|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 29 July 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/472
GENERAL ADMINISTRATIVE DIVISION |
) | |
|
|
Re |
MAREK OBIEDZINSKI |
|
|
And |
COMCARE |
Tribunal |
Mr M J Sassella, Senior Member Dr M D Miller AO, Member |
Decision
...............................................
WORKERS' COMPENSATION - Migraine headaches - permanent impairment from migraine headaches - whether headaches migraine headaches or rebound headaches from narcotics use - permanent impairment resulting from mixed migraine and rebound headaches - psychiatric condition - whether some or all of generalised anxiety disorder, dysthymia, major depression, adjustment disorder, benzodiazepan abuse or narcotics abuse - narcotics abuse a disease to which employment made a material contribution
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("aggravation", "ailment", "disease", "impairment", "injury", "permanent"), 14(1), 24, 27, 62
Australian Postal Corporation v Oudyn [2003] FCA 318
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Jeremic and Comcare, Re (AAT 5975, 20 June 1990)
Labi and Comcare, Re (AAT 13560, 21 December 1998)
Lees v Comcare (1999) 56 ALD 84
22 July 2003 |
Mr M J Sassella, Senior Member Dr M D Miller AO, Member |
|
APPLICATIONS
1. In application A1999/384 the relevant papers are in ex TD1. In that application Mr Marek Obiedzinski ("the applicant"), born 24 May 1959 (TD1/T3), applied to the Administrative Appeals Tribunal ("the tribunal") for review of a decision by a delegate within Comcare ("the respondent") dated 20 July 1999 (TD1/T195) refusing him a payment for permanent impairment in respect of migraine.. An independent review officer affirmed that decision on 8 September 1999 (TD1/207).
2. In application A2002/472 the relevant papers are in ex TD2. In that application the applicant applied to the tribunal for review of a decision by a respondent's delegate dated 26 June 2002 (TD2/S20) refusing him compensation in respect of adjustment disorder with mixed anxiety and depressed mood. An independent review officer affirmed that decision on 6 December 2002 (TD2/S28).
3. In application A2003/160 the relevant papers are in ex TD4. In that application the applicant applied to the tribunal for review of a decision by a respondent's delegate dated 25 February 2003 (TD4/T7) refusing him a payment for permanent impairment in respect of adjustment disorder with mixed anxiety and depressed mood. An independent review officer affirmed that decision on 22 April 2003 (TD4/T11).
4. In summary, Mr Obiedzinski initially claimed compensation in 1994 because of migraine headaches said to be caused by the flickering of his computer screen which he was using as an officer in the Department of Immigration[1]. Liability was accepted on 25 October 1994 for "migraine - an episode only" (TD1/T207). Mr Obiedzinski was then compensated for medical treatment and loss of income during periods of incapacity for work when off work with migraines. This coverage ceased with effect from 1 December 1997 (TD1/T177). Mr Obiedzinski claimed again in March 1998 in respect of migraines and controlled depression. That claim was rejected on 24 March 1998 (TD3/T21). An independent review officer affirmed that refusal ("the reviewable decision") on 18 August 1998 (TD3/T29). Mr Obiedzinski applied to the tribunal for review of that decision on 28 September 2001 in application A2001/409. He sought an extension of time because he had delayed beyond the 60 days time limit in lodging that application after receiving notice of the reviewable decision. An extension of time was refused.
5. Mr Obiedzinski subsequently claimed compensation for adjustment disorder and for migraine as a matter of permanent impairment. These latter claims were rejected and were before the current tribunal.
HEARING
6. The tribunal convened a hearing in these applications in Canberra which ran from 12 to 16 May 2003. Mr Grant Brady of counsel appeared for the applicant. Mr Damien O'Donovan of counsel appeared for the respondent. The tribunal heard oral evidence from:
The applicant;
Dr M Tedeschi (general practitioner);
Professor J W Lance (neurologist);
Dr H Dauncey (pharmacologist);
Dr W Knox (psychiatrist);
Dr F Roldan (psychologist);
Dr A T Wright (general practitioner);
Dr R Wilcox (psychiatrist);
Professor J G McLeod (Department of Medicine, University of Sydney neurologist);
Ms M Lokan; and
Mr G Phillipson.
7. The tribunal took into evidence the following documents:
Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T209) provided by the respondent in application A1999/384.
Exhibit TD2 - Section 37 Statement and associated documents (exhibits S1 - S28) provided by the respondent in application A2002/472.
Exhibit TD3 - Section 37 Statement and associated documents (exhibits T1 - T37) provided by the respondent in application A2001/409.
Exhibit TD4 - Section 37 Statement and associated documents (exhibits T1 - T20) provided by the respondent in application A2003/160.
Exhibit A1 - Applicant's further amended statement of facts and contentions, 6 May 2003.
Exhibit A2 - Statement of Kevin Garratt, 11 April 2003.
Exhibit A3 - Department of Immigration documents regarding the applicant.
Exhibit A4 - Report by Dr Knox, 18 February 2003.
Exhibit A5 - Report by Dr Knox, 5 March 2003.
Exhibit A6 - Report by Professor Lance, 29 January 2003.
Exhibit A7 - Report by Dr G Danta (neurologist), 30 March 2000.
Exhibit A8 - Report by Professor Lance, 16 April 2003.
Exhibit A9 - Non-economic Loss Questionnaire, 6 May 2003.
Exhibit A10 - Comcare claim for time off work, 22 October 1997.
Exhibit A11 - Statement by John Parker, 16 November 1999.
Exhibit A12 - Letter dated 19 June 1997 by Dr Wright to Professor Lance.
Exhibit A13 - Dr Wright's clinical notes.
Exhibit R1 - Report by Dr Dauncey, 2 December 2002.
Exhibit R2 - Report by Dr Dauncey, 16 December 2002.
Exhibit R3 - Report by Professor McLeod, 23 May 2000.
Exhibit R4 - Report by Professor McLeod, 17 February 2003.
Exhibit R5 - Report by Dr Roldan, 20 March 2002.
Exhibit R6 - Royal Adelaide Hospital clinical notes.
Exhibit R7 - Respondent's amended statement of facts and contentions, 1 April 2003.
Exhibit R8 - Report by Dr Wilcox, 24 February 2003.
Exhibit R9 - Reports by Dr Tedeschi, 14 May 2001, 14 January 2002 and 19 September 2002.
Exhibit R10 - Documents relating to charge of misconduct against applicant.
Exhibit R11 - Report by Dr L D Yeaman (urologist), 16 July 1998.
Exhibit R12 - Canberra Hospital clinical notes, 23 July 1998.
Exhibit R13 - Canberra Hospital clinical notes, 8 January 2002.
Exhibit R14 - Canberra Hospital clinical notes, 18 March 2002.
Exhibit R15 - Canberra Hospital clinical notes, 30 March 2002.
Exhibit R16 - Canberra Hospital clinical notes, 10 February 2002.
Exhibit R17 - Canberra Hospital clinical notes, 23 July 1998.
Exhibit R18 - Canberra Hospital clinical notes, 6 December 1998.
Exhibit R19 - Canberra Hospital clinical notes, 15 September 2001.
Exhibit R20 - Calvary Hospital clinical notes, 6 December 1998.
Exhibit R21 - Letter dated 8 January 2002 from Ms P Rodda (GP Liaison Nurse), Calvary Health Care ACT, to Dr Tedeschi.
Exhibit R22 - Canberra Hospital clinical notes, 24 February 2002.
Exhibit R23 - Canberra Hospital clinical notes, 18 May 1998.
Exhibit R24 - Fax dated 28 November 1999 from Dr D Fearnley, Emergency Department, Christchurch Hospital, New Zealand, to Dr L Buczynski (general practitioner).
Exhibit R25 - Letter dated 12 November 1999 from Dr Danta to Dr Buczynski.
Exhibit R26 - Letter dated 9 June 1998 from the applicant to Dr Danta.
Exhibit R27 - Extract from Dr J Petelczyc's clinical notes.
Exhibit R28 - Comcare payment record.
Exhibit R29 - Electronic mail message dated 3 May 2001 from Mr G Phillipson to Mr Z Hary.
Exhibit R30 - Applicant's leave records.
LAW
8. The applicant sought to have his medical conditions, migraine and adjustment disorder with mixed anxiety and depressed mood, accepted as compensable conditions, and as conditions causing him permanent impairment. On the question of whether a party before the tribunal bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413:
"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression `onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
`Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings.. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."'
"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."
Mr Obiedzinski was attempting to alter the status quo by having the tribunal grant him compensation that had been denied him by the respondent. He therefore bore the onus of persuasion discussed by Hill J. The situation would differ if Mr Obiedzinski were challenging a decision to cancel his compensation.
9. Mr Obiedzinski sought as a matter of law a finding that, in respect of each of the relevant diseases, Comcare was liable to pay compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act")[2]:
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.
10. To achieve this it was necessary for the tribunal to find that Mr Obiedzinski had suffered an injury as defined in s 4(1) of the Act:
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;
11. In Mr Obiedzinski's case the injury would be in the form of a disease. The definitions relevant to such an injury in s 4(1) are:
aggravation includes acceleration or recurrence;
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
...
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;
12. Mr Obiedzinski was seeking compensation in the form of lump sum payments in respect of permanent impairment. The definitions relevant to permanent impairment in s 4(1) of the Act are:
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function;
...
permanent means likely to continue indefinitely;
13. Sections 24 and 27 of the Act dictate whether an employee qualifies for a lump sum payment for permanent impairment. These provisions lay down a number of requirements:
Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a) the employee has a permanent impairment other than a hearing loss; and
(b) Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
...
(9) For the purposes of this section, the maximum amount is $80,000.
...
Compensation for non-economic loss
27. (1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
...
CHRONOLOGY
LIFE IN POLAND
14. The following material is Mr Obiedzinski's evidence unless otherwise noted. This is an extended chronology but the case ran for five hearing days. Mr Obiedzinski was in the witness box for nearly 2 ½ days. There was therefore a great deal of material. Mr Obiedzinski was born in Poland. He learnt English at high school but to a poor standard. He commenced legal studies at the University of Warsaw and completed three years of a four-year degree. He then took a year off in 1981 to travel, mainly in West Germany. He was vice president of a student movement affiliated with the Solidarity movement. Martial law was declared in Poland in December 1981. The Polish State Security Service had an interest in Mr Obiedzinski and he sought asylum in West Germany. He stayed in Germany until late in 1982. He had no work there. Mr Obiedzinski had taken no benzodiazepines or sleeping tablets in Poland.
ARRIVAL IN AUSTRALIA
15. He decided to go to Australia in March 1982. He obtained a visa and arrived in Australia in September 1982. He had only basic English and took various jobs, for example as a dishwasher and as a waiter. He was sponsored by a remote cousin named "Jack" whom Mr Obiedzinski knew from his school years. Mr Obiedzinski lived at Jack's residence when he first arrived. Jack helped Mr Obiedzinski find work as a waiter. His spoken English was very good and Mr Obiedzinski relied on him socially. In about 1997 Jack died of a heroin overdose but he was not a user when Mr Obiedzinski lived with him. He was, however, a heavy drinker.
16. Mr Obiedzinski also took a 10-week English course. He then took a second English course. He sat a test in English for Australian tertiary studies and passed. He then did factory work for nine or 10 months serving on night shift. He obtained sleeping tablets at this time as he could not sleep when on night shift. These may have been benzodiazepines. He had not used sleeping tablets before. This was not a stressful period.
STUDY AT ANU
17. He moved to Canberra to study law at the Australian National University ("ANU") from February 1985. He told Dr Wilcox (ex R8) that he went to Canberra to avoid the temptations of Melbourne and Sydney, however he said that he did not mean to refer to drugs in stating that. He was paid Austudy and lived on that plus his savings. He found that moving from night shift to daytime study caused him problems with concentration and drowsiness. He saw Dr Wright, his general practitioner, in 1985 six weeks after arrival in Canberra and was prescribed sleeping tablets, Euhypnos and Serepax, both benzodiazepines. He also found his English language inadequate for legal studies and took 4 ½ hours to study for each hour of class. He also had to listen again to 40% or 50% of lectures on tapes held in the university library. These matters caused stress in Mr Obiedzinski who feared he might fail and have to return to factory work. In fact, he passed all subjects in first year and gained two credit passes.
18. At the end of first year law Mr Obiedzinski found work on a freighter. He sailed around the world over five months and resumed studies in April 1986. In 1986 Mr Obiedzinski kept up in his studies. He gained two out of three credit passes in first semester assessments. He developed a relationship with a girlfriend of Japanese birth. He developed severe hay fever in 1986 and had sleeping problems because of stress at university. He saw Dr Wright again. At the end of 1986 Mr Obiedzinski passed well with credits.
19. He worked over the holiday period, 1986-1987, in the Department of Immigration. In 1987 he became engaged to his Japanese girlfriend. She went to the USA to pursue further studies and broke up the relationship with Mr Obiedzinski from the USA because her father would not accept her having a non-Japanese boyfriend. Mr Obiedzinski saw Dr Wright again because he was depressed and needed help. He had a nervous breakdown in August 1987 because of the loss of this relationship. He was given benzodiazepines again. Amongst these were Mogadon and Serepax. He sought no psychiatric help. He passed his examinations again in 1987. He had told Dr Roldan (ex R5) that this girlfriend had died in the USA. Mr Obiedzinski explained to the tribunal that he had heard this but was uncertain what was the truth.
20. In early 1988 he was in Adelaide where he worked as a law clerk. He was prescribed a range of medications in Adelaide - Ducene (a synonym for Valium), a benzodiazepine; Prednisolone (for hay fever), a steroid medication; and Claratyne (for allergies). He had a prescription from Dr Wright for Ducene written on 29 January 1988.
21. On what Mr Obiedzinski thought was 26 January 1988, but was probably 12 February, he was assaulted in Adelaide. Between 10.00 and 11.00 pm he was punched and pushed against a wall by three drunken men. He lost consciousness for nine hours and awoke in daylight hours. His head was wounded about three inches above the left ear and about an inch behind that point. He recalls nothing much of the incident. He took himself back to college where he was living. He went to bed. He was awakened in the afternoon that day by colleagues. He went to Royal Adelaide Hospital.
22. At the hospital he was asked about his history as regards headaches. He said that there was a history of migraines (ex R6). Mr Obiedzinski represented that this answer applied to his family generally, not just himself. Mr Obiedzinski told the tribunal that at this time he referred indiscriminately to headaches as headaches or as migraines. He was not awake to the differences. In cross-examination it was put to Mr Obiedzinski that the notes in ex R6 referred to "PMH", ie past medical history, of migraine. This was said to refer to Mr Obiedzinski himself, not others in the family. Mr Obiedzinski was uncertain that this was so. Mr Obiedzinski was also challenged regarding his evidence as to confusion between headaches and migraines.
23. Royal Adelaide Hospital records (ex R6) indicated that Mr Obiedzinski presented there on 12 February 1988. Mr Obiedzinski conceded that he may have confused the date and that this event may have occurred in February rather than January.
24. At Royal Adelaide he was given Codeine Phosphate for his pain. He did not request such a strong painkiller and was unaware that it was a narcotic. He returned to Adelaide Hospital on 18 February 1988 for removal of sutures from his scalp (ex R6). He sought sleeping tablets and was given two Temazepam tablets.
25. Mr Obiedzinski returned to finish his law degree at ANU in 1988. He had some hand-eye co-ordination problems and suffered headaches after the attack for two or three weeks.
26. Dr Wright considered that Mr Obiedzinski was developing epilepsy in 1988. This made Mr Obiedzinski anxious and he felt it could affect his study results. Mr Obiedzinski told Dr Wright of his concern that he may become addicted to benzodiazepines. Dr Wright advised him to stay on benzodiazepines until his situation was settled. He saw Dr Wright numerous times in 1988. His health deteriorated. He had problems concentrating and had a grand mal epileptic seizure in November 1988. Several others followed. Mr Obiedzinski was concerned by the stigma he saw attaching to epilepsy. He lost his residential place in ANU's Ursula College, he believes because of his epilepsy. Mr O'Donovan, counsel for the respondent, suggested that this may have occurred because Mr Obiedzinski was abusing benzodiazepines, not because of his epilepsy. Mr Obiedzinski doubted that because no one else knew of his taking benzodiazepines. Dr Wright had prescribed Tegretol, another benzodiazepine, for the epilepsy, for some six months. He had dizziness, double vision, stomach problems and confusion. Mr Obiedzinski had to repeat his final year's study. He sat his final examinations at the end of 1989 and through illness had to take some supplementary examinations in February 1990 before he finalised his degree. In his final year he lived in an ACT Housing flat, for which he qualified because he was ill. He lost Austudy and lived on a bank loan and a part-time job in the Department of Veterans' Affairs.
27. Mr Obiedzinski said that neither he nor Dr Wright was happy with his consumption of benzodiazepines in 1989, by which time he was dependent on them and was reliant on Mogadon for sleep, but Dr Wright favoured a continuation until Mr Obiedzinski's finances and emotional situation settled down. Mr Obiedzinski continued on benzodiazepines in 1990 when engaged in practical legal training at the ANU Legal Workshop. He worked part-time for three months, five evenings a week, as a cleaner at the Department of the Treasury from 6.00 to 10.00 pm. He was admitted to practise as a solicitor in NSW in September 1990.
28. In December 1990 Mr Obiedzinski attempted to wean himself off benzodiazepines. Ducene was successfully targeted while he continued with Mogadon.
WORK COMMENCED IN DEPARTMENT OF IMMIGRATION
29. Mr Obiedzinski secured his position at the Department of Immigration immediately after finishing Legal Workshop. He had taken no holidays since the freighter holiday in 1985.
30. He recommenced taking Euhypnos to help him sleep in 1992. In 1992 he also had a holiday in Europe in August - September.
31. At the department he had a succession of positions. He was in the "Review Section" for six months. His probation was confirmed at the end of that six months. Ms Morag Lokan and Mr John Bloomfield provided supportive assessments at the time. He moved on to the "Legal Opinions Section".. He remained there from 1991 to 1994. Morag Lokan was his supervisor. John Parker was director of the section. Ms Lokan was followed as Mr Obiedzinski's supervisor by Charlotte Blesing, Sallyann Ducker and Vicky Parker. Mr Obiedzinski and Dr Wright again attempted to reduce Mr Obiedzinski's benzodiazepines. Eventually Mr Obiedzinski's benzodiazepine consumption ceased except for some short-acting benzodiazepines. His residual use of benzodiazepines in 1991 - 1993 did not affect his work to any great degree. He took them mainly at night to help him sleep.
32. In 1992 Mr Obiedzinski had an attack of renal colic which required medications. He was also "a bit run down" in 1992 and took a cough mixture because his sinuses were affected. This was Hycomine.
33. Mr Obiedzinski's job was to prepare legal opinions on immigration and general law and to prepare contracts, generally relating to consultancies. Mr Obiedzinski enjoyed this work, especially the contracts work. He got on very well with the people at work. He was an ASO6 (ie an Administrative Service Officer class 6) who was granted annual increments and reached the top of the ASO6 salary scale. He applied to move out of the general clerical ASO stream into the legal officer stream and become a Legal Officer 1. Ms Blesing and Ms Ducker provided referee reports (ex A3).
* Ms Blesing praised Mr Obiedzinski's advices as thoroughly researched and well presented. She praised his organisational ability which allowed him to meet deadlines with little supervision. She praised Mr Obiedzinski's communication skills describing his written work as of a high standard. Mr Obiedzinski was often required to represent the branch at departmental meetings.
* Ms Ducker praised Mr Obiedzinski's skills in providing legal advice. She said he was able to work under pressure and act independently. She noted that he expressed himself clearly orally and in writing.
The tribunal has some doubt that these references were prepared for the one purpose as they cite different criteria as addressed by the writers. Ms Blesing's is also undated. However, they were clearly positive in their asessments.
34. Ms Christine King, Manager of the Microeconomic Reform Section of the Local Development Branch wrote a letter of appreciation to Ms Parker dated 24 April 1992 (ex A3). Ms Parker and Mr Obiedzinski had assisted Ms King in a project that had not been straightforward. Ms King wrote:
"... I would like to express my appreciation to you and Mr Marek Obiedzinski for the professional assistance in developing the contract and promptness in following up the approval.
"In particular, Mr Obiedzinski's willingness to co-operate and flexibility to our demands has ensured that this 'no frills' contract can now be used for all projects which will be funded under the 1991/92 Local Government Development Program."
35. Mr Obiedzinski was promoted to Legal Officer 1 in mid-1994.
1994
36. Mr Obiedzinski told the tribunal that he first developed migraine headaches in 1994. His earlier headaches in December 1993 to January 1994 had not been migrainous, had been tolerable and had not caused Mr Obiedzinski to see a doctor. He explained cogently to the tribunal the salient differences between a "normal" headache and a migraine. These headaches caused him some stress. The migraines were daily for two to three months and were "really bad" in late January to early February. Mr Obiedzinski believed the migraines to be caused by a flickering monitor on his desk. He complained about the flicker and had two weeks off work. The problems continued when he returned. In April 1994 the flicker was continuing. The monitor was replaced in July and again in October 1994. Mr Obiedzinski consulted Dr Wright throughout this period. He was prescribed Stematil. These headaches were different from any Mr Obiedzinski had suffered in the past and were growing in intensity.
37. Mr Obiedzinski's work was badly affected by his absenteeism. He was on analgesics and on Stematil for nausea. He was given his first Morphine injection in January 1995. This led to four Morphine injections (or it seems some Pethidine) between January and April 1995. This was Mr Obiedzinski's first exposure to strong narcotics. Another narcotic, Proladone, in suppository form, was prescribed starting in 1995. These narcotics were intended as painkillers. His supervisor noted that Mr Obiedzinski was taking time off work and management was generally not happy.
1995
38. In 1995 Mr Obiedzinski was redeployed to the section's help desk. Ms Lokan was again Mr Obiedzinski's supervisor. She gave Mr Obiedzinski an unsatisfactory work rating. Mr Obiedzinski had several supervisors. One was Greg Phillipson who wrote a statement on 11 November 1997 (TD4/T18) relating to the period July 1995 to January 1996. He was dissatisfied with the applicant's work performance during that period. The performance was described as inadequate not only because the applicant was not at work most of the time but also because of the standard of work that he did complete. Although the applicant was pleasant and co-operative the writer doubted that he could perform effectively at the ASO6/Legal Officer 1 level unless there was a considerable improvement in his medical condition. The writer noted that Mr Obiedzinski's productivity and concentration seemed to drop by late morning and he appeared physically distressed by around 11.00 am. He found Mr Obiedzinski pleasant and co-operative.
39. Ms Jennifer Palma was the applicant's supervisor from September to December 1995. She wrote a statement on 11 November 1997 (TD4/T19). She noticed that his written work was not coherent, was confused and rambling. She asked Mr Obiedzinski about this and he explained that the medicine he was taking was strong and affected his performance. She recalled that his actual completion of the work that was allocated to him was not a problem.
40. Mr Obiedzinski was absent from work from 28 August to 23 September 1995. He had one or two days of disabling headaches each week. Mr Obiedzinski said that the headaches were in fact severe and frequent. His doctor advised him to remain at home for the entire period.
41. Mr Obiedzinski had more leave late in 1995 and early in 1996. He saw Dr Wright and they resolved to cease the narcotics. Mr Obiedzinski wanted to quit because of the side-effects. He was drug dependent. Mr Obiedzinski was absent from work on sick leave 2 - 3 January 1996, then from 8 - 25 January. In February 1996 he was absent on sick leave on 2 February and then from 5 - 16 February. He then went overseas. Mr Obiedzinski said this was on the doctor's recommendation. Dr Wright apparently saw it as therapeutic to keep Mr Obiedzinski away from work in trying to control the migraines.
42. Mr Obiedzinski had another relationship break up in 1995. Mr Obiedzinski began to complain also from late 1995 about being stressed at work because of his treatment there. He made no complaint to his supervisors and had no one supervisor in mind as blameworthy. He said that his supervisors should have known he was under stress. He said there was no public manifestation of his stress and unhappiness. Dr Wright, however, recorded on 8 August 1995 that Mr Obiedzinski had said he had argued with his female boss, Ms Lokan, for two hours one day. Mr Obiedzinski produced medical certificates at around this time that were initialled by Ms Lokan as having been seen and these referred to migraines related to "work tension" (TD1/T52, 4 September 1995; TD1/T53, 8 September 1995; TD1/T55, 18 September 1995). It was argued that these should have put Ms Lokan on notice that Mr Obiedzinski was suffering from work-related stress causing him to have migraines.
1996
43. In 1996 Mr Obiedzinski received an unsatisfactory work rating. This came out of the blue. He felt awkward and upset. His reputation in the department was ruined. The headache pain was more and more intolerable and difficult to control. Dr J Joubert, a neurologist, saw Mr Obiedzinski on 1 February 1996 (TD1/T95) and took a history to the effect that Mr Obiedzinski was taking seven out of 20 working days a month off because of migraine. He also recorded that Mr Obiedzinski said that his supervisor was currently on sick leave and that his condition had somewhat improved (TD1/T95/150).
44. Mr Obiedzinski went to Europe in February 1996 for 10 weeks holiday. He knew he would improve and have fewer migraines if he went away. He visited a number of countries, saw family and friends and went skiing. He had some migraines in the first month and obtained narcotics in Germany to deal with them. He was then largely migraine-free.
45. He returned to work in April 1996. The migraines recommenced in May as a result of the same stresses and environment at work. Mr Obiedzinski checked into Epworth Hospital in Melbourne for 10 days treatment under Dr Joubert, at Comcare's expense. The treatment was an intravenous Lignocaine drip with Morphine in the first four days. The headaches improved near the end of the 10 days. He was discharged on 13 June 1996 headache free. Dr Joubert approved Codeine Phosphate if he had a severe migraine. He was to avoid Morphine and Pethidine. He followed the hospital stay with a 1.5 months holiday. He had only occasional, mild migraine headaches in that period.
46. Mr Obiedzinski then returned to work in July 1996 and the migraines worsened again. The tribunal noted that Dr Wright's notes (ex A13) did not bear this out. In July 1996 Dr Wright understood that the migraines had gone but that Mr Obiedzinski still had mild, presumably non-migrainous, headaches. The first mention of a fresh migraine was one on 26 August 1996. There were the same problems and Mr Obiedzinski wanted a transfer.
47. In August 1996 he had few migraines and few work absences. He then developed toothache which he said led to migraine headaches. This was the migraine mentioned in paragraph 46 as occurring on 26 August 1996. The Codeine Phosphate was ineffective and he was given MS Contin, Morphine Sulphate. Mr Obiedzinski was inconsistent regarding this drug. He said at one point that he sought narcotics from his doctor. Later he said that MS Contin, a narcotic, was the doctor's idea. By December 1996 Mr Obiedzinski's doctor was prescribing Proladone, a narcotic.
1997
48. By 1997 Mr Obiedzinski's migraines were almost continuous and he was dependent on narcotics. He again complained of a flickering monitor screen. He again sought redeployment with Dr Wright's support because his reputation was damaged in the legal area of the department and because of an unsympathetic supervisor. He considered that management did not understand his pain. He took painkillers. This affected his work which fell in quality. He became depressed. He admitted his work was poor compared to in earlier years. Professor Lance prescribed Serzone, an anti-depressant, for Mr Obiedzinski. Professor Lance saw depression as a cause of the migraines (TD1/T126).
49. By 8 August 1997 Dr Danta wrote that he was arranging for Mr Obiedzinski to have intravenous DHE and Lignocaine at the John James Hospital in Canberra (TD1/T132). He actually had Lignocaine, Ergotamine, Maxalon and Morphine (per Dr Lowden, TD2/S5/14). The treatment was carried out 11 - 22 August 1997 (TD1/T135). This was a repeat of the Epworth treatment carried out in June 1996. The headaches subsided after this treatment. Mr Obiedzinski returned to work after three months.
50. Mr Obiedzinski saw Dr F H Lowden, a psychiatrist, on 20 August 1997 at Dr Wright's instigation (TD2/S5). At that time he was taking Serzone and Valium. She recorded that he had "no drug, alcohol or caffeine intake", which sat oddly with her recording of his taking Serzone and Valium. Her summary was:
"In summary he is a thirty year old who presented with a three and a half year history of chronic headaches and depression, at the background of seemingly no family history of psychiatric disorder, possible early emotional problems, fragile self esteem, unresolved losses and separations, migration, relationship problems, and work problems. On the other hand his intelligence, his previous good adjustment, and his ability to care for himself are his strengths which should be taken into account in his prognostic evaluation.
"My provisional diagnosis for Mark Obiedzinski is chronic pain, depression, and benzodiazepine and opiate use which are coloured by his dependent personality traits. As differential diagnoses I have considered organic mood disorder, personality disorder and dysthymia.
"In terms of immediate management first of all I discussed suicide risk management measures with him and then explained his condition and its treatment in detail. He did not require hospitalisation. I will arrange investigations to exclude organic mood disorder as well as to monitor medication side effects, and asked him to continue with his antidepressant but I am concerned about his benzodiazepine and opiate intake which may cause dependency. I also initiated psychotherapy to improve his self esteem, to deal with interpersonal issues and for anger management. I anticipated that establishing therapeutic alliance and substance abuse would be the major problems in his care."
Mr Obiedzinski did not return to Dr Lowden and obtained no further psychiatric assistance.
1998
51. On 1 December 1997 Mr Obiedzinski returned to work in the Refugee Law Section. Matters improved for Mr Obiedzinski. He still had migraines but they were of lesser degree. He had less time off and there were no prolonged migraine absences, although in October 1998 he was absent on the 9th and from the 12th of the month to the 14th and on the 16th, 24th and 25th because of migraine (ex R30). He had a new computer which caused no problems. He was less stressed and felt much more at ease and comfortable. His work was appreciated and Mr Obiedzinski felt useful. He had no problems with his supervisor. He continued with narcotics. This meant he needed no time off work. He was tolerant of Proladone so he had no side-effects and it proved an effective pain killer. Between December 1997 and June 1998 Mr Obiedzinski obtained large doses of narcotics for pain associated with renal colic and a gall bladder problem. He said it was for migraine also. The migraines continued but less frequently. There was reference to the loss by Mr Obiedzinski of yet another girlfriend in a letter from Dr Danta to Dr Buczynski dated 26 November 1998.
1999
52. Mr Obiedzinski next went on holiday to New Zealand early in 1999. While he was away the Refugee Law Section was dissolved without Mr Obiedzinski being aware. He returned to work to an area staffed by only himself and Mr Kevin Garratt. There was no section head. Mr Garratt found a position in a policy section. Mr Obiedzinski was depressed to find the section dissolved and feared removal back to his previous work area. Instead he was sent to the Legal Policy Section. He was asked to prepare a research paper on certain issues arising from refugee legal cases. Mr Obiedzinski was unaware of the purpose of the paper and the paper was never finished. He spent five months working on it. He was then sent to the Legislation Section.
53. In the Legislation Section "Mrs Davies" was his supervisor and Greg Phillipson was section head. Mr Phillipson had supervised Mr Obiedzinski when he worked on the help desk (see paragraph 38 above) and Mr Obiedzinski was dubious about him. In this period Mr Obiedzinski was stressed. He worried whether his work would be accepted. Mr Phillipson later became very critical. Mr Obiedzinski's work declined in quality and his migraines increased. In 2000-2001 the headaches were at almost the same level as they had been in 1996 - 1997. His medications rose. He saw slim prospects of a successful career working for Mr Phillipson. He decided that he wanted to move to the Offshore Protection Section. His stress levels continued to rise because of his absenteeism which was a function of the criticism of him by his supervisors. His performance dropped significantly. His use of opiates had risen since 1998-1999. In 2001 he was referred to Health Services Australia ("HSA") for advice as to his fitness for continued employment in view of his absences, problems concentrating, memory problems and falling asleep at his desk at work.
2000
54. In July 2000 he began treatment with Dr M Tedeschi, a general practitioner with background training in drug and alcohol dependence. Dr Tedeschi worked at the Kippax Medical Clinic where Mr Obiedzinski had customarily been seen by Dr Petelczyc or Dr Soh. The other doctors were concerned at Mr Obiedzinski's level of opiate consumption and had referred him to Dr Tedeschi. The Deputy Chief Pharmacist in the ACT Department of Health & Community Care had also become concerned and on 31 July 2000 wrote to Dr Soh about Mr Obiedzinski's opiate consumption and the fact that, contrary to advice the ACT department had received from the Kippax clinic, Mr Obiedzinski was receiving opiates pursuant to prescriptions made out by more than one doctor (TD2/S19/168). On 14 May 2001 Dr Tedeschi wrote (ex R9) that in the previous nine months he had attempted to rationalise Mr Obiedzinski's treatment by putting him on daily oral long acting opiate analgesia and limiting the amount of injectable analgesia as much as possible. This was to minimise dependence potential and to limit the possibility of escalating the amounts of injectable opiates. Mr Obiedzinski had been compliant with the treatment. He considered that the migraines may continue indefinitely and that some quantity of narcotic may be necessary on an indefinite basis.
2001
55. Mr Obiedzinski was relegated to part-time work in 2001 on the advice of Dr A Lark of the HSA and experienced the same problems.. He felt that his supervisors were aiming to get rid of him and were preparing adverse reports about him. The migraines continued. Mr Obiedzinski presented at Canberra Hospital in 2001 seeking narcotics for his migraines (ex R19).
2002
56. In March 2002 Mr Obiedzinski was retired on the basis of his invalidity. At this time the headaches were bad. He was not following his supervisors' instructions in the work he did. He went on an overseas trip from July 2002 visiting Finland, Latvia, Lithuania, Poland, Switzerland, Poland, Germany, France, Italy and Sweden. The headaches continued at first but then began to disappear. He ceased using narcotics. At the end of September 2002, as Mr Obiedzinski prepared to return to Australia, the headaches returned. He sought narcotics and saw a psychiatrist in Sweden. At the time of the hearing Mr Obiedzinski was learning Swedish and corresponding with a girl in Sweden. He still had headaches but less often and less intensely than when he was working.
2003
57. By 2003 Mr Obiedzinski was on a Methadone program sponsored by Dr Tedeschi. The program began on 10 April 2003.
58. Dr Tedeschi gave evidence and said that he referred Mr Obiedzinski to Dr Mazengarb of the Alcohol and Drug Program at Canberra Hospital who saw him twice. Dr Tedeschi continued seeing Mr Obiedzinski regularly. Mr Obiedzinski was required to obtain his narcotic drugs from only Dr Tedeschi from 2000 to 2002. Since 2002 Dr Buczynski has prescribed for the applicant. Mr Obiedzinski should have been unable to obtain supplies from any other source. Any attempt was detected by all ACT and South West NSW pharmacists through their computer facilities. Dr Tedeschi and Mr Obiedzinski agreed on a plan regarding Mr Obiedzinski's narcotic supplies. He was permitted a certain monthly quantity of Proladone, MS Contin and Morphine (in ampoule form). He was allowed no additional supplies in a month if he used the allowed quantity before the month expired.
59. Dr Tedeschi regarded Mr Obiedzinski as compliant with the program because there were no instances of lost prescriptions, broken ampoules or other excuses used to obtain additional supplies. As will be seen later, however, Mr Obiedzinski does appear to have gone seeking narcotics at hospital casualty units. Dr Tedeschi described Mr Obiedzinski as having a narcotic dependence but one that is controlled. Mr Obiedzinski had transferred to the Methadone program a few weeks before the hearing because he had sought additional narcotic drugs from Dr Tedeschi and they had seen the Methadone program as worth trying. Dr Tedeschi had earlier regarded the Methadone program as inappropriate because Mr Obiedzinski suffered from genuine pain.
60. At the time of the hearing Mr Obiedzinski was not working. He was on an invalidity pension from Comsuper. He was not bushwalking "because it was too cold".. He reads, goes fishing and listens to music. As at February 2003 Mr Obiedzinski's medications were Deseril and Inderal (for migraine), Efexor (an antidepressant), Xanax (for anxiety), Oxycontin (for daily headaches), Morphine (for migraine), Proladone (for migraines) and Maxolon and Stematil (for nausea and vomiting associated with migraines) (ex R4). He was having migraine attacks about twice a week (ex R4).
THEMES IN EVIDENCE
61. Several themes emerged in evidence that have not been adequately treated in the chronology. These were raised by the respondent in cross-examination and will be dealt with in turn. They were:
* Mr Obiedzinski's and his family's medical history.
* Mr Obiedzinski's drug-seeking attempts.
* Mr Obiedzinski's absenteeism from work.
* Disciplinary action taken against Mr Obiedzinski.
62. There was also medical evidence from a number of experts to be assessed.
MEDICAL HISTORY
63. There was some evidence suggesting that Mr Obiedzinski and other members of his family had histories of migraines. Mr Obiedzinski's evidence was that the onset of his migraines occurred in February 1994 and that they were associated with exposure to a flickering computer monitor.
64. It was put to Mr Obiedzinski that he had told Dr Knox and Dr Wilcox in 2003 (ex A4/3; R8/3) his mother had headaches associated with hypertension. Mr Obiedzinski did not seem to accept this. Dr Wright's notes contain a statement in February 1997, "Strong family h/o migraine (father, sister)" (ex A13). Mr Obiedzinski said he thought the reference to his father must have been a mistake. His father had never had headaches.
65. Mr Obiedzinski explained that his sister had headaches in 1997 that he thought were migraine. However, she was found to have cancer which was accepted as the cause of her headaches.
66. There were other references. In July 1994 Dr Wright wrote "family h/o migraine". Dr Wright wrote on the same occasion, "First occurred in 1988 when had head injury/assault". However, on 19 June 1997, Dr Wright wrote to Professor Lance (ex A12) stating that Mr Obiedzinski suffered from migraine "(no attacks before '93 and no family h/o!)".
67. Mr Obiedzinski completed a health summary for Dr Petelczyc on 9 May 1997 (ex R27). He agreed at the hearing that the writing was his. He wrote, among other things, "history of high blood pressure and migraines in the family". Mr Obiedzinski said that he would have used the phrase, "vascular headaches" regarding the family if he had meant to refer to them having migraines. He insisted he was the only family member to suffer from migraine or, as he put it, vascular headaches.
68. Reference was made above in paragraph 22 to a past medical history of Mr Obiedzinski regarding migraines. As noted earlier, he said he failed to differentiate between types of headaches in 1988.
DRUG-SEEKING ATTEMPTS
69. There was considerable evidence that Mr Obiedzinski was adept in seeking supplies of opiates in addition to those prescribed by his regular doctor. In 1988 at the Royal Adelaide Hospital he obtained Codeine Phosphate for his head pain (ex R6). Mr Obiedzinski said that he had not asked for this medication. It was what the hospital gave him when he described his pain. He was challenged by Mr O'Donovan with having sought additional supplies of benzodiazepines at the Adelaide Hospital when he had received a script for benzodiazepines from Dr Wright only a couple of weeks earlier. Mr Obiedzinski thought he did not have the medications prescribed by Dr Wright with him in Adelaide.
70. It appeared that Mr Obiedzinski had had repeat prescriptions for Proladone filled on the same day at different pharmacies. Pharmaceutical printouts at TD2/S19/149-152 tracked Mr Obiedzinski's filling of prescriptions. These showed, for example, Proladone dispensed on 29 March 1995 at both Belconnen Mall Pharmacy (p 150) and Pye's Pharmacy (p 151). Each was for 30 mg. They were covered by different scripts. Mr Obiedzinski thought the printout must be wrong. He said that the second pharmacy would know of the earlier supply of drugs through its computer. He said he knew how this worked because he tried to obtain supplies once to go to New Zealand. He had used two prescriptions from two different doctors and the second pharmacist refused to provide the medication.
71. Mr Obiedzinski had prescriptions for Proladone filled on 15 and 19 January 1996 (TD2/S19/150-151). Mr Obiedzinski explained that he needed to stock up as he was going on holidays. He denied that he was taking more Proladone than was needed for his migraines. He said he took some for renal colic. However, it came on later. He also had scripts for Proladone filled on 14 and 22 December 1995 (TD2/S19/150-151). Mr Obiedzinski explained that he was assisted by his doctor to stock up for his holiday.
72. Mr Obiedzinski used Proladone for "breakthrough pain".. That would mean only one suppository for each migraine attack. At the time in 1995 he was having one migraine a week. A prescription of 12 suppositories should have lasted 12 weeks, suggested Mr O'Donovan. Mr Obiedzinski responded that he also had non-migraine headaches and took Proladone for them also, with his doctor's assent. He was using around three Proladone a week over the 1995-1996 period.
73. Discussing the period from late 1997 into 1998 Mr Obiedzinski said he obtained narcotics for migraine, renal colic and gall bladder problems. He obtained narcotics from a range of sources:
* On 11 April 1998 he was at Mt Druitt in NSW on holiday and had severe renal colic. He obtained narcotics.
* On 5 April 1998 he presented at Calvary Hospital, Canberra, with severe renal colic. He obtained narcotics.
* On 27 April 1998 he was given a Morphine injection at Calvary.
* On 15 June 1998 he was given a Morphine injection at Calvary because of renal colic.
* On 18 May 1998 Mr Obiedzinski saw Dr L Yeaman, a urologist, who gave him a Pethidine injection
* On 4 and 5 June 1998 Mr Obiedzinski sought narcotics at Calvary.
* On 9 June 1998 Mr Obiedzinski contacted Dr Danta about obtaining prescriptions for narcotic drugs for a three months period. Dr Danta said he would need to see Mr Obiedzinski. Mr Obiedzinski did not pursue it.
* On 10 June 1998 Mr Obiedzinski saw Dr N Tait, a surgeon who had carried out a cholecystectomy. He asked for a lot of narcotic drugs but was referred back to Dr Wright (TD2/S19/141).
Mr Obiedzinski denied he was addicted to narcotics. He said he needed plentiful narcotics from different sources as he had three sources of pain.
74. Dr Tedeschi in his oral evidence explained Mr Obiedzinski's drug use when he took over his care at Kippax. From 1997 most of the narcotic drugs given Mr Obiedzinski were from Dr Petelczyc's own supply. Dr Soh decided to transfer him to prescribed narcotics which had to last him for certain periods of time. There were signs that this was not working. His scripts were running out too soon. There was drug seeking behaviour. It was in that context that Dr Tredeschi accepted Mr Obiedzinski as a patient.
75. During his evidence Dr Tedeschi was asked about Mr Obiedzinski's compliance with the regime he and Mr Obiedzinski had sorted out whereby Mr Obiedzinski was limited to a certain quantity of prescription drugs over defined periods. Dr Tedeschi had understood Mr Obiedzinski not to have presented outside their agreed plan between 2000 and 2002. However, Canberra Hospital records showed that Mr Obiedzinski attended casualty and received Morphine injections in January, February and March 2002 (ex R13, R14, R15, R16). These were not within the plan.. They were considered to be for renal colic. This was, however, not correct. The hospital records show each presentation was for migraine. Mr Obiedzinski also obtained a Pethidine injection in Sydney on the day in 2003 when he went there to see psychiatrist Dr Wilcox at Comcare's request. Dr Tedeschi was unaware of this. Nevertheless, Dr Tedeschi was very confident that Mr Obiedzinski had been very compliant with the agreement between August 2000 and June 2002.
76. Dr Tedeschi said that patients hooked on narcotics can never get enough. They will always want more. As noted earlier, Dr Tedeschi regarded Mr Obiedzinski as compliant because he had not reported to Dr Tedeschi with lost prescriptions or broken ampoules. Dr Tedeschi said that drug dependent people do tend to say they have pain in order to obtain drugs. It reaches a point where it is hard to say whether pain is present or there is just drug seeking behaviour. He said that the physical and psychological pains join together. He thought it possible Mr Obiedzinski reported migraines he was not having in order to obtain drugs.
77. Mr Brady cited Mr Obiedzinski's narcotics use in 1992-1994 to Dr Tedeschi. There were some prescribed in July 1992, September 1992, January 1993 and March 1994. Dr Tedeschi saw that as low use and not drug seeking behaviour. Dr Tedeschi said that the longer a person suffers chronic pain the more likely he or she will become drug dependent. He said that 3 or 4% of migraine sufferers given narcotics become drug dependent.. It is not possible to say in advance who will succumb to dependence. He noted that Mr Obiedzinski told doctors at times that he was feeling better. That was not consistent with drug seeking.
78. In oral evidence Dr Wright addressed comments Mr Obiedzinski had made to another doctor. These were that Dr Wright did not understand him and had humiliated him late in 2001 by refusing to give him medications, including narcotics. Dr Wright said that he refused these to Mr Obiedzinski because Mr Obiedzinski was using too many narcotics. He said Mr Obiedzinski was deceiving him regarding the amounts he was using and where he was procuring them. He felt at times that Mr Obiedzinski was lying to him. Dr Wright felt in 2001 that Mr Obiedzinski was consuming too many narcotics for migraine alone and that dependency explained his rate of use.
ABSENTEEISM
79. Mr O'Donovan calculated that by 1994 Mr Obiedzinski had exhausted his sick leave and, if he were to be on paid leave when ill, he had to be able to take compensation leave. The inference was that the compensation claims at such times were opportunist.
DISCIPLINE ACTION
80. Late in 1999 Mr Obiedzinski became embroiled in disciplinary action concerning the alleged irregular and dishonest use of Cabcharge vouchers in 1997. This could be relevant as a source of his anxiety and because any injury resulting from reasonable disciplinary action would not be compensable in accordance with the definition of "injury" in s 4(1) of the Act.
81. Mr Obiedzinski explained that he sometimes used Department of Immigration Cabcharge vouchers to go home by cab from work when a migraine came on at work. He saw such migraines as work-related and understood it appropriate to use a voucher at such a time. His branch head was aware of what he was doing, although his director was unaware.
82. Mr O'Donovan referred to a claim Mr Obiedzinski made to Comcare for reimbursement of a $42.80 cab fare incurred on a trip to Sydney on 15 July 1997 (ex R10/2). The trip was covered by a Cabcharge voucher (ex R10/4) and so had been paid by Immigration. Mr Obiedzinski said he understood that it was not Immigration's responsibility to pay such accounts. He said he made an honest mistake. Action was taken against Mr Obiedzinski under s 61 of the Public Service Act 1922 (now repealed) and five charges were laid. The charges were sustained. Mr Obiedzinski did not appeal for fear of attracting a higher penalty.
83. Mr John Parker, Director of the Students & Working Holiday Makers Section, signed a statement in support of Mr Obiedzinski on 16 November 1999 (ex A11). He wrote:
"I was acting Assistant Secretary, Litigation and Legal Services, for a period of around 3 or 4 months in mid-late 1997. During this time Peter Judd, the substantive AS, was working at the Refugee Review Tribunal. Peter Judd has since retired.
"During this period Marek Obiedzinski was employed in the Litigation and Legal Services branch. I was aware that he suffered from severe migraine and that a Comcare claim for this condition had been lodged. I took action during this period to move Marek from his position on the legal opinions help desk to the Refugee Law section, as I considered that his placement on the help desk may have been contributing to his medical condition.
"I do not recall being aware of any use of Cabcharge vouchers by Marek during this period. Marek's Cabcharge usage was never raised with me, by him or by Cynthia Korbl (the personal assistant at the time). It is possible that Peter Judd may have been aware of Marek's previous usage, and that there was an expectation that this arrangement would simply continue. I have, and had, no reason to doubt Marek's honesty or commitment to his work.
"The branch head's personal assistant held Cabcharge vouchers and dispensed them to staff on request for business purposes; this was an arrangement I continued during my period as acting AS. I would have expected Directors to be aware of cabcharge usage by their staff. Cabcharge acquittal would have been handled by Directors, rather than at the Branch head level.
"Had I been aware of Marek's Cabcharge usage at the time, to obtain urgent medical treatment for a compensable condition, I would have inquired further into the issue. If I had been confronted with this issue at the time in the knowledge of the use to which the Cabcharge vouchers were to be put, I would have been sympathetic to a claim for usage or I would have arranged for the Assistant Secretary's vehicle to be used to accommodate Mr Obiedzinski. In the circumstances, I would have considered Cabcharge for this purpose to have been reasonable. I emphasise for these purposes that Mr Obiedzinski's medical condition was well documented and supported by medical certification and that the migraine headaches were severe and frequent and caused considerable absence from work."
84. Mr O'Donovan ascertained from Mr Obiedzinski that he was not aware that Mr Parker would have known that Mr Obiedzinski was claiming reimbursement from Comcare for taxi trips paid for by Cabcharge.
MEDICAL EVIDENCE
85. A considerable amount of this has been covered already. However, there was additional evidence.
DR DAUNCEY
86. Dr Dauncey provided reports dated 2 December 2002 and 16 December 2002 (ex R1, R2). As a pharmacologist Dr Dauncey examined what was available to her of Mr Obiedzinski's medical records. She was confident that Mr Obiedzinski suffers from benzodiazepine dependence from which, she said, it is notoriously difficult to achieve lasting abstinence when one has been addicted for as long as Mr Obiedzinski. She considered him also opioid dependent. She agreed with Dr Mazengarb that he would probably never achieve a narcotics free state and considered he would probably stay on the same dose forever unless he made major lifestyle changes.
87. Dr Dauncey discussed the addictive qualities of benzodiazepines. As medications they replaced barbiturates and were found, by the early 1980s, to be dependency forming. They produced rebound and withdrawal effects. Rebound insomnia occurs when benzodiazepines are taken for insomnia and are then stopped. Additionally, if an effect of benzodiazepines is to reduce a person's anxiety he or she feels better and may find their use in daytime attractive. This leads to depression, tiredness, apathy, flatness and loss of efficiency. The onset of these effects may take from weeks to months.
88. Excessive use of opiates was said to impair cognition, cause poor concentration, sleepiness at work, poor comprehension, diminished capacity for clear expression both written and verbal, poor reasoning, increased absenteeism and reduced capacity to function as a lawyer. However, she said that if a person takes the same dose every day by the same route as the applicant appeared to be doing then the mind ceases to be cloudy and confused and can function fairly well. On the other hand, intermittent heavy use of a variety of opiate drugs will cause all of the above symptoms every time the drugs are used.
89. As regards benzodiazepines, once a regular pattern of daily use has been established, even therapeutic doses, dependence used to be common. Prescribing guidelines now suggest the use of benzodiazepines on a short-term basis only. If escalation of the dose occurs, incremental and difficult to reverse effects on brain function may emerge. These include reduced concentration span, forgetfulness at day-to-day tasks, diminished initiative and depression. The symptoms the applicant has experienced at work, as described in paragraph 87 above, are all seen in benzodiazepine dependence syndrome.
90. She concluded that the applicant's abuse of drugs would certainly have affected his mood day-to-day and in the long-term. Anxiety and depression were said to be present in the majority of those with any kind of drug problem which in itself is a stressor to be managed, usually by taking more drugs. In her opinion the applicant's inappropriate use of opiates and excessive use of benzodiazepines explain the deterioration in his cognitive function to the point where it has been suggested that he is totally unfit to work.
91. Dr Dauncey considered that Mr Obiedzinski's benzodiazepine use was noticeably excessive from the late 1980s and remained so as at 2 December 2002 (ex R1/6).
92. Asked in oral evidence when she thought the applicant had become a regular user of benzodiazepines Dr Dauncey found it difficult to say because of her limited access to Dr Wright's notes. However, she was aware that by 1988 the applicant was beginning to obtain frequent scripts for benzodiazepines. By the end of 1988 he was on 10 doses of benzodiazepine a day and seven a day by February 1989. She said this was too many. As at 1990, the situation suggested dependence. Withdrawal symptoms were found to exist when Dr Wright attempted to reduce dosage. She noted that the applicant's current use of benzodiazepines was at a level of eight doses a day. This would tend to produce a constant flattening out of emotional feelings, social isolation and lethargy, lack of initiative, tendency to depression and poor concentration. It would coexist with forgetfulness, apathy and appearance of being sedated. She said that phenomena such as the applicant's falling asleep at work, a factor in his retirement, would be generally associated with taking excessive quantities of benzodiazepine.
93. Dr Dauncey was relatively vague in relation to opiate addiction. The earliest recorded use of opiates was in Adelaide in 1988. Regular use of opiates appeared established by 1992. This was based on the ACT Department of Health and Community Care printout of Schedule 8 drug prescriptions for opiate analgesics for the period 1 January 1992 to June 2002. There were no prescriptions in 1993, however prescriptions recommenced in 1994 and accelerated through the 1990s such that by the late 1990s the situation was dire. She regarded Mr Obiedzinski's intake of opiates when she saw him as excessive (ex R2/3).
94. Dr Dauncey spoke of Methadone. She said that this is a syrup for treating opiate dependence. She said that it prevents most drug seeking activity. It is very slow acting and retards the effect of Morphine. She said that is not very much use for the treating of migraine and can in fact make it worse. She said that it is not very effective for episodic pain.
DR KNOX
95. In a first report dated 2 June 2001 (TD4/T3) psychiatrist Dr Knox diagnosed Mr Obiedzinski as having an adjustment disorder with mixed anxiety and depressed mood. The prognosis was poor. He proposed a 10% whole person impairment rating in accordance with table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment ("the Comcare guide")[3].. He said that, while the applicant was able to undertake activities of daily living independently, he did have "minor distortions of thinking" which Dr Knox thought to be largely due to his depression and anxiety, and to a lesser degree his use of medication and his headaches.
96. On 18 February 2003 (ex A4) Dr Knox commented on the assault in Adelaide. He considered that the applicant had probably been asleep for nine hours after the attack rather than unconscious. This was because there was no significant retrograde amnesia such as one would expect after nine hours of unconsciousness arising from head injury. He also thought that the applicant would not have been likely to be able to walk from the scene of his assault nor quickly come out of his unconscious state and move about. He said he doubted that the applicant was in fact a dependent person. He thought that he was rather a solitary independent man, having become like this in part because of his relative cultural isolation and lifestyle. He said that, reviewing the evidence, it was clear that the applicant had become a very changed person following the onset of severe migraine headaches in 1994. Whereas previously he had worked competently and had completed his legal studies despite having non-migraine headaches from time to time and despite his use of tranquillisers and antibiotics. In other words, he had not been significantly dysfunctional prior to 1994. He could find no other reason for the applicant's decline in performance from 1994 other than his migraine headaches.
97. In cross-examination Dr Knox was asked about his 10% impairment rating. Dr Knox attributed it to Mr Obiedzinski's withdrawn approach, avoiding life and social contact. However, it was suggested Mr Obiedzinski had improved in 2002-2003. He had gone overseas. He had a Swedish girlfriend. He was bushwalking and fishing. Dr Knox said this showed improvement but a 20-year entrenched pattern would not disappear rapidly. He defended the 10% rating in that Mr Obiedzinski was living in a disorganised state with significant anxiety and depression.
98. Dr Knox was asked to consider whether Mr Obiedzinski's misuse of benzodiazepines and opiates was a more likely cause of his symptoms than stress in the workplace. Dr Knox did not accept this as Mr Obiedzinski's drug use had risen since 1994. He had had a vulnerable personality affected by life changes since 1994. He was definite that the migraines were the cause of the accelerated drug taking. Dr Knox did agree, however, that Mr Obiedzinski exaggerated somewhat his description of anxiety. He had said he was anxious all the time. However, he had not demonstrated anxiety symptoms at examination.
99. Dr Knox doubted that Mr Obiedzinski would gain much benefit from ongoing psychiatric treatment. However, when asked, he thought that Mr Obiedzinski probably should have explored treatment to satisfy the terms of s 24(2)(c) of the Act (set out above in paragraph 13).
DR ROLDAN
100. Dr Roldan provided a psychological assessment on 20 March 2002 (ex R5). He thought Mr Obiedzinski likely suffered from a pre-existing personality disorder. However, a diagnosis of personality disorder could not be made on the basis of one visit. He thought Mr Obiedzinski may have suffered from an adjustment disorder with mixed anxious and depressed mood coincident with the onset of the migraines in 1994. That would have ceased once the computer monitors were rectified. There was no objective evidence to suggest that work-related pressures or conflicts gave rise to psychological symptoms. Mr Obiedzinski did not present to Dr Roldan with signs of clinical depression, generalised anxiety or other emotional disorder potentially attributable to work-related factors. Dr Roldan saw no evidence that work-related factors had aggravated Mr Obiedzinski's pre-existing problems. He suggested, however, that Mr Obiedzinski's ongoing report of physical disability due to migraines may have been a satisfying and socially acceptable way to explain his difficulties. Dr Roldan considered there were no work-related psychological conditions causing a permanent impairment.
101. In oral evidence Dr Roldan said that Mr Obiedzinski was fit to work, that those with pre-existing problems such as Mr Obiedzinski's have only episodic psychological problems.
102. In cross-examination Mr Brady suggested sources of workplace stress to Dr Roldan - adverse appraisals, discipline proceedings, Mr Obiedzinski's idiosyncratic world view. However, Dr Roldan said that, looked at objectively, these were not stressors. Mr Brady suggested that Mr Obiedzinski may have suffered stress based on migraines which generated work absences which generated stress. "Perhaps", replied Dr Roldan. Dr Roldan referred to the comments of Mr Obiedzinski's work colleagues to the effect that he did not exhibit stress in the workplace. However, Mr Brady called Dr Roldan's attention to the medical certificates, endorsed by Ms Lokan, in which workplace stress was cited as a cause of Mr Obiedzinski's absence. Dr Roldan conceded that this reduced the value of Ms Lokan's evidence.
103. Mr Brady asked Dr Roldan to consider Mr Obiedzinski's successful completion of law degree, Legal Workshop and four years of successful work at the department despite the anxiety generated from migration to Australia, starting Australian university studies, juggling study with night shift work, a break up with a fiancée, surviving an assault, contracting epilepsy and suffering grand mal attacks. There had then been a dramatic change from 1994 coincident with the migraines. Dr Roldan said that Mr Obiedzinski had had a psychological condition in 1990-1994 that allowed him to work successfully. Mr Brady homed in on 1994 and the events of that year. Dr Roldan declined to say that the headaches aggravated Mr Obiedzinski's psychological condition. Rather, he said, they produced an adjustment disorder which ceased after several months. Mr Brady suggested that the adjustment disorder persisted because the screen flicker and migraines continued. Dr Roldan disagreed and said that there would be a fresh onset of adjustment disorder each time there was a fresh screen flicker effect.
104. Dr Roldan said that migraines can be triggered but not caused by stress. Mr Brady argued that Mr Obiedzinski had a pre-existing susceptibility. He had an idiosyncratic perception of the environment. This would lead to ongoing depression and anxiety in one with Mr Obiedzinski's personality. Asked if stress or migraines could have aggravated the condition, Dr Roldan said that they could produce recurrences rather than aggravate. He saw what he called "cyclical events" as arising from Mr Obiedzinski's personality structure.
105. Mr Brady asked Dr Roldan to address the criteria in the Comcare guide for a 10% rating in table 5.1. The relevant criterion is:
"10 Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.
* reactions to stressors of daily living with minor loss of personal or social efficiency
* lack of conscience directed behaviour without harm to community or self
* minor distortions of thinking"
106. Dr Roldan considered that Mr Obiedzinski satisfied bullet points 1 and 3. However, in response to a question from Mr O'Donovan, Dr Roldan said that Mr Obiedzinski satisfied these criteria before he began working at the Department of Immigration.
DR WRIGHT
107. A great deal of Dr Wright's consideration of Mr Obiedzinski's problems has been discussed above. However, the tribunal now picks up on any other evidence from Dr Wright that should be recorded.
108. Between 1985 and 1994 Mr Obiedzinski had experienced unfortunate events such as the death of his Japanese girlfriend. In this period Dr Wright had felt himself capable of dealing with Mr Obiedzinski and he had not been referred to a psychiatrist or psychologist.
109. Dr Wright had a hazy recollection of how Mr Obiedzinski had been introduced to benzodiazepines but appeared to see the results as unsatisfactory by 1993 when he and Mr Obiedzinski tried to wean Mr Obiedzinski off them. This was, of course, unsuccessful.
110. Dr Wright said he had not diagnosed migraines in Mr Obiedzinski before 1994. Mr Obiedzinski was a fulsome reporter of symptoms. If he had experienced migraines before 1994 Dr Wright expected that he would have reported them. He saw the causes of the migraines as monitor flicker, stresses related to the alleged misuse of taxi vouchers, problems with supervisors and absenteeism.
111. Dr Wright was asked about his letter to Professor Lance in 1997 (ex A12) in which he said that the migraines masked an underlying depression that was work-related. Dr Wright confirmed that he, nevertheless, believed that Mr Obiedzinski did suffer from migraines. He said, however, that by 2001 there were occasions when Mr Obiedzinski presented falsely with migraine. These were occasions when Dr Wright did not believe him. Dr Wright was uncertain when Mr Obiedzinski began to report symptoms he did not have. It could have been before 2001. He accepted that Mr Obiedzinski did suffer migraines from time to time in 2001 but once a person is addicted to narcotics it becomes difficult to separate a migraine problem from a narcotics problem.
112. Dr Wright was aware of Mr Obiedzinski's presentations at casualty units seeking narcotic medications in 1998. He accepted these were genuine presentations and that the hospitals would have found blood in Mr Obiedzinski's urine and gallstones in x-ray films. Dr Wright confirmed that renal colic and gallstones are both very painful conditions.
DR WILCOX
113. Dr Wilcox, a psychiatrist, saw Mr Obiedzinski on 17 January 2003 (ex R8). In her report she noted that Mr Obiedzinski claimed he was suffering from migraine when he arrived in her rooms in Paddington. Because he was early he left and saw a doctor in Bondi who injected him with 50 mgs of Pethidine, despite Mr Obiedzinski having said he could not have any extra medication.
114. Mr Obiedzinski told Dr Wilcox that when he was at work he generally experienced up to three migraines a week plus weekend migraines. When not working he had about two migraines a week. He said that Oxycontin stopped the headaches but not the migraine.
115. Mr Obiedzinski told Dr Wilcox he had suffered from both depression and anxiety for over 15 years. He said he developed reactive depression after his relationship with his fiancée ended. He sought no counselling but took Valium. His general practitioner had prescribed various anti-depressants, Zoloft, Prozac, Serzone and Efexor (at the time of the consultation). As far as sedatives went, he had been using Xanax but had transferred to Valium. His use of Valium had increased because of this case. He was also taking sleeping tablets
116. Dr Wilcox engaged in a document review and noted several phenomena. Mr Obiedzinski had his first opiate injection, Morphine, in December 1994 (cf paragraph 37 above where the date was thought to be 1995). His attendances to see Dr Wright with complaints of migraine then increased markedly. "He had an injection on the 7 and 10 of February [1995] and when he presented on the 17 February with a further migraine Dr Wright made the comment in his notes `another migraine!'" (ex R8/10). He had injections in 1995 on at least 12 occasions.
117. Dr Wilcox noted advice from Professor J Lance on 16 July 1997 (TD1/T126) that the main problem was depression which contributed to the frequency of Mr Obiedzinski's migraine attacks. The daily use of analgesics also contributed in that they are "well known to cause rebound headache and produce chronic daily headaches".. Professor Lance emphasised to Mr Obiedzinski, he said, that Mr Obiedzinski must stop taking analgesics. He saw these as perpetuating the problem. Dr Wilcox noted that Mr Obiedzinski and Dr Wright did not adhere to Professor Lance's advice. Mr Obiedzinski continued seeking narcotic analgesics which Dr Wright supplied.
118. It was noted that Dr Knox did not speak of Mr Obiedzinski's substance abuse and the effect this would have on his capacity to carry out employment. He did not have information about excessive use of narcotics. Dr Wilcox was surprised by Dr Knox's statement that he could find no reason for Mr Obiedzinski's decline in performance since 1994 other than his migraine headaches. He had noted Mr Obiedzinski's high levels of medication. Dr Wilcox thought it highly probable that Mr Obiedzinski's dysfunction was related to his chronic intake of benzodiazepines and narcotics and the cycle this set up. "His performance at work declined due to his medication intake and his awareness that his performance was inadequate caused distress and gave him further reason to take more medication" (ex R8/15).
119. Dr Wilcox noted that Mr Obiedzinski seemed able to reduce his drugs intake when away on holidays with only a brief period of withdrawal symptoms. She queried whether Mr Obiedzinski's reduced need for analgesics when away was because he had less stress and less headaches or whether it was much harder to access narcotics and, because he would not be taking regular analgesia, he had fewer rebound headaches (ex R8/16). Dr Wilcox noted that Professor McLeod saw a decrease in migraines when Mr Obiedzinski withdrew narcotic agents (ex R8/17).
120. Dr Wilcox's assessment of Mr Obiedzinski's psychiatric status was as follows:
"I believe that Mr Obiedzinski suffers from a high degree of anxiety and fulfils the criteria for Generalised Anxiety Disorder. I base this on the fact that he has experienced excessive anxiety and worry about a number of events such as his work performance and his health. He finds it difficult to control the worry and he has had ongoing difficulty with concentration, he feels on each and he has had persistent and pervasive sleep disturbance.
"He has also had periods of depression and may have at times fulfilled the criteria for Major Depression and it is probable that he has a chronic low-grade depression or Dysthymia as he reports ongoing problems with sleep disturbance, low energy, low self-esteem and feelings of hopelessness.
"In association with his high level of anxiety he has developed a reliance on sedatives/hypnotic or anxiolytic drugs. He therefore has the additional diagnosis of benzodiazepine abuse and at various times in the past he has had a dependence on these drugs as indicated by the development of tolerance (the need to use more or stronger drugs to get the desired effect), unsuccessful efforts to cut down or control his use and continued use despite his knowledge that the drugs were causing him problems with his concentration.
"He has a further diagnosis of opiate abuse. It is probable that before his prescription of opiates was taken over by one doctor that he was developing a dependence on opiates.
"With respect to his personality the feature that is most evident is his difficulty managing psychological and physical distress. He has a tendency to resort to the use of a pill of some sort to deal with any form of stress and his reliance on a range of medications has clearly caused further problems. He is quite sensitive and readily perceives criticism.
"In relation to his physical health Mr Obiedzinski has diagnoses of migraine headaches, renal colic and psoriasis.".
121. Mr Obiedzinski's high level of anxiety was said to be evident as far back as 1985 when he first consulted Dr Wright. Dr Wilcox did not believe that there was an incident at work or factors of employment that precipitated his condition. While experts indicated that his migraine attacks may have been precipitated by the flickering computer screens, once the screens were corrected the persistence of migraines was not due to any work-related factor. She felt that it was probable that Mr Obiedzinski had a constitutional tendency to develop migraines and had continued to experience migraines due to his persistent use of large amounts of painkillers. The stress he experienced as a result of the impact that his migraines had on his work performance was said to be related to his pre-existing condition. Dr Wilcox said that Mr Obiedzinski had a pre-existing psychiatric condition, in that he had a pre-existing history of anxiety and depression associated with anxiolytic/sedative abuse.
122. Dr Wilcox was asked whether Mr Obiedzinski's condition was aggravated, accelerated or whether it recurred because of factors related to the applicant's employment. She said that over a several year period Mr Obiedzinski took significant amounts of leave from work. At various times he became very anxious about his work performance and perceived that his fellow work colleagues were critical of him. He alleged that this criticism caused him significant stress and anxiety. However, Dr Wilcox was of the view that the documentation did not support this because there was no evidence that he was under any increase in stress. One supervisor had been critical of his performance but was unaware of any interpersonal difficulties. Dr Wilcox did not accept that the applicant's employment made a material contribution to his psychiatric condition. She did, however, feel that the discipline action taken against the applicant would have been a definite stressor. She considered Mr Obiedzinski incapacitated for work as a result of his use of various medications. She considered that if he could withdraw from the use of anxiolytics and narcotics he should be able to resume employment.
123. Dr Wilcox offered an assessment under table 5.1 of the Comcare guide. She described him as totally independent and able to undertake an enjoyable overseas trip in 2002. In relation to his heightened anxiety and personality factors she noted that he reacted to stressors of daily living with some loss of personal efficiency and would have between 5-10% impairment. However, she regarded these as pre-existing conditions. She also considered that if the applicant developed better coping strategies with an ability to deal with his anxiety without medication that would assist in managing his condition.
124. In oral evidence Dr Wilcox clarified that Mr Obiedzinski has, in her view, generalised anxiety disorder and has had dysthymia, or low grade depression. She saw the generalised anxiety disorder as constitutional, possibly genetic, though she had no history to that effect. The indicators were a long-term history of attendance at doctors going back to 1985 involving complaints of anxiety, stress and sleep disturbance. Examinations, relationships and health status had all caused Mr Obiedzinski anxiety at some time.
125. Dysthymia can be constitutional being just part of a person's general make up, said Dr Wilcox. This could have been associated with periods of major depression. Reference had been made to a suicidal period in Mr Obiedzinski's history. The causes of dysthymia are again constitutional, genetic and the impact of life events. Certain depressive episodes were in the context of work, setting up a vicious circle. Medication produced absenteeism from work which caused Mr Obiedzinski stress, which caused him to take medications, etc. Dr Wilcox regarded Mr Obiedzinski as not depressed in early 2003. His demeanour, reporting of symptoms, management of his daily life, his affect on presentation and his capacity to derive pleasure from life at the present time told against any current depression. Dr Wilcox noted that Mr Obiedzinski was on Pethidine when she saw him. However, he still did not appear significantly depressed. She was influenced by his reference to such activities as bushwalking, learning Swedish and avowed desire to return to work other than at Immigration in making her assessments.
126. She regarded Mr Obiedzinski as incapacitated only because of his use of medications. Without medications, she said, Mr Obiedzinski could work. He did not have a pronounced cognitive impairment.
127. In discussing Mr Obiedzinski's permanent impairment under table 5.1 of the Comcare guide Dr Wilcox initially said she did not see Mr Obiedzinski as qualifying because "work had not been a major contributing factor in Mr Obiedzinski's presentation". Ignoring that suggested barrier to Mr Obiedzinski's receiving a lump sum payment under ss 24 and 27 of the Act in respect of permanent impairment, she considered Mr Obiedzinski to merit a 10% rating under table 5.1.
128. Mr Brady, for Mr Obiedzinski, asked Dr Wilcox more about her assessment of Mr Obiedzinski's work as not a major contributing factor. Dr Wilcox replied that work was an issue for Mr Obiedzinski. It was the way Mr Obiedzinski dealt with it. She said then that Mr Obiedzinski's work was a "material contributing factor" to Mr Obiedzinski's permanent impairment (though not major). However, she then said that, in her view, work was not a material contributing factor. This was because, on reflection, she saw work as making a barely minimal contribution.
129. Mr Brady sought to emphasise the disabling contribution of his work to Mr Obiedzinski's condition by pointing out that, despite Mr Obiedzinski's earlier anxiety, he had still finished his studies but he had been unable to function at work. Dr Wilcox put that down to the effect of medications, mainly the narcotics, on Mr Obiedzinski when was at Immigration. Mr Brady reminded Dr Wilcox that Mr Obiedzinski's narcotic abuse occurred only after the onset of migraines. Likewise, suggested Mr Brady, Mr Obiedzinski's work absences resulted from migraines. These absences caused stress. Mr Obiedzinski took medications to cope with the stress. In this way, he suggested, Mr Obiedzinski's work aggravated his underlying condition. Dr Wilcox tended to agree that the migraines aggravated Mr Obiedzinski's pre-existing anxiety condition.
130. Dr Wilcox said that stress can cause or aggravate migraines. She also said that medications can produce migraines which can result in stress.
131. Dr Wilcox had been inclined to minimise arguments relating to Mr Obiedzinski's stress at work. His colleagues had not perceived him to be stressed. He did not report stress to them. She conceded that a person can be stressed while not showing it. She reluctantly conceded that the physical symptoms of migraine could obscure stress symptoms.
132. As regards Mr Obiedzinski's depression, in cross-examination Mr Brady suggested that Mr Obiedzinski's presentation may have been relaxed because he had been away from work for nearly a year, and so was free of worry about how others were perceiving him. Dr Wilcox agreed that Mr Obiedzinski's perception that workmates were judging him would contribute to his ongoing impairment and periods of distress. The judgement of colleagues would, in her view, have aggravated Mr Obiedzinski's generalised anxiety disorder and dysthymia. It would not have caused it. It he were to return to the same area the judgement of others would contribute materially to his ongoing disability. In response to questions arising from Mr O'Donovan Dr Wilcox clarified that Mr Obiedzinski's constitutional generalised anxiety disorder would still exist regardless of any workplace effect but she said that the generalised anxiety disorder would be aggravated whenever Mr Obiedzinski worked at Immigration. The tribunal understood this to be a judgement that the generalised anxiety disorder was not aggravated in an ongoing sense, but only as flare-ups caused by Mr Obiedzinski's exposure to workplace stresses.
133. Dr Wilcox, again somewhat reluctantly, agreed that Mr Obiedzinski's problems from taking benzodiazepines arose only from 1994.
134. In questions arising put by Mr O'Donovan Dr Wilcox said that Mr Obiedzinski could work if not under the influence of benzodiazepines and narcotics. She regarded Methadone as a useful treatment in that a Methadone program permits better monitoring of an addiction. Dosages can eliminate sedative effects of narcotics at work. Thus, a work capacity is consistent with a person engaging in a Methadone program.
135. Mr Brady queried whether Mr O'Donovan's final questions had ignored the effects of migraine in Mr Obiedzinski's case. Dr Wilcox said yes, but that people can work with a migraine condition. She was of the view that Mr Obiedzinski could be assisted to deal with any migraine that might befall him after commencing a new job.
PROFESSOR MCLEOD
136. Professor McLeod, a specialist neurologist, examined Mr Obiedzinski on 23 May 2000 (ex R3). Mr Obiedzinski reported to him that the migraines were not as bad as they had been previously at work. The attacks were kept under control using Stemetil and Oxycodone suppositories as required. Headaches were occurring, however, in the weekends when Mr Obiedzinski was trying to relax. He was also experiencing one or two migraine attacks during the week. Professor McLeod was confident in diagnosing migraine as Mr Obiedzinski's condition.. He seemed inclined to accept that the migraines began in 1994. He dismissed the head injury in Adelaide in 1988 as the cause of migraine because there was an interval of six years after the injury before the migraines commenced. Post-traumatic migraine manifests itself after a much shorter period. He regarded the flickering computer screens as the most likely contributing factors to the migraine attacks that occurred in the early stages. He said that this was a well-known trigger for migraine. He saw job dissatisfaction and work-related stress as also contributing factors. He said that the cause of migraine is not entirely understood and many factors may contribute. Genetic or inherited factors are of major importance.
137. Professor McLeod considered that Mr Obiedzinski had no permanent impairment resulting from his employment at the Department of Immigration. The flickering screens may have triggered attacks but did not cause any permanent disability. The professor said that it was probable that Mr Obiedzinski would have suffered from migraine at some later time it he had not been exposed to the flickering computer screens. It was noted that the applicant was no longer exposed to flickering computer screens but still continued to have migraine. The professor said that flickering computer screens may have precipitated individual attacks but would not have caused migraines to continue when the applicant was removed from an environment where he was exposed to them. He offered no assessment in accordance with the Comcare guide in respect of the migraine disability.
138. Professor McLeod again saw the applicant in February 2003 (ex R4). He listed Mr Obiedzinski's current medications: Deseril (Methysergide for migraine), Inderal (Propranol for migraine), Efexor (Venlafaxine, an antidepressant), Xanax (Alprazolam for anxiety), Oxycontin (for daily headaches), Morphine (five x 30 mg ampoules a month), Proladone suppositories for migraine and Maxolon and Stemetil for nausea and vomiting resulting from migraine.
139. The professor noted that Mr Obiedzinski, after ceasing work in March 2002, went to Europe for four months from June to September. The headaches improved at this time when he was unable to take narcotics because they were unavailable to him in Europe. He also reduced the dose of his benzodiazepine to one tablet every second day. However, he continued taking his Deseril and was also given Flumanezil to reverse the effects of benzodiazepines while in Poland. The migraine frequency reduced from once a week to once every two weeks.
140. In February 2003 the applicant was no longer having daily headaches because they were controlled by Oxycontin. Migraine attacks were occurring about twice a week. The professor diagnosed chronic tension/vascular headaches and migraine. He thought there was a possible or probable family history of migraine. The professor was still happy to accept that the applicant first experienced migraines in 1994. He said that flickering lights can precipitate migraine attacks and that stress can be an aggravating factor. He said that there are important genetic factors in the aetiology of the condition. He emphasised that precipitating factors of stress and flashing lights do not cause migraine, which is a constitutional condition. The applicant's work conditions were responsible for inducing migraine but they merely aggravated temporarily a pre-existing condition. He did not see the applicant as having suffered any permanent impairment as a result of his employment with Immigration. He noted that the applicant continued to have migraine, albeit less frequently, after his computer screen was fixed and even when he was travelling overseas after he ceased employment with Immigration. While overseas, his attacks became less frequent and severe and he did not require narcotics agents. Professor McLeod said, "It is interesting that in spite of, or perhaps because of, the withdrawal of the narcotics agents, the intensity of frequency of his migraine attacks were reduced." He said that constant use of analgesics and narcotics can aggravate migraine and that this had been confirmed also by Professor Lance in his report.
141. Professor McLeod concluded that Mr Obiedzinski was constitutionally disposed to migraine. Attacks of migraine were aggravated by his exposure to flickering lights on the computer screen but there was improvement when these trigger factors were removed, although he continued to be exposed to emotional stress in the workplace which can also aggravate migraine. He said, however, the migraines were not caused by the workplace conditions which had the effect of temporarily aggravating a pre-existing condition. There was, therefore, no permanent impairment as a result of the migraine.
142. In oral evidence Professor McLeod repeated much of the above, adding that he did not consider that a flickering screen could convert a person from a non-migraine sufferer to a migraine sufferer. He also reiterated that workplace stress might cause episodes of migraine but not a permanent change in a person's migraine status.
143. Professor McLeod said that narcotics are best avoided in relation to migraine unless a person has an acute attack. Treatment with narcotics on a daily basis is best avoided although patients with life destroying, refractory migraines may be treated with narcotics. Mr Obiedzinski seemed to find narcotics helpful, said the professor. His headaches were controlled by Oxycontin when Professor McLeod saw him. However, narcotics are best avoided, he repeated. He said that Mr Obiedzinski had become narcotic dependent. He said also that narcotics can worsen headaches in a person who is over-medicated.
144. Mr Brady put to Professor McLeod that a person with a constitutional predisposition to migraine could suffer a migraine for the first time precipitated by screen flicker. Further that person could suffer an increase in stress which could cause attacks of migraine to continue. Professor McLeod agreed that this was a possible scenario. He agreed that the longer a person was exposed to computer screen flicker the more frequent that person's migraines would be. As regards repeated exposure to screen flicker, Professor McLeod said that migraines would occur more frequently if exposure was more frequent but there intensity would not be likely to alter. As regards exposure to stress, Professor McLeod said that stress would increase migraine frequency and a vicious circle could be set up: a migraine can induce stress which induces a migraine which causes the person to be absent from work which causes stress which causes further migraine.
145. Professor McLeod agreed that the removal of work stress when the applicant went on his overseas trip resulted in fewer migraines. This suggested that work stress was a cause of his migraines before he went overseas. If the applicant returned to work his migraines would be expected to recur if he was in the same situation and faced with precisely the same stressors. If the applicant were to find work in a different workplace his fear of experiencing migraines could produce stress which, in turn, could produce a migraine.
146. Professor McLeod agreed that the applicant's exposure to flickering screens accelerated the onset of his migraines. Subsequent stress resulting from the applicant's absence from work accelerated his further experiencing of his migraine condition. Mr Brady put to Professor McLeod that migraine sufferers over time can become obsessed with their condition which can cause impairment in how they live their lives. He asked whether this was the applicant's position. Professor McLeod agreed that Mr Obiedzinski had become obsessed with his migraine condition and would be impaired for the foreseeable future in how he lives his life.
147. Professor McLeod agreed that a person who has not experienced a migraine headache can attribute any sort of headache to migraine. However, it is different once a person has suffered a migraine. He or she is likely to be able to distinguish between a classical migraine headache and any other type of headache. Professor McLeod agreed that whether or not the applicant had a family history of migraines such a history would make no difference to the onset of the applicant's migraine stemming from exposure to screen flicker. Professor McLeod was of the view that most general practitioners would accurately diagnose a patient suffering a migraine on the basis of the patient's reported symptoms.
148. Asked about the applicant's 10-week break from using narcotics when he was overseas, Professor McLeod said that 10 weeks was not necessarily long enough to break the dependency. However, it did present opportunities for treatment of migraines, other than by use of narcotics, where a patient had been narcotics free for 10 weeks. The patient could be tried with more appropriate drugs.
PROFESSOR LANCE
149. Professor Lance, another neurologist, had provided four reports. On 16 July 1997 (TD1/T126) he saw Mr Obiedzinski's main problem as depression which contributed to the frequency of Mr Obiedzinski's migraine attacks, as did the daily use of analgesics "which [are] well known to cause rebound headache and produce chronic daily headaches".. He emphasised to Mr Obiedzinski that he must stop taking analgesics. As we know, this did not eventuate except for periods spent overseas. He saw the Lignocaine treatment Mr Obiedzinski had twice had in hospitals (in 1996 and 1997) as a method of weaning a patient off analgesics. At that time the applicant was on Serzone for depression which was incompatible with the migraine treatment favoured by the professor. He recommended another drug, Dihydroergotamine[4], which was compatible with Serzone. He saw this as capable of supplanting the use of analgesics. Dr Wright did prescribe Dihydroergotamine on 21 July 1997 (ex A13) and after, but the narcotics had re-entered Dr Wright's notes by late August 1997.
150. On 29 August 1997 Professor Lance answered several questions put to him by Comcare (TD1/T140):
* It was improbable that the assault early in 1988 played any part in the onset of Mr Obiedzinski's migraines because he worked happily at Immigration from 1990-1993.
* It was generally accepted that flickering light could trigger migraine in susceptible individuals.
* Flickering light was only one of many trigger factors for migraine.
* "The main factor in his continuing headaches [was] a state of anxiety and depression which [was] apparently aggravated by stress at work since the headaches buil[t] up during the week."
151. On 29 January 2003 (ex A6) Professor Lance wrote expressing the following opinion:
"From the history given to me, Mr Obiedzinski has always been of a nervous temperament and prone to anxiety. He required treatment for this and accompanying depression in 1987. He stated that these symptoms had settled when he first joined the Department of Immigration and that he enjoyed his work at first.
"He developed headaches early in 1994, attributed to the flickering of a computer monitor.
"The headaches were initially of the tension-vascular type that became more typical migraine towards the end of that year when stress at work appeared to be the main factor in determining the frequency and severity of attacks. Although there is a background of benzodiazepine intake, he stated that he was able to stop this and analgesic medication when he was on holidays with only a brief period of withdrawal symptoms."
152. His diagnosis was "Daily tension-type headache with episodic migraine initiated and perpetuated by stress in the work place". So far as future treatment was concerned, Professor Lance recommended that the applicant remain under the care of a neurologist in an attempt to control his headache problem and reduce his need for narcotics and analgesics which tend to perpetuate the headache tendency. Professor Lance saw the headache tendency as initiated by the applicant's exposure to flickering computer screens and as perpetuated by other stress in his workplace. He noted that the medication given to control the headaches was sufficient to reduce Mr Obiedzinski's capacity for work. He addressed table 13.1 of the Comcare guide, which reads:
"...
TABLE 13.1
Intermittent Conditions
For use in the assessment of disorders of the Haemopoetic System such as anemia, polycythaemia, leucocyte and platelet disorders and intermittent disorders such as asthma, migraine, tension headache, epilepsy etc.
Principles:
Determine the frequency, duration and severity of attacks with reference to the degree of interference with activities of daily living.
Percentage Whole Person Impairment |
Description of effects |
0% |
Attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication or treatment |
10% |
Attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR Attacks occur less frequently AND cause interference with all activities of daily living other than self care |
20% |
Attacks occur up to 25 percent of the time AND cause significant interference with most activities of daily living other than self care |
30% |
Attacks occur up to 30 percent of the time AND cause significant interference with most activities of daily living other than self care |
40% |
Attacks occupy up to 40 percent of the time AND cause significant interference with most activities of daily living other than self care |
50% |
Attacks occupy up to 50 percent of the time AND cause significant interference with most activities of daily living other than self care |
60% |
Attacks occupy up to 60 percent of the time AND cause significant interference with most activities of daily living other than self care |
70% |
Attacks occupy up to 70 percent of the time AND cause significant interference |
75-95% |
Attacks occupy 75 to 100 percent of the time AND needs assistance with most or all activities of daily living including self care (confinement to residence is necessary at impairment levels of more than 80 percent) |
...":
153. He considered that a 50% whole person impairment rating was appropriate because the migraine headaches occupied up to 50% of Mr Obiedzinski's time and caused him significant interference with most activities of daily living other than self-care. He agreed in oral evidence that this assessment accepted at face value Mr Obiedzinski's self-assessment of the effects of his migraines. Professor Lance said that his assessment would reduce if the migraines affected Mr Obiedzinski on fewer days each week than 50% of the time.
154. In oral evidence Professor Lance said that the after-effect of a migraine is a feeling of being washed out. He said that migraines and other types of headache can be confused, however the confusion is usually in calling a non-migraine headache a migraine, seldom the reverse. He said that a flickering screen cannot cause a migraine but it can precipitate or aggravate a person's tendency to migraine. He said that migraine headaches could worsen from constant exposure to a flickering screen. He said that the level of debilitation suffered by an individual varies from one person to another. If a person has a severe attack he or she usually suffers from lethargy, a dull ache when moving the head, problems in concentrating and a washed out effect. He said that the use of benzodiazepines does not produce migraines. The applicant's use of benzodiazepines merely marked him as anxious and prone to depression.
155. Professor Lance described rebound headaches. He said that the use of analgesics such as Codeine can ease a person's headache on the first day but can produce a headache on the second day. If a person has a tendency to migraine headaches and has a high analgesic dosage then rebound can occur. This analgesic-induced headache tends to retain the character of the original headache and, in the case of the migraine, can be migraine-like. The situation can persist because the patient may take analgesics to cope with the rebound headache.
156. Professor Lance agreed that the stress the applicant suffered because of the time he took off work could have aggravated his migraines. Professor Lance noted that in 1997 to 1998 when the applicant moved to less stressful work his migraines eased. This suggested that his migraines were stress-related. It could be expected that the migraines would worsen if the applicant returned to work in a similarly stressful area.
157. Addressing the issues surrounding the applicant's family history, Professor Lance said that, even if the applicant had a family history of migraine, work stress could still cause migraine. The family history would simply add to his vulnerability.
158. Asked whether Mr Obiedzinski's exposure at work to screen flicker and stress would cause a permanent worsening of Mr Obiedzinski's underlying migraine status Professor Lance said that it would not, that the effects would be temporary.
159. In answering questions asked by Mr O'Donovan Professor Lance reiterated that flickering lights do not cause a person to become a migraine sufferer. He said also that Mr Obiedzinski's nervous temperament predisposed him to the development of migraine. He said that the benzodiazepines were taken for anxiety, not for migraine. They were not a cause of the applicant's migraine. He said that depression is a side effect of benzodiazepine use and that depression can correlate to the frequency of a person's migraines. In the applicant's case he was a long-term user of Mogadon. This could induce depression.
160. Professor Lance was asked about Methadone. He said that he did not regard it as an appropriate migraine treatment but that other experts disagree with him. He said that daily use of narcotics by a migraine sufferer does not assist in dealing with migraine. What happens is that the sufferer has a transformed migraine in the way of endless rebound headaches. Professor Lance agreed that, when the stressors associated with migraine are removed, a stress-affected migraine should diminish or disappear. If the stressor is thought to be work, and work ceases, but the migraines continue, there must be doubt that work was the continuing aggravating cause.
161. Professor Lance agreed that, to a large extent, his opinions were based on the honesty behind the applicant's history. There was no objective test to show whether a person was experiencing a migraine. However, a migraine sufferer presents as pale, nauseated, sensitive to light or to smell.
162. Professor Lance agreed with Mr Brady that, when one suffers from migraines over a long period, they can govern a person's whole life. That preoccupation can affect daily living. That preoccupation can itself produce stress which produces migraines. The fear of experiencing a migraine can itself be a stress factor.
LAY EVIDENCE
MS M LOKAN
163. On 11 November 1997 Ms Lokan, Director of the Legal Opinions Section in Immigration, wrote a report on Mr Obiedzinski (TD4/T16). She had been director from August 1995 to November 1997 save for time off from January to September 1997. Mr Obiedzinski worked in the section throughout the period. She ceased as his direct supervisor in late 1995 when Mr Obiedzinski was transferred to the section's help desk, his work location since that time. In her statement she referred to Mr Obiedzinski's migraine problem, his extensive time off work, his problems with computer monitor screens and her lack of awareness that he was said to suffer from stress. She said Mr Obiedzinski had a good working relationship with each of his direct supervisors, Greg Phillipson, Jenni Palma, Catherine Swarbrick, Vicki Byrnes, Ian Burke and Jane Geddes. At no time, she said, had Mr Obiedzinski advised her that he was stressed as a result of a poor working relationship or as a result of work pressures.
164. She said that Mr Obiedzinski's supervisors assessed his work as varying from poor to satisfactory during the period. Her impression was that "issues relating to work performance were handled appropriately and amicably by all concerned".
165. In oral evidence Ms Lokan said that she had no involvement with Mr Obiedzinski when he went to the Refugee Law Section. As far as his work in her section was concerned Ms Lokan described Mr Obiedzinski as a poor performer. She said she found her relationship with Mr Obiedzinski frustrating. She said she tried to show Mr Obiedzinski how he should be working but this attempt was unsuccessful.
166. Ms Lokan was asked about the reference in Dr Wright's notes to a two-hour argument she was said to have had with Mr Obiedzinski (see paragraph 42 above). Ms Lokan said she could not recall such an event and moreover had never had a two-hour argument with anyone. Ms Lokan said she does not get into arguments very often. She had discussions with Mr Obiedzinski and found his attitude defensive. She thought these discussions were reasonably frequent and may or may not have included prompt feedback on problems with Mr Obiedzinski's work. In cross-examination she said she had discussions on numerous occasions with Mr Obiedzinski regarding late work in 1995. These discussions did not tend to run for two hours.
167. Ms Lokan was asked whether she had received advice that Mr Obiedzinski was stressed. She could recall no details of any individual conversations but stood by her comments in the written statement summarised above.
168. In cross-examination Ms Lokan further explained her frustrations with Mr Obiedzinski. They were not a result of the extra work his absences caused for his colleagues. Rather, they were that she was unable to assist him to achieve a satisfactory work output. She could not recall Mr Obiedzinski's time off when he worked in her section. His work was redistributed to others and deadlines were renegotiated. She refrained from commenting on whether other affected staff would be frustrated at having to take on Mr Obiedzinski's work. She said that such arrangements are frequent in the Public Service. However, she recalled that Mr Obiedzinski was away often.
169. Ms Lokan said that she and others in the area acted to accommodate Mr Obiedzinski's special needs. She could not recall discussions on this, however. She could not recall Mr Obiedzinski being regarded as a dead weight. The department did not invoke the processes used to deal with underperformers in Mr Obiedzinski's case, apparently because of the medical problems involved.
170. Ms Lokan told Mr Brady that Mr Obiedzinski was a poor performer. He had difficulties in analysing issues. She thought he may have difficulty concentrating but was uncertain. She said that Mr Obiedzinski looked white sometimes at work.
171. Ms Lokan could not recall whether she had had dealings with Mr Obiedzinski in 1991. She could not recall supporting Mr Obiedzinski's becoming permanent following his probationary period. She said that, if his work in 1991 had been like his work in 1995, it would have been difficult to support him becoming a permanent officer. He would have been tried in a different area and had his probation extended if permanency had been in question in 1995.
172. Ms Lokan said that Mr Obiedzinski had not advised her of his ill-health. However, when shown the medical certificates referred to earlier in paragraph 42 above, Ms Lokan said that the initials on them were hers. She conceded that these documents would have apprised her of the situation. However, she could not recall any conversations arising as a result involving Mr Obiedzinski. Ms Lokan could also not recall any discussions stemming from any desire Mr Obiedzinski had for a transfer.
MR G PHILLIPSON
173. Mr Phillipson's written statement was discussed above in paragraph 38. He had worked at Immigration since 1978. He first met Mr Obiedzinski in 1995 when he was assigned to the advisings help desk. He had daily contact with Mr Obiedzinski. He found Mr Obiedzinski's work performance unsatisfactory because of his medical condition. Mr Phillipson had not been unwilling to take on Mr Obiedzinski, although there was some question regarding his technical capacity.
174. Mr Phillipson identified as signs of Mr Obiedzinski's unsatisfactory work performance his absenteeism, his unhealthy presentation when at work (eg shaky, sweaty, pallid), a propensity to leave work for the day at lunchtime. Mr Obiedzinski told Mr Phillipson that his illness was migraine.
175. Mr Phillipson said he and Mr Obiedzinski had a personal relationship that was fine. He described Mr Obiedzinski as a decent man who was quite companionable. He said there were no problems between the two of them. The work relationship was problematic, however, because Mr Phillipson was not satisfied with his work. It did not, however, become a personality issue.
176. Mr Obiedzinski left the area in January 1996 and Mr Phillipson next encountered him late in 1999 in the Legislation Section. Mr Obiedzinski was one of 12 or 13 staff. He was in the Regulations Unit with three other legal officers. Mr Phillipson was one tier above Mr Obiedzinski's immediate supervisor. Mr Phillipson saw Mr Obiedzinski daily. At that time Mr Obiedzinski took a significant amount of leave. He presented at work as shaky and unwell in the latter morning. He exhausted his paid leave. He was found sleeping at work. Mr Phillipson considered there to be an occupational health and safety ("OHS") issue, was Mr Obiedzinski well enough to be at work? He sought advice from the OHS unit. He activated the procedures for managing underperformance. Mr Obiedzinski was reduced to permanent part time work. He was later invalidity retired after referral to the HSA.
177. Mr Phillipson was asked about an email message dated 3 May 2001 (ex R29). Mr Phillipson had been asked to comment on a proposal that Mr Obiedzinski be redeployed. He said in the message that Mr Obiedzinski should be referred to HSA. He said further that the referral should include:
* That Mr Obiedzinski had never mentioned stress as a factor in his illness.
* That Mr Obiedzinski had never sought to have stress management included in his performance and learning agreement and had never sought to go on a stress management course.
* That Mr Obiedzinski always said he very much liked the work in the section and that he liked his colleagues.
* That it was doubted that there was any significantly greater stress in Mr Obiedzinski's work in Mr Phillipson's section at Mr Obiedzinski's level than elsewhere in the department at the same level.
* That, as far Mr Phillipson knew, previous redeployments had not resulted in an improvement in Mr Obiedzinski's work.
* That it had already been agreed Mr Obiedzinski should go to permanent part time work and that was regarded as an appropriate action before moving on to redeployment.
* That it was not fair to say that there were "immense stresses" on Mr Obiedzinski requiring him to be redeployed.
Mr Phillipson suggested asking HSA to recommend alternatives to redeployment such as a stress management course.
178. Mr Phillipson mentioned that Mr Obiedzinski had mixed socially in the section. He attended section lunches.
179. In cross-examination Mr Brady had Mr Phillipson clarify that Mr Obiedzinski had not fallen asleep at work when working for him in 1995-1996. Mr Phillipson, while insisting that the personal relationship between him and Mr Obiedzinski was good, agreed that Mr Obiedzinski would know what Mr Phillipson thought of his work and why. Mr Phillipson had no knowledge of Mr Obiedzinski's work performance prior to 1994. He was sure that Mr Obiedzinski's poor performance caused Mr Obiedzinski frustration and stress. Mr Obiedzinski attributed his poor performance to his illness and his medications for migraine. Mr Phillipson agreed that a poor reference from him would retard Mr Obiedzinski's career progress in the department.
180. In relation to the email message at ex R29 Mr Phillipson said that he did not accept that the fact that Mr Obiedzinski had sought redeployment necessarily meant he was unhappy in the section. Mr Phillipson said he had some doubts that Mr Obiedzinski should be at work at all. He had not assessed Mr Obiedzinski as depressed but rather as unwell. Mr Phillipson said he saw manifestations of Mr Obiedzinski's "unwellness" not so much in anxiety and depression but in falling asleep at his workstation. Mr Phillipson considered that Mr Obiedzinski's underperformance at work must have caused Mr Obiedzinski to worry.
181. In response to questions from the tribunal Mr Phillipson explained that Mr Obiedzinski had been an excess officer in the department when assigned to Mr Phillipson's unit. Mr Phillipson thought the assignment was to give Mr Obiedzinski a fresh start. Asked about Mr Obiedzinski's evidence above at paragraph 53 to the effect that Mr Obiedzinski had been dubious about being assigned to Mr Phillipson's unit in 1999 because of his unhappiness with Mr Phillipson earlier, Mr Phillipson expressed surprise.
182. Mr Phillipson explained the problems he had with the work Mr Obiedzinski produced. Legal staff working on migration regulations had to be imaginative in identifying unexpected consequences if a regulation was drafted in the form requested by a sponsoring area. Mr Obiedzinski did not do that satisfactorily, preferring to act on the instructions in their literal form as received.
183. Mr Brady put to Mr Phillipson extracts from the positive references in ex A3 described above in paragraph 33. Mr Phillipson could not agree with the sentiments in these referee reports.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
MIGRAINE
184. The tribunal makes the findings in the following paragraphs regarding Mr Obiedzinski's migraine.
185. First, the tribunal finds that Mr Obiedzinski has suffered from recurrent migraine headaches since early in 1994. This is based primarily on acceptance of the evidence of Dr Wright (in paragraph 110 above) and Professor McLeod (paragraphs 136 and 140 above).
186. Dr Wright had treated Mr Obiedzinski since 1985. Dr Wright described Mr Obiedzinski as a fulsome reporter of his symptoms. It is extremely unlikely that Mr Obiedzinski would have refrained from seeing Dr Wright about any migraine he may have had before 1994. Indications that the migraines commenced before 1994 came also from Dr Wright. At one point he wrote that Mr Obiedzinski had his first migraine in 1988 when he had a head injury (paragraph 66 above) and later that he had had no attacks before 1993 (also paragraph 66). Mr Obiedzinski had also told Adelaide Hospital in 1988 of a past history of migraines.
187. The tribunal preferred Dr Wright's sworn oral evidence given to it in preference to the other indications of an earlier onset migraine. In addition, Professor Lance's view was that the after-effects of Mr Obiedzinski's assault in 1988 were unconnected with the symptoms that affected him in 1994. Dr Wright's reference to an onset in 1993 is so close to the actual date of onset in 1994 that it seems a simple error. His notes (ex A13) support a date of onset in 1994.
188. Second, the tribunal finds that Mr Obiedzinski had an underlying propensity to experience migraine. This stems from the evidence of Professors McLeod and Lance.
189. Third, the tribunal finds that there was probably a history of migraine in the Obiedzinski family based on the material above at paragraph 63 and following. However, the tribunal also finds, relying on Professor Lance's evidence (paragraph 157) that this did no more than add to Mr Obiedzinski's vulnerability to migraine.
190. Fourth, the tribunal finds that the migraine had a confusion of "causes".. The tribunal starts with the explanations of the aetiology advanced by Professors McLeod and Lance. Professor McLeod said there are important genetic factors in the aetiology of migraine. He said that precipitating factors such as stress and flashing lights do not cause migraine, which is a constitutional condition. The applicant's working conditions were responsible for inducing migraine episodes but these were mere aggravations of a pre-existing condition. Professor Lance said that flickering lights did not cause Mr Obiedzinski to become a migraine sufferer. He saw Mr Obiedzinski's nervous temperament as predisposing him to the development of migraine.
191. Consistently with the views of the professors the tribunal finds that Mr Obiedzinski's migraine was constitutional but was caused to manifest itself, when Mr Obiedzinski was at work, because of the following causes:
* A flickering computer monitor. The medical evidence is overwhelming that such a flicker can cause migraine.
* Mr Obiedzinski's depression. Professor Lance emphasised a number of times that depression was an ongoing cause of Mr Obiedzinski's migraine attacks. He saw depression as a side effect of Mr Obiedzinski's benzodiazepine use. Mr Obiedzinski used benzodiazepines because of sleep disorders and anxiety. These were connected to his problems at work. The tribunal saw merit in the suggestion that Mr Obiedzinski was caught in a vicious cycle whereby he suffered a migraine, was absent from work, became anxious about the perception of him by those at work, so he took benzodiazepines to deal with that anxiety and sleeplessness, thereby becoming depressed and prone to a migraine attack. Professor McLeod endorsed a variation of this theme in stating that Mr Obiedzinski's anxiety, stemming from absenteeism, could directly cause migraine.
* Mr Obiedzinski's stress. Professors McLeod and Lance saw a connection between suffering stress and experiencing migraine. This again taps into the idea of Mr Obiedzinski being trapped within a vicious circle. The tribunal notes that Dr Wilcox rejected this analysis on the basis that Mr Obiedzinski did not report his stress at work and he was not seen to be stressed. This objection fell away, however, with the evidence described in paragraph 42 above. Mr Obiedzinski had provided medical certificates attesting to his work-related stress in 1995 but his supervisors had failed to register the problem.
* Mr Obiedzinski's anxiety. This may equate to stress, but anxiety was cited as a precipitating factor by Professor Lance (paragraph 150 above).
* The Cabcharge disciplinary proceeding. This emerged as a live issue in 1999 although it related to misconduct occurring two years earlier. The tribunal is prepared to find that any anxiety, depression and associated drug use accompanied by migraines in that period were not compensable in not being injuries under s 4(1) of the Act. This was, in the tribunal's view, reasonable disciplinary action.
* Mr Obiedzinski's job dissatisfaction and problems with his supervisors. Dr Wright and Professor McLeod saw these as relevant to Mr Obiedzinski's episodes of migraine. In the tribunal's view they are bound up in the issues of anxiety and stress.
192. Fifth, the tribunal finds that Mr Obiedzinski experienced compensable migraine episodes according to the following pattern:
* The first episode occurred on 31 January 1994 (TD1/T3).
* Later episodes occurred in 1994 in April, July, October, November and December (ex A13).
193. The tribunal finds that Mr Obiedzinski received his first dose of Morphine analgesia in December 1994 (ex A13).
194. The tribunal finds that Mr Obiedzinski received Morphine analgesia on a regular basis from early in 1995 (ex A13).
195. The tribunal finds that Mr Obiedzinski experienced headaches described as migrainous according to the following pattern, although some or all may have been rebound headaches, relying on the evidence of Dr Wilcox (paragraph 117 above), Professor McLeod (paragraph 140) and Professor Lance (paragraphs 149 and 155).
* In 1995 he had migraines every month with some periods of temporary relief (ex A13).
* In 1996 he had migraines most of the year save for the period of hospitalisation at Epworth Hospital in June and for a period after. By November 1996 the migraines were again prevalent (ex A13).
* In 1997 the migraines were constant until a second period of hospitalisation in August. From then there were migraines of a reduced frequency (ex A13).
* In 1998 there were minimal episodes of migraine until late in the year when they became more regular (ex A13).
* In 1999 there were recurrent episodes of migraine and some other "headaches", as Dr Wright recorded them. The disciplinary action relating to Cabcharge misuse began in June 1999 and ended in October that year (ex A13).
* In 2000 and 2001 there are regular references to migraines (ex A13), however some of these are of dubious validity given Dr Wright's oral evidence of some false presentations.
REBOUND HEADACHES
196. The tribunal finds that these are the most likely source of the applicant's headaches since early in 1995 for the reasons given by the experts referred to in paragraph 195, although some might have been migraines. Difficulties of accurate diagnosis in a compensation case under the Act should not cause problems for an applicant if a decision-maker accepts that the employee feels genuine pain that arose from or in the course of employment or was a pain from disease to which employment made a material contribution. This was clarified in Re Labi and Comcare (AAT 13560, 21 December 1998) and Re Jeremic and Comcare (AAT 5975, 20 June 1990. In Re Labi (above) Senior Member M D Allen and Member Dr J D Campbell quoted in paragraph 24 the remarks of Deputy President Todd in Re Jeremic (above):
".... The condition nevertheless remains something of a mystery, but when all is said and done I believe the evidence of the applicant and accept the other evidence called on her behalf as to the existence of pain, there is very little assistance that can be gained from medical evidence which if accepted at its full stretch involves the conclusion, although it seems never to be fully acknowledged by such doctors that this is so, that a claimant is in truth what they would call a 'malingerer', a word which I take to mean someone who is contriving symptoms that do not exist. Once I accept, on the evidence and from my own observations of an applicant, that the pain is real, evidence based on the proposition that a condition does not exist because it cannot be medically diagnosed is in my opinion of limited value."
197. The Tribunal in Labi (supra) proceeded to state in paragraph 25:
"That pain itself can be a disease, as that term is defined in s. 4 of the SRC Act, is not controvertible. As was pointed out by the Tribunal in Re Grey and the Commonwealth (1985) 7 ALN N317):
`The failure to observe pathology or the perception of different pathology is also irrelevant in determining incapacity. In Commonwealth Banking Corporation v Percival 82 ALR 54 at 57, a full bench of the Federal Court (presided over by Davies J) referred to a submission that Commonwealth of Australia v Beattie (1981) 53 FLR 191 had been wrongly decided, and that the disease of which the old Act spoke was constituted by its underlying pathological condition and not by the symptoms thereof. The Court referred to this as "a brave submission"'. It went on to say -"No doubt, for many medical purposes, it is useful and often necessary to distinguish between the underlying pathology of a disease and mere symptoms of the disease. For some legal purposes, eg s 104(2) of the Act, the distinction is also pertinent. See Johnston v Commonwealth (1982) 150 CLR 331 at pp 341-3. But that is not to say that the symptoms of the disease are not part of the disease. It is indeed fundamental to compensation law that a symptom of an injury or disease is a part of the condition in respect of which compensation for incapacity is granted. Pain is probably the most common symptom of injury or disease. It is equally the most common factor leading to compensable incapacity.""
198. The tribunal finds that these headaches were correctly regarded as compensable by Comcare until 1 December 1997, even if accorded an incorrect diagnostic label by Comcare.
199. The tribunal considers that compensation coverage should probably have continued for these headaches after the date of cessation of liability. However, that issue was disposed of in application A2001/409 (see paragraph 4 above). The reasons for this view will be canvassed below in the material on psychiatric conditions.
200. In any event it must be noted that purported cessations of liability apparently do not have the effect traditionally assumed of debarring an employee from claiming in respect of permanent impairment stemming from the injury, the effects of which have allegedly ceased. In its recent decision, Australian Postal Corporation v Oudyn [2003] FCA 318, the Federal Court (Cooper J) held as follows:
"31 The content, duration and means of satisfying the liability to pay compensation is to be found and worked out by determinations made under other sections of the Act [that is, sections other than s 14(1)] including s 24 [relating to permanent impairment]. These determinations give substance to the liability `... to pay compensation in accordance with this Act', provided for in s 14. They do not require that the determination under s 14 of the Act to accept liability be reconsidered or revoked when the liability to pay under s 14 is satisfied by payment in accordance with the requirements of one or more of the other sections of the Act. The liability under s 14 of the Act to pay compensation stands until it is discharged in accordance with the Act. Once discharged it is terminated.
"32 The power of [Australia Post] to reconsider a determination under s 62 of the Act, when exercised in relation to a determination made under s 14, is a power limited to a reconsideration of one or more of the elements identified by the Full Court in Lees.. A determination on reconsideration that one or more of the elements did not exist is a determination that there was at no time a liability under s 14 of the Act to pay compensation for the particular injury. The position is different to, and to be contrasted with, the situation where a benefit is being paid under a particular section, in consequence of a determination having been made under s 14.
"33 Where [Australia Post] is paying compensation under one or more sections of the Act and it determines that its liability to pay in accordance with that section has been satisfied, the relevant determination is that the payment cease because the circumstances entitling payment under that section no longer exist, or can no longer be made out by the claimant. It is a determination under that section. It operates in respect of the claim then in existence for the payment of compensation under that section. It does not operate as a bar to future claims in respect of that injury if the circumstances under the section can be made out again in the future, or if it can be brought under another applicable section of the Act.
"34 [Australia Post] cannot bind itself in advance to reject any future application on the basis of a determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 (FC) at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attached to [Australia Post] in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act has properly arisen and a determination made to accept a claim made in accordance with s 54 of the Act."
201. The reference in paragraph 32 of the Oudyn case to cessation of liability on one of the five grounds referred to in Lees v Comcare (1999) 56 ALD 84 is a reference to the following grounds:
* Failure to provide the required notice under s 53 of the Act.
* Failure to make a claim in respect of an injury in accordance with s 54 of the Act.
* A finding that the claimant for compensation was not an "employee" at the time of the alleged injury.
* A finding that the employee did not suffer an injury.
* A finding that the injury did not result in death, incapacity for work or impairment.
202. The Court held that, where a cessation is to occur in accordance with one of these grounds, the relevant authority should do so by way of reconsideration under s 62 of the Act.
203. This means that Mr Obiedzinski has not lost the opportunity to claim in respect of permanent impairment resulting from his headaches merely because Comcare has purported to cease liability under s 14(1) of the Act in respect of the headaches. Liability under s 14(1) still exists, in effect.
204. Mr Obiedzinski's permanent impairment entitlements are considered under the relevant heading below.
PSYCHIATRIC CONDITION
205. There has been a variety of diagnoses of Mr Obiedzinski's psychiatric condition or conditions. Dr Lowden (paragraph 50 above) diagnosed chronic pain, depression, and benzodiazepine and opiate use coloured by dependent personality traits. As differential diagnoses she considered organic mood disorder, personality disorder and dysthymia.
206. Dr Knox (paragraph 95 above) diagnosed adjustment disorder with mixed anxiety and depressed mood.
207. Dr Roldan (paragraphs 100, 103 above) diagnosed personality disorder. He found no evidence of depression or anxiety as at March 2002. He diagnosed adjustment disorder in 1994 only, pending rectification of the computer monitor and recurring as the computer flicker effect recurred.
208. Dr Wilcox (paragraph 120 above) diagnosed generalised anxiety disorder, dysthymia and benzodiazepine and narcotic abuse.
209. Of these diagnoses the tribunal finds that the most likely tenable diagnosis is generalised anxiety disorder with dysthymia and benzodiazepine and narcotic abuse. The tribunal was not satisfied that Mr Obiedzinski had a personality disorder because of a lack of evidence relating to Mr Obiedzinski's formative years that must be available for a diagnosis of personality disorder[5]. The tribunal was not satisfied that Mr Obiedzinski had any persistent or chronic form of adjustment disorder because the factors that might have been responsible for an adjustment disorder had receded, especially since he ceased working for Immigration. This involves rejection of Dr Knox's diagnosis. The tribunal found Dr Knox's evidence less persuasive than that of the other experts because he had an incomplete knowledge of Mr Obiedzinski's drug use and he appeared unprepared to consider altering his stated views when presented with additional history.
210. The tribunal considered that Dr Wilcox justified her diagnoses fully in a most comprehensive report. While the tribunal may have had some reservations about some of Dr Wilcox's oral evidence, for example her ambiguity in paragraph 128 above, it found her report to be well researched and her diagnoses convincing. In particular, she and Dr Lowden adverted to the benzodiazepine and narcotic abuse which the expert physicians regarded as contributing greatly to Mr Obiedzinski's headache problem. Thus, the tribunal finds that Mr Obiedzinski's psychiatric conditions were generalised anxiety disorder, dysthymia and benzodiazepine and narcotic abuse.
211. Of these conditions, the tribunal finds the anxiety disorder not to have been caused by Mr Obiedzinski's employment. Mr Obiedzinski's own evidence at paragraphs 17ff above suggested that he began to exhibit signs of generalised anxiety disorder[6] as early as 1985. At worst, this underlying condition may have been aggravated by events in the workplace.
212. Dysthymia and occasional major depression, as diagnosed by Dr Wilcox, receive little attention in Dr Wright's clinical notes (ex A13). On 13 August 1987 Mr Obiedzinski told Dr Wright he thought he was having a nervous breakdown because his fiancée had left him. On 17 August 1988 Dr Wright noted Mr Obiedzinski was depressed. On 9 June 1997 Mr Obiedzinski was described by Dr Wright as depressed and suicidal. This continued over to September and October 1997 when the depression was controlled by Zoloft. By February 1998 Dr Wright was recording "no depression". It was in July 1997 that Professor Lance saw depression as Mr Obiedzinski's main problem (paragraph 149 above). Depression as a phenomenon did not receive any later mentions in Dr Wright's notes. From this the tribunal finds that Mr Obiedzinski has not suffered from major depression on any consistent basis. The tribunal finds no evidence of major depression in 2002 or 2003. When he saw Drs Roldan and Wilcox they concluded that he was not depressed at those times. Dr Knox (ex A4/5) said that, in February 2003, he did not identify in Mr Obiedzinski any gross depression or anxiety.
213. The tribunal finds that the diagnosis of dysthymia applies. As Dr Wilcox explained (ex R8), Mr Obiedzinski reported ongoing problems with sleep disturbance, low energy, low self-esteem and feelings of hopelessness. She also explained how dysthymia is a constitutional disease.
214. There is no evidence before the tribunal to explain how Mr Obiedzinski's work affected his dysthymia. The evidence regarding the adverse effects of his employment related more to his anxiety condition. The applicant's own oral evidence pointed to problems with sleep and self-doubt during Mr Obiedzinski's university studies. It is likely that this is a pre-existing condition affected by work and occasionally erupting into episodes of major depression. However, there is no evidence to suggest that Mr Obiedzinski's work at Immigration has any continuing impact on his dysthymia.
215. Mr Obiedzinski's benzodiazepine abuse appeared to stem from at least as long ago as 1990 (Dr Dauncey's evidence, paragraph 92 above), that is before Mr Obiedzinski experienced any difficulties at work. Dr Dauncey referred to "dependence" rather than "abuse" but the sense of her evidence was that the dependence involved abuse. Mr Obiedzinski's dosages of benzodiazepines appeared relatively consistent through the years, with some periods of lighter use. His employment would not appear to have caused his abuse in the first place or to have caused it to worsen.
216. Mr Obiedzinski's narcotics use had begun by at least July 1992 when Dr Wright prescribed Codeine Phosphate tablets and Hycomine syrup (TD2/S19/68-69). These are apparently relatively mild narcotics. By 1994 there were several prescriptions for MC Contin tablets. Dr Tedeschi (paragraph 77 above) saw these prescribed quantities as reflective of low use. By 1995 there were regular prescriptions for Proladone suppositories. In December 1994 Mr Obiedzinski had his first Morphine injection (ex A12) and, as Dr Wilcox noted (in paragraph 116 above), from then on he presented regularly with migraines seeking injections.
PERMANENT IMPAIRMENT
217. On the strength of this evidence it is fair to say that Mr Obiedzinski's narcotics abuse began after, and was part of the treatment for, migraines he started to experience early in 1994 because of the conditions at work, notably a flickering computer screen. The tribunal therefore finds that Mr Obiedzinski's narcotics abuse is a disease in accordance with the Act and that Mr Obiedzinski's work made a material contribution to the contraction of the disease as required by the definition of "disease" in s 4(1) of the Act. The tribunal further finds that that disease became entrenched in 1995, when Mr Obiedzinski was still employed by Immigration and was experiencing rebound headaches or migraines associated with his employment. That association was, in the case of rebound headaches, the connection with the narcotics abuse. In the case of any migraines it was the connection with workplace stress recognised in Dr Wright's medical certificates. That in turn emanated from the headaches and consequent absenteeism.
218. Dr Dauncey (paragraph 86 above) was pessimistic as to a person's ability to achieve a narcotics free state once a person becomes opioid dependent. Various of the experts, while noting that the applicant had experienced periods of reduced narcotics use, or of no narcotics use, spoke only conditionally of Mr Obiedzinski's status if he were to cease using narcotics. There was no expression of confidence that the periods of abstinence could develop into a permanent state of abstinence.
219. Dr Tedeschi (paragraph 54 above) wrote in 2001 that Mr Obiedzinski may require some quantity of narcotic on an indefinite basis. Dr Tedeschi also explained that he had put Mr Obiedzinski on daily long acting oral opiates in 2000 and had limited the injectable analgesics as much as possible. This was to minimise Mr Obiedzinski's dependence and to limit the possibility of escalating the amounts of injectable opiates. He told the tribunal (paragraph 76 above) that patients hooked on narcotics can never get enough. They will always want more.
220. The tribunal, in view of the evidence from the experts in paragraphs 218-219 finds that Mr Obiedzinski's narcotics abuse is a permanent phenomenon in accordance with the definition of "permanent" in s 4(1) of the Act in that it is likely to continue indefinitely.
221. The tribunal finds that the narcotics abuse is an impairment as defined in s 4(1) of the Act in that it is the malfunction of a bodily system.
222. In accordance with s 24 of the Act the tribunal makes the following findings:
(a) That, in accordance with s 24(1) of the Act, it was Mr Obiedzinski's injury, viz narcotics abuse, that resulted in his permanent impairment in the form of narcotics abuse.
(b) That, in accordance with s 24(2)(a) of the Act, the duration of the impairment suggests that the impairment is permanent as defined in the Act.
(c) That, in accordance with s 24(2)(b) of the Act, while Dr Tedeschi is hopeful that the condition can be controlled and might be improved, the condition is likely to last indefinitely.
(d) That, in accordance with s 24(2)(c) of the Act, the applicant has undertaken all reasonable rehabilitative treatment for the impairment. The tribunal bases this finding on Dr Wright's evidence that he felt himself capable of dealing with the early psychiatric issues and on the fact that Mr Obiedzinski has been under the care of Drs Tedeschi and Mazengarb, experts in drug and alcohol abuse problems, since 2000. While it might be argued that the current Methadone program is a rehabilitative measure whose ultimate effects remain uncertain because Mr Obiedzinski has not been on the program for very long, the tribunal is satisfied that at best the program will only regulate better his narcotics addiction. The evidence is that it will not cure it.
223. The tribunal has found that the applicant's headaches are probably rebound headaches in the main and attract Comcare liability. In accordance with table 13.1 of the Comcare guide the tribunal must decide how often Mr Obiedzinski is affected by headaches at this point in time. Mr Obiedzinski's own evidence at the hearing when asked what was the then current state of his headaches was vague. He said, "They became ... settled. You know, I get them occasionally - a headache, a really bad one, a really bad migraine. But it is not the sort that I used to have in 1997 or 2001." Later he told Mr O'Donovan he had an average of one migraine a week in 2003 which caused him to feel debilitated on one or two days a week. The applicant told Professor McLeod he experiences headaches about twice a week as at February 2003 (ex R4). Professor Lance in ex A6 had accepted Mr Obiedzinski's self-assessment that he was adversely affected by his migraines for 50% of the time and Professor Lance suggested a 50% assessment under table 13.1. In oral evidence, however, he said he would not object to see that assessment reduced if Mr Obiedzinski was in fact disabled by the condition on fewer days than he had told the professor.
224. In paragraphs 60 and 138 above the tribunal noted the applicant's medications as at February 2003. By the time of the hearing Mr Obiedzinski had commenced the Methadone program and that is intended to reduce or alter his opiate intake. Mr Obiedzinski's own evidence on this was that the Morphine would cease, as would the Proladone and Oxycontin. He thought the Methadone would be reduced over time to zero. While this might happen, the preponderance of the evidence, as seen earlier, was that Mr Obiedzinski is unlikely to cease narcotics completely.
225. Given that Mr Obiedzinski's own evidence was that he now has migraine or rebound headaches to the extent that he finds that he is disabled on only one or two days a week, this equates to a 20% level of impairment (paragraph 152 above) in that it means that "[a]ttacks occur up to 25 percent of the time AND cause significant interference with most activities of daily living other than self care".. Rebound headaches were said in evidence to replicate the migraine headaches the narcotics are intended to deal with. The applicant's evidence regarding the effects of his migraine headaches suggested that they are sufficient to interfere with most activities of daily living other than self care.
226. So far as table 5.1 of the Comcare guide is concerned, the tribunal is not disposed to accord a rating in respect of narcotics abuse. In the view of the tribunal the whole person impairment effects, notably the effects on the activities of daily living, of the narcotics abuse are adequately captured and reflected in table 13.1. An element of double counting would be involved in assigning an additional rating under table 5.1. In addition, the description of what attracts a 0% rating under table 5.1 refers to the stressors of daily living and the effects of an impairment on them. This table seems to the tribunal to relate to the applicant's anxiety and dysthymic conditions rather than to his narcotics abuse. The tribunal has found the generalised anxiety disorder and dysthymia to be conditions not involving permanent impairment.
MR O'DONOVAN'S SUBMISSIONS
227. The above findings involve the rejection of the great part of Mr O'Donovan's final submissions on behalf of the respondent. It is necessary to explain why those submissions were not accepted.
228. In essence Mr O'Donovan impugned Mr Obiedzinski's credibility and cast doubt on the theory that employment related disease caused Mr Obiedzinski's absenteeism which caused anxiety which caused headaches, which caused the taking of medications, etc - what the tribunal has referred to as the vicious cycle or circle. The tribunal has of course decided to accept the vicious circle analysis.
229. Much of Mr O'Donovan's address suggested that Mr Obiedzinski's problem was his narcotic addiction. The tribunal has, of course, agreed with that but, contrary to Mr O'Donovan's submissions, has found that to be compensable. Mr O'Donovan suggested, however, that Mr Obiedzinski's tendency to addiction had not been established by 1998. The tribunal was satisfied on the evidence that it was established in 1995.
230. Mr O'Donovan observed that it was difficult to tell how many migraines Mr Obiedzinski was experiencing at the time of the hearing. Mr O'Donovan said, "The astonishing thing is that Professor Lance was prepared to accept that he was having migraines 50 per cent of the time as recently as January or February this year. In his presentation to us on Monday and Tuesday we did not see, in my submission, evidence of a man who was suffering serious disability 50 per cent of the time from a periodic condition." In response to this the tribunal points out that Mr Obiedzinski's own evidence was that he was affected by headaches at the time of the hearing on only one or two days a week. Mr Obiedzinski gave evidence over parts of three consecutive days. It seems that these three days did not coincide with any of his headache days. That should perhaps not be surprising if, in a good week, he suffers the effects of a headache on only one day and, in a bad week on two days.
231. Later Mr O'Donovan said, "A man capable of going to Europe and visiting 11 countries, a man who leads a life which seems to involve bush walking and is able to form a relationship with girlfriend, he volunteered that he goes fishing and seems to be engaging normally and, notwithstanding what my friend said about his presentation in the Tribunal, in my submission his presentation to the Tribunal, I thought, was exceptionally alert and he had remarkable capacity to engage in answering the questions, not necessarily truthfully, but in terms of the capacity to respond to the questions. There was not much doubt about the sharpness of his intellect, I would not have thought." Mr O'Donovan's observations were well founded. However, again the tribunal sees the answer in the reduced frequency of his headaches since he ceased work.
232. Mr O'Donovan queried how a person experiencing such regular migraines could plan a trip through Europe, visiting 11 countries as Mr Obiedzinski did in 2002. An at least partial response to this may be that he had previously found overseas travel therapeutic. The tribunal noted that his access to narcotics was reduced when he travelled overseas. That may explain the reduced incidence of headaches. Mr Obiedzinski may not have identified a connection. He simply knew that he had fewer headaches when away from Australia.
233. Mr O'Donovan submitted that Mr Obiedzinski had form as a person prepared to deceive in order to obtain a benefit as he had done in relation to the use of Cabcharge vouchers in 1997. This was fair comment as far as it went. The tribunal's appreciation of the Cabcharge episode may have been incomplete and there may have been other papers additional to those in ex R10. However, from those papers the following appears the situation:
* Charge A appeared to relate to the use of Cabcharge vouchers for purposes associated with medical consultations. The tribunal had before it the statement by Mr Obiedzinski's former supervisor, Mr Parker (ex A11), who tended to regard this use of Cabcharge vouchers as appropriate (paragraph 83 above).
* Charge B related to Mr Obiedzinski not passing on to Immigration a refund he had received from Comcare for travel expenses for which Immigration had already paid. While this may have been censurable conduct it may also have resulted from confusion on Mr Obiedzinski's part at a time when he was distracted by headaches and work problems.
* Charge C was similar to charge B.
* Charge D involved use of a Cabcharge voucher in circumstances where Mr Obiedzinski should arguably have known this was not permitted. Unfortunately the circumstances were unclear to the tribunal.
* Charge E appeared similar to charge A.
In the tribunal's view, the Cabcharge-related disciplinary proceedings do not indicate unreservedly any significant or ongoing tendency to dishonesty.
234. Mr O'Donovan indicated instances where Mr Obiedzinski appeared to have misrepresented situations. On 1 February 1995 he told Dr Joubert (TD1/T150) of his problems with a supervisor at work. He said that she was currently on sick leave and his condition had improved. Mr O'Donovan pointed out that the surrounding evidence did not show that his condition had improved when his supervisor was sick. Mr Obiedzinski had complained of migraines around that time, had received prescriptions for medications and had taken time off work.
235. Mr Obiedzinski had referred to a two-hour argument with Ms Lokan as reported to Dr Wright (ex A13). Ms Lokan refuted any such lengthy argument in her sworn evidence. This and the previous instance appeared somewhat trivial to the tribunal.
236. Mr O'Donovan referred to Mr Obiedzinski's success in having prescriptions for narcotics filled at different pharmacies in rapid succession (see paragraphs 70 and 71 above).
237. Mr O'Donovan referred to Mr Obiedzinski seeking sleeping tablets in Adelaide only days after a prescription was filled in Canberra. Mr Obiedzinski did not mention the prescription tablets to the hospital and did not mention his prior history of anxiety. This and the previous instance appeared to the tribunal to be conduct expected of one with addiction to benzodiazepines or narcotics, as Mr Obiedzinski was.
238. Mr O'Donovan referred to Mr Obiedzinski organising a 10-week trip to Europe in 1996 at a time when he was said to be having serious migraine attacks. He suggested Mr Obiedzinski was over-reporting his migraines. Mr Obiedzinski's conduct in planning this trip was understandable in the tribunal's view because Mr Obiedzinski, rightly or wrongly, at the time attributed his problems to workplace issues. A trip overseas bore the promise of relieving him from those problems.
239. Mr O'Donovan referred to the various pieces of evidence discussed above (paragraphs 63ff) regarding any family history of migraine or any past history of migraine in the applicant himself and how Mr Obiedzinski had to go to some lengths to explain each instance of such material.. The tribunal has already explained that it saw any previous medical history as relevant only in indicating an additional vulnerability in Mr Obiedzinski to migraine attacks. A super sensitivity to disease or injury on the part of an employee is not a matter disentitling the employee to compensation.
240. Mr O'Donovan pointed to Dr Wright concluding that Mr Obiedzinski was not presenting honestly to him. The tribunal has found that Mr Obiedzinski is narcotics dependent. Evidence before the tribunal was that narcotics addicts engage in drug seeking behaviour. This was what was of concern to Dr Wright. It was an integral feature of the disease to which, in the tribunal's view, Mr Obiedzinski's employment made a material contribution.
241. Mr O'Donovan referred to the propensity of persons with serious narcotic addictions to lie in order to obtain narcotics. This has already received comment.
242. Mr O'Donovan proceeded to state, "But what, in my submission, is perhaps worse about Mr Obiedzinski's presentation is that even... this week, when his narcotic addiction is well-established and there would have had to have been instance where he was lying about his migraines to obtain medication.... There was no attempt to volunteer information of that kind to the Tribunal and still maintains that he was suffering from severe migraines, on a regular basis, whereas even the most trusting doctor, Dr Wright, the highest he could put it was, he thought -- 'yes, he believed he was continuing to have headaches from time to time'. That is a very different picture to the picture Mr Obiedzinski painted to Professor Lance a mere three or four months ago, where he was talking about them 50 per cent of the time." The tribunal has already referred to Mr Obiedzinski's evidence to Mr O'Donovan that, at the time of the hearing his headaches affected him on only one or two days a week. Mr Obiedzinski had changed his position since seeing Professor Lance.
243. The tribunal does not intend, in rejecting Mr O'Donovan's arguments, to suggest that Mr O'Donovan should not have advanced them. On the contrary, Mr O'Donovan played a valuable role in providing material to the tribunal that enabled us to test those findings favourable to Mr Obiedzinski against material that was problematic for him. However, because of the tribunal's satisfaction that Mr Obiedzinski's narcotic abuse was employment related, and because that condition is accompanied by various behavioural features that might in other situations have undercut the employee's case, the role of those other factors in Mr Obiedzinski's situation was less influential than in other cases involving different diagnoses.
CONCLUSION
244. The tribunal has found that Comcare's liability to pay compensation under s 14(1) of the Act in respect of migraines has continued as a result of the decision of the Federal Court in Oudyn (above). However, the tribunal has found that the headaches are a mixture of migraine headaches and rebound headaches.
245. The tribunal has found that Mr Obiedzinski's claim in respect of adjustment disorder with mixed anxiety and depressed mood is to be answered by a finding that Comcare is liable to pay compensation to Mr Obiedzinski under s 14(1) of the Act in respect of an injury in the form of the disease of narcotics abuse.
246. The tribunal has found that Mr Obiedzinski qualifies for a payment in respect of permanent impairment in relation to his headaches at a level of 20% in accordance with table 13.1 of the Comcare guide. The tribunal has found that he qualifies for no payment in accordance with table 5.1 of the Comcare guide, the table relevant to psychiatric conditions. The tribunal has made no findings regarding Mr Obiedzinski's non-economic loss under s 27 of the Act and will remit the matter to the respondent for an assessment to be made under that section.
247. The tribunal has made findings favourable to Mr Obiedzinski in relation to applications A1999/384 and A2002/472 and notes that he will qualify for costs associated with those applications.
DECISIONS
248. In relation to the reviewable decision dated 8 September 1999 (A1999/384) the tribunal sets aside that decision and substitutes its own decision that the applicant has a whole person permanent impairment of 20% in relation to migraine or rebound headaches. This matter is remitted to the respondent for assessment of non-economic loss under s 27 of the Act.
249. In relation to the reviewable decision dated 6 December 2002 (A2002/472) the tribunal sets aside that decision and substitutes its own decision that the respondent is liable under s 14(1) of the Act to pay compensation to the applicant in respect of narcotics abuse.
250. In relation to the reviewable decision dated 22 April 2003 (A2003/160) the tribunal affirms that decision.
251. The applicant, having received decisions favourable to him in applications A1999/284 and A2002/472 qualifies for costs associated with those applications.
I certify that the 251 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M D Miller AO, Member
Signed: .......................................................................................
Associate
Dates of Hearing 12 - 16 May 2003
Date of Decision 22 July 2003
Counsel for the Applicant Mr Grant Brady
Solicitor for the Applicant pappas, j - attorney
Counsel for the Respondent Mr Damien O'Donovan
Solicitor for the Respondent Dibbs Barker Gosling, Lawyers
[1] The employing department is referred to in these reasons as the Department of Immigration (or "the department" or "immigration") for simplicity sake despite the fact that the department has undergone a number of changes in title since 1994. It is currently the Department of Immigration and Multicultural and Indigenous Affairs.
[2] http://www.austlii.edu.au/au/legis/cth/consol_act/sraca1988368/.
[3] http://www.comcare.gov.au/publications/pig/fs-cover.htm.
[4] Not a narcotic agent, Dihydroergotamine is derived from a fungus.
[5] American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed, 1995) ("DSM-IV"), 651.
[6] DSM-IV, 447.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/689.html