referred to above, were superimposed on this basic personality. The fact that Dr Carson had recovered from his initial illness, and worked productively for such a long period of time, indicated that it was not his basic personality which constituted his impairment. The psychiatrist wrote that stress is a relationship between environmental events and individual responses. In the applicant's case, this stress led to a mental illness which is now permanent.
49. In his oral testimony, Dr Le Page reiterated his opinion that the applicant does not suffer from a paranoid personality disorder (PPD). He referred to the DSM-IV diagnostic criteria for that condition (Exhibit A2/6), which provides that for a diagnosis of PPD to be made, four or more of seven provided criteria must be met. Dr Le Page stated that the applicant satisfied none of the requisite criteria. Furthermore, Dr Le Page stated that the applicant responded poorly to destructive criticism, but responded well to constructive criticism. This would not be the case if the applicant suffered from PPD. For, according to Dr Le Page, a person suffering from PPD interprets all criticism as destructive.
50. The psychiatrist stated that the fact that the applicant had functioned well in his employment for long periods of time in the absence of excessive stressors indicated that the applicant did not have a personality disorder. He stated that
"Personality is made up of a number of traits on a spectrum of mood, thought and behaviour attributes. Everybody has these, they are universal. But a personality only draws the diagnosis of personality disorder when the personality becomes dysfunctional in some way and causes problems in day to day life. Now, in my opinion, I diagnosed Dr Carson when I first saw him in February of '95 as being passive, inhibited and depressed. Now, in my opinion, those traits would not draw the diagnosis of a personality disorder because it was not my opinion at that time that the personality attributes were dysfunctional, although he had symptoms of an illness at that time..... His personality traits from the history that I took up until the illness in 1984 did not handicap him, from the history I took, in his day to day life during that period, nor did they handicap him again between 1986 and 1993 when he was exposed to another lot of stressors.... So it seemed to be that whatever personality traits that he had during those functioning periods would not have drawn a diagnosis of the personality disorder because I didn't obtain any history that his personality was dysfunctional during those two productive periods."
Furthermore, if the applicant had a PPD then he would not have presented as being so depressed. Rather, he would have been "more defensively aggressive and angry." This is because those suffering from a PPD see others as unjustifiable attackers, and respond in a primarily attacking manner.
51. Dr Le Page stated that a mental illness was different to a personality disorder. While the latter was comprised of permanent personality traits, the former is superimposed on the personality. An illness is generally acute, and subsides when the circumstances which brings it about abate. It may respond to treatment. There are, however, chronic mental illnesses, the symptoms of which can persist "in various forms of intensity and handicap."
52. The psychiatrist was again referred to the definition of stress attached to several of his reports. He agreed that the applicant's residual disability was caused by workplace stressors within the meaning of this definition. He was asked whether the applicant's personality had contributed to his disability. Dr Le Page replied that it had in the sense that the applicant had passive and inhibited personality traits which may have resulted in him being less assertive in dealing with the external stressors he encountered in the workplace. This would have made him feel "somewhat helpless and impotent". Again the psychiatrist contrasted this behaviour with that of a person with PPD, saying that such a person would have responded in an attacking manner.
53. Dr Le Page confirmed the diagnosis he gave in his report of 26 August 2002 (Exhibit A3), of a "Reactive Anxiety-Depressive State" superimposed in a sensitive personality. He stated that this had been his opinion of the applicant's condition since 1995. He stated that currently the depressive component of the applicant's condition was not as severe as it had been in 1995, when he had first examined the applicant. However, the "anxiety or stress" component was more severe, and there were now further psychosomatic symptoms of that chronic stress. He confirmed that he considered the applicant's permanent impairment under the Guide to be 10%. This impairment is superimposed on the applicant's personality.
54. Dr Le Page stated that he had read the report of Professor Goldney dated 29 August 2002 (Exhibit R2), and was familiar with its contents, including the opinion of the Professor that the applicant has a PPD. Dr Le Page disagrees with that opinion. He further disagreed with the Professor's opinion that Dr Carson has an overall disability of 10%, but that only one or two percent of that are related to his workplace.
55. In the same report, Professor Goldney wrote that Dr Le Page's view would be correct only if all the information the applicant gave about his work history were correct. The professor did not accept the applicant's account as accurate. Dr Le Page, when asked whether it was not dangerous to assume that what a patient says is untrue, responded in the affirmative. He stated that, ideally, one would have another source to check the history given by a patient. In this case, he had seen nothing that contradicted the applicant's story. He stated that ultimately, a psychiatrist must use a degree of judgement in assessing the truth of a patient's claims. In this case, he stated that the applicant's story was consistent, and pointed to the conclusion that the applicant had functioned well working at DSTO until the stressors experienced in 1993. This was borne out by the applicant's statement that he was commended for his invention and paper in 1984. Dr Le Page noted that this meant the applicant was functioning well after his motor accident, despite the head injuries he received in it, and despite his personality traits.
56. Dr Le Page rejected the opinion of Professor Goldney that the applicant's ongoing symptoms as a result of the head injuries he sustained in the car accident of 1982. He stated that it was possible that neck pain caused by the accident might contribute to headaches suffered by the applicant, but there were no symptoms relating to mood, thinking or behaviour that could be related to the accident.
57. During cross-examination, Dr Le Page stated that he had read the report of Dr Koopowicz (dated 6 July 2001, Exhibit R7/3-20) in "considerable detail".. In that report Dr Koopowicz determined that Dr Carson should be retired on the grounds of invalidity, on the basis that he was suffering from a delusional disorder, persecutory type, for which condition he met the DSM-IV criteria. Dr Koopowicz found that Dr Carson would be permanently incapacitated as a result of this condition. Dr Le Page stated that this report had not caused him to reconsider his own opinion of Dr Carson's condition. He stated that he could find no evidence in that report that would justify Dr Koopowicz's conclusion.
58. Dr Le Page stated that he was aware that both Dr Davis and Professor Goldney consider Dr Carson to have a paranoid personality disorder. Dr Le Page stated that he considered this diagnosis to be wrong. He stated that he disagreed with these psychiatrists, as well as with Dr Koopowicz, because in his opinion the applicant did not meet the DSM-IV criteria for either paranoid personality disorder or paranoid delusionary illness.
59. Ms Bean questioned Dr Le Page about the lack of evidence contradicting Dr Carson's allegations of persecution at the DSTO. She referred to the previous decision of this Tribunal that found, inter alia, that one of Dr Carson's complaints while working at the DSTO was heard by the MPRA, a body external to the DSTO. This body concluded on that occasion that no victimisation of the applicant had occurred. She put it to Dr Le Page that this contradicted the allegations of persecution made by Dr Carson. Dr Le Page responded that that fact alone would not be enough to alter his opinion. He stated that he believed that "the basic issues that he [the applicant] complained of were accurate".
60. Dr Le Page stated that his opinion was based on seeing the applicant on numerous occasions, and that he had never seen evidence that would justify a diagnosis of a paranoid disorder or a paranoid delusional state. Dr Le Page went on to say that such a condition tends to be all-embracing. It would not be limited to people the applicant perceived to have affected his progress within the DSTO. The diagnostic criteria for the condition state that it is "generalised across most people and most situations." Such a disorder arises when a person during their development has predominantly bad experiences with parents and authority figures rather than good experiences. They consequently "see people in their immediate environment as persecutors and they feel themselves being persecuted". There is, according to the doctor, no evidence that Dr Carson had such a history. There is no evidence that Dr Carson sees most people around him as persecutors rather than just a few.
61. Dr Le Page confirmed that in his report dated 31 January 2000 (Exhibit R6) he had estimated the applicant's degree of permanent impairment to be 5%. He stated that he has since revised his opinion based on the applicant's "continuing handicapped lifestyle and symptomatology". His current opinion is that the applicant's level of impairment is 10%.
62. Dr Le Page stated that although he had referred to Dr Carson's illness being superimposed on his "basic personality disorder" he did not mean to say that the applicant had a "disorder" in the sense that the psychiatrist used the term in his oral testimony. Dr Le Page emphasised that he considered that the applicant's underlying personality is not dysfunctional. He stated that his description of the illness as being superimposed on the applicant's underlying personality did not entail that part of the applicant's impairment of 10% is attributable to the underlying personality, and the remainder to the illness. The psychiatrist stated that the applicant's underlying personality is not dysfunctional, hence the 10% impairment that resulted from his illness is entirely due to that illness.
63. Dr Le Page rejected the proposition, put to him by Ms Bean, that Dr Carson's case was one in which his "paranoid personality traits have developed into a "full-blown disorder which has become more pronounced over recent years." The psychiatrist repeated that the applicant did not perceive all those around him as persecutors. He has not "lost his capacity to determine who is a friend and who is an enemy". This meant he did not fit the pattern for a PPD. Furthermore, the psychiatrist stated that
"...the symptoms of which he [the applicant] complains - depression, tension, headaches, low motivation, impaired concentration, itchy skin, the grinding of the jaw, teeth grinding, etcetera - are all symptoms of a mental illness, an anxiety-depressive state, and not manifestations of a paranoid disorder or delusional paranoid state".
Dr Le Page did, however, concede that paranoia is always accompanied by depression.
DR A. T. DAVIS, PSYCHIATRIST
64. Dr Davis stated that he had seen the applicant on one occasion, and had, based on that consultation, prepared three reports, dated 4 August 2000 (T37), 8 June 2001 (Exhibit R4) and 27 November 2001 (Exhibit R5). Dr Davis said that his diagnosis was that the applicant had
"...what I call a chronic adjustment disorder with mixed emotional features, another term might have been reactive anxiety/depression, and I thought this occurred in a man with what I refer to as paranoid personality traits, and I raise the possibility that he actually had a paranoid personality disorder...."
This is essentially the same diagnosis made in his report dated 4 August 2000 (T37). In that report, the psychiatrist stated that the applicant "does not have signs of a paranoid psychosis or other psychotic disorder." Dr Davis stated that since he first made his diagnosis, there has been an "interesting discussion" about whether the applicant has "prominent paranoid personality traits or a paranoid personality disorder or a paranoid psychosis", but his diagnosis remains substantially the same.
65. Dr Davis said that he was hesitant to say whether or not the applicant had a PPD because he had only seen him on the one occasion. Hence he could only go so far in his diagnosis. He further said that the appraisal of personality disorders constitutes one of the most complex fields in psychiatry. This fact in part accounted for the divergence in the expert opinion before the Tribunal. Such diversity of opinion was to be expected in the field.
66. This however was not the only reason for the lack of consensus on whether the applicant has a PPD. Dr Davis stated that to some extent, he employed a different conceptual framework to Dr Le Page. Dr Davis said he did not share Dr Le Page's view that a PPD must be universal, that is directed at practically everybody a person meets. Dr Davis said that, in his opinion, there is a "spectrum" of PPD. At one end of this spectrum, in a very severe case of the disorder, paranoia may be directed against all people in all situations. At the other end of the spectrum
"...may be individuals who react in a paranoid way in certain situations in certain context and it might be in a work situation or perhaps in situations dealing with authority or situations whereby certain people evoke those responses".
Such a case might still be classified as a paranoid personality disorder.
67. Dr Davis disagreed with Dr Le Page's assessment that the applicant satisfied none of the DSM-IV criteria. Dr Davis was asked to consider Dr Le Page's opinion that the fact that the applicant could distinguish between constructive and destructive criticism militated against a diagnosis of paranoid personality disorder. Dr Davis stated that the ability to distinguish between constructive and destructive criticism did not add "a lot of weight either way". He reiterated that his diagnosis was that the applicant had prominent paranoid personality traits, "which may well be seen as" a PPD, but that he was unwilling to make a final statement on that point based on his single consultation with the applicant and the other information before him. He did state in cross-examination that it was not "obvious" that the applicant had a paranoid personality disorder. He also at one point towards the end of his oral testimony said that the applicant would probably not qualify for a diagnosis of PPD.
68. Dr Davis stated that he estimated that the applicant's level of permanent impairment under the Guide is 10%. In his first report (T37), he had assessed the rate as being "between 10 and 15%". In a later report (Exhibit R4) he changed this assessment to ten per cent. Dr Davis stated that he had initially estimated that Dr Carson had an impairment between the two levels, but had subsequently been informed by the solicitor for the respondent that the rating must be assessed as being either one or the other. Consequently, he looked at the guidelines again and determined that the appropriate rating was 10%. The guidelines stipulate that to qualify for an impairment rating of 15%, it is required that an employee require "some supervision and direction in activities of daily living" (Guide, Table 5.1). Dr Davis did not believe that this requirement was met.
69. Dr Davis made it clear that this assessment of impairment constituted the overall impairment of the applicant. It included both impairment which resulted from underlying personality factors, and that which was caused by his workplace. In his first report (T37) he wrote that he could not provide an estimate of how much of the applicant's impairment was due to workplace factors, but that he considered that they were less important than constitutional factors. In his report dated 27 November 2001 (Exhibit R5), written in response to a request of the respondent dated 19 November (Exhibit R3), he stated that two thirds of the impairment was attributable to "constitutional and personality factors, and one third to work-related factors".. In his oral testimony he emphasised that it was conceptually very difficult to separate these factors, but he still regards these estimates to be reasonable. When he was asked to estimate what percentage impairment under the Guide resulted from personality factors alone, he doctor gave a figure of "somewhere between five and ten per cent".
70. Dr Davis stated that it is very difficult to separate the depressive/anxiety element of the applicant's impairment from the impairment arising from his personality traits. It is, he said, very difficult conceptually to say that the depressive/anxiety component is "something separate". The applicant's personality meant that he had a "proneness to anxiety and depression when confronting any number of stressors". He stated that "the very state he [the applicant] experiences is influenced by the personality throughout". Hence the artificial nature of separating out the contributions of personality and workplace stressors to the applicant's impairment. He further stated that such an exercise is an arbitrary thing which on balance gives a "certain degree of - a proportion of - weight". The lines between the two factors were blurred.
71. Dr Davis said that the result of the applicant's personality was that characteristic behaviours would emerge through his life. They might not be obvious "until there are certain stressors or certain circumstances which can bring behaviours to the fore". Dr Davis stated that the applicant's ability to work normally before 1983 and from approximately 1986 to 1993 showed that the applicant had
"...considerable resourcefulness and a capacity to work in that environment. I think I've been suggesting that he has this propensity for paranoid thinking or behaviour in certain circumstances and it would emerge in certain contexts. So obviously at times he could function reasonably".
Dr Davis said that the history suggests that the applicant's personality problems were "controllable or manageable".
72. Dr Davis further explained in relation to the apportionment of impairment that personality determines the responses of an individual to their environment, but "...the issue is to what extent does the personality drive that reactivity". He further stated:
"If it were established that there were clearly a number of varying noxious workplace circumstances it would add weight to more of the reactive anxiety depression. If it seems that the workplace issues were not extraordinary or particularly noxious, that would make me think it is much more linked to his perception of the workplace and as such add weight to it being a personality disorder problem."
73. Dr Davis said that the applicant had certain personality traits. In certain situations they would come to the fore, probably more frequently in relation to authority figures, or people who are perceived to be more threatening by the nature of their persona or their role. Hence, in some situations, "things can come to the fore which may be quite dormant and not relevant, you know, with the local footy club, wherever".
"I think he carries that propensity with him through life and in certain contexts the paranoid ideation comes to the fore and other times it's abated because the stressors are minimal..."
74. Dr Davis stated that the diagnosis of paranoia depended in large part on an appraisal of the "noxiousness" of the workplace. If all the events in the workplace happened as the applicant described them, the evidence for paranoia was reduced. The doctor stated that, although there was some evidence in the story that some "malevolence" or "undermining" may have occurred, he ultimately had to choose whether most senior figures in the workplace were involved in such undermining, or whether the problem lay with the perceptions of the applicant. He stated that on balance, he considered it likely that most problems lay with the applicant. This view was to be found in his report of 4 August 2000, wherein Dr Davis stated:
"Unless all supervisory reports are ill-informed, it is far more probable that the difficulties lie within Dr Carson than within many senior staff within the organization" (T37/139).
These comments must be taken in the light of Dr Davis's statement that it was difficult to assess the levels of paranoia of a patient based on one consultation and without external verification of a patient's own account of events.
75. At the same time, Dr Davis stated that if it were shown that most of what the applicant described in the workplace had in fact occurred, then the doctor's assessment of the amount of the impairment caused by the workplace would be "a great deal" of 10% total impairment. However, he stated that the applicant's personality was still relevant, as the manner in which stressors are perceived and responded to depends very much on one's personality. He admitted that the inefficiency procedures would have been stressful, and added that they were a good example of when a "propensity for paranoid thinking might come to the fore".
76. Dr Davis was asked which of the physical symptoms of which the applicant complains are attributable to his impairment, and of these symptoms, which are attributable to his underlying personality traits/disorder and which to his reactive depressive anxiety condition. Dr Davis stated that skin rashes, bruxism (the grinding of teeth), acid stomach, headaches sleep disturbance were all attributable to anxiety. A paranoid personality disorder alone could not account for them. Variable mood, "heavy feelings", and feeling flat and withdrawn, and emotions of anger, frustration and tension could be accounted for by depression anxiety or by a paranoid personality disorder alone. The psychiatrist explained that the question was difficult because "the very state that he experiences is influenced by the personality throughout". Trying to determine how much these feelings are attributable to the illness and how much to personality is thus "an arbitrary thing at the end of the day, but on balance you are just trying to give a certain degree of weight - a proportion of weight". This is "an artificial exercise".. Dr Davis stated that problems with vision, hearing loss, pain in the right hip and knee, recurrent chest pain and shortness of breath were attributable neither to the applicant's anxiety-depression nor to his personality traits/disorder.
77. Another issue that arose out of Dr Davis's evidence is that of permanence, or, more precisely, the permanence of that part of the applicant's impairment caused by the workplace. He said that the impairment due to personality was permanent, but that "ongoing impairments are less and less to do with work factors and more to do with his ongoing frustration, anger and his personality style". Dr Davis referred to the applicant's "ongoing sense of frustration and anger and resentment about how he perceives he was treated in the workplace." He said that the issue of ongoing impairment is linked to the applicant's personality. Dr Davis remarked that
"being involved in lengthy medico-legal proceedings and litigation and so on serves as a means of maintaining that paranoid propensity or maintaining the paranoid attitude. I would equally assume it will settle once this process is ended. But the propensity remains in certain situations".
PROFESSOR R. D. GOLDNEY, PSYCHIATRIST
78. Professor Goldney has seen the applicant on a number of occasions since 1985, and provided a number of reports. Those before the Tribunal are dated 10 May 1985 (T4), 5 February 1986 (T9), 24 July 1995 (T13), 14 February 1997 (T18) and 29 August 2002 (Exhibit R2). The professor gave evidence in the previous Tribunal proceedings before von Doussa J, and all but the last of these reports were before the Tribunal on that occasion and were considered in the Tribunal's decision. A summary of his views was made by von Doussa J, and is quoted above (see paragraph 9 of these reasons). Professor Goldney's opinion remains substantially unchanged from that time.
79. Professor Goldney stated that his diagnosis of the applicant's condition was that:
"primarily, he has a paranoid personality disorder and in addition at times there has been sufficient depressive symptomatology to consider that he's had a depressive illness, probably a major depressive disorder."
The professor stated that in addition, he considers the applicant's condition to have been affected by the motor accident he was involved in in 1982. The professor said that there is evidence that a proportion of people who suffer head injuries (such as the applicant suffered) develop psychiatric illnesses, including paranoid personality disorders. Professor Goldney said that he believes that the applicant's condition pre-dates the accident, but that the head injury has played a role in his current condition. He stated that he did not believe that the applicant's depression was now as severe as it has been in the past.
80. Professor Goldney said that he had based his diagnosis of the applicant upon his full history. He said that the applicant belittled the competence of others in the workplace. He spoke "in a grandiose way" about his own abilities. He stated that he had experienced difficulties with some of his colleagues, and attributed all his difficulties to others and not to himself. He implied he had been "set up" by others. His manner with Professor Goldney was guarded and deliberate. The professor said that he understood that the applicant's views of his workplace are not shared by others. He understood that the applicant's claims had on a number of occasions been investigated and found to be unsubstantiated. He said that the applicant's account and presentation had remained similar on the occasions that the psychiatrist had seen him. In sum, the applicant's "perception of events really isn't congruent with that of other people. And this is essentially what the features of a paranoid personality are." Professor Goldney said that he had seen no definite evidence of a psychotic illness, such as hallucinations or delusions.
81. Professor Goldney then referred to the seven factors in the DSM-IV criteria for paranoid personality disorder. He stated that the applicant meets the first six of these factors. He said he had no data on the seventh factor, so could not say whether it was met. Satisfaction of these six factors is sufficient to make a diagnosis of PPD (if four of the criteria are met, the criteria are satisfied).
82. Professor Goldney stated that the applicant has a whole person impairment of 10% under Table 5.1 of the Guide. He was asked by Ms Bean how much of this impairment was due to the PPD as opposed to the depressive condition. The psychiatrist responded that the depression itself is secondary to the personality disorder. He said that a paranoid person becomes frustrated that their view of events is not shared by those around them, and this leads to depression. Hence, it was Professor Goldney's opinion that the paranoid disorder was responsible for any impairment due to depression. He stated that he was aware that this Tribunal had previously found that the depression was an injury contributed to by the workplace. He said that if this were accepted, the depressive condition would account for no more than two or three per cent of the applicant's 10% total impairment. The psychiatrist said that
"...his depressive condition at the present time is certainly not at the severe end of the spectrum of that seen in clinical practice, he's not having any specific ongoing treatment for the depression, I don't think any is needed.... [A]t the present time I consider there's very little depression which one could attribute to the workplace."
83. Ms Bean asked Professor Goldney to put aside the applicant's depressive condition and to assess the impairment under Table 5.1 of the Guide arising from the PPD alone. The psychiatrist responded:
"It's an extraordinarily difficult question because it gets back to the dilemma of paranoid disorders that they need not be all encompassing, and there are some people with paranoid disorders who can work quite adequately as long as they don't tell others about their paranoid ideas. The dilemma is when people focus their paranoid ideation upon a particular area and sometimes in the literature this is called a paranoid pseudo-community because people's paranoid ideation doesn't have the same strength towards all people. And so in terms of general functioning I consider that probably only eight, ten per cent is a fair indication of the overall disability that Dr Carson would have. But if you take it to the specific workplace here, with his ideas about the workplace, quite clearly it's far more than that eight to ten per cent., and I think it essentially makes it unrealistic for him to even consider working there; so therefore one is talking about, say 50 of 60 per cent disability or even higher, in a sense. So it really depends on the context in which one is providing that answer. So in general terms a person can live life reasonably well so long as they're not frustrated, so long as they can relate to people who don't challenge their ideas. Whereas if you're in an environment where those ideas are going to be challenged, therefore, you're not going to be able to function. But it's a matter of the person having taken their ideas to that particular context."
As is apparent from this passage, Professor Goldney gave the opinion that a PPD need not be global in its scope. He stated that paranoia can be focussed on certain people, such as authority figures or those in the workplace, and still draw the diagnosis of PPD. Dr Goldney further stated that there was no clear distinction between personality traits and a personality disorder, saying that a person's personality traits may
"...gradually merge into a personality disorder and it is a matter of fine judgement as to where the delineation may be".
There are "grey areas". The same applies to whether someone is suffering from an "illness" or a "disorder" in psychiatric terms.
84. Ms Bean asked the professor whether the applicant's paranoid personality would of itself constitute "minor distortions of thinking" as set out in the criteria for a 5% impairment under the Guide. The professor responded that would depend on the context. In some areas of life the applicant would experience no distortion in thinking at all, while in others such distortions would be "very appreciable". When pressed in examination in chief, he said that the applicant would experience minor distortions in thinking, and that these would increase the "closer you got to the area of specific concern to the individual".
85. Dr Goldney stated that the applicant's condition had remained fairly constant for almost 20 years. He stated that it is not going to change significantly. This permanence, he said, and the strength with which the applicant continues to hold his opinions about the DSTO add weight to the view that the applicant is disabled due to his PPD.
86. Professor Goldney said that he did not disagree with Dr Le Page's assessment that the applicant has a "reactive anxiety-depressive state".. He said this accords with his view that the applicant became depressed due to the frustration he felt when his views were not shared by others. The professor said that he differed from Dr Le Page in that he thought the latter had not taken the applicant's PPD into account. The professor said he did not disagree with Dr Le Page's statement that the applicant has a "sensitive personality".. However he said that this does not constitute a psychiatric diagnosis. The professor said that the applicant was "sensitive to the point of being paranoid".. He had views that were not shared by those around him, and had not been substantiated by "a number of Tribunals". Professor Goldney said that he disagreed with Dr Le Page's finding that the applicant had functioned well at the DSTO for a lengthy period. The professor said that for Dr Le Page's diagnosis to be correct, Dr Carson's account of his experiences at DSTO would have to be entirely accurate. As Professor Goldney sees it, a diagnosis of a "reactive-anxiety depressive state based on work-related factors"
"...is one interpretation, but ... that is not taking it far enough in the sense that the reason [this has occurred is that] Dr Carson has taken his paranoid personality disorder to the workplace and there has been the reaction because his view of the work hasn't been shared by his work colleagues and superiors, therefore he's become depressed and so his depression really is secondary to the paranoid personality disorder. So... that's only part of the answer and it would be... psychiatrically incorrect to ... leave it at half an answer"..
87. Professor Goldney said his opinion was not changed by the previous decision of this Tribunal, which determined that the applicant had sustained an injury contributed to by his workplace. He said that that decision was made on legal grounds. He was giving an opinion concerning the medical causation of the applicant's condition, and whether the law deemed compensation was payable in such circumstances was another matter.
88. Professor Goldney said in cross-examination that he was not competent to judge the applicant's competence as a DSTO employee. Rather, to judge the accuracy of the applicant's account of events, the professor said he had to judge whether that account was congruent with other information. However, if the applicant had been an outstanding employee, whose account of events in the workplace was entirely accurate, then the doctor's opinion would change. Professor Goldney said that he did not question that the applicant believed that his account was accurate, but that his condition was such that this belief was erroneous.
89. Professor Goldney acknowledged that Dr Le Page had seen the applicant approximately twice as many times as he had. However, the professor stated that he had seen the applicant over a considerably longer period of time, so in that respect he was better placed to judge the applicant's condition. The professor said that in the 17 years since he had first seen Dr Carson, the latter's condition had not changed.
90. Professor Goldney said that he believes Dr Carson treats him with "disdain".. He said that this has never affected his diagnosis of the applicant. It was put to the professor that the applicant had "got on" with Dr Le Page better than with the professor, and the professor was asked whether this had any significance in the difference in medical opinion between the two psychiatrists. Professor Goldney said that he had probably challenged the applicant more, and that the applicant had no doubt warmed to Dr Le Page more, as his diagnosis was more favourable to the applicant.
91. Professor Goldney said that he did not dispute that the applicant had recorded some positive achievements in the workplace. He said that someone with a PPD, or even with a psychotic disorder, could achieve well, if their paranoia is "encapsulated" or of limited scope. Furthermore, the severity of a paranoid personality disorder may fluctuate, so in periods where the Dr Carson was not challenged, it was quite conceivable that he performed his work well. This would not conflict with Professor Goldney's diagnosis.
92. It was put to the witness in cross-examination that testing after Dr Carson's car accident showed that his cognitive function had returned to above average levels, and that this showed that the accident had no ongoing effects. Dr Goldney responded that this sort of testing did not detect all forms of cognitive disturbance.
SUBMISSIONS OF THE APPLICANT
93. Mr Amey submitted that Dr Carson's evidence clearly established his history of stress and anxiety. The applicant testified that he feels stress almost every day, when he thinks back to his experiences as DSTO and when he receives any stimuli involving the defence department. Mr Amey referred to the glossary in the Guide with regard to "activities of daily living" and gave a list of physical ailments suffered by the applicant which come within the scope of those activities. The applicant, he said, has trouble moving, has problems with his bowel, has skin rashes and has reduced sexual function. As an example of the events which compound the applicant's stress, Mr Amey referred to the fact that the applicant had moved house to get away from the DSTO and its staff, and found one of his new neighbours was connected with the organisation.
94. Mr Amey submitted that the stress and anxiety felt by the applicant constitutes a permanent impairment of 10%. He said that the respondent did not challenge the stress condition suffered by the applicant, and that what was in issue is what proportion of the condition is work-related. The applicant submits that the entirety of the condition is due to his workplace.
95. Mr Amey submitted that the "seminal question" in this matter is which medical evidence should be accepted.. He argued that the Tribunal should accept the evidence of Dr Le Page. He said that Dr Le Page had seen the applicant about 13 times, at regular intervals, since February 1995. He further submitted that Professor Goldney may have seen the applicant over a longer period of time, but had seen him on only half the number of occasions and with lengthy gaps between consultations. Furthermore, he submitted that there was evidence that Professor Goldney had been quite aggressive towards the applicant, which was inappropriate in such a case, while Dr Le Page had adopted a more passive role and become the applicant's confidante as well as his treating specialist. He was thus better placed to make an accurate assessment. One would expect, submitted Mr Amey, that a psychiatrist who had seen a patient as often as Dr Le Page had seen the applicant would notice something as serious as a personality disorder.
96. In any event, Mr Amey submitted that Professor Goldney and Dr Le Page do not disagree about the existence of a reactive anxiety-depressive state. Professor Goldney believes that it is now not so pronounced as it was formerly. He believes that the applicant's impairment is a result of a combination of work-related factors and a disorder, but that the contribution from the workplace was very low.
97. According to Mr Amey, Dr Davis's position is between those of Dr Le Page and Professor Goldney. Dr Davis emphasised the "grey areas".. He addressed the symptoms experienced by Dr Carson, and stated that his skin rashes, teeth-grinding, acid stomach, headaches, "heavy feelings" and depression were all consistent with work-related depression, although the last two symptoms might also be the product of a personality disorder. Mr Amey said that Dr Davis had initially estimated the applicant's impairment to be 10-15%, but had later amended the figure to 10%, with approximately one third being work-related. Mr Amey submitted that Dr Le Page was in a better position to diagnose the applicant and to assess his impairment. However, the concessions of Dr Davis were notable in the face of Professor Goldney's "extreme" assessment.
98. Mr Amey submitted that the difference between the opinions of Dr Le Page and Professor Goldney with respect to a diagnosis of PPD was "alarming". The former said that not one of the seven factors in the DSM-IV criteria were met, while the latter held that six out of seven were. Mr Amey urged the Tribunal to accept the opinion of Dr Le Page. He had made a diagnosis of the applicant in 1995, and has not changed it since then. He clearly considered the differences between personality disorders and mental illness in making his diagnosis. Furthermore, he was the applicant's treating specialist, while Professor Goldney was an expert brought in by Comcare. Mr Amey also asked the Tribunal to take into account the demeanour of the applicant during the hearing and in the witness box. Such would not, Mr Amey submitted, support the diagnosis of pronounced paranoid personality traits.
99. Mr Amey submitted that the evidence of the applicant was consistent with the evidence he gave in the previous hearing before von Doussa J. The applicant agreed that the decision in that matter was binding on this Tribunal. Mr Amey quoted from the reasons given by von Doussa J, to the effect that Dr Carson suffered a compensable work injury while working at DSTO, and that it was not necessary to "investigate the objective reality of the complaints of harassment and victimisation made by Dr Carson" to establish this claim. (Mr Amey cited paragraphs 23-26 of von Doussa J's judgement. These paragraphs have been reproduced above, at paragraph 9 of this decision.)
100. Mr Amey referred to the matters of Comcare v Amorebieta (1996) 22 AAR 539, Re John Martin and Australian Postal Corporation (1997) AAT No 12502 and Martin v Australian Postal Corporation (1999) 29 AAR 420. These, he stated, stood for the principle that where an employee has a pre-existing impairment that is aggravated by an injury suffered in the workplace, the whole of the resulting impairment is compensable. He also referred to the Tribunal decision in Re Bruce Robert Williams and Australian Postal Corporation [1998] AATA 154. That matter distinguished Amorebieta and Martin, however, Mr Amey submitted that as it was a Tribunal decision it was not as persuasive as the Federal Court decisions in the first two matters.
101. Mr Amey referred to the Federal Court decision Comcare v Ticsay (1992) 38 FCR 181. In that case, Olney J held that the Comcare Guide is created under what is intended to be socially remedial legislation. Consequently, where two constructions are possible, that most favourable to the worker should be taken. Mr Amey submitted that in the event that the Tribunal has difficulty choosing between the opinions of Dr Le Page and Professor Goldney, it should apply the philosophy of Olney J's comments and favour the evidence of Dr Le Page.
102. Mr Amey closed his submissions by quoting from the decision of the full federal Court in Whittaker v Comcare (1998) 86 FCR 532. In a joint judgement, the Court held that with respect to the Guide and s24 of the Act,
"the general legislative purpose or intent is that an employee who suffers injury, causing more than minor permanent impairment is entitled to compensation" (at 545).
Accordingly, Mr Amey submitted that Dr Carson is entitled to compensation.
SUBMISSIONS OF THE RESPONDENT
103. Ms Bean submitted that the respondent accepts it is bound by the previous Tribunal decision of von Doussa J. That decision found that the respondent was liable to pay the applicant compensation for "depression or an aggravation of depression." It did not decide whether the applicant had suffered a permanent impairment due to this condition. Ms Bean said that s24(1) of the Act states that compensation is only payable in respect of a permanent impairment which "results from" an compensable injury. Hence, the applicant is only entitled to be compensated for any permanent impairment resulting from "depression", and even then, non-work factors contributing to the impairment must be taken into account. The phrase "results from" is defined in s7(6). If, but for an injury, a person's impairment would not have occurred, would have been significantly less, or would have occurred at a later time, the impairment "results from" the injury. Ms Beam submitted that Dr Carson can only succeed before the Tribunal if he can show his whole impairment is due to his depression, or if this cannot be separated from other causes of impairment.
104. Ms Bean submitted that, but for the accepted injury, Dr Carson's impairment would have been "essentially the same".. This is, she said, because he suffers from a PPD, which he would have had regardless of his work at DSTO. To succeed, the applicant, according to Ms Bean, must establish a permanent impairment of at least a 10% flowing from his compensable injury. In the present case, she submitted, the applicant has an overall impairment of 10% but the bulk of this, being due to his PPD, has no connection with his employment.
105. Ms Bean submitted that the medical evidence clearly established that Dr Carson has a PPD. She stated that Professor Goldney put this view forcibly, and gave a comprehensive explanation for his opinion. He is, according to Ms Bean, an eminent psychiatrist. He first saw the applicant in 1986 and has over that period been consistent in his diagnosis. He now believes that the PPD is so severe "it is pointless trying any sort of rehabilitation".. Dr Davis only saw the applicant once several years ago. He was more "guarded" in his assessment, but concluded, after one consultation, that the applicant probably has a PPD. Furthermore, Dr Koopowicz conducted two lengthy consultations with the applicant, and prepared a detailed report, including a full analysis of the applicant's history. He found that the applicant had a "delusional disorder, persecutory type". The applicant was in fact retired on the basis of invalidity subsequent to this report, which contained no mention of depression.
106. Dr Le Page is, conceded Ms Bean, the applicant's treating psychiatrist., and has seen him 4 times in the last 2 years. However, he is the only psychiatrist who denies the diagnosis of a PPD. As such he is "isolated" in his view, as the other psychiatrists are all consistent, their opinions being "variations on a theme".
107. Ms Bean submitted that based on this medical evidence, the Tribunal can only conclude that the applicant suffers from a PPD which has deteriorated to the point where it is now "unambiguously the predominant contributor to his psychiatric impairment". She further submitted that even the applicant's depression is secondary to his PPD. This contention is, she said, supported by the evidence of Professor Goldney, who detailed the interaction between PPD and depression, stating that a person with PPD finds that their perceptions of the world are never validated, and consequently becomes depressed. The professor is of the opinion that while 1 or 2 per cent of Dr Carson's 10% impairment is related to depression, none is related to his employment. Dr Davis considers that one third of Dr Carson's impairment is related to employment.
108. Hence, Ms Bean submitted that regardless of arguments about apportionment in line with Amorebieta and other authorities, the applicant has an impairment of at least 5% due to his PPD. All the medical evidence is that the applicant suffers an overall impairment of 10%. Consequently, the applicant cannot have a 10% impairment resulting from depression - the highest possible impairment from depression is 5%.
109. In the alternative, Ms Bean submitted that the Tribunal must separate the work-related and non work-related contributions to Dr Carson's permanent impairment. She pointed out that this is mandated by the Guide, and that this was recognised by Burchett J in Martin.. The Guide is made binding on the Tribunal by the operation of s28(4) of the Act. Ms Bean submitted that a line of authority exists, some of which makes reference to the Guide and some which does not, which makes it clear that where it is possible to identify the contribution of non-work caused impairment, this must be done in assessing the extent to which the permanent impairment is compensable.
110. In Amorebieta, Jenkinson J referred to s24(5) of the Act and said that it makes it clear that
"only impairment which results from harm suffered in compensable circumstances is to be the subject of determination."
In the case of Amorebieta, an employee suffered an aggravation to a pre-existing but asymptomatic degenerative back condition. Ms Bean submitted that the present case is clearly distinguishable, as in Amorebieta the pre-existing injury caused no impairment. She argued that, read as a whole, the decision Jenkinson J did not support the proposition that where a non work-caused impairment can be separated from a work-caused one, the former should be compensable.
111. Ms Bean submitted that, in line with Amorebieta, in cases where pre-existing, asymptomatic degenerative conditions are aggravated by a work-related injuries, this Tribunal has not discounted the amount of the final impairment resulting from work. Such cases include Re John Martin & Australian Postal Corporation and Re Susan Margaret Hill & Comcare [1998] AATA 350. However, there is, she said, a "long line" of cases where it has been possible to separate the impairment attributable to employment from that attributable to other factors, and where the Tribunal has found only the work-caused component to be compensable. Ms Bean submitted that the Tribunal decisions in Re Bruce Robert Williams & Australian Postal Corporation [1998] AATA 154 and Re John McManus & Comcare [1998] AATA 837 are examples of matters where apportionment was carried out in this manner.
112. Ms Bean referred in particular to the decision of Deputy President Forgie in Re Shane Hardy & Comcare [1998] AATA 944. In that matter, the Deputy President found that the applicant had suffered from obsessive compulsive disorder and post-traumatic stress disorder prior to the compensable incident. These caused an impairment of 5% prior to that incident. The applicant's level of impairment after the incident was 10%. The deputy president concluded that compensable component of the final impairment was only 5%. Ms Bean submitted that there is an even clearer case to apportion the impairment in this case between work and non-work factors, as in the current matter, the pre-existing condition (PPD) is different to the compensable injury (depression), whereas in Hardy the original conditions were aggravated. In the current case, Ms Bean submitted that as the applicant had a pre-existing impairment of 5%, it cannot be argued that his compensable impairment is any more than 5%.
113. Ms Bean submitted that in some cases the Tribunal had deemed it impossible to separate a pre-existing condition from a work-related impairment, and had consequently deemed the entire impairment to be compensable. She cited as an example Re Kary and Comcare [1999] AATA 687. However, it was submitted that the correct approach, endorsed by Deputy President Breen in Re Brereton & Australian Postal Corporation [2001] AATA 594 is that where the effects of a compensable injury upon a pre-existing condition can be isolated, the assessment of the degree of permanent impairment should take account only of the impairment flowing from the compensable injury.
114. Ms Bean submitted that with respect to Dr Carson's compensable condition of "depression", there is clear evidence distinguishing the work-related and non work-related contributions to the applicant's impairment. The weight of the evidence is, Ms Bean submitted, that the bulk of the applicant's depressive condition is secondary to his PPD. Dr Davis, she said, did not make such a clear distinction as Professor Goldney did, but nevertheless considered that no more than one third of the applicant's depression is attributable to his employment. Professor Goldney considered that none of the applicant's depression is attributable to his employment. Ms Bean submitted that the evidence is that the proportion of Dr Carson's impairment resulting from depression is substantially less than 10%, and that further, only a small fraction of the impairment resulting from depression is a result of his employment. This fraction, it is submitted, is certainly less than a 5% impairment. It is further submitted that even if the Tribunal finds that the applicant's depression has resulted in a permanent impairment of 10%, the component of this resulting from his work at the DSTO is significantly less than 10%.
115. Ms Bean submitted that the evidence of Dr Carson is unhelpful. She said that the Tribunal is only concerned in this matter with his permanent impairment, and where his evidence went beyond this question the Tribunal is bound by the findings of fact made by the previous Tribunal. She stated that the most important part of the applicant's evidence was his concession that all his appeals concerning victimisation in the workplace had failed. This, she said, goes to the reality of Dr Carson's perceptions of his workplace. The medical evidence, she submitted, established that the reality of the applicant's claims about his workplace is a crucial question in this matter. Dr Le Page believed the applicant's account of his workplace, and based his opinion upon it. Ms Bean submitted that the established fact that the MPRA investigation did not support this account was therefore highly relevant.
116. Ms Bean analysed the grounds on which Dr Le Page rejected the diagnosis of PPD. She submitted that they were fourfold, namely: there was no evidence to contradict Dr Carson's account; if Dr Carson had a PPD it would be global, that is directed at everybody; the applicant's symptoms were consistent with depression, and the applicant's history was not consistent with PPD.
117. With respect to the first of these reasons, Ms Bean submitted that the Tribunal must either find that the applicant was right in his perception of his workplace, and all others at the DSTO were wrong, or that the applicant was wrong and that everybody else was right. The second, she submitted, is the logical conclusion.
118. With respect to the second of Dr Le Page's reasons, Ms Bean submitted that both Dr Davis and Professor Goldney contradicted it, and gave evidence that a PPD may be limited in scope, that is, it can be limited in who it encompasses.
119. With respect to the third of Dr Le Page's reasons, Ms Bean submitted that depression and PPD were not mutually exclusive. Rather, a PPD can account for depression.
120. With respect to the fourth of Dr Le Page's reasons, Ms Bean submitted that it had nothing to do with the diagnostic criteria contained in DSM-IV.
121. Ms Bean further submitted that Dr Le Page was very rigid in his views, and had closed his mind with respect to evidence that Dr Carson's account might not be true. She submitted that Dr Davis, although he had only seen the applicant once, had diagnosed paranoid personality traits and found some evidence of a PPD, and said that the applicant's personality was the main contributor to his depression. The main significance of Dr Davis's evidence is that it provides support for the views of Professor Goldney.
122. Ms Bean submitted that Professor Goldney represented a "middle position" in regard to the medical evidence. He had seen the applicant over many years. He described the interaction between a PPD and depression, and gave evidence that the applicant's PPD was the reason his depression had proved so intractable. Ms Bean submitted that if the applicant's depression was due to his workplace, one would have expected it to resolve by now. Professor Goldney explained that the depression was "fuelled" by the applicant's distorted perception due to his PPD.
123. Ms Bean submitted that Dr Davis and Professor Goldney both gave evidence that on the basis of his PPD alone, Dr Carson has an impairment of 5% under the Guide.
124. Ms Bean closed by remarking that the applicant had been retired on the basis of invalidity caused by his "delusional disorder, persecutory type".. She submitted that it would be "odd" and "wrong" if the Tribunal were now to find that the applicant as a permanent impairment based on a different condition.
DISCUSSION AND FINDINGS
125. In 1997 the Tribunal found that Dr Carson suffered a compensable injury, namely depression or an aggravation of depression, as a result of his work at DSTO. In the matter currently before the Tribunal, the medical evidence was that the applicant still suffers from depression, but at a reduced level. However, his anxiety levels have increased. The Tribunal is satisfied on the medical evidence that the depression and the anxiety are linked. All three specialists who gave evidence agreed that the applicant's condition could be described as a "reactive anxiety-depressive state", although they differed in their opinions regarding the causes of this condition, and its precision as a diagnostic term. This was the injury tacitly relied on by the applicant to establish a permanent impairment. Ms Bean opened her submissions for the respondent by remarking that only an injury that has been found to be compensable under the Act can provide a basis for a claim for permanent impairment under the Act. The first question, then, that must be answered by this Tribunal is whether the applicant's "reactive anxiety-depressive state" can be equated with the "depression" as the injury already found by the Tribunal to be compensable. Taking into account the medical evidence as a whole, the Tribunal is satisfied that the applicant is suffering from the same condition that he suffered in 1997. In the intervening years, the diagnosis of that condition has changed somewhat, but not the underlying condition itself. Such a change in diagnosis is hardly surprising given the passage of time, and the complexity of the condition evident from the difficulty experienced by a number of eminent psychiatrists in agreeing on a diagnosis. The Tribunal is satisfied that the altered description of that condition has not changed sufficiently to make it a different injury from the one already accepted by the Tribunal. It follows that if it can be shown that the applicant's "reactive anxiety-depressive state" has led to him sustaining a sufficient permanent impairment, then he is entitled to compensation under the Act.
126. Turning now to the medical evidence, it was agreed by all the medical experts that Dr Carson suffers a permanent impairment of 10% under Table 5.1 of the Guide, and the Tribunal so finds. However, there was significant disagreement among the specialists over the cause of this impairment.
127. De Le Page considered the Dr Carson's impairment was entirely caused by his employment. According to him, the applicant had no pre-existing disorder, but had a "sensitive personality". When the applicant was confronted with stressors which he perceived as being beyond his ability to cope with, he developed his current condition. This condition is now, according to Dr Le Page, a permanent feature of the applicant's psychological state.
128. Dr Davis stated that approximately one third of the applicant's impairment could be said to be work-caused. His opinion was that the applicant had prominent paranoid personality traits, possibly amounting to a PPD, which had influenced the way that the applicant had perceived and responded to stressors in the workplace. The applicant's personality was responsible for the other two thirds of his overall impairment.
129. Professor Goldney stated that possibly "2 or 3%" of the applicant's impairment was caused by depression, but that none of it was caused by the workplace. He believed that the applicant had a PPD, that the majority of the applicant's impairment was due to his PPD, and that the depression itself was wholly attributable to the PPD and not to the workplace.
130. Unfortunately, the question of legal liability for injury and impairment under the Act is different from the question of scientific (in this case, medical) causation. Professor Goldney expressly recognised this, but then proceeded to give an opinion applying what he termed "egg shell skull" reasoning (Exhibit R2/5-6). At times the doctors seemed to attempt to answer the former question, which is not their role as expert witnesses. At any rate, the medical evidence was not always clear on why apportionment was made the way it was. As will become apparent, this issue is crucial.
131. Much effort was spent by the parties trying to establish whether or not the applicant suffers from a PPD. Dr Le Page, the applicant's treating specialist, said he did not. Dr Davis said it was possible, although his final answer was that the diagnostic criteria were probably not met. Professor Goldney was emphatic in his view that the applicant has a PPD. Dr Koopowicz went even further, but the Tribunal can not give so much weight to his evidence, as he did not appear before the Tribunal. In relation to Professor Goldney's opinion, the Tribunal notes that however carefully that psychiatrist prepared his reports, and there is no suggestion he did not take the utmost care in so doing, when he specifically addressed the DSM-IV criteria he appeared to do so in a somewhat cavalier manner. The impression created was that he made these assessments extemporaneously. Even so, that doctor was clear that the applicant has a PPD.
132. Taking into account the medical evidence as a whole, the Tribunal is satisfied that there is no clear distinction between paranoid personality traits and a paranoid personality disorder. Rather, the sum of evidence before the Tribunal is that these paranoid traits exist across a spectrum, and beyond a certain point may be termed a "disorder".. Likewise, this disorder may be more or less severe. It may be virtually all-encompassing, wherein the sufferer believes almost everybody is against him, or it may be limited to a particular set of people. In this regard, the Tribunal rejects the opinion of Dr Le Page that a PPD must be all-encompassing. Likewise, it rejects that doctor's view that someone with PPD interprets all criticism as destructive. On the medical evidence before it, the Tribunal concludes that in a less severe case of PPD, a person may be able to distinguish between certain forms of criticism, or function well for periods of time when not challenged in specific areas. Indeed the evidence before the Tribunal was that if certain situations did not arise, someone with a limited PPD may be able to function normally.
133. Nevertheless, the Tribunal is not satisfied on the evidence that the applicant suffers from a PPD. The evidence is equivocal, and two of the three specialists who appeared before the Tribunal stated that they were not prepared to make a diagnosis of PPD. The Tribunal is satisfied and finds that the applicant has paranoid personality traits, probably "prominent" ones, to use the words of Dr Davis, and certainly more pronounced than average. As will become apparent, the failure of the respondent to establish that the applicant has a PPD is not determinative of the outcome in this case.
134. The Tribunal now turns to the related question of the reality of the applicant's perception of events in the workplace. In line with the finding that the applicant suffers from some degree of paranoia, the Tribunal is satisfied that the applicant's perception of events at the DSTO was influenced by his personality. That is not to say that none of his account is accurate. It is ultimately impossible to decide exactly how accurate his account is. Certainly the institution of the efficiency procedures, and the clashes the applicant had with his supervisor are established as fact. However, the Tribunal finds that the applicant's personality influenced his perception of events to a significant degree. However, it has previously been found by this Tribunal that a sensitive person without any personality traits would have found the inefficiency procedures stressful. This finding is not altered by the foregoing remarks.
135. The Tribunal is further satisfied that the compensable injury suffered by the applicant has led to a permanent impairment. Dr Le Page stated that the applicant's depression/anxiety has now become part of his being. Professor Goldney remarked that the applicant's impairment with respect to DSTO was "50 or 60%".. Although that cannot be taken to be an assessment under Table 5.1 of the Guide (under the Guide an assessment of 60% would require "need for supervision and direction in a confined environment"), it indicates that the applicant has suffered permanent impairment in relation to the workplace. (This high level of impairment was specifically related to the DSTO, so must be caused by the applicant's perception of events at the DSTO.) Dr Davis indicated at one point that that he expected that with time, the applicant's impairment resulting from work would decrease, when litigation no longer kept it in his mind. However, the Tribunal is satisfied on the evidence of the applicant, the applicant's demeanour and the evidence of Dr Le Page that the applicant does have a permanent impairment related to his workplace. The Tribunal finds that this is a matter in which Dr Le Page's extensive history with the applicant gives weight to his opinion. The Tribunal notes that even passing or trivial references to the defence forces in the media or in day to day life result in a significant stress reaction. Such references will not disappear, and will serve to keep the applicant in his present state.
136. The Tribunal finds, then, that it is established that the applicant now has a permanent impairment under Table 5.1 of the Guide of 10%. As stated above, the Tribunal is further satisfied that the applicant's impairment was driven by his perception of events in the workplace, and that this perception was partly distorted. The remaining question then, is whether the applicant's permanent impairment can be apportioned between the applicant's employment and the applicant's personality. Counsel for the respondent submitted that such apportionment must be made, and that it can be made on two grounds. The first is that applicant had a permanent impairment of 5% before suffering the compensable injury, owing to his PPD. Hence, at the most only 5% of his 10% current impairment could have been caused by his workplace. Secondly, counsel for the respondent submitted that any impairment suffered in the workplace was substantially as a result of the applicant's PPD, hence the whole 10% was not work-caused, and thus the applicant is not entitled to compensation.
137. It was stated above that the Tribunal is not satisfied that the applicant suffers from a PPD, but that he does have paranoid personality traits which influenced to a not insignificant degree his perception of events in his workplace. It is not material to the respondent's case that the applicant does not suffer from a PPD. Whether his personality draws this diagnosis or not is irrelevant. There is no reason why, if in the case of a person having a PPD, apportionment of impairment can be made, the same apportionment cannot be made on the grounds or pronounced personality traits. As stated above, there is no clear distinction between the former and the latter diagnosis, the difference being one of degree only.
138. It is true that the Tribunal is bound by the Guide pursuant to s28(4), and that the Guide contains the following passage:
"Aggravation
An assessment should not be made unless the effects of an aggravation are considered permanent. If the employee's impairment is entirely attributable to a pre-existing or underlying condition, or to the natural progression of such a condition the assessment for permanent impairment should be nil.
Where it is possible to isolate the compensable effects of an injury upon a pre-existing or underlying condition the assessment of the degree of permanent impairment should reflect only the impairment due to those compensable effects."
But for this passage, the Tribunal is of the view that the applicant would succeed, using reasoning analogous to that employed by von Doussa J in the earlier matter. That view is borne out by the remarks of Jenkinson J in Amorebieta.. In this case the Guide is binding and the Tribunal must apply it.
139. Amorebieta concerned a man whose previously asymptomatic back condition was aggravated by his employment. In that case, Jenkinson J stated that
"in contemplation of law the degree of impairment to which the aggravation brings the respondent's spine is caused by - "results from" - that aggravation, whatever the lesser degree of impairment was which preceded that aggravation, and whatever the extent to which events and degenerative processes preceding that aggravation contributed to cause that degree of impairment" (at 552).
He went on to say:
"the conclusions I have stated are not in my opinion inconsistent with the statements...concerning aggravation in the "Principles of Assessment" in the Guide. Here the Tribunal did isolate the "compensable effects" of the aggravation upon the "pre-existing or underlying condition"" (at 552).
This was because the Tribunal had identified that the applicant's back condition was asymptomatic before the compensable injury.
140. The remarks of Jenkinson J were endorsed by Burchett J in Martin.. That case also concerned a previously asymptomatic condition which was rendered symptomatic by a workplace injury. He remarked that:
"There will perhaps be many cases in which it will be very difficult to determine whether and how this provision of the Guide can be applied. Whilst it may be possible (I do not say it would be in every case) to isolate the compensable effects of a further injury to the hand of a sawmiller who has previously lost a finger (whether as the result of an accident or treatment for a disease), it would be impossible to isolate those effects in, for example, many cases of previously not disabling or only mildly symptomatic diseases. Fluctuations in the severity of a constitutional condition and the similarity or identity of the effects typical of the condition, or capable of being produced by it, with those typical of an aggravation of the condition, or capable of being produced by such an aggravation, may make disentanglement of the one set of effects from the other set of effects a hopeless task. The draftsman of the approved Guide plainly recognized this by the qualification "[w]here it is possible to isolate the compensable effects of an injury". Those words should be understood as acknowledging both the wider problem to which I have referred, and the continuing validity of the analysis made by each of Jordan CJ and Barwick CJ. If there be any ambiguity, and I do not think there is, the remedial nature of the legislation would require it to be construed liberally, and not restrictively: Brennan v Comcare (1994) 50 FCR 555 at 559; Comcare v Bozicevic (1997) 144 ALR 132 at 145" (at para 30).
141. Despite these remarks, the Tribunal has in some cases deemed it possible to isolate the effects of an underlying condition from the effect of an employment-related impairment. For instance, in Re Williams and Re McManus the Tribunal distinguished Amorebieta on the grounds that the pre-existing injury was asymptomatic. On the other hand, in Re Kary and Re Hill it was held that it was impossible to "isolate" the compensable effects of an injury. Both those matters concerned previously asymptomatic conditions.
142. In Re Hardy, Deputy President Forgie found that it was possible to isolate the compensable effects of an injury under the Guide. It was found that the applicant had an impairment of 5% due to Post Traumatic Stress Disorder and Obsessive-Compulsive Disorder before suffering an injury in the workplace. After that injury, the applicant had a permanent impairment of 10%. The Tribunal found that only 5% of this impairment was attributable to the compensable injury.
143. The Tribunal now turns to the present case. The respondent contended that, as the applicant's impairment is caused by the applicant's perception of events in the workplace, and that perception was partly caused by the applicant's personality, that the whole impairment cannot be said to have been caused by the workplace. The respondent contended that Professor Goldney held that all of the applicant's impairment was due to his paranoid personality. Dr Davis said that two-thirds of the impairment was caused by the applicant's personality.
144. The Tribunal must reject the proposition of Professor Goldney. In the first place, there is the finding by von Doussa J (with which the present Tribunal agrees) that the inefficiency procedure would have been stressful to any sensitive person. Even if this had not been the case, however, events certainly occurred at the DSTO which triggered the applicant's reaction, and thus, in a legal sense, it cannot be said that the workplace had no causal effect on the applicant's current level of impairment. Dr Davis had clearly given a great deal of attention to the question of causation, and was most helpful in his analysis. However, he admitted that his assessment was arbitrary, and highly artificial. Dr Le Page stated that none of the applicant's impairment was work-caused.
145. The Tribunal notes that in Re Hardy, the applicant was unsuccessful because it was possible to identify a pre-existing level of impairment. It was not contended that the applicant's proneness to injury could be isolated out as one cause of the injury. In each of Amorebieta, Martin, Re Kary and Re Hill the applicant had a proneness to injury, and the Federal Court or the Tribunal in each case declined to make any apportionment on these grounds. In the opinion of this Tribunal, it is in the present case impossible to isolate with any accuracy at all what level of the impairment which the applicant suffered at the DSTO can meaningfully be attributed to his personality. Indeed it is not certain on the authorities that apportionment for "proneness" can be made at all. In this case, it is impossible, and following the passage of Burchett J in Martin quoted above, where there is any doubt, the Guide and the Act should be applied in favour of the applicant. Hence the Tribunal finds that the entirety of the impairment suffered by the applicant at the DSTO "results from" his compensable injury within the meaning of the Act.
146. It remains to examine the second contention of the respondent, that the applicant suffered an impairment of 5% due to his paranoid personality before he suffered his compensable injury. If so, this would bring the case within the ambit of the Tribunal decision in Re Hardy.
147. As outlined above, the Tribunal accepts that the applicant does have some paranoid personality traits. The medical evidence is that it is extremely difficult to assess what level of impairment if any flows from those traits. Professor Goldney stated that the question was difficult, as the propensity for paranoid thought only arises in certain situations. In certain situations the applicant could function quite normally. In others, for instance in his old workplace, he could not function at all. However, ultimately the professor stated that the paranoid thinking of the applicant would, without any aggravation from the workplace, constitute an impairment of "8 to 10%" under the Guide. He then stated that the applicant would at least satisfy the criteria for an impairment of 5% under the Guide, irrespective of any events which occurred at DSTO.
148. Dr Davis agreed that the applicant's propensity for paranoid thinking only arises in certain situations, and that in some circumstances he will be able to function normally, but in others he will not. He stated that the applicant had a permanent impairment of 5% due solely to personality factors. There was some uncertainty whether he was here reiterating the apportionment he made above, saying that the applicant's personality constituted a proneness to suffering injuries of the kind he suffered, and that it was appropriate to say that the personality was thus the major cause of the injury, or whether he was saying that prior to the compensable injury the applicant suffered at the DSTO, he had a permanent impairment of 5% by virtue of his personality traits alone. The latter is of course the relevant question. On balance, the Tribunal is satisfied that Dr Davis did mean to endorse this latter proposition. The Tribunal notes that Dr Davis stated that he expected the applicant's impairment as caused by his work at the DSTO to subside, and be replaced by impairments related to other factors, but expected the overall impairment to remain constant. This is an indication that Dr Davis considered the applicant to have an assessable impairment that is independent of his injury suffered at the DSTO. Dr Le Page disagreed with Dr Davis and Professor Goldney on this point.
149. Taking the medical evidence as a whole into account, the Tribunal is satisfied that the applicant had a permanent impairment of 5% prior to suffering his compensable injury at the DSTO. The Tribunal is thus bound to find that the permanent impairment suffered by the applicant is only 5%. As s24(7) stipulates that an impairment of less than 10% is not compensable under the Act, the Tribunal regrets to find that the applicant is not entitled to compensation for permanent impairment or non-economic loss under the Act.
DECISION
150. For the foregoing reasons, the decision under review is affirmed.
I certify that the 150 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J. A. Kiosoglous MBE
Signed: (signed)
John Howell, Associate
Dates of Hearing 5, 6 September 2002
Date of Decision 6 February 2003
Counsel for the Applicant Mr P. Amey
Solicitor for the Applicant Duncan Basheer Hannon
Counsel for the Respondent Ms K. Bean
Solicitor for the Respondent Australian Government Solicitor
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URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/112.html