Mitchell and Comcare [2003] AATA 569 (18 June 2003)

Last Updated: 18 September 2003

DECISION AND REASONS FOR DECISION [2003] AATA 569

ADMINISTRATIVE APPEALS TRIBUNAL )

)

) A2000/404 A2001/294

GENERAL ADMINISTRATIVE DIVISION	)
	Re	THOMAS ERNEST MITCHELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Ms G Ettinger - Senior Member Dr M Miller AO - Member

Date 18 June 2003

Place Canberra

Decision

A2000/404 The Tribunal sets aside the decision of Comcare made in matter A2000/404 in regard to incapacity, and in substitution therefor, finds that the Applicant, Mr Thomas Ernest Mitchell continued to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, and as a result of the incident of 16 February 1993 (electrocution), after cessation of liability by the Respondent. The Tribunal affirms that part of the decision in matter A2000/404 which deals with the issue of permanent impairment which was not litigated before it. A2001/294 The Tribunal sets aside the decision in matter A2001/294, and in substitution finds that the Applicant, Mr Thomas Ernest Mitchell continues to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 after cessation of liability by Comcare, and as a result of the accident incurred at work on 24 January 1996 (fall). Costs are awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and in accordance with the Tribunal's Practice Direction.

Ms G Ettinger

Senior Member

CATCHWORDS

Compensation - whether injury/disease - whether effects of 1993 electrocution at work continuing - whether aggravated by fall at work in 1996 - liability accepted for closed period - 10 percent permanent impairment previously accepted - whether incapacity for work - decision set aside -

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 24 and 27

CASE LAW

Re Smith v Comcare (1996) 39 ALD 715

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Bashar v Comcare [2002] FCA 837

Telstra Corporation Ltd v Barrow (1994) 35 ALD 461

Comcare v Mooi (1996) 69 FCR 439

Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36

Casarotto v Australian Postal Commission (1989/90) 17 ALD 321

Commonwealth v Beattie (1981) 53 FLR 191

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

REASONS FOR DECISION

18 June 2003

Ms G Ettinger - Senior Member Dr M Miller AO - Member

1. The decisions under review before the Administrative Appeals Tribunal ("the Tribunal") were as follows:

A2000/404: This matter concerned the appeal of Mr Thomas Ernest Mitchell against the decision of Comcare of 20 September 2000 (T87), which affirmed a decision of Comcare dated 28 July 2000 (T80) to disallow the Applicant's claim for compensation for incapacity for work and medical treatment in relation to "electric shock resulting in depression and anxiety and musculo ligamentous strain to the lower back", and also denied liability to pay further compensation in relation to permanent impairment. The Respondent noted from that decision that Mr Mitchell had been awarded a 10 percent whole person permanent impairment pursuant to Table 5.1 of the Comcare Guide in respect of the injury of 16 February 1993 (sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").

A2001/294: This matter dealt with the appeal of Mr Thomas Ernest Mitchell, the Applicant, against the decision of Comcare of 25 February 2000 (ST37, Exhibit R2), which affirmed the decision of Comcare of 13 May 1996 (ST21, Exhibit R2), to accept liability for compensation only for the period 24 January 1996 to 16 April 1996 pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, in respect of an injury claimed by the Applicant to have been an "episode of post concussional syndrome".

On 21 October 2001, the Independent Review Officer of Comcare varied the decision of 25 February 2000 and determined that on and from 27 July 1996, Mr Mitchell did not suffer from an injury, "episode of post concussional syndrome", and that he was not entitled to compensation under any provision of the Act on and from 27 July 1996. She also varied the reviewable decision of 25 February 2000 and determined that Mr Mitchell was entitled to compensation pursuant to sections 19 and 16 of the Safety Rehabilitation and Compensation Act 1988 for the period 17 April 1996 to 26 July 1996 inclusive, with entitlement ceasing from 27 July 1996.

2. The Applicant appealed on 19 July 2001 (A2001/294), seeking an extension of time to lodge his claim.

3. At the Hearing, the Applicant, Mr Thomas Ernest Mitchell, was represented by Mr A Anforth of counsel instructed by Capital Lawyers, and the Respondent, Comcare, by Mr J O`Donovan of counsel, instructed by the Australian Government Solicitor.

BACKGROUND

4. The Tribunal noted by way of background, and accepted that Mr Mitchell had suffered two accidents during his employment at the Canberra Institute of Technology ("CIT"). He was electrocuted when he switched on a mortar mill in the course of his work on 16 February 1993. Mr Mitchell claimed that he suffered injury when he was thrown by the force of the electric shock against a wall of bricks. Liability was accepted by Comcare for "electric shock resulting in depression and anxiety and musculo-ligamentous strain to the lower back".

5. In December 1995, Mr Mitchell was awarded a 10 percent whole person permanent impairment for Post Traumatic Stress Disorder ("PTSD") pursuant to Table 5.1 of the Comcare Guide in respect of the injury of 16 February 1993 (sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988).

6. A second incident occurred on 24 January 1996 when Mr Mitchell reported that his legs gave way under him and he "fell back and hit my head on concrete floor". Liability was accepted by Comcare for "episode of post concussional syndrome" for the period 24 January 1996 to 17 April 1996, ultimately extended to 26 July 1996 inclusive.

7. Mr Anforth told the Tribunal that the electrocution incident caused the main damage to Mr Mitchell. He said in his opening that arising from the two incidents, were psychological and neurological symptoms including depression and anxiety. He indicated that the Respondent claimed Mr Mitchell's problems arose out of a personality disorder, but that Mr Mitchell had in fact few symptoms before the electrocution, and then the fall, and if indeed he had a personality disorder, then the incidents may have unmasked the disorder. He submitted that Mr Mitchell now had brain injury, which therefore was compensable. He had suffered concussion followed by persistent headache following the incidents Mr Anforth claimed.

8. The Tribunal was mindful that neither incident had been witnessed by any colleague of Mr Mitchell, but that the Respondent accepted certain liability for both, not querying that the electrocution had indeed occurred. Notwithstanding the acceptance of liability for a certain time, the Respondent however expressed doubts over the 1996 incident.

9. The Tribunal noted that Mr Mitchell returned to work after periods on compensation, was transferred from the Bruce Campus to Fyshwick, and to Weston, and given various light, and different duties. He was assigned rehabilitation providers.

10. Mr Mitchell took voluntary redundancy on 20 September 1996. The Tribunal noted that he gave evidence at the Hearing stating that he did not fully understand the implications of this, was not well advised, and took the redundancy because he badly needed the money to repay debts.

ISSUES BEFORE THE TRIBUNAL

11. The Tribunal had to decide:

* Whether Mr Mitchell continued to suffer injury pursuant to section 4 of the Safety Rehabilitation and Compensation Act 1988 ("the Act"), and was incapacitated for work as a result of the electrocution of 16 February 1993, and whether he was entitled to further compensation pursuant to section 14, of the Act after cessation of liability for his condition of "electric shock resulting in depression and anxiety ligamentous strain to the lower back";

* Whether Mr Mitchell continued to suffer further from "episode of post concussional syndrome" pursuant to section 14, of the Act as a result of an incident, a fall, which took place at work on 24 January 1996, and whether he was entitled to further compensation in respect of that condition under any provision of the Act;

* Whether the Applicant has required medical treatment for his conditions pursuant to section 16 of the Act on and from dates when the Respondent ceased liability.

12. The Tribunal noted that Mr Mitchell had in 1995, been paid 10 percent permanent impairment arising out of the electrocution of January 1993 for Post Traumatic Stress Syndrome, ("PTSD"), and was not claiming further compensation before this Tribunal pursuant to sections 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 for permanent impairment arising out of the incidents of 16 February 1993 and/or 24 January 1996. Accordingly the Tribunal affirmed the decision of the Respondent in that regard.

LEGISLATIVE FRAMEWORK

13. The relevant legislation is the Safety Rehabilitation and Compensation Act 1988, in particular sections 4, 14, and 16.

14. Section 4 of the Act defines "disease" and "injury" and follows as relevant:

"4. (1) In this Act, unless the contrary intention appears:

...

"disease" means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

...

"injury" means:

(a) a disease suffered by an employee; or

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

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

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

..."

15. Section 14(1) of the Act provides that:

"14 Compensation for injuries

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

16 Compensation in respect of medical expenses etc.

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

..."

EVIDENCE BEFORE THE TRIBUNAL

16. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, (`the AAT Act"), the ("T-Documents"), in matters A2000/404, and A2001/294. The following other documents were admitted into evidence:

ITEM	DATE	NAME
Statement - Mr Thomas Mitchell	11 September 2002	Exhibit A1
Report - Dr R K Gupta	18 March 1993	Exhibit A2
Letter - Langley & Pino, Optometrists to Solicitors Gary Robb & Associates	16 June 1998	Exhibit A3
Report -Dr Steven J Dawson	18 July 2001	Exhibit A4
Report - Dr Steven J Dawson	13 February 2002	Exhibit A5
Report - Dr Steven J Dawson	16 October 2001	Exhibit A6
Report - Dr Steven J Dawson	8 December 1999	Exhibit A7
Statement - Mrs Dorothy Anne Mitchell	31 May 2002	Exhibit A8
Report - National Capital Diagnostic Imaging	10 February 2000	Exhibit A9
Report National Capital Diagnostic Imaging	3 May 2000	Exhibit A10
Summary of Accounts - Dr Edwin J Cassar	7 November 2002	Exhibit A11
Report - National Capital Diagnostic Imaging	2 March 2000	Exhibit A12
Report - Dr Edwin J Cassar	19 November 2002	Exhibit A13
Report - Dr Edwin J Cassar	22 June 2000	Exhibit A14
Report - Dr Edwin J Cassar	11 September 2000	Exhibit A15
Report - Dr Edwin J Cassar	23 March 2000	Exhibit A16
Report - Dr Edwin J Cassar	3 July 2001	Exhibit A17
Report - Dr Edwin J Cassar	19 September 2001	Exhibit A18
Statement - Mr George Cheetham	2 December 1999	Exhibit A19
Letter - Mr A Gerrard to Mr I Goch	2 April 1996	Exhibit A20
File Note - Mr A Gerrard re Mr Mitchell	6 July 1999	Exhibit A21
Statement - Mr Norman Johnson	29 June 2000	Exhibit A22
Statement - Mr Desmond P Lyons	19 March 2001	Exhibit A23
Statement - Mr William J Edwards	25 August 2000	Exhibit A24
Statement - Mr Robert Ray	28 June 2000	Exhibit A25
Letter - Mr Roger Rose	28 April 1993	Exhibit A26
Medical Certificate - Dr Stephen J Moulding	22 May 1996	Exhibit A27
Report - Dr Stephen J Moulding	1 July 1996	Exhibit A28
Report - Dr Stephen J Moulding	9 March 1999	Exhibit A29
List of Mr Mitchell's prescriptions	November 2002	Exhibit A30
Report - Dr Anthony Walsh	12 November 2002	Exhibit A31
Statement - Mr David M Watson	3 July 2000	Exhibit A32
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 - A2000/404 & A2001/294	T-documents T1 - T89	Exhibit R1
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 - A2000/404 & A2001/294	T-documents ST1 - ST38	Exhibit R2
AFP Record	15 August 2002	Exhibit R3
Condobolin District Hospital	1985	Exhibit R4
Calvary Hospital (2 pages)	February & May 1993	Exhibit R5
Weston Creek Physiotherapy Clinic	18 June 1993	Exhibit R6
Report - Dr R K Gupta	5 April 1993	Exhibit R7
Clinical Notes - Dr J Reeve	1993 -	Exhibit R8
Statement - Mr Roger Rose	19 November 2002	Exhibit R9
File note - Mr Roger Rose	2 November 1993	Exhibit R10
Minute - Mr Roger Rose	18 October 1993	Exhibit R11
Notes - Dr Stephen Moulding	1996 -	Exhibit R12
Treating doctors form - Centrelink	3 February 1999	Exhibit R13
Report - Dr Roger Tuck	5 May 1998	Exhibit R14
Return to work assessment - Dr John Reeve	5 May 1994	Exhibit R15
Report - Dr F Roldan	12 September 2002	Exhibit R16
Facsimile - REACT to Ms J Gladman	1 September 1993	Exhibit R17
File Note - Ms S Bloxham	4 May 1995	Exhibit R18
Minute - Ms J Gladman	2 November 1995	Exhibit R19
Rehabilitation Report Ms S M Campbell	3 April 1995	Exhibit R20
Leave Records - Mr T Mitchell	1993 - 1996	Exhibit R21
Report - Dr Colin J Andrews	2 September 1996	Exhibit R22
Report - Dr Colin J Andrews	29 May 2002	Exhibit R23
Report - Dr Colin J Andrews	10 December 1996	Exhibit R24

17. Oral evidence was given by:

* Mr Thomas Ernest Mitchell, the Applicant

* Mrs Dorothy Anne Mitchell, mother of the Applicant

* Dr Edwin Cassar, physician, Director of Pain Clinic

* Mr George Edward Cheetham, work colleague of the Applicant

* Mr Norman Johnson, previously the Applicant's supervisor

* Mr Desmond Patrick Lyons, work colleague of the Applicant

* Mr William James Edwards, work colleague of the Applicant

* Mr Robert Ray, work colleague of the Applicant

* Mr Roger Norman Rose, former Head of School/Head of Faculty, School of Construction and Engineering Studies, Canberra Institute of Technology ("CIT")

* Dr Graeme George Griffith, surgeon

* Dr Stephen Dawson, clinical psychologist

* Dr Jacques Joubert, neurologist

* Dr Fernando Hector Roldan, clinical psychologist

* Dr Colin James Andrews, neurologist

* Dr Anthony William Walsh, clinical neuropsychologist

* Dr Edwin Joseph Cassar, consultant physician

* Dr Stephen Stern, psychiatrist

* Dr R Gupta, psychiatrist

* Dr Stephen John Moulding, general practitioner

EVIDENCE OF MR THOMAS ERNEST MITCHELL - THE APPLICANT

18. Mr Mitchell whose date of birth is 17 March 1963, and whose statement dated 11 September 2002 was Exhibit A1 before the Tribunal, gave oral evidence.

19. Mr Mitchell gave evidence that his schooling was to first year high school, and that he left school at age 14.5 years. He said that he could read and write and was "pretty good" at maths which he subsequently used in his saw mill jobs. He said that the Condoblin saw mill closed, and he transferred to Canberra in 1986. He said that his car was stolen and he could not go to work for 12 months.

20. Mr Mitchell gave evidence that at age 17 he had had problems involving motor vehicle offences, and in 1980 was involved in a break, enter and assault. He said he then had an episode in 1985 when his best friend had been "playing up" with his girlfriend, and he attempted suicide by taking strychnine. He said that he had entered a psychiatric institution in Orange, New South Wales voluntarily, and spent some four to six weeks there. He had taken anti-depressants for two to three months before returning to work at the saw mill. When asked in cross-examination whether he had engaged in self-mutilation in his youth, Mr Mitchell first denied doing it, then admitted it had occurred, once only.

21. The Tribunal noted from the cross-examination that Mr Mitchell had also been charged with other offences, amongst them, dangerous driving while unlicensed in 1988, amphetamines in 1990, discharging a shotgun in 1990, injuries as a result of a fight in 1991, assault in a taxi in 1991. When asked whether he was a volatile angry person prior to 1991, Mr Mitchell denied being thus, saying that he was bowling and enjoying himself.

22. Mr Mitchell said that he had married in September 1996.

23. He joined the Canberra Institute of Technology ("the CIT"), in 1990, in the mortar trades area as a teacher's assistant, having previously worked as a mower mechanic for one and a half years. He had had various injuries such as when a piece of timber hit him when a saw shattered.

24. Mr Mitchell said that when he joined the CIT he had no problems with his back, neck or arms, no depression, and no headaches unless he had a cold or flu. Mr Mitchell gave evidence that in the twelve months before February 1993, he was in perfect health, doing brick laying, diving and bowling. He said that he rode a bicycle, went ten pin bowling, swimming and diving.

25. The job at the CIT in the mortar trades area was as a teachers' assistant, and there were four or five supervisors, Mr Mitchell said. He said that they all told him to do different things, and he could never get it right. He admitted he had had one or two arguments before the accident in February 1993. His duties included cleaning bricks, sweeping, knocking down walls the students had built, and generally servicing the area. Mr Mitchell described it as a two person job, and said that he was the only one doing it.

26. Mr Mitchell gave evidence that on the morning of 16 February 1993, he routinely switched on the mortar mill which had been taken away for servicing during the summer break. He explained that he received an electric shock which threw him some metres against a brick wall, and that he suffered injury to his lower back. Mr Mitchell said that he had pain in his arms, legs and all over, and a week later was bruised all over his back. He said that he had headaches but that he just kept going, and ended up taking "too many Panadol."

27. Mr Mitchell said that he reported the accident immediately afterwards, and was given a cup of tea. He said he could not remember much about that day; it seemed hazy. He said that Roger Rose, the head of department did not take him seriously, and told him "git down there and make more mud".. However, because everything was hurting and he could not stand up, he drove himself to the hospital.

28. Mr Mitchell said that he was upset about Mr Rose asking him when he later showed him his severely bruised back, whether his wife had kicked him out of bed. Mr Mitchell said that he was separated at the time. He said "I lost me block". Mr Mitchell also told the Tribunal that there had been a petition by various members of staff with regard to Mr Rose's style of management. Mr Mitchell said that when he told Dr Gupta of this incident, Dr Gupta had advised him to get a picture of Mr Rose and punch it. He said Dr Gupta had also advised him to change jobs, and indeed after throwing a chair at the storeman, he was transferred to Fyshwick Campus.

29. Mr Mitchell said that after the electrocution, he had a week off work, and then was moved to Norm Johnson's area, for six or seven months, handing out tools. He said several times throughout his evidence that he loved working, although he regretted on one occasion, throwing a chair at Mr Johnson. He said that he was hurting and no one was listening.

30. Mr Mitchell told the Tribunal that he went to see his mother's general practitioner Dr Reeve about the bruising. He said that Dr Reeve told him various tests were not available to him because they cost the government too much. He mentioned his dissatisfaction with Dr Reeve several times during his evidence and said that later, in 1995, he moved to consult Dr Stephen Moulding, whom he still sees. Mr Mitchell told the Tribunal that Dr Reeve prescribed anti-depressants, and that Dr Moulding referred him to Dr Gupta whom he consulted three or four times.

31. Mr Mitchell said that after the electrocution on 16 February 1993, his body was aching, he had headaches, bruising and he was "chewing Panadol and working", but kept away from using electrical equipment. He said that he had problems with sleep, his back hurt, and at night his legs "jumped".

32. Mr Mitchell told the Tribunal that the electrocution destroyed his life. Amongst other things, he said that he was not permitted to do his apprenticeship or drive.

33. Mr Mitchell was referred to the report of Dr G Griffith, surgeon, which was dated 17 February 1994, and was before the Tribunal at T50. Dr Griffith had recorded that Mr Mitchell was "taking no drugs at the moment except occasional Panadol." Mr Mitchell denied he had given the doctor that information, saying that he took Mersyndol and large quantities of Panadol as well as morphine. He said that he had asked his employers to take the Panadol out of the first aid kit because he had been helping himself to them.

34. The Tribunal noted also that Dr Griffith wrote to Comcare on 17 February 1994 as follows (T50/88):

"I am somewhat at a loss to understand why liability has not been accepted for the back problem. He has no history of back injury prior to this incident, and having regard to the circumstances in which the injury was sustained, the forces involved, and the development of a long lasting bruise ... it would be reasonable to conclude that there was in fact a definite causal relationship between the incident described and the later development of symptoms in this area."

35. Mr Mitchell was cross-examined about his assessment by Dr S Stern, psychiatrist, at the request of his solicitors, on 14 October 1994. The report of Dr Stern was at T60. Dr Stern reported that Mr Mitchell told him of a headache at the time of the electrocution, but recorded a diagnosis of moderate PTSD and the complaints on 14 October 1994, as:

"1. Feeling angry, agitated and depressed.

2. Wariness of electrical equipment.

3. Occasional low back pain."

36. Dr Stern was apparently not told of Mr Mitchell's earlier psychiatric problems as he wrote: "He said there were no psychiatric problems prior to the work accident of February 1993." Dr Stern also opined that Mr Mitchell suffered from:

"moderate post-traumatic stress disorder ... This has been caused by the electric shock at work on 16 February 1993 and the resultant injuries. ... His psychiatric prognosis is of some residual depressive and phobic symptoms."

37. Mr Mitchell was also referred to the "Non-Economic Loss Questionnaire" at T66 completed on 14 June 1995, in which there was no mention of headaches. Mr Mitchell said that he suffered headache at that time, and that for him not to have recorded it, he "must had had a real good day".

38. Mr Mitchell was also referred to the report of Dr M Nathar, psychiatrist, dated 22 June 1995 which reported to Comcare, an assessment made on 14 June 1995 (T68). When asked about the statement made by Dr Nathar that he did not have any memory problems or nightmares, Mr Mitchell replied that he disagreed. He said that after the accident he used to wake up in a sweat, and was unable to dream. He said he went to bed and it was all a blank. He added that in 1995 he did not yet know if he had memory problems, and said that it was when he moved to the Fyshwick Campus that he noticed difficulties with his memory. Mr Mitchell said that at Weston his supervisor wrote up the duties on a board so memory was not a problem.

39. Mr Mitchell was referred to the statement of Dr Nathar stating that Mr Mitchell disclaimed any past psychiatric or personality difficulties, which he found was at variance with the Applicant's file notes. Mr Mitchell replied that his history had nothing to do with the way he was after the electrocution, and hence he did not feel he had to disclose everything to everyone.

FYSHWICK CAMPUS

40. Mr Mitchell told the Tribunal that he moved to Fyshwick in November 1993 where he worked with steel and drove fork lifts. He said that he was on medication and coping. However, it was slow and he got bored.

41. The Tribunal noted from T45, a report of dated 11 January 1994 of CMO Dr J Hudspith, that Mr Mitchell was making good progress in his recovery from the effects of the electrocution. Dr Hudspith mentioned that backache was still a problem but did not mention headache.

42. Mr Mitchell was also asked about his appointment with Dr Glaser, psychiatrist on 14 February 1994. The report of Dr Glaser dated 4 March 1994 was before the Tribunal at T51. He stated specifically that Mr Mitchell had "low back pain ... He does not suffer from pains elsewhere..." When questioned, Mr Mitchell was unable to explain why Dr Glaser had not mentioned headache or neck pain as he said he would have mentioned it to the doctor.

43. Dr Glaser also opined that Mr Mitchell was suffering from a "post-traumatic stress disorder of mild severity", and that: "As a result of this gentleman's compensable condition, he is prevented by reason of his clinical state, from returning to work at the Bruce Campus."

44. When asked about Dr Glaser's annotation of Mr Mitchell being a non-drinker, the Applicant said that he was a social drinker, and only drank alcohol occasionally over the past five or six years. The Applicant acknowledged in reply in cross-examination that he was charged with assault on 12 February 1997, but said that he did not carry out any assault and that he was acquitted. He agreed he had been drunk at the time, and said he drank because the pain in his head was driving him mad.

45. There was a further notation regarding alcohol consumption at T68, a report of Dr M Nathar, psychiatrist who examined the Applicant on 14 June 1995. Mr Mitchell confirmed he had told Dr Nathar that he gave up drinking when he married, and again after the electrocution incident.

WESTON CAMPUS - FALL IN 1996

46. Mr Mitchell told the Tribunal that he worked at Weston Campus from April 1994 to September 1996 when he took voluntary redundancy. He said the work was mower mechanic work with which he was familiar.

47. Mr Mitchell said that he suffered headaches either weekly or fortnightly which would last two to three days. He said that he had a stabbing pain in his head permanently, and would be conscious of it every three to four hours. Mr Mitchell said that he was chewing Mersyndol or Panadol and was not taking morphine at the time of working at Weston Campus.

48. Mr Mitchell told the Tribunal that on 24 January 1996, he was in the workshop at Weston Campus when his legs went out from under him, he fell over and hit his head on the concrete in the workshop. He said that he told the gardeners, and his boss, Anthony Gerrard, took him home. He said that he had a pain in his head, and neck, and that he attended at Dr Moulding. He said that he had perhaps two days off and returned on light duties doing gardening, washing pots, and looking after the place generally. Mr Mitchell told the Tribunal that Dr Moulding referred him to Dr Cassar, whose evidence was before the Tribunal, and is discussed further on in these Reasons for Decision.

49. When asked about his headaches after the 1996 fall, Mr Mitchell told the Tribunal that he still had headaches, even after taking morphine, and that it was the same pain as after the electrocution in 1993. He said that his right side was more sensitive, and he had sharp shooting pain. In that connection he said the right side of his face was so sensitive he could not touch it. He said that his head, neck and face hurt more when it was cold, and that even at the date of the Hearing, he became dizzy at times when he stood up. He said that occasionally he even fell over.

50. When asked in cross-examination why there was no mention of a head injury at T3, the accident report, Mr Mitchell said that he had not filled in the form himself, further that he was hurting all over, and that accordingly, some things might have been missed. It was noted similarly that on admission to Calvary Hospital, there was no headache recorded. Again, Mr Mitchell answered by saying that everything hurt, his chest, arms and other parts of his body.

51. Mr Mitchell told the Tribunal he had been at Weston when he met Joanne, his future wife. He said that he was happy at Weston campus because the people were nice, but that he was mainly bad tempered because he felt pain.

52. Mr Mitchell gave evidence of negotiations regarding his redundancy, and the financial pressures he faced in September 1996 which caused him to sign the agreement so that he could pay his debts. He said that he had not had good independent advice about taking a redundancy. One of the reasons related to the need for money was, Mr Mitchell said, that he had been pulled over by the police for not wearing a seatbelt and fined $1,050, and that he had warrants out on him. He said that he borrowed the money from Joanne's mother to pay the fine because he had no sick leave left, and was not being paid at work.

53. Mr Mitchell told the Tribunal that in April 1997 he had travelled to Melbourne to try and obtain work he could do, when he was notified that Joanne had died in a motor vehicle accident, leaving him with her five children, some of whom were severely injured in the accident. He said that he had other problems with the children, and court action was still ongoing. Mr Mitchell said that he cared for eight children of the blended family in his home.

54. When asked about management of his pain from his redundancy in 1996, Mr Mitchell told the Tribunal that Dr Reeve had referred him to Dr Gupta, and Dr Moulding referred him to Dr Cassar and a pain management clinic in May 1999. He had also consulted Dr Dawson who had helped him with techniques for remaining calm, and continued to do so.

55. Mr Mitchell told the Tribunal he had been referred to Dr Cassar in December 1999 for acupuncture, laser and other treatment, and consulted him weekly for ten weeks, and again later.

56. Mr Mitchell told the Tribunal that if his headaches became really severe, he would take morphine or attend hospital. Mr Mitchell said that at one time he took 60 mgs twice a day, and was now on 20 mgs twice a day.

57. Throughout his evidence Mr Mitchell claimed to have memory loss, and indeed the sequence of events he gave did not always accord with dates in the documentation.

MRS DOROTHY ANNE MITCHELL - MOTHER OF THE APPLICANT

58. Mrs Mitchell, whose report dated 31 May 2002 was before the Tribunal as Exhibit A8, gave oral evidence. She gave evidence about an occasion of self mutilation of the Applicant, then aged 14 or 15, and said that it was attention seeking behaviour. She also referred to an attempted suicide, saying Mr Mitchell stayed in hospital as a voluntary patient for a week or so afterwards, that it was not serious, and that he wanted to sort himself out regarding a girl.

59. Mrs Mitchell said that the Applicant had lived with her from 1988 to 1994, and that he had a good social life, two jobs, went fishing, bowling, and diving. She said that he was not violent, but agreed that if provoked, he could have a temper outburst. She said that in that period he had bruises like all boys, and had skinned knuckles because someone had hit him with a bottle.

60. Mrs Mitchell told the Tribunal that her son did not have any memory problems between 1988 and 1993. Neither could she recall that he had any disputes at work. Mrs Mitchell said that after the electrocution her son's memory became gradually worse, and he was moody and angry at how he had been treated. She also referred to his reports of stabbing pains in his head. Mrs Mitchell could not recall whether the pains were on the left or right side. Mrs Mitchell said that after her son moved out in 1994, she did not know too much about his medication. She said that she did not see him often, particularly between 1994 and 1996 because she could not handle his anger. She said that in 1993/4, the stabbing pain was present almost every day and prevented him from fishing, driving and bowling.

61. Mrs Mitchell confirmed that after the 1996 fall, her son continued to have stabbing pains. She said that in 1997, he lost his brother and his wife, and had insufficient time to grieve. She said that her son's memory loss was exacerbated in 1997.

62. Mrs Mitchell said she was surprised to hear that the Applicant had not told various doctors about his headaches.

63. The Tribunal understood Mrs Mitchell's desire to assist her son with her evidence, but was mindful he had not lived with her after 1994, and that between 1994 and 1996, she had not seen him much. Accordingly her evidence was only of limited assistance to the Tribunal.

64. The Tribunal then moved to consider the evidence of the lay witnesses, noting that the evidence of Mr Mitchell's work colleagues and supervisors centred around his claimed change in personality after the electrocution. The evidence of the lay witnesses follows.

EVIDENCE OF WORK COLLEAGUES REGARDING CHANGE IN PERSONALITY AFTER THE ELECTROCUTION

MR GEORGE EDWARD CHEETHAM - CIT TEACHER IN CABINET MAKING

65. Mr Cheetham whose statement dated 19 March 2001 was before the Tribunal as Exhibit A19, gave oral evidence. Mr Cheetham told the Tribunal that Mr Mitchell worked in his area, and that he knew him for a few months before the accident. He said that he found Mr Mitchell to be a sincere man with a bush background who was not hard to get on with, and was reliable.

66. Mr Cheetham said that he was not present when Mr Mitchell suffered the electrocution, but continued to work with him after that incident, stating in his written report that:

" 21. ...Tom seemed to have changed after the accident.

22. He was more introverted, more aggressive, and would often get into arguments with people.

23.I noticed that his work performance had dropped off markedly ... He seemed to be working slower at most tasks.

24. His concentration and ability to focus on the task had greatly reduced. ..."

67. He corroborated the above in his oral evidence, and said that after the electrocution, Mr Mitchell complained frequently of pain in his back, neck, shoulders, and of headaches.

68. Mr Cheetham said that Mr Mitchell's duties after the electrocution were still cleaning of bricks, mixing mortar and sweeping, but added that the Applicant's concentration was not good, and others helped him with the work. Later Mr Mitchell was transferred to the store, handing out equipment, and then in November 1993, to Fyshwick Campus, he said.

MR NORMAN JOHNSON - RETIRED STORES SUPERVISOR (BRICKS)

69. Mr Johnson whose statement of 29 June 2000 was before the Tribunal as Exhibit A22, gave oral evidence before the Tribunal, and said that he retired in 1995/6. He had been stores supervisor in charge of bricks, although when Mr Mitchell commenced work at the CIT, they had worked at the same level he said. Mr Johnson said that he drove Mr Mitchell to and from work from time to time.

70. Mr Johnson told the Tribunal that Mr Mitchell was a reliable worker and of good humour before the electrocution, noting that he had a "bit of a temper" but was mostly jovial.

71. Mr Johnson said that his contact with Mr Mitchell after the electrocution was mostly on an informal basis in the tea room, and occasionally outside of work. He said that after the electrocution Mr Mitchell was moody and depressed, and he kept out of Mr Mitchell's way. He said he would "fly off the handle" and complained of headaches and back pain. Mr Johnson said that the Applicant took Disprin and Aspro after the electrocution. In cross-examination, Mr Johnson was asked about paragraph nine of his Statement (Exhibit A22) in which he had mentioned the Applicant's complaints of chest and back pain, but no headache. Mr Johnson said in reply that he had not seen Mr Mitchell for two years.

72. Mr Johnson said he knew about the supposed joke Mr Rose had made about Mr Mitchell and his wife throwing him out of bed which had upset the Applicant. He told the Tribunal he was one of the signatories of the petition regarding dissatisfactions with Mr Rose's style of management.

73. When cross-examined, Mr Johnson said he was not aware that Mr Mitchell had been involved in a fight, and that the police had been called. Mr Johnson said he did not know about an incident in which a shotgun had been discharged in Mr Mitchell's home. He also said that he could not remember being chased with a chair by Mr Mitchell. The Tribunal considered the last event in particular was one which would not easily be forgotten, and was therefore not satisfied with Mr Johnson's evidence which it considered would not assist the Tribunal greatly.

MR DESMOND LYONS - WORK COLLEAGUE

74. Mr Lyons whose statement of 19 March 2001 was before the Tribunal as Exhibit A23, gave oral evidence. Mr Lyons' statement was concerned with identifying the electrical contractor who rewired the electricity supply to the mortar mill implicated in Mr Mitchell's electrocution.

75. Mr Lyons said that he was employed at the CIT in the Construction Studies Department and first came into contact with the Applicant at the Bruce Campus in 1989, and saw him from time to time. When asked how Mr Mitchell appeared to him, he said that he did not like to form opinions but accepted people as they were. This was followed by criticism of Mr Roger Rose, Mr Bob Thompson and the morale at Bruce Campus. He said that he was a signatory to the petition regarding Mr Roger Rose, and participated in the hunger strike.

76. Mr Lyons described Mr Mitchell after the electrocution as one of those strong people who overcame the shock and survived. He said that he did not know of any fights in which Mr Mitchell had been involved, neither about any shotgun being discharged in the Applicant's home. The Tribunal did not consider the evidence of Mr Lyons of great assistance to it.

MR WILLIAM JAMES EDWARDS - WORK COLLEAGUE

77. Mr Edwards whose statement of 25 August 2000 was before the Tribunal as Exhibit A24, gave oral evidence. He stated that he worked at the CIT Bruce Campus in maintenance for 22 years, and wrote that he had been Campus Manager since 1990. Mr Edwards stated the history of the repair of the mortar mill in his statement, and said that after the electrocution accident, he had earth leakage protection installed on the circuits in the bricklaying area which had not previously had them.

78. Mr Edwards said that he knew Mr Mitchell and occasionally socialised with him. He said that he was aware of the Roger Rose petition but did not sign it, because being in building maintenance, it had nothing to do with him.

MR ROBERT RAY - WORK COLLEAGUE

79. Mr Ray whose statement dated 28 June 2000 was before the Tribunal as Exhibit A25, told the Tribunal in his oral evidence that he worked with Mr Mitchell at the CIT. He said that as a trades assistant, he had some interaction with the Applicant daily at Bruce Campus, in fact hourly, as they worked together servicing student needs for bricks, and got together outside work via the CIT social club (ten pin bowling and having meals together).

80. Mr Ray told the Tribunal that Mr Mitchell was prone to arguments at work after the electrocution, but not before. He said that he did not see him as much after the electrocution but remembered seeing him the day after, covered in bruises. He said he was aware Mr Mitchell was very angry after the electrocution but did not know why, and said he was bad tempered. One had to be careful what one said to him, Mr Ray said. Mr Ray said that there was consensus amongst Mr Mitchell's co-workers that Mr Mitchell was hard to get on with after the electrocution, and said that the Applicant complained of bad headaches.

81. Mr Ray said that after the electrocution the Applicant came to the first aid cabinet and took all the Panadol to the extent that he was concerned about the amount of consumption by Mr Mitchell. He said that the CIT stopped stocking Panadol as a result.

82. Mr Ray said that the staff morale was up and down at the time of the electrocution and said he knew of the petition which had been organised criticising the management style of Mr Rose.

MR ROGER NORMAN ROSE - FROM 1989, HEAD OF SCHOOL/HEAD OF FACULTY, SCHOOL OF CONSTRUCTION AND ENGINEERING STUDIES

83. Mr Rose whose statement dated 19 November 2002 was before the Tribunal as Exhibit R9, gave oral evidence. Other relevant documents before the Tribunal were Exhibits R10 and 11, and A26.

84. Mr Rose corroborated Mr Mitchell's evidence that he was required to work for a number of teachers, some of whom could be demanding. However Mr Rose observed in his statement (Exhibit R9) that (pre the electrocution), Mr Mitchell had difficulty setting priorities, and that he would become upset about his workload. He referred to incidents of violence outside the workplace, referring amongst others to an incident he said Mr Mitchell told him about which was that his partner cut him on the arm in late 1990. He also said that he became aware in October 1993 that in about 1991 Mr Mitchell had fired a shotgun inside his house.

85. Mr Rose denied that he had asked Mr Mitchell to mix another load of cement after the accident, saying that he was not present on campus at the time of the accident. He also said that he was aware Mr Mitchell had suffered bruising on his legs and back, but said he had never complained to him about hitting his head or having any head injury. Mr Rose said that he did not notice any drop in Mr Mitchell's intellect or ability to do his work after the accident, agreeing however that he was afraid of the cement mixer. Accordingly, Mr Rose said, Mr Mitchell was transferred first to Fyshwick Campus and then to Weston (early 1995), where there was horticultural work including mower maintenance, and where he understood Mr Mitchell was performing well, and happy.

86. In his report at Exhibit R10, Mr Rose also denied that he made a disparaging remark about Mr Mitchell's wife and the origin of the bruises, stating that: "If I made the comment regarding the origin of the bruises it would have been in a jocular manner." In his oral evidence Mr Rose admitted he had made the remark.

87. The Tribunal noted that on 18 October 1993, (Exhibit R11), Mr Rose wrote to the Staff Rehabilitation Officer about Mr Mitchell, with concerns over his aggressive attitude and behaviour towards staff members, and referred to his physical limitations and those imposed by his use of prescribed drugs which affected his work.

88. In his oral evidence Mr Rose described Mr Mitchell before the accident as fairly "rough and tumble", coming in to work occasionally with abrasions on his knuckles or other evidence of pub fights. Mr Rose said that Mr Mitchell had made threats to various staff, and had been counselled to walk away when he got angry.

89. In relation to the petition against his management style in 1994, Mr Rose told the Tribunal about the failings of various members of his staff.

MEDICAL EVIDENCE

CALVARY HOSPITAL

90. The Tribunal noted that Mr Mitchell attended at Calvary Hospital on 16 February 1993, the day of the electrocution (T4). A second medical certificate of the Hospital dated 25 February 1993 was at T6. A letter of Calvary Hospital recorded the visits Mr Mitchell made to the Hospital on 16 February 1993 (right hand swollen and pain in right elbow and shoulder), 25 February 1993 (bruising legs and hip), and 11 March 1993. There was no record of headaches.

DR JOHN REEVE - TREATING GENERAL PRACTITIONER

91. The Applicant also consulted Dr Reeve, his mother's general practitioner after the electrocution, and a medical certificate of Dr Reeve dated 10 March 1993 was in the documents provided to the Tribunal at T7. Dr Reeve had recorded: "depression post electrical shock". At T34, there was a letter of Comcare to Dr Reeve and his report dated 29 September 1993 (T35), which followed. Dr Reeve wrote that Mr Mitchell was "cranky, hostile, and angry saying he could not sleep and was very derogatory about his supervisors ...". He stated that at March 1993, Mr Mitchell had post electric shock depression and superficial bruising, and had since that time been seen many times for a phobia about dealing with electrical appliances.

92. Further reports of Dr Reeve were at T39, dated 3 November 1993, and T42 dated 6 December 1993. At T39, Dr Reeve wrote to Mr Mitchell's employers about his physical restrictions at work, adding "[A]im to avoid stressful/conflict situations". At T42, he emphasised that as Mr Mitchell was enjoying his position at Fyshwick Campus he recommended making the position permanent ... "with no further medical intervention or assessment." There was no mention of headache.

93. The Tribunal noted Mr Mitchell's evidence that he was dissatisfied with Dr Reeve because the doctor had told him various tests were not available to him due to Government funding constraints, and that he then moved to Dr Moulding's practice (1995), where he was also seen by Dr Langtry who worked in that practice. Drs Moulding and Langtry treated Mr Mitchell with regard to the incident of 1996.

PHYSIOTHERAPIST

94. Mr Mitchell told the Tribunal that he attended at a physiotherapist, Mr D Bloom, and wore a brace which eased his headaches somewhat but did not cure them.

95. The Tribunal had before it Exhibit R6, a report of the Weston Creek Physiotherapy Clinic dated 18 June 1993 which gave the date of the initial consultation as 10 May 1993. The Tribunal noted that there was no mention of headaches in that report, although Mr Mitchell said that he had been attending there for many years and suffered continuous headache in the form of sharp shooting pain.

REHABILITATION PROVIDERS

96. The Tribunal noted Ms Gladman's memorandum of 6 April 1993 (T12) regarding workplace conflict in relation to Mr Mitchell, and discussing referral to REACT, a rehabilitation provider.

97. The first report of REACT before the Tribunal was dated 3 May 1993 and referred to the injuries from the electrocution as follows: " ... suffered severe bruising across lumbar region, pains in chest, back and right arm. He has since suffered symptoms of anxiety and depression which have contributed to conflict within the work environment."

98. Ms Gladman wrote at T31, dated 2 September 1993 that she was concerned that liability was accepted for electric shock resulting in depression and anxiety but that Mr Mitchell's back injury had not been addressed. Ms Gladman wrote again on 2 September 1993 with regard to Mr Mitchell's problems since the electrocution, including back pain, sleep problems, anxiety and depression, and also said that he had recently advised his doctor that he had been suffering severe headaches and nose bleeds (T31/48).

99. The Tribunal noted that on 23 April 1996, Moore Options, Risk & Human Resource Management Consultants, (ST14), reported that Mr Mitchell had informed them his 1996 injury had aggravated the symptoms of the electrocution. He had reported having headaches ever since the electric shock, which had diminished over time, and had increased as a result of the fall (1996). They were described as similar to a migraine.

100. The Tribunal was satisfied from the many reports and follow-up file notes in the documents that rehabilitation was provided, and that after the electrocution incident, Mr Mitchell was redeployed away from Bruce Campus where he would have had to operate electrical appliances, and where he did not want to be. Further follow-up took place after the 1996 incident.

DR W GLASER - PSYCHIATRIST

101. The report of Dr Glaser dated 4 March 1994 was prepared for a medico-legal psychiatric assessment on behalf of the Respondent, and was before the Tribunal at T51. Dr Glaser reported Mr Mitchell's account of low back and left leg pain, but stated that: "[H]e does not suffer pains elsewhere." The Tribunal noted that Dr Glaser did not report any pain in the neck or head.

102. Dr Glaser reported on Mr Mitchell's psychological state, noting that he sometimes felt depressed, and cranky, and that he was fearful of operating the concrete mixer, and that he was a non-drinker. He also reported that Mr Mitchell reported no difficulties with concentration.

103. Dr Glaser diagnosed residual symptoms of mild PTSD. He opined that the electrocution of 1993 made a material contribution to the development of the then (March 1994) current psychological/psychiatric symptoms. Dr Glaser referred to "mild inter-personal problems" prior to the electrocution, but did not appear to have been given a full history.

DR M NATHAR - PSYCHIATRIST

104. Dr Nathar whose report of 22 June 1995 was before the Tribunal at T68, conducted an examination of Mr Mitchell on behalf of the Respondent for medico-legal purposes. He opined that Mr Mitchell had a phobia related to electrical machinery, that he suffered irritability and moodiness, and sleep disturbance, but that he did not have memory problems. Mr Mitchell appears not to have given Dr Nathar a full history, although Dr Nathar referred to some earlier interpersonal difficulties including self mutilating behaviour.

105. Dr Nathar opined that Mr Mitchell may have been a person with some rigid, even paranoid trait to his personality, unmasked by the electrocution. He also opined that the Applicant appeared to be suffering a personality change with unresolved anger, and a specific phobia of electrical equipment.

DR R GUPTA - PSYCHIATRIST

106. The Tribunal noted various reports and correspondence with Dr Gupta, senior consultant psychiatrist with the Health Department, which were before the Tribunal at T10, T11, T14, T15 T26, and Exhibit A2. They were all related to the time frame of the 1993 electrocution incident. In his report at T26, dated 23 June 1993, Dr Gupta opined that Mr Mitchell was suffering symptoms of depression and anxiety. He also opined:

"These symptoms were directly related to the physical and psychological stress he experienced in his work environment. ... The electric current incidents on 16.02.93 brings the workplace disharmony to the surface. I do not consider this should leave any permanent damage to Mr Mitchell."

107. In his oral evidence, Dr Gupta discussed the workplace stresses Mr Mitchell had described to him. Dr Gupta said he had not been given any history of illness pre 1993, requiring psychiatric treatment by Mr Mitchell. When Dr Gupta was given Mr Mitchell's history which included attempted suicide and admission to a psychiatric hospital in 1985, and asked whether that changed his views, Dr Gupta said that he formed his views on information received directly from the Applicant. He said that he did not have sufficient information before him to make any further diagnosis at the Tribunal.

DR S MOULDING, DR M E LANGTRY - TREATING GENERAL PRACTITIONERS

108. Dr Langtry wrote to Comcare on 4 April 1996 (ST13), stating that she had first seen Mr Mitchell on 13 February 1996 as a result of his fall on 28 January 1996, and stated that he was complaining of headaches and dizzy spells, and that she had referred the Applicant to a neuro-surgeon, Dr John Fuller (ST6).

DR R FELTHAM - AGHS MEDICAL OFFICER

109. Dr Feltham's report of 30 May 1996 was before the Tribunal at ST27. Dr Feltham wrote that Mr Mitchell had described thumping severe headaches at least two to three times a week which began in the occipital area, then crept forward over the rest of the scalp grabbing "like a vice".. Dr Feltham recorded that Mr Mitchell told him he suffered similar headaches four to five years ago as a result of the electrocution.

DR GRAEME GEORGE GRIFFITH - SURGEON

110. Dr Griffith, whose report dated 17 February 1994 was at T50, gave oral evidence. He deals with management of chronic pain and musculo-skeletal pain, and first saw the Applicant in February 1994, a year after the electrocution. He referred in his oral evidence to the Applicant suffering ongoing low back pain which, due to mechanical instability, decreased when Mr Mitchell lay flat. Dr Griffith mentioned in his oral evidence that Mr Mitchell complained of headache at the time of the electrocution.

111. Dr Griffith commented that Mr Mitchell's taking of weak analgesics such as Panadol was not an indication his pain was not severe, rather one that some people had a strong pain tolerance, and others were adverse to taking drugs.

112. Dr Griffith was asked whether headaches, neck, back and arm pain and depression were likely to be the result of the electrocution in February 1993, and whether the Applicant's grievances contributed to the depressive state Dr Griffith diagnosed in 1994. He answered that such a result was not uncommon regardless of the fact that Mr Mitchell had had a vulnerable youth which included a self mutilation episode and an attempted suicide.

113. Dr Griffith stated that if Mr Mitchell's lumbar spine problems resolved, then he would have minimal restrictions on his work, and added that he did not consider the Applicant to be embellishing his presentation or his claims of pain. In his report, Dr Griffith stated:

"I am somewhat at a loss to understand why liability has not been accepted for the back problem. He has no history of back injury prior to this incident, and having regard to the circumstances in which the injury was sustained, the forces involved, and the development of a long lasting bruise in the are (sic) subsequently, it would be reasonable to conclude that there was in fact a definite causal relationship between the incident described and the later development of symptoms in this area."

114. When asked about a diagnosis of migraine of the Applicant, Dr Griffith opined that that came from stress and his psychological state rather than from any structural injury of the cervical spine.

115. When referring to the "marked phobia" Mr Mitchell developed for electrical appliances and machinery after the electrocution, which Dr Griffith thought not unreasonable, Dr Griffith opined:

"He developed a reactionary depression superimposed upon a past history of melancholia and para suicide, again scarcely surprising in the circumstances and along with the physical manifestations enumerated above, in my opinion, quite clearly, due to this incident."

DR ROGER TUCK - NEUROLOGIST

116. Dr Tuck, whose report of 5 May 1998 was before the Tribunal as Exhibit R14, and to whom Mr Mitchell had been referred by Dr Moulding, did not give oral evidence. He was given the history of Mr Mitchell having suffered episodic pain in the neck and head since the electrocution. He did not associate the report of headache with migraine or vascular headache. Dr Tuck could not find an explanation for Mr Mitchell's ongoing severe head and neck pain, and suggested referral to a pain clinic.

DR STEPHEN DAWSON - TREATING CLINICAL PSYCHOLOGIST

117. Dr Dawson whose reports of 12 May 2000 (T76, Exhibit R1), 18 July 2001 (Exhibit A4), 13 March 2002 (Exhibit A5), 16 October 2001 (Exhibit A6), 8 December 1999 (Exhibit A7), were before the Tribunal, gave oral evidence.

118. Dr Dawson said that he first saw Mr Mitchell on 27 April 1999, and that he had seen him every two to three weeks since that time, most recently, in the previous two weeks before the Hearing. He reported that Mr Mitchell had been referred to him initially for a series of health problems related to the electrocution, and adjustment problems relating to the death of his partner Jo.

119. In his first report at T76, Dr Dawson opined that Mr Mitchell suffered neuropsychological impairment as a result of the electrocution, and a worsening of his cognitive symptoms following the 1996 fall. He wrote that: "... Mr Mitchell's injuries and resulting cognitive disabilities as a result of his employment with CIT have made him more susceptible to other psychological problems."

120. Dr Dawson referred in his report at Exhibit A4 to Mr Mitchell's reports of ongoing pain since the electrocution. Dr Dawson also stated that he agreed with Dr Cassar's findings. In his report at Exhibit A5, Dr Dawson referred to memory deficits, and suggested the Applicant be issued with a palm computer as a strategy to assist with "severe difficulties with memory and organisation..." .

121. In a further report of 16 October 2001 (Exhibit A6) Dr Dawwon expressed concerns regarding Mr Mitchell's appearance before the Tribunal in terms of his memory deficit, and emotional and behavioural self control.

122. In his report of 8 December 1999 (Exhibit A7), Dr Dawson wrote to Mr Mitchell's lawyers about the factors contributing to Mr Mitchell's problems, saying:

"In my opinion the greatest contributing factor towards Mr Mitchell's disability for work and other activities has been the physical and neuropsychological consequences of his electrocution some time ago rather than the death of his de facto on 9/4/97."

123. Dr Dawson told the Tribunal that cognitive problems and problems of memory and concentration became apparent, and that he had recorded that the Applicant suffered intense pain. The pain was to the right side of Mr Mitchell's head and he had extreme sensitivity to touch which Dr Dawson attributed to the electrocution Mr Mitchell had suffered on 16 February 1993, opining also that the fall in 1996 had exacerbated the Applicant's problems. Dr Dawson noted also that Mr Mitchell had pain in his right arm and back. He said that he understood Dr Cassar was assisting Mr Mitchell with pain issues.

124. The Tribunal noted that Dr Dawson is the treating psychologist and first saw Mr Mitchell some six years after the electrocution; further that he had to reconstruct a pre-morbid base line against which he tested the Applicant for problems. Clearly he had to rely on the history given by Mr Mitchell as well as available documentation.

125. Dr Dawson carriedo out tests, and In his oral evidence, explained the testing in detail, and said that he carried out Wechsler IQ tests on Mr Mitchell. Dr Dawson opined that:

* in relation to auditory and attention span testing, Mr Mitchell was within the normal range for brief tasks, but that the Applicant's ability to sustain attention for complex tasks was impaired;

* his memory functioning was within the expected range, that is adequate for simple visual design; but problems were encountered with reproducing designs after half an hour;

* on a visual spatial problem solving task, Mr Mitchell appeared to have severe difficulty in judging spatial orientation but on further testing, his final scores were only slightly below average. Dr Dawson reported that it accorded with the Applicant's report of difficulties he perceived in how objects related to each other since the electrocution, for example when taking apart a car engine component.

* on the Wechsler Memory Scale, the Applicant had problems with the verbal memory test;

* utilising the Rey auditory verbal test, the Applicant scored below normal range in that he had problems with executive function;

* as to visual spatial function; this was just below average.

* the Applicant's verbal skills were below the 10^th percentile and hence below average;

* Dr Dawson commented that Dr Roldan had not estimated pre-morbid function, rather compared Mr Mitchell with general IQ scores.

126. Dr Dawson defined cognitive problems as those related to the way persons think, remember, carry out tasks, concentrate, hold attention and memory, and in relation to executive function how a task is organised, executed, and the motor functions required for these. Further there was the inhibiting behaviour exercised when one was angry or upset. When asked about difficulties Mr Mitchell had been having at the CIT, Dr Dawson said that he knew from the Applicant about his disappointment and anger with the management regarding how he was treated in relation to the electrocution.

127. Dr Dawson described the intense pain Mr Mitchell had been suffering. He agreed that depression could affect the subjective perceptions of pain.

128. Dr Dawson attributed the impairments to the electrocution accident. When asked whether the issue of grief and the loss of Jo in April 1997 could have caused his problems, Dr Dawson replied that emotional issues would not affect a person's executive functions, such as planning and organisation, areas in which Mr Mitchell exhibited a deficit. He said that in addition, the testing in November 1999 was some 2.5 years after the death of Jo and that in that period, grief issues had normally resolved. When asked about the extent of the grieving in 1999, Dr Dawson replied that the question of unresolved grief could be hampered by the brain injury.

129. In reply to questioning, Dr Dawson said that even though he only found out at the hearing about Mr Mitchell's attempted suicide and his admission to a psychiatric hospital in Orange at the time, this did not change his diagnosis. When asked whether certain drugs could cause brain damage, Dr Dawson replied that this was out of the area of his expertise.

130. Dr Dawson did not consider that Mr Mitchell was feigning his illness, neither fabricating nor exaggerating. He told the Tribunal that the various tests had in-built mechanisms for detecting feigning, admitting however that they were not foolproof. He was referred in particular to Mr Mitchell's adverse reaction to being on the tenth floor of the building in which Dr Roldan practised. In that connection it was noted that the Tribunal was situated on the fourth floor of Canberra House, and that Mr Mitchell had not reacted at all to the height or mentioned it. The Tribunal did not draw any particular conclusions from Dr Dawson's reply, neither the incident at Dr Roldan's practice which appeared to have been part of Mr Mitchell's unusual behaviour on that day.

131. As to the appearance of problems; Dr Dawson told the Tribunal that diffuse damage and brain injury such as that caused by electrocution could take time to manifest, whereas with some brain injury, the effects were immediate. However when questioned further, Dr Dawson agreed that if Mr Mitchell's cognitive deficits had not shown up a year after the electrocution, then it cast doubts on the link to the electrocution. Dr Dawson told the Tribunal he had not seen the CT scan or other tests, but agreed he had seen the reports which showed no brain injury in the physiological sense. He said however, that the neuropsychological testing done was also an objective measure, and was not based solely on the patient's reports and reactions.

132. When asked whether there had been either any significant improvement or decline in Mr Mitchell's state, Dr Dawson said that it was static. When it was indicated that Dr Cassar had found some improvement, Dr Dawson said that he had found there had been no improvement in the cognitive or memory areas.

133. Dr Dawson indicated that, if his pain was under control, Mr Mitchell could be employed on part-time repetitive duties, involving easy to learn tasks. He said that the Applicant suffered memory loss (he forgot appointments for example), and could not therefore learn complicated tasks or to operate new machinery with which he had not previously been familiar.

DR JAQUES JOUBERT - NEUROLOGIST

134. Dr Joubert whose report dated 6 May 1996 was before the Tribunal as ST19, gave oral evidence by telephone. He said that he had examined the Applicant three months after the fall of 24 January 1996, and found his head and neck normal on examination. He said that the range of movement was unaffected.

135. Dr Joubert said that when he questioned the Applicant about headaches, the frequency was given as once every three to four weeks, lasting for a day. Dr Joubert described the headaches as probably post concussional occipital headaches with migraine features, and said that Mr Mitchell had a good prognosis, namely that the headaches would resolve with the correct treatment. In his oral evidence, Dr Joubert agreed that this could take a long time.

136. Dr Joubert anticipated no permanent impairment, and said that in the absence of the headaches, Mr Mitchell could carry on his normal work.

137. When cross-examined about the swelling around Mr Mitchell's eyes after the fall which Dr Joubert had described as red eyes, he replied that swelling could be caused by allergy, but said that he did not link it to the fall. Dr Joubert said that a severe injury such as a basal skull fracture could cause swelling, but that this did not apply in Mr Mitchell's case. The Tribunal was mindful that Mr Gerrard, the Applicants' supervisor had written as follows in a "Supervisors Report - Accident (Tom Mitchell) dated 24 January 1996, the day of Mr Mitchell's fall (ST4):

"During the morning tea break (10am) discussion was once again entered into Tom's well-being as he was showing signs of swelling around the eyes. On the advice of first aid officers it was strongly suggested Tom should go home ... and seek medical aid."

138. Dr Joubert did not appear to have knowledge of Mr Mitchell's claim that he suffered headaches constantly since the 1993 electrocution. He opined that a person with a tendency to have headaches could get migraine more easily than someone else in the case of a fall on the head, and agreed that post traumatic headaches with migraine features were more difficult to treat than usual migraine.

139. Dr Joubert was asked about his experience with brain damage as a result of electrocution, and agreed that neurones could be damaged which would not show up on a CT scan.

DR COLIN JAMES ANDREWS - NEUROLOGIST

140. Dr Andrews whose reports of 2 September 1996, (Exhibit R22), 29 May 2002 (Exhibit R23), and 10 December 996 (Exhibit R24), were before the Tribunal, gave oral evidence.

141. Dr Andrews stated in his report of 2 September 1996, (Exhibit R22), that Mr Mitchell was referred to him because he had suffered approximately five episodes of collapsing without loss of consciousness since January 1996. Dr Andrews referred to the accident Mr Mitchell sustained in January 1996 after which the Applicant suffered neck pain and occipital headache and opined that:

"Collapses have been occurring and the reason for the collapses is not clear although they seem to be linked to a migraine type of headache. .... he had had a CT scan of the brain on 8.2.96 which was normal and his EEG trace in my rooms today was quite normal. ... I think his collapses are non-epileptic and tentatively I have linked them to his headache."

142. Dr Andrews also described neurological examination, and said that as a result of his examination, he had difficulty accepting Dr Cassar's diagnosis of right ulnar nerve damage with sympathetic dystrophy and cervicogenic brachialgia.

143. Dr Andrews opined that in May 2002 (Exhibit R23), when he last examined Mr Mitchell, the Applicant had migrainous headaches which were treatable, and which could have been triggered by the fall in 1996, adding that such headache was generally self limiting. Dr Andrews opined that most migraine was not related to trauma, rather emanated from general stress, hereditary and other factors. Dr Andrews did not consider morphine as the optimum way of treating migraine. He considered that the Applicant was able to work.

144. The Tribunal noted that Mr Mitchell had not given Dr Andrews a history of events and headaches in regard to the electrocution in 1993, but this was discussed with Dr Andrews in his cross-examination. Dr Andrews told the Tribunal that given there had been no cerebral effects soon afterwards, it was likely that the electrocution had not caused brain damage. He referred to having found no neurological deficit in the examination of Mr Mitchell, and referred to Mr Mitchell having been dazed and disoriented rather than having suffered major damage. He also said that brain damage did not usually manifest as headache.

DR FERNANDO HECTOR ROLDAN - CLINICAL PSYCHOLOGIST

145. The report of Dr Roldan recording an examination of Mr Mitchell of 26 July 2002 was before the Tribunal at Exhibit R16. Dr Roldan took a very detailed history of Mr Mitchell's life and administered psychological tests. The Tribunal noted that Dr Roldan reviewed various reports and medical notes pertaining to Mr Mitchell in the course of writing his report, and had noted a number of accidents Mr Mitchell had sustained, and the Applicant's denial regarding an incident of self-mutilation, depressive behaviour pre-dating the electrocution and workplace dissatisfaction.

146. Dr Roldan also stated that if Mr Mitchell had any memory problems as a result of accident-related brain trauma, such difficulties would have been more apparent in the immediate post-accident period. He added that: "Therefore, there is no reason to believe that any memory difficulties which Mr Mitchell now reports are relate (sic) to the accident in question, when in 1995 he denied any such difficulties."

147. Dr Roldan commented about Mr Mitchell's gait on the day on which he examined the Applicant as follows:

"extraordinary due to the fluctuations which he exhibited through a four hour consultation. Initially Mr Mitchell had to be helped to his feet and then he staggered from the waiting area to the consulting room, a process which took him several minutes to complete although the distance was only 15 - 20 metres. However, later in the consultation, Mr Mitchell appeared to make a remarkable `recovery' when walking to nearby toilets. However, he later appeared to `remember' his alleged disability and he would again exhibit what could only be described as one of the most dramatic pain presentations I have ever witnessed."

148. Mr Mitchell told the Tribunal he had to take morphine for pain relief while with Dr Roldan, and denied that he had exaggerated his difficulties and intentionally done badly on tests administered to him. He said that he had stabbing pain in his face and neck and back while he was at the premises of Dr Roldan.

149. Dr Roldan was questioned about Mr Mitchell's reports of sustained headache over the years, to which he replied that various aetiologies were possible.

150. Dr Roldan described many tests he had administered in his examination of Mr Mitchell. Of particular note was the Rey 15-Item Memory Test, which he stated was an extremely simple memory task found to be performed without difficulty by even the most severely brain damaged individuals. He stated that the test had been designed to detect attempts to feign cognitive incompetence, and that because Mr Mitchell had performed badly the first time, the test was repeated, whereupon after a second exposure to the test material, Mr Mitchell performed even worse than the first time. Dr Roldan concluded that the score the Applicant obtained the second time was:

"well within the range of feigned cognitive incompetence as established by research and this score was well below the scores obtained by even the most severely brain damaged individuals after only one ten-second exposure to the test material."

151. Dr Roldan administered a second test to assess attempts to feign cognitive incompetence called the Abbreviated Hiscock Forced Choice Procedure (A-HFCP) Test, and concluded that Mr Mitchell's performance was not only well within the range of feigned cognitive incompetence, but a performance which was even below chance level.

152. Dr Roldan's conclusions were as follows:

* No objective evidence to suggest that the accidents resulted in any loss of consciousness, brain damage or hospitalisation. There was no frank evidence of any true post-traumatic amnesia as a consequence of the accidents, and no radiological evidence of any brain abnormality.

* There were significant elements of exaggeration and/or fabrication.

* There was no evidence that Mr Mitchell developed a Post Traumatic Stress Disorder as a consequence of the electrocution accident. It was possible that he may have initially developed a specific situational anxiety in relation to dealing with electrical equipment.

* It seemed likely that Mr Mitchell had a pre-existing personality disorder which had an effect on his pre-accident functioning and continued to affect his presentation and symptom report. There was a likelihood of significant stressors unrelated to the two accidents e.g. the death of Jo, anger and unresolved grief regarding her death, problems with rearing Jo's children and other problems.

153. Dr Roldan's oral evidence before the Tribunal reiterated much of what the Tribunal has summarised from his written reports in the paragraphs above. Dr Roldan felt that due to the manner of reporting, he could not compare some of his results with Dr Dawson's findings. The Tribunal noted however that their results did accord in some areas e.g. the Wechsler test and the Trail Making Test. Dr Roldan commented on Dr Dawson's criticism of the Rey 15 Test saying that it had also been criticised in the literature, but for the reason that it was too transparent to the participants.

154. The Tribunal noted that where Dr Roldan's evidence diverged most significantly from that of Dr Dawson was that Dr Roldan opined that the effects of brain injury were most marked immediately after an injury, whereas Dr Dawson considered that the impairment might take weeks or months to develop.

155. In reply to questions in cross-examination, Dr Roldan agreed that in relation to test results:

* Severe headaches and sleep disorder could affect results through distraction and memory problems;

* Depression could lead to an uncooperative attitude to testing;

* Brain injury may not show up in radiological tests.

DR ANTHONY WILLIAM WALSH - CLINICAL NEUROPSYCHOLOGIST

156. Dr Walsh, whose report of 12 November 2002 was before the Tribunal as Exhibit A31, gave oral evidence. In his report, Dr Walsh gave a history as told to him by the Applicant. He had also been provided with various reports. Dr Walsh indicated to the Tribunal that he was trained and qualified as a clinical neuropsychologist, which was different from Dr Roldan's training.

157. Dr Walsh stated that he administered tests which indicated that Mr Mitchell was "performing at his best through these assessment sessions and that the test results are therefore a reasonably accurate reflection of his current ability." He said that this was supported by the Applicant's performance on the Symptom Validity Test which did not support the hypothesis that Mr Mitchell was exaggerating or fabricating his memory problems. Dr Walsh indicated that this test was similar to the Hiscock Test administered by Dr Roldan. Dr Walsh informed the Tribunal that his testing was carried out some eight years after the electrocution, and approximately five years after the fall of January 1996.

158. Dr Walsh found that using the Beck Depression Inventory and Beck Anxiety Inventory, Mr Mitchell was found to be suffering a moderate level of depressive thoughts and feelings and a severe range of anxiety symptoms.

159. Dr Walsh found that, on testing, Mr Mitchell's immediate memory was below expectations, and that he performed badly on the Trail Making Test, results which were similar when tests were undertaken with Drs Roldan and Dawson. Dr Walsh did comment however that in some cases, Dr Roldan had used earlier versions of tests than he employed.

160. In regard to the Trail Making Test, Dr Walsh found that Mr Mitchell scored in the low range for the simple `A' component and in the very very low range for the more complex component, consistent with brain dysfunction. He said that if Mr Mitchell had been exaggerating his difficulties, he would have performed equally badly on both.

161. In his report, Dr Walsh concluded that:

"The clinical neuropsychological assessment conducted here reveals a pattern of performance which is consistent with brain dysfunction. This includes problems with concentration and attention, speed of performance, ability to deal with complexity, recent memory for both verbal and visuo-spatial information, verbal abstract thinking, verbal adynamia, and perseveration. A test designed to encourage exaggeration or fabrication of memory symptoms was performed in a manner which was inconsistent with this hypothesis. Tests of mood showed moderate levels of depressive thoughts and feelings and severe levels of anxiety....

The findings on examination are consistent with acquired ongoing brain dysfunction. ... Both electrical and concussive injuries are capable of causing acquired brain dysfunction."

162. Dr Walsh concluded his written report with the following:

"... Dr Roldan correctly points out in his report ... `neuropsychological psychometric testing does not measure brain damage' ... It is also difficult to explain the poor performance Mr Mitchell has provided on the validity tests conducted by Dr Roldan and the results of these tests do cast some doubt on Mr Mitchell's cooperation and effort at that assessment.

Because of this, my confidence in my own opinion is reduced and the hypothesis that Mr Mitchell may have been more sophisticated in his poor performances at my assessment cannot be ruled out."

163. In his oral evidence however, Dr Walsh indicated that Mr Mitchell's poor test results could have been the consequence of instructions misunderstood, or the interaction with Dr Roldan causing the Applicant to be uncooperative, or indeed deception, which he did not exhibit in dealing with Dr Walsh.

164. Dr Walsh also concluded that Mr Mitchell's personality changes after 1993 were due to pain, and anger at the establishment. He also stated that pain could cause depression, and referred also to Mr Mitchell's "life issues" which included the death of Jo.

165. Dr Walsh was also referred to the findings of Dr Andrews which included noting that Mr Mitchell had not lost consciousness at the time of the electrocution, that there was no evidence that the electric shock had affected the brain, there had been no amnesia and that Dr Andrews held there had been no brain injury. Dr Walsh agreed that both the neurological and neuropsychological findings needed to be taken into account.

DR EDWIN JOSEPH CASSAR - TREATING PHYSICIAN - PAIN CLINIC

166. Dr Cassar whose reports were before the Tribunal as T78 (20 June 2000), T85 & Exhibit A15 (11 September 2000), T89 (23 October 2000), Exhibit A13 (19 November 2002), Exhibit A14 (22 June 2000), Exhibit A16 (23 March 2000), Exhibit A17 (3 July 2001), Exhibit A18 (19 September 2001), gave oral evidence before the Tribunal. He told the Tribunal he had been director of a pain clinic for 16 years.

167. Dr Cassar said that he first saw Mr Mitchell in late 1999 when the Applicant presented suffering from very disabling headaches, sensitivity of the head and neck and lower back. Dr Cassar said that these pains took control of Mr Mitchell, and that may have accounted for his poor memory. Dr Cassar said at that at the time, the Applicant was not coping in spite of medication with morphine. However by September 2000 (Exhibit A15), Dr Cassar noted that Mr Mitchell had made substantial progress in chronic pain management, and in November 2002 (Exhibit A13), he opined that Mr Mitchell was progressing well with controlled scalp neuralgia and right cervicogenic facet joint symptoms.

168. Dr Cassar said that the sentiments of the Applicant towards his employers for having misunderstood his situation in regard to the electrocution was the commencement of his anger and his problems. Dr Cassar opined that Mr Mitchell had suffered substantial trauma in the electrocution accident, and that the 1996 incident had caused an aggravation of his headaches and his head and neck problems. Dr Cassar wrote in his report at T85 (11 September 2000), that CT scanning of brain and cervical spine did not indicate abnormality, but that neurophysiological testing documented right ulnar nerve damage, sympathetic dystrophy and cervicogenic brachialgia. In his oral evidence, Dr Cassar commenting on the CT scan of 2 March 2000, stated there was damage at C5/6.

169. Dr Cassar's diagnosis was cervico-genic migraine and vascular headaches emanating from the cervical spine. He added that the right arm pain also emanated from the cervical spine, and that Mr Mitchell had permanent right ulnar nerve damage and a permanently disabled right arm. He opined that the back was a separate issue, and that it was not unusual to have a mechanical back disorder after trauma. In July 2001 Dr Cassar reported at Exhibit A17 that consequential to the electrocution, Mr Mitchell suffered permanent shock and post traumatic stress disorder in addition to spinal dystrophic pain.

170. Dr Cassar referred to appropriate treatment for Mr Mitchell as including acupuncture directed to the head, neck and arm pains, and physiotherapy. He referred to the reports of the National Capital Diagnostic Imaging (Exhibits A9 & 10), noting that he had referred Mr Mitchell there for facet joint blocks in February and May 2000.

171. The Tribunal noted from Dr Cassar's report of 11 September 2000 (T85), that he considered Mr Mitchell had, as a result of the 1993 accident, been left with:

"permanent neuropsychological impairment, spinal dystrophic pain predominantly cervical, scalp and face but also right arm, neck, shoulders and back. CT scanning of brain and cervical spine has not returned abnormality but neurophysiological testing has documented right ulnar nerve damage sympathetic dystrophy and cervicogenic brachialgia."

172. Dr Cassar said that at 13 November 2002 when he last examined Mr Mitchell, the Applicant still had discomfort and sensitivity on the right side of his face and facet joint irritation. He noted that the Applicant had reduced his morphine dosage. Dr Cassar said that he treated Mr Mitchell for pain management and to manage his depression.

173. Dr Cassar said that Mr Mitchell was unable to do heavy work, and that due to his memory deficit it would be difficult to retrain him, and that accordingly, he was no longer employable. Dr Cassar added that by the end of 2000, Mr Mitchell's pain was easier to contain and that his memory, although not normal, had improved.

174. When the Tribunal asked Dr Cassar about the Applicant's account of stabbing pain, Dr Cassar replied that that was the pain of neuralgia; it had a burning quality he said. He agreed that vascular headaches did not produce stabbing pain.

DR STEPHEN STERN - PSYCHIATRIST

175. Dr Stern whose reported dated 14 October 1994 was before the Tribunal at T60, gave oral evidence.

176. Dr Stern recorded in his report, that Mr Mitchell's complaints at the time of the examination were:

"1. Feeling angry, agitated and depressed.

2. Wariness of electrical equipment.

3. Occasional low back pain."

177. The Tribunal noted that there was no mention of headache at October 1994. In his oral evidence Dr Stern said that the physical symptoms of the electrocution were damage to the right arm and headache, with low back pain which would continue long term. Dr Stern said that from a psychological point of view he found the Applicant fit for all work except machine work because there were residual depressive and phobic symptoms.

178. Dr Stern recorded that he had not been told of any psychiatric problems prior to the accident of February 1993. He diagnosed moderate PTSD, and depression caused by the electrocution. Dr Stern was given information about Mr Mitchell's early psychiatric problems, (the self mutilation incident and the attempted suicide), and asked what his views were regarding the contribution by the electrocution to Mr Mitchell's problems if there had been no ongoing treatment for depression for a period of eight years between 1985 and 1993. Dr Stern replied that it would be important to know if the early depression had resolved, and that depression after the electrocution was likely to have have been caused by, or contributed to, by the electrocution.

179. When asked whether grievances at work had a role in the recovery from PTSD, Dr Stern agreed it could aggravate or prolong PTSD. When asked whether headache claimed to have commenced after the electrocution and continuing, was consistent with PTSD, Dr Stern said that headache could result from a combination of the physical injury and PTSD.

DR STEPHEN JOHN MOULDING - GENERAL PRACTITIONER

180. Dr Moulding's reports were before the Tribunal as Exhibit A27 (22 May 1996), Exhibit A28 (1 July 1996) and Exhibit A29 (9 March 1999). Dr Moulding treated the Applicant after his fall at work in January 1996. His letter of 22 May 1996 indicated to Comcare that:

"Mr Mitchell still has headaches and neck pain from his original injury of 24/1/96. He has been referred to physiotherapy to mobilize the neck and relieve muscle spasm, hence to relieve the headaches."

181. On 1 July 1996, (Exhibit A28), Dr Moulding wrote to Mr Mitchell's solicitors that the Applicant had seen Dr M Langtry, Dr Moulding's assistant, and had time off work with a diagnosis of post concussional headaches. Dr Moulding discussed the medication given and the attempted return to work, including, after a review on 3 June 1996 where "it appeared that the headaches were becoming less severe and less frequent." Dr Moulding also opined that an x-ray of the neck taken on 28 May 1996 revealed C5/6 spondylosis with some loss of disc height which he considered may have resulted from the electrocution injury.

182. In his report dated 9 March 1999, (Exhibit A29), Dr Moulding wrote again that he was treating Mr Mitchell regularly for his headaches which showed no sign of abating, and were quite disabling to the extent of the Applicant requiring narcotic administration or intravenous therapy in hospital. He considered given their duration, that the headaches would likely be a permanent feature of the patient's life. Dr Moulding said in his oral evidence that Mr Mitchell had been suffering migraine since the electrocution in 1993, and stated that he was still treating the Applicant for migraine approximately once every three to four weeks.

183. In his oral evidence, Dr Moulding said that Mr Mitchell's main complaint was his headaches, although he had right arm weakness and pain in his forearm dating back to the electrocution. He said that the pain made Mr Mitchell quite desperate sometimes, and he had referred him to Dr Cassar at the Canberra Pain Centre as well as to an ophthalmologist, physiotherapist, psychologist (Dr Dawson), and neurologist (Dr Tuck). He also told the Tribunal about the medication Mr Mitchell took, which included anti-depressants, anti-inflammatories, sleeping pills, and analgesics including narcotics for his chronic pain. Dr Moulding referred to sleep disturbances in 1997 following the death of Mr Mitchell's partner, but added that the headaches predated that incident.

184. Dr Moulding told the Tribunal that the earliest record of Mr Mitchell's arm pain was 31 March 2000. He also said that Dr Langtry saw Mr Mitchell two weeks after the fall of January 1996, and noted that in April and in June 1996, Dr Langtry had recorded that Mr Mitchell's headaches were settling. He referred to Dr Langtry's reports in April and May 1996 in which she referred to treating headaches, and the history of headaches. The Tribunal has not reproduced the chronology here except to note that Mr Mitchell was taking narcotics in the years after the 1996 fall, that there was a note by the doctor about him putting a bed on his head to relieve pain, and that in 1999 he was struck on the head by a towbar, and in another incident involving a bull bar, knocked out some teeth.

185. Dr Moulding was asked about Mr Mitchell "collapsing" on 20 August 1996. He said that one did not usually collapse with a headache, but that pain could cause such a reaction.

186. Dr Moulding answered in the negative to each of the following:

* whether pursuant to the tests for disability pension, Mr Mitchell could work or be retrained for suitable work within the next two years;

* whether Mr Mitchell was addicted to narcotics;

* whether Mr Mitchell was feigning issues with regard to headaches.

SUBMISSIONS AND CONCLUSIONS

187. The Tribunal had to consider the whole of the evidence, the submissions of the parties, the case law and the legislation to make the correct and preferable decision regarding whether Mr Mitchell's injuries as detailed in his evidence and in his claim were compensable, (sections 4, 14, 16 and 19 of the Act).

CLOSING SUBMISSIONS - THE APPLICANT

188. Mr Anforth opened his submissions by confirming that the Applicant accepted he had had two episodes involving psychiatric problems in his youth, one at age 16, and another at age 22. The Tribunal noted that the first involved a self mutilation incident, and the second an attempted suicide over a love affair. Mr Anforth submitted that other incidents mentioned during the Hearing, such as assaults and problems with the police should be disregarded for purposes of this claim and to establish Mr Mitchell's psychological state before the electrocution which took place in January 1993.

189. Mr Anforth stated that the Applicant accepted Dr Roldan's assessment of him as a vulnerable personality even though Drs Stern and Gupta could not conclude that he suffered a diagnosable condition. He also did not consider that Mr Mitchell had a personality disorder.

190. Mr Anforth submitted that the evidence about Mr Mitchell's behaviour before 1993 was that he got on well with his co-workers, (Dr Walsh), that he perhaps struggled with conflicting tasks and competing demands (Mr Rose's evidence), but that he was not depressed in a psychiatric sense. His IQ as indicated by the psychological testing, was not high, and that was confirmed by all three psychologists who carried out testing, Mr Anforth submitted.

191. Mr Anforth referred also to the evidence of the lay witnesses, and submitted that the issue of black eyes or bruised knuckles not be taken into account, as there were explanations for these incidents. The evidence before the Tribunal, Mr Anforth submitted, was that the Applicant had been drunk once only, at a Christmas party. Mr Anforth referred to Mr Mitchell's evidence that he did not drink much. He emphasised Mr Mitchell was happy, played bowls and was generally socially well adapted before the electrocution incident.

192. Mr Anforth submitted that as a result of the electrocution of 16 February 1993, Mr Mitchell suffered bruising to his neck and back, and a swollen arm, that he suffered PTSD, stabbing headaches, and became moody, angry, and socially withdrawn. Mr Anforth submitted that this evidence was uncontroverted. He referred to Mr Rose's evidence regarding a change in behaviour after the electrocution, and referred to problems of morale in the workplace. Mr Anforth referred to the evidence of Mr Gerrard at Exhibits A20 (2 April 1996) and A21(6 July 1999), in which the writer stated that Mr Mitchell was unwell.

193. Mr Anforth submitted that Dr Reeve was the first doctor Mr Mitchell consulted after the electrocution, that he complained about headaches at that time, returned to work and chewed analgesic pills to the extent that they were removed from the first aid kit. Mr Anforth described Mr Mitchell as stoic, and not complaining, even to his doctors.

194. Mr Anforth drew to the attention of the Tribunal that sometime after the electrocution, Mr Mitchell was transferred to Fyshwick Campus, and that he did not return to his former position. He was later moved to Weston Campus where he performed selected duties, whilst still struggling with pain and interpersonal problems.

195. Mr Anforth submitted that whilst the Respondent relied on an intervening cause, the Applicant rejected that submission because Mr Mitchell was still suffering headaches as a result of the electrocution on an ongoing basis from 1994 to 1995, and up until Mr Mitchell fell at work on 24 January 1996. In fact, Mr Anforth submitted, Mr Mitchell had, in 1995, on the basis of medical evidence of Dr Nathar, been granted a payment for a 10 percent permanent impairment which had arisen as a result of the electrocution.

196. Mr Anforth submitted that the Applicant then suffered concussion and migraine type headaches as a result of the fall in 1996 for which liability was eventually accepted until it ceased on and from 27 July 1996. Mr Anforth referred to the evidence of Drs Andrews and Joubert, who opined that migraines commonly resolved, emphasising however, that in Mr Mitchell's case, he did not recover. He submitted it was Dr Moulding, Mr Mitchell's general practitioner who referred the Applicant to Dr Cassar and the pain clinic he conducted.

197. Mr Anforth further submitted that Mr Mitchell then took a redundancy in September 1996 mainly because he had financial problems as a result of not being paid further compensation or sick leave for his conditions. Mr Anforth submitted that given Mr Mitchell's mental capacity, he was unable to calculate what was best for him. He was in pain, depressed and brain damaged, and did not receive independent advice about the package. Jo had died tragically in 1997, and Mr Mitchell was left with few options financially. He had debts, and a large number of children to bring up. He suffered headaches, depression and PTSD which had arisen out of the electrocution accident, and been aggravated by the 1996 fall, and which were enduring. Mr Anforth submitted that Mr Mitchell also suffered pain in his neck, arm and back, and reminded the Tribunal of the Applicant's evidence that he put his bed on his head, his head in a vice in an attempt to reduce the pain.

198. Mr Anforth emphasised particularly, the damage caused to Mr Mitchell by the electrocution, in particular memory problems. He emphasised that after the electrocution a blackboard was made available at work to write up duties and remind Mr Mitchell of these. He submitted the Tribunal had witnessed Mr Mitchell struggle to remember dates and events in the witness box, and submitted that the psychological tests conducted had verified the damage. Mr Anforth said on behalf of the Applicant he was not concerned about nomenclature for the damage and incapacity. as long as it was recognised as such.

199. As to the findings of the various psychologists; Mr Anforth submitted that when being examined by Dr Roldan, Mr Mitchell had had an unpleasant experience with his partner Alison sleeping on the floor, and that this may have affected the results. The Tribunal noted that evidence about the disturbance Alison caused by sleeping on the floor was given at the hearing. Mr Anforth submitted that otherwise the results of testing by the three psychologists were consistent.

200. As to the significance of the apparently normal CT scan; Mr Anforth submitted that the CT scan was not of relevance, and relying on Drs Andrews and Joubert noted they had agreed that brain damage, as claimed, may not have shown up on such CT scan.

201. Mr Anforth submitted that the Applicant's case was that:

* Mr Mitchell was brain damaged by the electrocution incident, with resulting headaches and mood swings, a personality change, debilitating depression and anxiety, with aggravation of his conditions occurring as a result of the 1996 fall.

* In the alternative, even if the Tribunal did not accept that there was neurological damage, there had been physical damage as a result of the electrocution and Mr Mitchell was angry and upset. Mr Anforth, relying on Re Smith v Comcare (1996) 39 ALD 715, submitted that even if the headaches were a psychological manifestation of Mr Mitchell's dissatisfaction and pain, they were present as a result of the electrocution in 1993, and had been aggravated by the 1996 incident. The Tribunal noted that Senior Member Dwyer in Re Smith (supra), after discussing Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 with regard to acceleration, or aggravation of an injury, concluded as their Honours did in that case, that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place.

* Mr Anforth submitted that if it was thought that the death of Jo may have been a supervening event, then the Tribunal should consult Dr Cassar's reports regarding the relationship between chronic pain, and depression. He urged upon the Tribunal to find that the events of Mr Mitchell's personal life did not break the chain of causation as his conditions had been well established after the electrocution, and were simply aggravated by the 1996 fall.

202. In support of his submissions, Mr Anforth cited many cases including Bashar v Comcare [2002] FCA 837, Telstra Corporation Ltd v Barrow (1994) 35 ALD 461, Comcare v Mooi (1996) 69 FCR 439 and others.

CLOSING SUBMISSIONS - THE RESPONDENT

203. Mr O'Donovan submitted on behalf of the Respondent that Mr Mitchell had not given a truthful account of his experiences with regard to pain, his psychological state or his ongoing symptoms to the Tribunal, neither to his various doctors. Accordingly, the Respondent submitted, there was a confused clinical picture and the various doctors had formed different conclusions as a result.

204. Mr O'Donovan submitted that the Respondent accepted there had been an electrocution in 1993, that, based on the reports of Dr Reeve, Mr Mitchell had suffered lower back pain for a limited time, and that his anger and anxiety had also resolved. The Respondent accepted there had been post traumatic stress and a phobia with regard to electrical appliances, but considered that this had also resolved. Mr O'Donovan submitted that by early 1995, Mr Mitchell no longer suffered neck or arm pain, and no neuro-psychological injury. He submitted there was a question over whether the 1996 incident had occurred at all. He referred to Dr Joubert's evidence that the headaches occurred once a month, and Dr Andrews' opinion that Mr Mitchell's migrainous headaches were not linked to a fall.

205. Mr O'Donovan emphasised that Mr Mitchell did not lose consciousness as a result of the electrocution, there had been no current to the brain, and he had suffered only a neck and head injury, and no amnesia. He submitted the following with regard to his question of what was wrong with the Applicant:

* Mr O'Donovan referred to Dr Dawson's evidence, which had linked Mr Mitchell's impairments of memory, reasoning, and executive function, and his personality change to the electrocution whilst assuming that Mr Mitchell was not feigning results. He submitted further that Dr Dawson did not have the full history of Mr Mitchell's life events. Mr O'Donovan noted that Dr Dawson had suggested there could be a delayed onset of weeks or months for symptoms to emerge.

* Mr O'Donovan submitted that the practitioners carrying out the most qualitative tests were Drs Roldan and Andrews.

* He commented that psychiatrists Drs Glaser (T51), Nathar (T68) and Stern (T60), did not report any cognitive problems, thus disagreeing with Dr Dawson's theory of brain injury arising out of the electrocution.

* Mr O'Donovan submitted that as to personality changes alleged to have arisen as a result of the electrocution, it should be noted that there had been Mr Mitchell's attempted suicide in his youth, and that the Applicant had had a disturbed personality for many years previous to the electrocution. Mr O'Donovan submitted the Applicant had been aggressive long before the electrocution, (Mr Rose's written file notes and evidence being the best contemporaneous evidence), and any changes in personality were with regard to unhappiness in the workplace, and his attitudes to that. In that regard Mr O'Donovan referred to Dr Gupta's reports which were contemporaneous with the workplace issues, and submitted it was not a matter of change in personality, but rather anger towards the workplace, and low back pain. In that regard, Mr O'Donovan submitted that the best evidence was evidence about the transfer to Fyshwick Campus and Weston, where Mr Mitchell was happy (Exhibit R15, T40, and Exhibit R18). (In that regard the Tribunal noted that at T40 dated 16 November 1993, the Rehabilitation Provider had written: "Tom is extremely happy in his current position at Fyshwick. ....", and at Exhibit R18 dated 4 May 1995: ".... Tom seems relaxed and confirms that all is going well with his placement at the Horticulture Department, Weston." )

* Mr O'Donovan submitted that Dr Cassar had been misled by the history given by Mr Mitchell. He also submitted that Dr Cassar had been mistaken because arm symptoms had not arisen out of the electrocution, stating also that Dr Andrews had found no damage to the ulnar nerve. Mr O'Donovan also submitted that if Mr Mitchell suffered cervical spine problems, or arm and neck pain in 1999, these were more likely to have arisen out of the bull bar incident which was not work related. He submitted that the Tribunal accept the findings of Dr Andrews rather than those of Dr Cassar.

* He also noted at T50, a report of Dr Griffith that the examination of the Applicant's head and neck was normal with minor restriction on moving.

* As to headaches; Mr O'Donovan submitted that when Mr Mitchell attended at Calvary Hospital after the electrocution in 1993, there had been no head injury or headache recorded, and the complaints related to chest, legs and back only. He submitted that the only enduring physical problem was the lower back, noting that Dr Reeve opined that the headaches mentioned to him were not attributable in origin to the electrocution. (T34, letter of Comcare to Dr Reeve inquiring about effects of the electrocution, diagnosis and workplace restrictions, and at T35, dated 29 September 1993, the reply of Dr Reeve. At Exhibit R17, Facsimile of REACT dated 1 September 1993: "Tom receiving certain injections from Dr Reeve, has had bad headache and nose bleeds but these are not seen a connected to work injury. Tom still having lower back pain ..." )

* Mr O'Donovan submitted that neither Drs Griffith, Stern nor Nathar associated the headaches complained of by the Applicant with the electrocution. Mr O'Donovan stated that there was reference in the medical notes to an occasional headache in August 1993, in 1994, and one migraine in 1995. Mr O'Donovan also submitted that the evidence of the Applicant's mother in support of Mr Mitchell suffering stabbing pain following the electrocution arose out of collusion between her and her son, and should therefore be disregarded.

206. Mr O'Donovan submitted that by 1995, Mr Mitchell's physical and psychological symptoms had resolved, but that by late 1995, his attitude to work had deteriorated as a result of an incident of assault to the Applicant's children.(Exhibit R19). He submitted there was no new stressor after the recovery in 1995, and raised doubts regarding the alleged fall of January 1996, stating that there had been no witnesses. Mr O'Donovan also stated that it was in 1996 that Mr Mitchell's general practitioner first linked Mr Mitchell's headaches to the electrocution. He submitted that Dr Joubert had found no problems with the Applicant's head and neck, while Dr Andrews opined that the headaches were of a migraine type, and not post concussional headaches. Mr O'Donovan also submitted that in examinations held two weeks apart, Mr Mitchell had given a different history of headache symptoms to Dr Joubert and to the Commonwealth Medical Officer.

207. Mr O'Donovan submitted that the opinion of Dr Andrews, an eminent neurologist, and the treating doctor, on referral from the Applicant's general practitioner, was the best evidence available. He emphasised that Dr Andrews had found no brain injury either in relation to the 1993 electrocution, or in relation to the 1996 incident.

208. Mr O'Donovan also referred to Dr Roldan's testing, noting his opinion that Mr Mitchell was feigning brain injury. Mr O'Donovan referred also to Mr Walsh's testing which he agreed had problems regarding reliability. He drew attention to the fact that in some tests, there were consistent results between the testing of Drs Walsh, Roldan and Dawson.

209. As to Mr Mitchell collapsing; Mr O'Donovan submitted there was no neurological explanation for that. He emphasised that the doctors could not explain the constellation of symptoms, and suggested Mr Mitchell had been feigning.

210. Mr O'Donovan referred to the case of Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 where the Full Court of the Federal Court held that the Commonwealth was not bound to pay compensation in respect of a compensation neurosis that developed out of an allegedly disabling physical condition that was not itself compensable. The Tribunal noted that in Kirkpatrick (supra), the question was whether the compensation neurosis which Mr Kirkpatrick was suffering, was within the meaning of section 29 of the Compensation (Commonwealth Government Employees) Act 1971, where physical injuries suffered at work had healed uneventfully, yet the Applicant could not cope with his former work due to leg pain which he genuinely believed was due to a back injury suffered some years earlier.

211. In summary Mr O'Donovan put to the Tribunal that the effects of the 1993 electrocution had resolved by 1995. The effects of the 1996 injury had resolved latest after six months, and any ongoing problems which Mr Mitchell suffers such as migraine have been, and are caused by stress from his private life or elsewhere, and were not injury pursuant to the legislation, and therefore not compensable.

THE TRIBUNAL

212. Having heard all the oral evidence, the Tribunal also had to take into account the written evidence, submissions of the parties, case law and legislation to make the correct and preferable decision regarding whether Mr Mitchell continued beyond 27 July 1996, to suffer injury or aggravation as a result of the electrocution in 1993 and fall in 1996. Further the Tribunal had to consider whether the Applicant was incapacitated for work as a result of those incidents which took place at work at the CIT on 6 February 1993 and/or 24 January 1996.

213. The Tribunal noted that liability for 10 percent permanent impairment was accepted by the Respondent in 1995 for Mr Mitchell suffering PTSD as a result of the electrocution in 1993. Permanent impairment was not further claimed and does not form part of the considerations in these reasons for decision.

214. The Tribunal also noted for the sake of completeness Mr Mitchell's evidence regarding his reasons for taking a voluntary redundancy on 20 September 1996, namely that he was financially strapped and felt he had not been well advised.

LEGISLATION AND CASE LAW

215. The Tribunal was mindful that for Mr Mitchell's injuries to be compensable, the definition of injury, which includes aggravation of a physical or mental injury pursuant to section 4 of the Act must be satisfied, and the injuries found to have resulted in incapacity for work as claimed by the Applicant (section 14 of the Act). What flows from that of course would be the provision of reasonable medical expenses pursuant to section 16 of the Act, and possible payments calculated pursuant to section 19 of the Act. As noted above, Mr Mitchell has already been compensated pursuant to section 24 of the Act for permanent impairment in relation to PTSD suffered as a result of the electrocution in 1993.

216. The parties referred to various cases, and there is well established authority which deals with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers' compensation cases.

* Casarotto v Australian Postal Commission (1989/90) 17 ALD 321, with regard to aggravation and acceleration.

* Commonwealth v Beattie (1981) 53 FLR 191, with regard to onset of pain, noting that the Full Court in Beattie (supra) stated that:

"It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. A worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury."

* Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 where it was held that pain is the most common symptom of an injury. If the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee's employment, then the employee will have suffered a compensable injury.

* In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 McTiernan J illustrated the point thus:

"In my opinion it was reasonably open to Judge Wall to find on the evidence of these psychiatrists and on the contrast between the respondent's ability to work before 1 December 1960 and her loss of capacity soon after that date that the injury she sustained on that date and the pain and distress it caused her brought on the new delusion that she was unable to work. In my opinion these facts are sufficient to prove the nexus between the employment and the deterioration of the respondent's mental condition. I think that the evidence raises the inference that it was more probable than not that the employment was a contributing factor to the worsening of the disease from which she was suffering."

* Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; it is irrelevant that injury or disease acted upon an existing vulnerability.

* Certain of the cases including Comcare v Mooi (1996) 69 FCR 439) recognise that a genuine subconscious entrenched illness behaviour is different to a conscious malingering, and can be a compensable injury in itself. It is an abnormal condition of the mind outside of the range of the usual psychological experiences of people. In Federal Broom (supra), it was pointed out that all that the statute requires is a contributing factor. One must look to what the worker in fact does in his employment. It does not matter that the worker's response to what occurred in the course of the employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence. Davies J stated:

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

217. Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36); where the Full Court of the Federal Court held that the Commonwealth was not bound to pay compensation in respect of a compensation neurosis that developed out of an allegedly disabling physical condition that was not itself compensable. The Tribunal noted that in Kirkpatrick (supra), the question was whether the compensation neurosis which Mr Kirkpatrick was suffering, was within the meaning of section 29 of the Compensation (Commonwealth Government Employees) Act 1971, where physical injuries suffered at work had healed uneventfully, yet the Applicant could not cope with his former work due to leg pain which he genuinely believed was due to a back injury suffered some years earlier.

218. It is irrelevant that other non-work related factors may have also contributed to the injury, Treloar v Australian Telecommunications Commission (1990) 26 FCR 316.

219. The Tribunal moved then to consider the credibility of the Applicant in relation to the claims before the Tribunal, noting that credibility was questioned by the Respondent in several of the determinations

ISSUES OF CREDIT WITH REGARD TO THE APPLICANT

220. The Tribunal noted that Mr O'Donovan claimed there were issues as to Mr Mitchell's credit. He referred to Mr Mitchell's early history, for example with regard to the charge of assault which had been made in 1991. Mr O'Donovan referred to Mr Mitchell's evidence denying that he had pleaded guilty, and claimed he was lying about the incident. Mr O'Donovan also submitted, referring to Mr Mitchell's evidence that he had claimed to have told every doctor between 1991 and 1995 about headaches, adding that it was curious none had recorded these headaches. Accordingly, the Respondent's submission was that there were in fact no constant headaches. Mr O'Donovan added further that Dr Reeve had mentioned headaches in his notes and opined that they were not related to the electrocution (R17 of 1 September 1993).

221. The Respondent also submitted that Mr Mitchell had not been truthful with regard to his alcohol consumption and habits, telling various doctors that he was a non-drinker. A further submission was that Mr Mitchell had not informed his doctors of his psychiatric history including the self-mutilation episode, attempted suicide and subsequent psychiatric treatment.

222. Mr O'Donovan also referred to the claimed memory loss suffered by Mr Mitchell, indicating that it appeared selective, and that at the Tribunal Mr Mitchell had, at times, had quite detailed recall of events and times.

223. Mr O'Donovan also referred to Mr Mitchell's poor results in tests carried out by Dr Roldan which Dr Roldan had considered were feigned. The Respondent also urged upon the Tribunal to accept that Mr Mitchell had feigned results regarding memory loss and concentration generally, in his psychological testing.

224. The Tribunal considered the submissions regarding credit, and was mindful that in its consideration of the medical reports discussed in the paragraphs above, it distilled the essence of Mr Mitchell's problems to conclude that he had problems in his youth. They were indisputable. The Tribunal was satisfied that Mr Mitchell had at least one episode of self mutilation, and that he became upset about an issue with a girlfriend and drank a quantity of a poisonous chemical which resulted in him being hospitalised in a psychiatric hospital for a time afterwards. He was involved in some assaults or charged with assault, and was charged with other offences. Mr Mitchell's personal life was difficult too, and no doubt the death of Jo in April 1997, and the care of some eight children of the blended family has given, and continues to cause problems. Mr Mitchell suffered some depressive episodes over the years, and after the electrocution occurred at the CIT in 1993, Mr Mitchell had to see a large number of doctors.

225. The Tribunal was satisfied, as emphasised by the Respondent, that Mr Mitchell did not disclose all of the abovementioned situations to all the doctors he saw over the years. The Tribunal also accepted that after the electrocution Mr Mitchell was very angry at the way he had been treated, and if he had been short termpered before, he became more depressed and short tempered (evidence of his work colleagues). It accepted from the evidence of Mr Mitchell's work colleagues that there were problems at the CIT, perhaps best illustrated by the petition which had been arranged to protest about Mr Rose's style of management.

226. The Tribunal accepted Mr Mitchell's explanations that in some instances questions about the past were not put to him by the various doctors, or that he did not think the circumstances of those relevant to the particular examinations he was undertaking.

227. The Tribunal accepted also that Mr Mitchell suffered pain and depressive symptoms from the time of the electrocution, which continued and never resolved entirely (Canberra Hospital notes and reports of doctors who treated or examined the Applicant between 1993 and 1995/6), and that he then had another accident in January 1996. He has taken large amounts of prescribed medication over the years, including morphine, which he continues to take, albeit in smaller quantities at present.

228. The Tribunal was satisfied that for various reasons including depression, and memory and concentration problems, (Drs Dawson, Cassar and Walsh), Mr Mitchell did not give entirely consistent information to his many medical examiners and treating practitioners, and this was evident at the Hearing and in perusing those reports. However the Tribunal did not find that Mr Mitchell intentionally gave incorrect information, and considered his evidence before the Tribunal credible.

WHETHER MR MITCHELL UNDERWENT PERSONALITY CHANGE AFTER THE ELECTROCUTION

229. In deciding whether any effects of the injuries Mr Mitchell incurred were compensable, the Tribunal also considered the evidence regarding any change in personality the Applicant underwent as a result of the electrocution. In that regard, the Tribunal considered the evidence of the Applicant himself, and various of the witnesses who commented on this, in particular his work colleagues.

230. Mr Cheetham told the Tribunal that Mr Mitchell worked in his area and that he knew him for a few months before the electrocution in 1993. He said that he found Mr Mitchell to be a sincere man with a bush background who was not hard to get on with, and was reliable. Mr Cheetham was not present when Mr Mitchell suffered the electrocution, but continued to work with him after that incident, stating in his written report that:

" 21. ...Tom seemed to have changed after the accident.

22. He was more introverted, more aggressive, and would often get into arguments with people.

23.I noticed that his work performance had dropped off markedly ... He seemed to be working slower at most tasks.

24. His concentration and ability to focus on the task had greatly reduced. ..."

231. He recalled that after the electrocution Mr Mitchell complained frequently of pain in his back, neck, shoulders, and of headaches. The Tribunal was satisfied with Mr Cheetham's evidence.

232. Mr Johnson who retired in 1995/6, had been stores supervisor in charge of bricks. Mr Johnson told the Tribunal that Mr Mitchell was a reliable worker and of good humour before the electrocution, noting that he had a "bit of a temper" but was mostly jovial. He said that after the electrocution Mr Mitchell was moody and depressed, and he kept out of Mr Mitchell's way. He said he would "fly off the handle" and complained of headaches and back pain. Mr Johnson said that the Applicant took Disprin and Aspro after the electrocution.

233. He also said that he could not remember being chased by Mr Mitchell with a chair, although Mr Mitchell admitted having done that. The Tribunal concluded that Mr Johnson wanted to portray Mr Mitchell in as good a light as possible, and did not find his evidence to be of great assistance.

234. Mr Lyons first came into contact with the Applicant at the Bruce Campus in 1989 and said he saw him from time to time. When asked how Mr Mitchell appeared to him, he said that he did not like to form opinions but accepted people as they were. This was followed by criticism of Mr Roger Rose, Mr Bob Thompson and the morale at Bruce Campus. He said that he was a signatory to the petition regarding Mr Roger Rose, and participated in the hunger strike.

235. Mr Lyons described Mr Mitchell after the electrocution as one of those strong people who overcame the shock and survived. He said that he did not know of any fights in which Mr Mitchell had been involved, neither about any shotgun being discharged in the Applicant's home. The Tribunal did not accord much weight to the evidence of Mr Lyons who clearly wanted to assist his colleague.

236. Mr Edwards had been Campus Manager since 1990, and gave the history of the repair of the mortar mill in his statement. Mr Edwards said that he knew Mr Mitchell and occasionally socialised with him. He said that he was aware of the Roger Rose petition but did not sign it, because being in building maintenance, it had nothing to do with him. Mr Edwards' evidence was not of assistance to the Tribunal with regard to any changes to Mr Mitchell's personality.

237. Mr Ray told the Tribunal that as a trades assistant, he had some interaction with the Applicant daily at Bruce campus, in fact hourly, as they worked together servicing student needs for bricks, and got together outside work via the CIT social club (ten pin bowling and having meals together). He said he was aware Mr Mitchell was very angry and bad tempered after the electrocution, but did not know why. One had to be careful what one said to him, Mr Ray said. Mr Ray said that there was consensus amongst Mr Mitchell's co-workers that Mr Mitchell was hard to get on with after the electrocution, and said that the Applicant complained of bad headaches after the electrocution.

238. Mr Ray said that after the electrocution the Applicant came to the first aid cabinet and took all the Panadol to the extent that he was concerned about the amount of consumption by Mr Mitchell. He said that the CIT stopped stocking Panadol as a result.

239. Mr Ray said that the staff morale was up and down at the time of the electrocution and said he knew of the petition which had been organised criticising the management style of Mr Rose.

240. The Tribunal accepted the evidence of Mr Ray and was satisfied it was a witness of truth.

241. Mr Rose, referring to the period before the 1993 electrocution, corroborated Mr Mitchell's evidence that he was required to work for a number of teachers, some of whom could be demanding. However Mr Rose observed in his statement (Exhibit R9), that Mr Mitchell had difficulty setting priorities, and that he would become upset about his workload. He referred to incidents of violence outside the workplace, referring amongst others to an incident he said Mr Mitchell told him about which was that his partner cut him on the arm in late 1990. He also said that he became aware in October 1993 that in about 1991 Mr Mitchell had fired a shotgun inside his house.

242. In his oral evidence Mr Rose described Mr Mitchell before the accident as fairly rough and tumble, coming in to work occasionally with abrasions on his knuckles or other evidence of pub fights. Mr Rose said that he had made threats to various staff and had been counselled to walk away when he got angry.

243. Mr Rose said that he did not notice any drop in Mr Mitchell's intellect or ability to do his work after the accident, agreeing however that he had become afraid of the cement mixer. Accordingly, Mr Rose said, Mr Mitchell was transferred first to Fyshwick Campus and then to Weston (early 1995) where there was horticultural work including mower maintenance, and where he understood Mr Mitchell was performing well, and happy.

244. The Tribunal noted that on 18 October 1993, (Exhibit R11), Mr Rose wrote to the Staff Rehabilitation Officer, about Mr Mitchell with concerns over his aggressive attitude and behaviour towards staff members, and referred to his physical limitations and those imposed by his use of prescribed drugs affecting his work.

245. The Tribunal was satisfied from the evidence of Mr Mitchell's colleagues, particularly Messrs Cheetham, Ray and Rose, that the Applicant suffered a change in his attitude to work, and his demeanour after the electrocution accident. The Tribunal accepted that Mr Mitchell was aggressive, bad tempered, and hard to get on with after the electrocution, and that he suffered pain for which he took large numbers of analgesics to the extent they were no longer stocked in the first aid kit at work. Notwithstanding Mr Rose's evidence that he did not notice any drop in Mr Mitchell's intellect or ability to do his work after the accident, the Tribunal accepted from the evidence before it that Mr Mitchell's memory and concentration were impaired (later confirmed by psychologists Dr Walsh and Dr Dawson in their testing), and noted that at Weston a blackboard was used to remind him of his duties.

HEADACHES

246. As the Applicant was most concerned with continuing stabbing headaches which he said he suffered as a result of the electrocution in 1993, which he claimed have never resolved, and which he said he continued to suffer after the fall in 1996, the Tribunal decided first, in its consideration of any incapacity Mr Mitchell suffers, to consider the headaches.

247. The Tribunal was satisfied from the uncontroverted evidence before it that the Applicant had had at least two psychiatric episodes as described above (the cutting incident and the attempted suicide). Further he had been involved in various incidents involving assault and other violent activity during his life before the electrocution in 1993. The Tribunal accepted the evidence of Mr Mitchell's work colleagues that his mood was affected after the incident of 1993 and that his temper was short. It is difficult to say how much of that was caused by his accidents, and what contribution changes and dissatisfactions with the workplace, or his private life, made. The stresses of one's private life are of course non-compensable. The Tribunal noted however that in Treloar v Australian Telecommunications Commission (supra), it was held that it is irrelevant that other non-work related factors may have also contributed to the injury, and that provided the contribution of the workplace was present, the fact that it was not great, was not relevant.

248. The Tribunal accepted Mr Anforth's submission that pre 1993 Mr Mitchell may have struggled with conflicting tasks (Mr Rose's evidence), and that Mr Mitchell's IQ was not high, as indicated by all three psychologists who carried out testing. However although rough and tumble, he appeared to get on with his work and with his colleagues. The Tribunal accepted that he was however a vulnerable personality, and that from the time of the electrocution, he suffered depression, headaches and changes in his coping mechanisms and his attitudes to the workplace. The Tribunal was mindful of the case of Zickar v MGH Plastic Industries Pty Ltd (supra) where it was held that that fact that injury or disease acted upon an existing vulnerability was irrelevant.

249. As to the headaches; Mr Mitchell's evidence was that his headaches which occurred as a result of the electrocution in 1993 were not migraine headaches, but sharp stabbing pains which sometimes endured for some days at a time. He told the Tribunal that Dr Reeve may have characterised what he told him as "headache" in his notes, but it was in fact a stab/pull sensation. He said that his understanding of headache was "boom boom boom" as occurred when you had the flu. Mr Mitchell's evidence was that these stabbing pains even occurred when he was taking morphine. He said that he would hold his head and could suddenly fall over in a supermarket aisle. When questioned about the frequency of his headaches, Mr Mitchell said that the headaches could occur anytime, often last a whole day, and occurred probably about once a month, but added that he could not actually be exactly certain about the time.

250. When asked about the pain over the left side of his head, Mr Mitchell replied that this pain was different from headaches. He said that he had a sensitivity over one side of his head and face. The Tribunal noted this has been commented on by various doctors including Dr Cassar.

251. In coming to a decision, the Tribunal noted that on 16 February 1993, the day of the electrocution when Mr Mitchell attended at Calvary Hospital, the notes at the Hospital did not record any headache. Dr Reeve, the first general practitioner whom Mr Mitchell consulted after the electrocution, recorded "depression post electric shock" in March 1993. The Tribunal was mindful that there were inconsistencies in the reporting of headache by the Applicant to his doctors.

252. Most of the many other doctors whose reports appeared in the documents related to this Hearing also reported some form of phobia of electrical appliances or PTSD which arose as a result of Mr Mitchell's electrocution, and as stated elsewhere in these Reasons for Decision, he was compensated for permanent impairment in that regard.

253. Many of the doctors amongst whom were Dr Gupta, Dr Griffith, Dr Walsh, Dr Cassar and Dr Stern, also commented on the dissatisfactions in the workplace which Mr Mitchell described, and indeed the history of the matter indicated that he was given some rehabilitation assistance after the electrocution, which included deployment to the Fyshwick Campus and to Weston, where the duties did not include operating electrical appliances.

254. Mr Ray, a work colleague told the Tribunal that after the electrocution the Applicant came to the first aid cabinet and took all the Panadol to the extent that he was concerned about the amount of analgesic consumption by Mr Mitchell. He said that the CIT stopped stocking Panadol as a result.

255. Mrs Mitchell whom the Tribunal would expect to want to assist her son, gave evidence that the Applicant had stabbing pains in his head after the electrocution. She told the Tribunal that during the time he lived with her, the Applicant had a good social life and went fishing and played bowls, but that after the electrocution, pain, anger at the way he had been treated at work, as well as his memory prevented him undertaking his social activities. The Tribunal noted that Mr Mitchell resided with his mother from 1988 to 1994, and noted her evidence that between 1994 and 1996 she did not see him much because he was so aggressive. Her knowledge was then restricted to the period in which she saw him frequently. The Tribunal accepted her evidence regarding the change in her son after the electrocution, and the change in the activities he undertook for the period he lived with her.

256. The Tribunal was mindful that Mr Mitchell was referred to Dr Reeve's notes for August and September 1995 and asked how it was that Dr Reeve first recorded neck pain in September 1993. Mr Mitchell was unable to answer that question satisfactorily but said that he was on so much anti-depressant medication he could not remember and did back pain not come from the neck anyway. He added: "The head is so messed up I can't remember things, it just doesn't come." When asked in cross-examination if he had injured his neck lifting his boat in July 1994, Mr Mitchell said that he could not remember.

257. Dr Griffith (T50, 17 February 1994), surgeon, reported "evident hostility towards his [the Applicant's] supervisors".. Dr Griffith also opined: "He developed a reactionary depression, superimposed upon a past history of melancholia and para suicide, again scarcely surprising in the circumstances and along with the physical manifestations enumerated above, in my opinion, quite clearly, due to this incident." [electrocution].

258. Dr Gupta, psychiatrist, to whom Mr Mitchell was referred after the electrocution, opined in reports related to that time period that Mr Mitchell was suffering symptoms of depression and anxiety, and that these symptoms were directly related to the physical and psychological stress he experienced in the workplace. The Tribunal noted that he had not been given any early history of depressive episodes by the Applicant. When told about those at the Hearing, Dr Gupta said that he had formed his views on his examination and information obtained during the examination he conducted and did not have sufficient information to make further diagnosis.

259. Dr Stern, psychiatrist, whose report was dated October 1994, recorded Mr Mitchell's complaints as feeling angry, agitated and depressed, suffering low back pain and being wary of electrical equipment. Dr Stern did not record any mention of headache. He opined however in his oral evidence that headaches could result from a combination of physical injury and PTSD, and were likely to have arisen out of the electrocution.

260. The Tribunal concluded from the evidence of the Applicant and that of the doctors who treated and examined him after the 1993 electrocution that what occurred as a result of it, was a severe physical (back), and psychological impact to a vulnerable personality. That, compounded with Mr Mitchell's anger about the way he was treated (Mr Rose's comments about the bruising allegedly made in jest as to whether Mr Mitchell's wife had thrown him out of bed), and the general dissatisfactions of the staff at the CIT at that time, (evidence of Mr Mitchell and his colleagues), were the cause of a depressive state with attendant pain that is headache, arm, neck and shoulder pain arising out of the electrocution. Mr Mitchell was treated throughout the period after 1993, first by Dr Reeve, and then referred to specialists. From the documents before the Tribunal, it was clear that certain rehabilitation was undertaken, and that Mr Mitchell was transferred to Fyshwick Campus and Weston where he did not operate electrical equipment, and was happier. He made staged returns to work, and his health appeared to improve (Dr Reeve 1995).

261. The effects of the electrocution waxed and waned, but it appeared that Mr Mitchell's memory and concentration were affected (Dr Dawson, Dr Cassar: permanent neuropsychological impairment), and at Weston Campus a notice board was available to remind Mr Mitchell what work he had to do. The Tribunal was satisfied from the medical evidence that the effects of the electrocution did not resolve completely. It was no doubt complicated by Mr Mitchell's personal life and his problems with his family. However the Tribunal was mindful that pursuant to Treloar v Australian Telecommunications Commission (supra), the causal connection with regard to injury or aggravation must be established on the probabilities and not left to conjecture, but that once the link is established, it matters not whether the contribution of the workplace be large or small. The Tribunal was accordingly satisfied that the electrocution of 1993 and the subsequent fall in 1996 satisfied those tests.

262. Based on the Applicant's evidence, documents of Canberra Hospital and Dr Griffith, a surgeon who saw Mr Mitchell in February 1994, and stated in his oral evidence that the Applicant complained of headache at the time of the electrocution, the Tribunal accepted that Mr Mitchell suffered headache after the electrocution. Dr Griffith also wrote that Mr Mitchell "developed a reactionary depression superimposed upon a past history of melancholia and para suicide, again scarcely surprising in the circumstances and along with the physical manifestations enumerated above [referring to his report at T50], in my opinion, quite clearly, due to this incident."

263. The Tribunal was satisfied that although not all the doctors had recorded headache when they examined Mr Mitchell, he had lasting effects of the electrocution (headache,memory impairment, pain and depression) which had not resolved when he fell at work on 24 January 1996, in an accident not witnessed by any other staff member. He had by then changed from Dr Reeve to consulting Dr Moulding and Dr Langtry, who worked in Dr Moulding's practice. Dr Moulding, who treated the Applicant after the 1996 incident referred to post concussional headaches in May 1996, but noted they were becoming less severe and less frequent at the review of June 1996. However in his report of March 1999, Dr Moulding stated that he was treating Mr Mitchell regularly for headaches which showed no sign of abating and were quite disabling, to the extent that the Applicant required narcotic administration or intravenous therapy in hospital. He considered, given their duration, that the headaches would be a permanent feature of the Applicant's life. In his oral evidence, Dr Moulding said that Mr Mitchell had been suffering migraine since the electrocution in 1993, and stated that he was still treating the Applicant for migraine once every three to four weeks. Dr Moulding told the Tribunal that Mr Mitchell's pain was quite desperate at times, and he had referred him to an ophthalmologist, physiotherapist, psychologist (Dr Dawson), and neurologist (Dr Tuck).

264. The Tribunal noted also that Dr R Feltham, AGHS Medical Officer in a report dated 23 May 1996, recorded Mr Mitchell as telling him that as a result of the fall on 24 January 1996:

"He was taken home where he says he lay around for a couple of days in a confused, delerious state before he eventually went to see his doctor..... Since that time he reports getting headaches which are described as severe, thumping, at least 2-3 times per week. The headaches begin in the occipital area and then creep forward over the rest of the scalp, grabbing `like a vice' forcing him to lie down and making him feel quite nauseous but not associated with any visual disturbance. ...

Mr Mitchell says that he suffered similar headaches about 4 -5 years ago after he was electrocuted at work, apparently from faulty equipment. ... The headaches that occurred after this incident were similar in quality to the current headaches and resolved slowly over the following year....

Clearly while Mr Mitchell is complaining of such severe, frequent headaches he is not able to return to work. ...

What is by no means so clear is the actual cause of the headaches although there would appear to be no doubt that they started after the head injury of 24/1/96. If indeed they are post-concussion headaches then the natural history of such headaches is that they should gradually abate over the course of the next few months ..." [written in May 1996].

265. The Tribunal noted that Dr Cassar, physician, and director of the pain clinic to which Mr Mitchell was referred for treatment, first saw the Applicant in 1999. He said that the Applicant presented suffering very disabling headaches, sensitivity of the head and neck and lower back. Dr Cassar concluded that the pain may have accounted for Mr Mitchell's problems with memory, and commented that the Applicant was not coping in spite of medication with morphine.

266. Dr Cassar concluded that Mr Mitchell had suffered substantial trauma in the electrocution and that the 1996 incident had caused an aggravation of his headaches. He concluded also that as a result of the 1993 accident, Mr Mitchell had been left with "permanent neuropsychological impairment, spinal dystrophic pain predominantly cervical, scalp and face but also right arm, neck, shoulders and back." Dr Cassar said that at 13 November 2002, when he last examined Mr Mitchell, the Applicant still had discomfort and sensitivity on the right side of his face, and facet joint irritation and was depressed.

267. Notwithstanding differences in description of the headaches by both Mr Mitchell and the various doctors as reported above, the Tribunal was satisfied that Mr Mitchell suffered headaches consistently as a result of the 1993 electrocution and continued to after the concussion suffered in the 1996 fall.

THE PSYCHOLOGISTS

268. The Tribunal was mindful of the evidence and opinions of the three psychologists who carried out testing, and of Dr Dawson's role in treating Mr Mitchell.

* Dr Dawson, treating clinical psychologist from 1999, reported cognitive problems, and problems of memory and concentration. He recorded that the Applicant had pain to the right side of his head and extreme sensitivity to touch. Dr Dawson attributed that to the electrocution and as exacerbated by the fall in 1996.

* Dr Roldan, psychologist, who examined and tested Mr Mitchell in July 2002, was convinced from his test results, including specific tests designed to detect feigning, that Mr Mitchell was feigning impairment, and that he did not suffer brain injury as a result of either the electrocution of 1993 or the fall in 1996. Dr Roldan recorded that the Applicant took morphine for pain relief during his four hour consultation with him. In reply to questions in cross-examination, Dr Roldan agreed however in relation to test results that:

* Severe headaches and sleep disorder could affect results through distraction and memory problems;

* Depression could lead to an uncooperative attitude to testing;

* Brain injury may not show up in radiological tests.

* Dr Walsh, neuropsychologist, whose report was dated November 2002, opined that Mr Mitchell was "performing at his best through these assessment sessions and that the test results are therefore a reasonably accurate reflection of his current ability." He did not support the hypothesis that Mr Mitchell was exaggerating or fabricating his memory problems, and concluded that:

"The clinical neuropsychological assessment conducted here reveals a pattern of performance which is consistent with brain dysfunction....Both electrical and concussive injuries are capable of causing acquired brain dysfunction ... Dr Roldan correctly points out in his report ...'neuropsychological psychometric testing does not measure brain damage .... It is also difficult to explain the poor performance Mr Mitchell has provided on the validity tests conducted by Dr Roldan and he results of these tests do cast some doubt on Mr Mitchell's cooperation and effort at that assessment."

* Dr Walsh concluded that Mr Mitchell's personality changes after 1993 were due to pain, and anger at the establishment. He also stated that pain could cause depression, and was aware of Mr Mitchell's life issues, including the death of Jo.

269. The Tribunal preferred the results obtained by Drs Walsh and Dawson who opined that Mr Mitchell had cognitive problems, and problems of memory and concentration, Dr Walsh finding that the assessment of the Applicant indicated a pattern of performance which was consistent with brain dysfunction. There is no doubt that the testing was carried out some years after the electrocution, but both Drs Walsh and Dawson attributed Mr Mitchell's deficits to the effects of the electrocution, which the Tribunal accepted. The Tribunal noted the concern expressed regarding the results obtained by Dr Roldan, and accepted that it was likely Mr Mitchell did not cooperate well when he was examined by Dr Roldan, noting also he had an upset with his partner Alison who fell asleep on Dr Roldan's floor on that day, and was mindful he had attended without taking medication.

THE NEUROLOGISTS

270. The Tribunal also considered the opinions of neurologists who examined the Applicant.

* Dr Joubert examined the Applicant three months after the 1996 fall, and reported Mr Mitchell told him headaches occurred once every three to four weeks. Dr Joubert described the headaches as post-concussional occipital headaches with migraine features. The Tribunal noted Dr Joubert did not appear to have knowledge of Mr Mitchell's claim that he suffered headaches constantly since the 1993 electrocution.

* Dr Andrews who first examined the Applicant in September 1996 as a result of Mr Mitchell having collapsed without loss of consciousness since the fall in January 1996. He noted that the CT scan conducted on 8 February 1996 and the EEG trace done by him at his first examination both gave normal results. He linked the collapses to Mr Mitchell's headaches, adding that most migraine was not related to trauma, but emanated from general stress, hereditary and other factors.

* Dr Tuck who did not give oral evidence and reported in May 1998, was given a history or Mr Mitchell suffering episodic pain to the neck and head since the electrocution, and opined that he could not find an explanation for that. He suggested referral to a pain clinic.

271. The Tribunal was mindful that the CT scan and EEG of Mr Mitchell gave normal results. The Tribunal was also mindful of the medical evidence that brain dysfunction does not necessarily show up on CT scans or EEG, and in that regard preferred the evidence of the psychologists who found memory impairment and brain dysfunction.

THE PSYCHIATRISTS

272. The Tribunal considered the reports of the psychiatrists who examined Mr Mitchell.

* Dr Glaser examined Mr Mitchell in March 1994 and mentioned depression and low back pain but did not mention head or neck pain, neither difficulties with concentration, but recorded bad temper and irritability, and PTSD.

* Dr Nathar who reported in June 1995 reported on Mr Mitchell's phobia with electrical machinery but did not find memory problems.

* Dr Gupta who reported in the time frame of the 1993 electrocution opined that Mr Mitchell was suffering symptoms of depression and anxiety related to physical and psychological stress in the workplace in the context of the electrocution.

* Dr Stern who reported in October 1994, told the Tribunal in his oral evidence that the physical symptoms of Mr Mitchell's electrocution were damage to the right arm, and headache with low back pain would which continue long term. Dr Stern agreed in reply to questioning that headaches could result from the combination of physical injury and PTSD.

273. The Tribunal concluded from the reports of the psychiatrists, that Mr Mitchell's problems with headaches and pain could be linked to his workplace dissatisfactions, his PTSD and injuries, which the Tribunal was mindful arose out of the electrocution incident, and which the Tribunal found continued and were later aggravated by the 1996 incident.

THE APPLICANT'S CAPACITY TO WORK

274. The Tribunal noted the opinions of the various doctors who examined and treated Mr Mitchell in relation to the 1993 and 1996 incidents, and considered the Applicant's capacity to work. The evidence in the T-documents indicated that after the electrocution, and Mr Mitchell's PTSD/phobia regarding electrical equipment, he was given some rehabilitation and a graduated return to work. He was also transferred to Fyshwick Campus and Weston where he was happier than at Bruce. However, the Tribunal accepted the evidence of Mr Mitchell's colleagues that he was a changed person, his memory was impaired (Mr Rose disagreed), and that he was more aggressive and depressed.

275. The Tribunal noted Mr Mitchell's evidence that he was under financial pressure with regard to debts, fines which were due, and a threatened gaol sentence, when he that he took a voluntary redundancy from work in September 1996.

276. The Tribunal accepted Mr Mitchell had suffered physical and psychological damage as a result of the 1993 and 1996 incidents including cognitive and memory problems, and that his capacity for work was significantly reduced. The Tribunal accepted Mr Mitchell's evidence that he still suffered severe headaches at least once a month and sensitivity across one side of his face, as well as ongoing low back pain, and that during such episodes he would not be able to work.

277. The Tribunal noted the evidence of the doctors and psychologists who examined Mr Mitchell as follows:

* All three psychologists agreed that Mr Mitchell was not of high IQ.

* Dr Dawson indicated that if Mr Mitchell's pain was under control he could be employed part-time on repetitive duties involving easy to learn tasks. He could not learn complicated tasks or how to operate new machinery with which he had not previously been familiar.

* Dr Joubert indicated in 1996 that when Mr Mitchell's headaches resolved, which could take a long time, Mr Mitchell could carry on with his normal work.

* Dr Roldan concluded Mr Mitchell was feigning in his response to testing. He admitted that brain injury may not show up in radiological tests, and agreed that severe headaches and sleep disorder could affect results through distraction and memory problems

* Mr Mitchell had been referred to Dr Andrews in 1996 because he had suffered approximately five episodes of collapsing without loss of consciousness. Dr Andrews found his CT scan and EEG normal, considered the collapses not to be linked to epilepsy, and tentatively linked them to the Applicant's headaches.

* Dr Cassar treated Mr Mitchell at his pain clinic and opined that Mr Mitchell was unable to do heavy work, that due to his memory deficit he would be difficult to retrain, and that accordingly he was no longer employable.

* Dr Moulding who as his general practitioner has treated the Applicant more times than any other doctor, did not consider Mr Mitchell could work or be retrained for work within the next two years.

278. The Tribunal concluded from the medical evidence and evidence of Mr Mitchell that he continues to suffer disabling headaches and other medical and psychological problems. Accordingly, taking into account his evidence, and that of the above mentioned medical reports, the Tribunal concluded that the Applicant was incapacitated for work pursuant to section 14 of the Act as a result of the electrocution suffered at work in 1993 and the fall Mr Mitchell suffered in 1996.

DECISION

A2000/404 The Tribunal sets aside the decision of Comcare made in matter A2000/404 in regard to incapacity, and in substitution therefor, finds that the Applicant, Mr Thomas Ernest Mitchell continued to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988, and as a result of the incident of 16 February 1993 (electrocution), after cessation of liability by the Respondent.

The Tribunal affirms that part of the decision in matter A2000/404 which deals with the issue of permanent impairment which was not litigated before it.

A2001/294 The Tribunal sets aside the decision in matter A2001/294, and in substitution finds that the Applicant, Mr Thomas Ernest Mitchell continues to be incapacitated for work pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 after cessation of liability by Comcare, and as a result of the accident incurred at work on 24 January 1996 (fall).

Costs are be awarded in this matter pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 and in accordance with the Tribunal's Practice Direction.

I certify that the 277 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr M Miller AO, Member.

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

Associate

Dates of Hearing 25 - 29 November 2002

Date of Decision 18 June 2003

Solicitor for the Applicant Capital Lawyers

Counsel for the Applicant Mr A Anforth

Counsel for the Respondent Mr J O'Donovan

Solicitor for the Respondent Australian Government Solicitor