Kowalski and Military Rehabilitation and Compensation Commission [2009] AATA 38 (21 January 2009)

Last Updated: 21 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 38

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos S2005/112, S2005/308,

VETERANS’ APPEALS DIVISION		) S2005/309 and S2006/185
	Re		KAZIMIR KOWALSKI

Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President B T Lander Dr E Eriksen, Member

Date 21 January 2009

Place Adelaide

Decision

The Tribunal: (a) Affirms the decision of the respondent in S2005/112. (b) Affirms the decision of the respondent in S2005/308. (c) Affirms the decision of the respondent in S2005/309. (d) Revokes the decision of the respondent in S2006/185 and instead affirms the decision of 22 May 2006 denying the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or psychiatric illness.

B T Lander
(Signed)
Deputy President

CATCHWORDS

VETERANS’ ENTITLEMENTS – compensation claim – applicant sought review of four decisions affirming determinations of the respondent disallowing claim for compensation – major depression and generalised anxiety, heart attack, obesity and Type 2 diabetes, duodenal ulcer – claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or psychiatric illness – nature of AAT’s inquisitorial role – applicant had long unsuccessful litigation history against former employer within State system leading to order declaring him a vexatious litigant – whether applicant’s psychiatric illness and coronary problems had causal link with applicant’s military service – whether applicant received treatment for psychological illness whilst in Army service – applicant developed duodenal ulcer whilst in Army service – liability initially admitted by Army – medical opinion as to cause of ulcer had changed – applicant no longer suffered from duodenal ulcer – decisions under review affirmed – application dismissed.

Administrative Appeals Tribunal Act 1973 (Cth)

Compensation (Commonwealth Employees) Act 1971 (Cth)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Workers Rehabilitation and Compensation Act 1986 (SA)

Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88

Brennan v Comcare (1994) 122 ALR 615

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Canute v Comcare (2006) 86 ALJR 1578

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232

Comcare v Levett (1995) 131 ALR 645

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577

Kazimir Kowalski v Mitsubishi Motors Automotive Ltd (No 2) [1996] SAWCAT 111

Kowalski v Military Rehabilitation and Compensation Commission [2007] AATA 1988

Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518

Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154

Re Beigman and Secretary, Department of Social Security [1992] AATA 377; (1992) 29 ALD 332

Treloar v Australian Telecommunications Commission [1990] FCA 511; (1999) 26 FCR 316

REASONS FOR DECISION

21 January 2009

Deputy President B T Lander

INTRODUCTION

1. Section 64 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) empowers a claimant under that Act to apply to the Administrative Appeals Tribunal (AAT) for a review of a reviewable decision. A reviewable decision is a decision made under s 38(4) or s 62.
2. Section 38(4) provides a procedure whereby Comcare, a body established under the Act, which has the functions in s 69 of the Act, reviews a determination made by a rehabilitation authority. Section 62 is the procedure whereby a determining authority, being the person who made a decision made under particular sections of the Act (a determination), reconsiders that determination of its own motion or by request by the claimant, the Commonwealth or a Commonwealth authority. The decision by the determining authority is a reviewable decision which entitles the claimant to a merits review in the AAT: s 64.
3. Mr Kowalski is a claimant under the SRC Act and he seeks merits review of four separate reviewable decisions made by the respondent, the Military Rehabilitation and Compensation Commission (the Commission). Those reviewable decisions relate to two claims made by Mr Kowalski for compensation in respect of a duodenal ulcer and two claims made by Mr Kowalski for psychological/psychiatric illness including major depression and generalised anxiety, and consequential illnesses and disease including mental illness, hypertension, heart attack, Type 2 diabetes and obesity.
4. The four separate claims were:

(1) In S2005/112, the applicant seeks review of a decision of the respondent on 22 April 2005 which affirmed a primary determination of the MRCC of 10 December 2004. The determination disallowed a claim for compensation for “major depression and generalised anxiety, heart attack and open heart surgery” and “obesity and Type 2 diabetes” arising out of the applicant’s service in the Army. In reviewing the determination, the review officer, the Director of Military Compensation and Rehabilitation (the Director), had regard to the medical evidence provided, including a report of Dr Thompkins of 14 April 2005, a report of Dr Jagermann of 23 August 1991 and a report of Dr Cheung of 1 November 2004. The review officer also had regard to Professor Marie Esler’s opinion of 18 May 1998. The decision was affirmed by the review officer on the ground that the available evidence failed to support a causal relationship between the claimed conditions and Mr Kowalski’s military service.

The application for review was lodged with the AAT on 29 April 2005.

(2) In S2005/308 the applicant seeks review of a second decision of the respondent dated 11 November 2005, which affirmed a determination of 22 June 2005 that the applicant was not entitled to receive incapacity benefits in respect of a duodenal ulcer. The applicant had previously submitted a claim for compensation arising out of a duodenal ulcer on 3 August 1973 alleging that his duodenal ulcer had been caused by stress at work. Liability for this condition was accepted by determination on 4 April 1974. The applicant was in fact paid compensation for this condition on nine separate occasions from 4 April 1974 until 17 March 1981. However, the review officer, the Director, held that the applicant had failed to prove his claim for incapacity as at the date of the claim, as the evidence was that the applicant no longer suffered symptoms as a result of the ulcer.

(3) In S2005/309, the applicant seeks review of a further decision of the respondent of 11 November 2005 affirming a determination of 6 May 2005. The review officer, the Director, determined that the applicant was not entitled to compensation for permanent impairment as a result of a duodenal ulcer.

The applicant’s claim was denied on two grounds; first, because the evidence was that the applicant’s impairment from the ulcer was not permanent (or even if it were, there was insufficient evidence that the condition had been contributed to in a material degree by Mr Kowalski’s Army service); and secondly, the Compensation (Commonwealth Employees) Act 1971 (Cth) (the 1971 Act) did not provide for payment of lump sum compensation for a condition of a “duodenal ulcer” that became permanent at any time prior to 1 December 1988 (which was the date of the enactment of the SRC Act).

(4) Finally, in S2006/185, the applicant seeks review of a decision of a review officer, a delegate of the respondent, of 30 June 2006 which reviewed a determination of the respondent of 22 May 2006. The respondent’s determination denied the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or a psychiatric illness. The reviewable decision, made pursuant to s 62 of the Act, revoked the primary determination and instead decided that a determination on the applicant’s claim should be delayed until such time as liability was accepted to pay compensation under section 14 of the Act in respect of the claimed psychological or psychiatric condition in S2005/112.

OVERVIEW

5. Mr Kowalski was born on 7 August 1947. After leaving school on 16 January 1964 he commenced employment with Chrysler Australia Pty Ltd (Chrysler) as an apprentice fitter and turner. The company supported him while he studied for and obtained qualifications in 1969 as a mechanical technician. He completed training as a draftsman in 1970. He married his wife in 1970. When he was aged 20 he was conscripted into National Service. Because he was studying for tertiary qualifications his entry into National Service was delayed. Mr Kowalski extended his study so as to avoid having to serve in the Australian Military Forces. Eventually he could no longer avoid entering the Army and he began service as a soldier on 20 April 1972. After basic training and trade training of three months, he served in the Australian Military Forces as a regimental and mechanical draftsman in the Electrical Mechanical Engineer Workshop. He did not serve outside Australia. He served until 19 October 1973.
6. He asserts that as a result of his service in the Army he suffered stress and anxiety which gave rise to a duodenal ulcer, and that the further complaints he has made consisting of psychological or psychiatric illness, major depression and generalised anxiety, hypertension, ischemic heart disease, Type 2 diabetes and obesity are all the result of his service in the Army.

The Applicant

7. Before turning to the facts and the claims, it is necessary to say something about Mr Kowalski himself. There is no doubt that Mr Kowalski suffers from a psychiatric illness. He now suffers from chronic dysthymic disorder with a major depressive disorder. He suffers from a double depression which includes a chronic depression with occasional increase of symptoms due to major depression. We find that he has a personality disorder in that he has an obsessive compulsive personality. He has probably suffered from all of the above psychiatric problems since at least 1991. He also has suffered and does suffer from the physical conditions of which he complains, except that he no longer suffers from a duodenal ulcer and has not since 1999.
8. Mr Kowalski has had a long and protracted litigation history in the State system seeking worker’s compensation benefits from his former employer, Mitsubishi Motors Australia Limited (Mitsubishi). His claims have proved to be unsuccessful. Eventually an order was made declaring Mr Kowalski to be a vexatious litigant for having persistently instituted vexatious proceedings: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [278]. In making that order, Bleby J said at [278]:

The defendant [Mr Kowalski] has demonstrated his unwillingness or inability to accept decisions on his claims for compensation which have been conclusively and repeatedly determined against him.

9. Mr Kowalski was a most difficult party. From the outset it was clear he distrusted the curial process. He made that clear by making insulting remarks of judges in the State system. He was antagonistic, argumentative and often quite unreasonable. He constantly interrupted the Tribunal and counsel for the respondent. He would not accept or take direction, nor would he take any advice. He insulted counsel and the solicitors for the respondent. He made a number of groundless claims of unprofessional conduct on their part. He insulted the two medical witnesses, Dr Reid and Professor Goldney, who were called by the respondent. He was rude to them and about them. He reported both doctors to the Medical Board. He telephoned Professor Goldney’s wife and wished her a miserable Christmas. He made it clear that unless he had his own way or obtained the result to which he claimed to be entitled then it was because the Tribunal must be biased or simply wrong. He conducted himself in much the same way as Bleby J has recorded in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154 at [35]. He repeated his submissions time and time again. He has repeatedly written to the Tribunal reminding the Tribunal of the High Court decision in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408.
10. None of that means his claims should be dismissed or even discounted. His psychiatric condition and his personality traits should not disadvantage him in a consideration of a review of the impugned decisions. However, his blinkered view of his own case and lack of objectivity affects the reliability of his evidence and means that his evidence insofar as it is relevant must be treated with extreme caution. We are only prepared to accept Mr Kowalski’s evidence where it is corroborated by the evidence of another witness who we have found to be reliable and credible or corroborated by documents which are themselves reliable or where his evidence appears to be self-evidently reliable. Where his evidence conflicts with other witnesses who we have found to be reliable and credible, we reject his evidence.

The Witnesses

11. We should also say something about the medical witnesses who were called by the parties. Mr Kowalski called his treating psychiatrist, Dr Thompkins. Dr Thompkins’ describes himself on his letterhead as a psychiatrist specialising in general psychiatry, Medico-Legal and WorkCover claims, barrister and solicitor (retired) and fellow of the Australian College of Legal Medicine. He has been Mr Kowalski’s treating psychiatrist since July 2003 seeing Mr Kowalski nearly every month and in total on 40 or 50 occasions. His evidence fully supported Mr Kowalski’s case. Dr Thompkins did not confine his evidence to his own specialty but offered opinions outside that specialty. In particular, he offered opinions which were contrary to the evidence of a gastroenterologist, Dr Reid who was called by the respondent. We regret to say that we think Dr Thompkins’ evidence lacked objectivity. We do not think his evidence was given with appropriate detachment. We think that his evidence was given in an endeavour to support Mr Kowalski’s claims. That may be because Dr Thompkins thinks that it is in Mr Kowalski’s best interests he be acknowledged as entitled to compensation but, if that be his motivation for the evidence which he gave, it means that his evidence must be described as unreliable. Some aspects of his evidence however are uncontroversial. Indeed, he and Professor Goldney have reached the same diagnosis of Mr Kowalski’s present psychiatric condition. But they differ in two other respects. Professor Goldney is of the opinion that Mr Kowalski’s present psychiatric condition is unrelated to his Army service. Dr Thompkins offered the opinion that the stress and anxiety which Mr Kowalski suffered whilst serving in the Army contributed to his present psychiatric condition and his physical complaints. They also differ as to his personality disorder. Professor Goldney was of the opinion that Mr Kowalski has an obsessive compulsive personality disorder. Dr Thompkins was of the opinion that Mr Kowalski does not have an obsessive compulsive personality disorder but suffers from narcissistic traits which affect his behaviour. He described Mr Kowalski’s behaviour “along the terms of narcissism, of narcissistic traits, of a sense of an untrained man who comes – litigates a lot, having an unrequited – a requitable sense of entitlement.” He said that he did not think he had observed any obsessive compulsive traits. We have no doubt that Professor Goldney’s diagnosis of Mr Kowalski’s personality disorder is the appropriate diagnosis. Whilst we are not trained as psychiatrists, and one of us is not trained in medicine, there is no doubt in our opinion that Professor Goldney’s diagnosis of Mr Kowalski’s personality disorder is correct and Dr Thompkins’ diagnosis should be rejected.
12. Mr Kowalski’s conduct, both in and out of the Tribunal, and in correspondence with the Tribunal, was consistent with Professor Goldney’s diagnosis and inconsistent with Dr Thompkins’ diagnosis. An indication of the obsessive compulsive nature of Mr Kowalski’s personality is his repeated letters to the Tribunal drawing the Tribunal’s attention to the dicta of Brennan J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408. He was told that there was no point in continuing to refer to the same case in correspondence to the Tribunal. He said that he could not help himself and he could not sleep until he had written to the Tribunal reminding the Tribunal of that decision. A reading of the transcript also confirms Professor Goldney’s diagnosis.
13. In the end, nothing much turns on why Mr Kowalski behaves like he does. However, Dr Thompkins’ failure to diagnose Mr Kowalski’s personality disorder impacts upon the assessment of the reliability of his evidence.
14. Dr Thompkins has seen Mr Kowalski on many more occasions than Professor Goldney who has seen him only on two occasions. Ordinarily, that might be considered to be an advantage in obtaining a history from the patient and arriving at a diagnosis and prognosis. We think that it has been an advantage in the medical sense in that Mr Kowalski has a good relationship with Dr Thompkins. It has, however, not advantaged Dr Thompkins in the giving of evidence because we think probably the closeness of their relationship has prevented Dr Thompkins displaying the objectivity and detachment that is expected of an expert witness.
15. An important issue in the proceeding was whether Mr Kowalski suffered a psychiatric illness such as anxiety whilst in the Army. In his evidence-in-chief, Dr Thompkins said there was documentary evidence to support Mr Kowalski’s claim that he suffered anxiety whilst in the Army. In his cross-examination, he was obliged, albeit reluctantly, to admit that was not so. Dr Thompkins did not think it to be relevant that Mr Kowalski did not mention anything about the Army service in the first two years that Mr Kowalski consulted him. He did not see it to be relevant that Mr Kowalski did not blame his mental and physical conditions on Army service until the time when his claims against Mitsubishi had been concluded against Mr Kowalski’s interests.
16. Professor Goldney, on the other hand, gave his evidence in a straightforward and direct manner, in particular in cross-examination, answering all of Mr Kowalski’s questions, some of which were asked repeatedly. Professor Goldney showed no sign of irritation notwithstanding Mr Kowalski’s attitude toward and of him. He retained his objectivity and detachment throughout.
17. Wherever there is a conflict of evidence between that of Dr Thompkins and Professor Goldney, we prefer the evidence of Professor Goldney.
18. Dr Donald Reid, a consultant physician and specialist gastroenterologist was also called by the respondent. He also gave his evidence in a straightforward and direct manner. He also answered Mr Kowalski’s questions directly and appropriately. He also retained his objectivity and detachment, notwithstanding that he was repeatedly asked the same questions and that Mr Kowalski was often rude to him and about him.
19. As we have already said, Dr Thompkins strayed outside his specialty and into Dr Reid’s specialty in relation to the cause and effect of duodenal ulcers and the treatment of them. Dr Reid is better able to express an expert opinion on those matters because they are directly within his own specialty and not the specialty of a psychiatrist. We think, for those reasons, we should prefer Dr Reid’s evidence wherever it conflicts with Dr Thompkins’ evidence but there is another critical reason why his evidence should be preferred. Dr Reid gave evidence in accordance with the opinion of mainstream medical science. Dr Thompkins gave evidence which suited Mr Kowalski’s case but which was often inconsistent with mainstream medical science. For that reason, we also prefer Dr Reid’s evidence wherever his evidence is in conflict with that of Dr Thompkins.
20. We think both Professor Goldney and Dr Reid were excellent witnesses who understood their obligation to assist the Tribunal to reach the truth of the matter into which the Tribunal was inquiring. We accept the evidence of both of those witnesses.

The role of the Tribunal

21. We should set out for Mr Kowalski’s benefit, at least, our understanding of the Tribunal’s role in the inquiry which is undertaken. This Tribunal does not undertake an inquiry as to whether or not the decision-maker whose decision is under review made the correct decision on the material before the decision-maker. The role of this Tribunal is to determine whether the decision which was arrived at was the correct or preferable decision on the material before the Tribunal: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 24 ALR 577. The Tribunal carries out its inquiry with as little formality and technicality as possible and without being bound by the rules of evidence. The Tribunal may inform itself on any matter in such manner as it thinks appropriate: s 33 of the Administrative Appeals Tribunal Act 1973 (Cth) (the AAT Act). Of course, if information comes to the attention of the Tribunal it must acquaint the parties with that information so that the parties can know what information is being considered by the Tribunal in determining whether or not the decision which is under review was the correct or preferable decision. In carrying out that function, the Tribunal is obliged to act judicially and to accord parties to the review procedural fairness.
22. The proceedings are not adversarial but inquisitorial and are conducted, as we have said, for the purpose of the Tribunal reaching the correct or preferable decision in the circumstances of the case: Re Beigman and Secretary, Department of Social Security [1992] AATA 377; (1992) 29 ALD 332. The Tribunal’s decision should be arrived at on the material before it. In Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; (2003) 215 CLR 518, Gleeson CJ said at [16]:

Under the statutory scheme, and in consequence of the other orders made by the Full Court, the Tribunal is now obliged to undertake a further review of the delegate’s decision. The Tribunal’s decision upon that review is to be made on the basis of the facts as they appear in the course of that review. ... The findings made by [the original Tribunal] will have no legal status in that further review.

23. In Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, Mr Bushell made a claim under the Repatriation Act for a disability pension for incapacity which was refused by the Repatriation Board and by the Veterans’ Review Board. He applied to the Tribunal for a review of that decision. Brennan J said at 424-425:

Proceedings before the AAT may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant’s case but in substance the review is inquisitorial. Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.

See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ at [26].

24. When conducting a review under the AAT Act the Tribunal takes the place of the decision-maker whose decision is under review. The Tribunal therefore has the same obligations as the decision-maker had at the time that he or she made his or her decision. One of the obligations the Tribunal inherits by reason of the review is the obligation to ensure that it has sufficient information to be able to make the correct or preferable decision. If the parties are not able or fail to provide sufficient information, as the substituted decision-maker, the Tribunal has the obligation to obtain that information.
25. However, that obligation is not addressed in the abstract. The Tribunal must be made aware that there is information which is relevant and will bear upon the ultimate decision before the Tribunal is obliged to obtain that information. The Tribunal might be informed by reason of information which it receives from the parties or it may separately know that such information is available. But, in the end result, there must be an awareness of the availability of some relevant information and a need for the obtaining of that information before the Tribunal is obliged to act in that regard. That is consistent with the Tribunal being substituted as the decision-maker and having inquisitorial powers to obtain information.
26. As Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 shows, there is no legal onus of proof on the applicant to demonstrate error on the “appeal”. Because the Tribunal is substituted for the decision-maker, the Tribunal must make its decision on the material available and before the Tribunal. The decision under review is not presumed to be correct. In a practical sense, however, there may be some information which is peculiarly within the knowledge of a party to the review. If it be the decision-maker, he or she is bound to assist the Tribunal in that regard: s 33(1AA) of the AAT Act. Where the information is peculiarly within the knowledge of the applicant, the applicant needs to present that information to the Tribunal. When the applicant knows where that information can be obtained, the applicant needs to advise the Tribunal.
27. During the hearing of this matter, on a number of occasions, Mr Kowalski claimed that the Tribunal had an obligation to obtain information relating to the facts under examination. He put the obligation, as we have said, in the abstract rather than in practical terms.
28. The Tribunal did, however, accede to Mr Kowalski’s request that it arrange for Dr Thompkins to give evidence because he could not afford to have Dr Thompkins give evidence before the Tribunal.

The claims against Mitsubishi

29. As we have said, Mr Kowalski was employed by Chrysler before he went into the Army and shortly after he was discharged from the Army, he commenced employment with Mitsubishi. Mitsubishi acquired Chrysler’s business in Australia. He remained with Mitsubishi until his employment was terminated either in 1994 or 1998. He and Mitsubishi cannot agree on when his employment was terminated but nothing turns on that on this review.
30. He brought a number of worker’s compensation proceedings against Mitsubishi in relation to the following injuries:

(1) an eye injury in December 1986;

(2) a right middle finger injury in May 1988;

(3) a back injury in May 1989;

(4) emotional distress on 16 August 1991;

(5) a heart attack in December 1997; and

(6) bilateral carpal tunnel syndrome in December 2003.

31. The back injury in May 1989 is much more significant than the previous injuries. That set off a series of events which gave rise to a plethora of litigation.
32. The proceedings which he has brought against Mitsubishi were identified by Bleby J in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154. Between September 1991 and June 2004, there were 45 appearances before a Reviewing Officer, a Judge of the Industrial Court, a Deputy President of the Workers Compensation Tribunal or the Supreme Court.
33. In 1998 the parties met for the purpose of a mediation conducted by Mr S Walsh QC and a settlement was arrived at. Mitsubishi and Mr Kowalski entered into a Heads of Agreement on 27 October 1998 in which Mr Kowalski agreed:
    1. Kowalski on behalf of himself and his dependants hereby agrees to accept the sum of $200,000 in full and final settlement of any entitlements he may have to superannuation, sick leave, compensation in damages arising out of or in the course of his employment with MMAL. In particular, the said sum to be paid with a denial of liability, includes payment in full and final settlement of:

1.1 Any injuries or disabilities in respect of an eye injury in December 1986, a middle finger injury in May 1988, a back and/or left leg injury in May 1989, stress or mental breakdown in August 1991 and a heart attack in December 1997.
1.2 Any outstanding sick leave.
1.3 Any matters related to the termination of his employment with MMAL.
1.4 Any superannuation payable by the MMAL Staff Superannuation Fund.

34. It was a further term of the agreement that Mr Kowalski:

4.1 Not to institute any legal proceedings and/or legal complaints with any Court, Tribunal or body in respect of the matters set out in paragraph 1 hereof nor to join MMAL as a defendant in the action against R J Cole & Partners and, Dowd.
...
4.3 To discontinue all actions and proceedings currently subsisting between Kowalski and MMAL.
4.4 To execute all documents necessary to bring into effect this agreement to make such personal attendances required at any Court, Tribunal or Commission.

35. A year later, on 23 November 1999, Mr Kowalski filed an application in the Workers Compensation Tribunal to have consent orders which were made as a consequence of the agreement reached at mediation set aside.
36. Subsequently, he brought a number of proceedings against Mitsubishi and from about February 2000 until June 2004 those further proceedings were heard in the Workers Compensation Tribunal at the first instance, and on appeal to the Full Bench of the Worker Compensation Tribunal and the District Court.
37. Ultimately, Mitsubishi brought a proceeding against Mr Kowalski for an order that he be declared a vexatious litigant and, as we have said, Mr Kowalski was declared to be a vexatious litigant by Bleby J: Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154.

The Claim

38. On 27 April 2004 the applicant made a Claim for Rehabilitation and Compensation under the SRC Act to the Military Compensation and Rehabilitation Service claiming that he had suffered major depression and generalised anxiety which culminated in a heart attack and open heart surgery. He claimed that the injury occurred, or he first noticed the disease or illness, on 16 August 1991. As part of his claim, he claimed that he had suffered “stress and generalised anxiety and high blood pressure over a long period of time since at least 1982”. This was his first claim against the respondent in respect to any injury since 17 March 1981. As we have already observed, the applicant had been paid compensation under the 1971 Act between 1974 and 1981 for a duodenal ulcer for which liability was accepted by the respondent on 4 April 1974.
39. In answer to the question as to what aspects of his employment contributed to his illness, he wrote:

Defence caused – staff shortages, stress, pressure of work, unreasonable times allocated to complete tasks at work, stress of being called up for national service and stress of thinking about being sent to Vietnam, stress of being charged or going home to see my wife who was sick, stress that caused my duodenal ulcer, stress of being threatened with dismissal for being absent from work at the WorkCover Review Panel, high blood pressure.

40. During his proceedings in relation to his claim for damages and compensation against Mitsubishi between 1989 and 2004, he never claimed that his military service had contributed to his ill-health. That claim was first made six years after he entered into the Heads of Agreement with Mitsubishi. At no time prior to bringing the claim on 27 April 2004 had Mr Kowalski told any of his doctors whom he consulted since 1989 when he first suffered a back injury at Mitsubishi that he had either been in military service or that, as a result of his military service, he had suffered stress, anxiety or a duodenal ulcer. Indeed, his general practitioner, Dr Christina Cheung, wrote on 1 November 2004 to a delegate of the Commission noting that although she had been his treating doctor on a regular basis since 1998, “I have not been aware of the stresses during his military service and furthermore I was not even aware that he was in military service.” She, however, was the first to be told, probably in October 2004, and after he had made his claim for compensation.
41. Specifically, he did not tell his psychiatrist Dr Jagermann, who had treated him between 1991 and 1998, of his military service or of any sequelae as a result of that military service. Nor did he tell Dr Thompkins prior to this date of his military service.
42. All of the doctors whom he consulted were led to believe that his psychiatric state and his physical complications were as a result of his employment with Mitsubishi. It was not until he exhausted every avenue in relation to any claim that he could make against Mitsubishi that he asserted that he was entitled to compensation as a result of his military service.
43. He was cross-examined about his failure to mention his Army service to any of the medical practitioners who treated or examined him after he left the Army.
44. When he brought his claim against Mitsubishi he said that on 16 August 1991 he suffered a psychiatric injury when he was the subject of a false accusation by his employer. He said that at the time his mind was drawn to dwell upon the memory of “a friend who committed suicide two years ago”. He was sent to a psychiatrist, Dr Jagermann who he saw six days after the event. He recounted the incident which we have mentioned.
45. After he commenced this claim he said that during the 16 August 1991 incident he had “a flashback to the time that I had been charged for simply going home to see my wife who had been sent home from work because she was sick”. He was then referring to an incident during his service which we will later address.
46. He was cross-examined as to why he had not told Dr Jagermann about this flashback. He gave frank but nevertheless concerning evidence:

And did you give to Dr Jaggermann (sic) an account of this flashback?---Well, with Dr Jaggermann (sic) I was trying to claim against Mitsubishi, right, so I suppose selectively, either consciously or unconsciously, I was telling him things that would support my claim against Mitsubishi.
Yes. Well, I would suggest you did it consciously, Mr Kowalski, that you left out this issue because it was only a few days prior, on 16 August, that you had the flashback and you took it upon yourself when you were examined by him a few days later not to tell him?---Yes.
So you are a person who is prepared to, through omission, mislead people about what might be the cause of your conditions?---Well, I was claiming against Mitsubishi.
It is irrelevant.
HIS HONOUR: Just let him answer the question.
MR WALLACE: Sorry, Mr Kowalski, please finish your answer?---I said to me, if I’m claiming compensation against Mitsubishi, I’ll tell the doctor what happened to cause my problems with Mitsubishi.

47. Later he was asked about his failure to tell Dr Scanlon, a psychiatrist to whom the applicant was referred by the respondent, about his Army service which Mr Kowalski now says is the cause of all his mental and physical illnesses:

MR WALLACE: Well, you subsequently saw another psychiatrist, Dr Edwin Scanlon, did you not, in October 1999?---He examined me, yes.
And Dr Scanlon asked you, did he not, to tell him what your injuries had been?---Yes.
He didn’t limit that question to Mitsubishi, did he?---No.
And he interviewed you for nearly 2 hours; do you recall that?---Yes.
You didn’t give him any account of this stress in the Army, did you?---Well, again the claim was against Mitsubishi for stress.
He didn’t ask you just about Mitsubishi, did he?---Well, I said what I said at the time and I can’t help it if I didn’t elaborate even further. I am normally criticised for elaborating but here I’ve got a claim against Mitsubishi and in my mind all you do is portray what you want in regards to Mitsubishi. Like the Army, I don’t refer to things that happened at Mitsubishi to claim against the Army. You don’t see me including everything that happened at Mitsubishi for this claim.
Well, you have related, for example, concern about a friend suiciding that you found stressing?---Yes.
That has got nothing to do though with you (sic) claim with Mitsubishi, has it?---No, no. He was a friend who I got on very well – he was a union rep, he actually committed suicide, right, and I was quite upset about that. He had a claim for compensation and they were giving him a hard time, so yes, I mentioned that. You must remember when you are in such a state you haven’t got a clear mind, completely clear mind, but anyway.
Was it the case you were trying to mislead or draw Dr Scanlon away from the prospect that you had had other claims that you say involved a psychiatric disorder?---No.
Well, why not tell him?---I’ve got a claim against Mitsubishi.
Would you agree that that is a form of dishonesty, Mr Kowalski?---No, not in my mind.
Isn’t it misleading the doctor through omission?---Not in my mind.

48. He was again asked about the information he gave to Dr Jagermann:

Now, since 1991 and prior to Dr Jaggermann’s (sic) death, how often were you seeing him?---Once a month.
And in that period did you ever disclose to him that you thought you had an anxiety state caused by your Army service?---Can’t recall.
It’s not recorded in here, is it?---No, no. I don’t know where his notes are.
None of us do but you have had copies of his reports with you?---Yes, but his notes – you see, he took a lot of notes and I tried to locate the notes. Apparently after his death some law firm or something took his estate and I don’t know where the notes are. I tried to get a copy of all my notes; I thought they were mine but they said, no, they belong to Dr Jaggerman (sic).
It was Dr Jaggerman’s (sic) practise though, was it not, to copy you into every report that he wrote about you?---Yes, yes.
And you are familiar with those reports because you had copies as opposed to the notes?---Well, at one stage I would have had copies fro (sic) him, yes.
And do you recall whether in any of those reports there is any reference at all to you having previously suffered an Army caused anxiety?---Well, if I have got a claim for stress against Mitsubishi, I wouldn’t have mentioned Army relates problems.

49. Mr Kowalski thought it was appropriate to give a selective history to his medical practitioners and to medical examiners to suit the particular litigation he was then pursuing.
50. The fact is when he was in litigation with Mitsubishi he blamed all of his mental and physical conditions upon Mitsubishi and, in particular, the two incidents on 9 May 1989 and 16 August 1991. When those claims failed he blamed all of those conditions on his Army service because, as he said, he was told by a friend if Mitsubishi did not cause those conditions it must have been Army service.
51. The following issues are said by the respondent to arise on the four different claims:

S2005/112
Whether the Applicant suffers from an injury and/or disease as defined by the Safety Rehabilitation and Compensation Act 1988 (‘the SRC Act’), or by the operation of the transitional provisions of the SRC Act, its predecessor, the Compensation (Commonwealth Government Employees) Act 1971 (‘the 1971 Act’), as claimed by claim form dated 27 April 2004.
Whether the Applicant is entitled to compensation for “major depression and generalised anxiety, heart attack and open-heart surgery, and Type 2 diabetes” as claimed (‘the claim’) pursuant to the SRC Act.
Whether the claim cannot succeed given that notice of it was provided outside of the prescribed time limits, pursuant to section 53 of the 1971 Act or pursuant to section 53 of the SRC Act.
S2005/308
Whether the Applicant continues to suffer from the condition of ‘duodenal ulcer’ (‘the condition’) as a result of his military service.
If the Tribunal finds that the Applicant does continue to suffer from the condition as a result of his military service:
(a) Whether the condition has resulted in the Applicant being incapacitated for work, in accordance with the provisions of Part II Division 3 of the SRC Act as claimed by the Applicant on 11 May 2005.
(b) Whether, as claimed by the Applicant on 11 May 2005, the Applicant is entitled to compensation for incapacity under the SRC Act as a result of the condition
(c) Whether, as claimed by the Applicant on 11 May 2005, the Respondent is liable to pay compensation to the Application under Part II Division 3 of the SRC Act in respect of the condition.
S2005/309
Whether the accepted condition of ‘duodenal ulcer’ (‘the condition’) has resulted in a permanent impairment as defined in the SRC Act.
Whether the condition has resulted in a permanent impairment which entitles the Applicant to receive compensation under sections 24 and 27 of the SRC Act.
If the condition has resulted in permanent impairment, when the impairment became permanent.
If the condition has resulted in a permanent impairment that became permanent prior to the commencement of the SRC Act, whether there is no entitlement to compensation for permanent impairment having regard to:
(a) Section 124 of the SRC Act;
(b) The provisions of the 1971 Act, given that the 1971 Act did not allow for lump sum payments for permanent impairment of the digestive system.
If the Applicant suffered a permanent impairment due to the condition that became permanent after the commencement of the SRC Act, whether the whole body impairment is at least 10%.
If the Applicant suffered a permanent impairment due to the condition that became permanent after the commencement of the SRC Act, the level of that impairment.
S2006/185
Whether the Respondent properly exercised its power pursuant to section 62 of the SRC Act to issue the reviewable decision revoking the determination dated 22 May 2006 and instead deciding to defer making a decision in relation to the claim for compensation under sections 16, 24, 27 and Part II Division 3 of the SRC Act for ‘psychological and or a psychiatric illness’ until such a time as liability for the psychological or psychiatric illness is determined under section 14 in Administrative Appeals Tribunal Application s 2005/112.
Whether the Respondent should have made a reviewable decision determining the claim in the absence of acceptance of liability under section 14 of the SRC for ‘psychological and or a psychiatric illness’ (Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753).

History

52. These claims relate to events which occurred many years ago and for which there is incomplete evidence. Nevertheless, it remains necessary to make a determination as to whether any of the applicant’s medical conditions were caused or contributed by his service in the Army.
53. In 1967, the year that Mr Kowalski turned 20, Australian forces were serving in Vietnam. When he turned 20 he became eligible to be and was conscripted into the Australian Army. A conscript was entitled to defer military service if he was undertaking a course of tertiary education. It was Mr Kowalski’s evidence that he deferred his military service between 1967 and April 1972 by undergoing further courses of education. He did not wish to go to Vietnam. He was worried about being killed or having to kill someone else. He was worried for his wife who, as we have said, he married on 19 April 1970.
54. On 28 July 1971 the then Prime Minister Mr McMahon told the State Council of the Liberal Party that Australian troops were likely to be withdrawn within six months. On 18 August 1971 Mr McMahon announced in Parliament that the Government had decided to withdraw all remaining combat forces from Vietnam. He did not at that stage give a detailed timetable for the withdrawal but announced that most of the forces would be home in Australia by Christmas 1971. By May 1972 Australia had withdrawn all but its advisory forces from Vietnam.
55. We accept Mr Kowalski’s evidence that he underwent further studies so as to avoid Army service. We also accept his evidence that he was concerned about being sent to Vietnam and of being killed, and of having to kill. We also accept his evidence that he was concerned for his wife if he were required to serve overseas. We accept his evidence that all of those matters acted as stressors.
56. However, Mr Kowalski is not entitled to be compensated for any stress or the result of any stress which was occasioned him before he entered the Army. His entitlement to compensation can only arise after he commenced “employment” in the Army. Section 27 of the 1971 Act imposed a liability on an employer (as defined in s 7) to pay compensation for personal injury “arising out of or in the course of the employment of the employee by the Commonwealth”. Section 29 imposes a further liability in respect of a disease or aggravation thereof contracted where the employment was a contributing cause. Mr Kowalski was not in any relevant employment prior to his induction into the Army.
57. Mr Kowalski entered the Australian Army on 20 April 1972 having undergone a pre-enlistment medical examination on 6 March 1972.
58. He was asked in cross-examination whether he knew that conscripts were entitled to elect as to whether or not they went to Vietnam. He said he was unaware of that. He also said that he had no idea that by April 1972 the Prime Minister had announced a complete withdrawal in August of 1971. It is inconceivable that Mr Kowalski, who had delayed his service for five years so as to avoid being sent to Vietnam, could not have known that the Prime Minister Mr McMahon had announced on 18 August 1971 that all Australian troops were to be withdrawn and would be home by Christmas.
59. It is right, as Mr Kowalski argued in his evidence, that conscription continued after the announced withdrawal of Australian troops from Vietnam but that does not establish, as Mr Kowalski would have us believe, that Australia was still sending its conscripts to Vietnam to fight.
60. We find positively that at the time Mr Kowalski entered service he knew that he would not be sent overseas to fight in Vietnam.
61. He underwent three months basic training at Puckapunyal. He was transferred to Bonegilla. On 1 August 1972 he was stationed at Amberley Air Force base where he remained until he was discharged. Whilst at Amberley, he was employed as a mechanical draftsman. He said he had to do the work of three men. He said he had to work especially hard after national service ended with the election of Mr Whitlam’s government in December 1972 and the existing national servicemen left the Army. He said he was working under stress. Notwithstanding that he was forced to work hard, he elected to remain in the Army, he said, because he was persuaded that to do so would qualify him for a war service loan. Notwithstanding that apparent inconsistency, we accept Mr Kowalski’s evidence on this topic because there is independent evidence to support his claim. His Commanding Officer, Major Fenton, recorded in a report of accident to which we will have further regard:

In my opinion the injury did arise out of the course of the employee’s employment because the member has been placed under great stress and over employed since December 1972 when with the cessation of national service he was performing mechanical drafting duties where previously three personnel were employed. The work programme has been intense since Dec 72.

62. We find that Mr Kowalski worked hard and was under pressure to work hard during his military service.
63. Mr Kowalski gave evidence of a particular incident during his service in 1973 which he said caused him significant stress. He was notified by his wife who was living near the base that she was unwell. He told his Sergeant and Corporal that he was leaving the base to see his wife. He said that a junior officer saw him leaving the base and when he returned he was marched to Major Fenton’s office by two soldiers who had machine guns. He explained what had happened and was told “You’re okay”. He was not charged and no disciplinary action was taken against him. There are no records of this incident perhaps, not surprisingly, because he was not subjected to any form of discipline. There is no contemporary evidence to support Mr Kowalski’s account.
64. The incident was never mentioned by Mr Kowalski to any of his medical examiners until after he made his first claim for compensation to the Commission after July 2004. There is no record that Mr Kowalski ever mentioned the incident to any medical examiner before he suffered his back injury in May 1989. Indeed, there is no evidence that he mentioned this incident to the doctors in the Army who later diagnosed and treated him for his duodenal ulcer. Specifically, there is no record that he mentioned the incident to Dr Gilmore when he examined him. There is no record that he mentioned the accident to Flight Lieutenant Dr Wilson, who treated him in 1973.
65. We are prepared to accept that an incident of the kind occurred. Whether he was marched to the officer under armed guard is problematic having regard to the fact that he was only observed to leave the base, wrongly it was thought, without permission. We are not prepared to find that the incident gave rise to the degree of stress that Mr Kowalski now asserts.
66. Whilst in Army service, Mr Kowalski contracted a duodenal ulcer. The symptoms apparently commenced in May 1973.
67. There are medical records relating to his service in the Army still in existence. They relevantly show:

14 June 73 Pain in lower chest last night (between meals) again after lunch
Occurred after meals
Relieved by Quick Eze
Light Drinker No Aspirin
Pushed with job
O/E (On examination) – NAD (No Abnormality Detected)

15 June 73 Pain is even worse
Breakfast at 8.00am ..Pain at 10.00am
[this line indecipherable]

For 1 RIB [Rest in bed] for 5/7 [5 days] at home
2 Antrenyl 5mgs. 4 times a day
3 Mylanta between meals

21 June 73 Recurrent pilonidal sinus
Specialist
[This is a separate and unrelated physical complaint]

17 July 73 Epigastric pain after food (1 ½ hours)
4-5/52 (weeks). Relieved by antacid

O/E (On examination) NAD (no abnormality detected)
Treatment Kol gel and Merbentyl

30 July 73 No family history of duodenal ulcer
Symptomatic relief from antacid
Barium meal and review See 2 weeks

1 August 73 Diagnosis duodenal ulcer
Duo gastric
Kol Gel See 2 weeks

10 August 73 Symptoms settling with treatment

20 August 73 Night pain ++
Under stress at work
On examination no epigastric tenderness See 1 week
Treatment continuing
Dou Gast
Kol Gel increased to 20 ml. 4 times a day
Librax 3 times a day and 2 at night

24 August 73 Seems better continue treatment

27 August 73 Bleeding PR again no pain
Bright red blood ... Faeces
See surgeon’s comments

O/E (On examination) no piles visible
For ...

68. There is no explanation as to the circumstances in which the medical practitioners noted the reference to work on 14 June 1973 and 20 August 1973, and the reference to stress at work in that later note. It may have been that the matters noted were in response to questions asked by the medical practitioner but there is no point in speculating.
69. On 7 August 1973 the applicant made a claim for compensation for the duodenal ulcer. He completed two forms: a “Statement of Claimant for Compensation”; and a “Report of an Injury”.
70. In the first form Mr Kowalski wrote that he had developed a duodenal ulcer “which was proven at RAAF base Amberley on 1 August 73”. He wrote:

Approx 8 to 10 weeks prior to the above date I developed pains under the rib cage, at that time I was placed on a suspected ulcer treatment by Dr (Flt L Wilson). I was then given a B/A meal & x-rays which proved my condition.

71. In the second form he wrote that the duodenal ulcer occurred by reason of “stresses at work”.
72. On 7 August 1973 Major Fenton said in a document entitled “Report of Accident by Officer in Charge” that the “reporting doctor considers that the duodenal ulcer developed from work stress”.
73. The “Report of an Injury” form included a part for a statement by the Officer-in-Charge. The Officer addressed the question whether the injury arose out of the course of the employee’s employment and wrote:

The member has been placed under great stress & over employed since December 1972 when with the cessation of National Service he was performing mechanical drafting duties where previously three personnel were employed. The work programme has been intense since Dec 72.

74. Later, he wrote:

I strongly support a claim for compensation.

75. The applicant was medically examined on 31 August 1973:

No hiatus hernia br oesophageal reflux could be detected. The stomach was hypotonic and peristalsis was normal. The pyloro duodenal region was somewhat ... but not actually deformed. The ... of the duodenal cap was oedematous and in the base of the cap there is a small ulcer crater present. The duodenal loop was normal. Gastric emptying proceeded with out delay.

76. The presence of a duodenal ulcer was confirmed on 6 September 1973 and liability accepted for it by the Army.
77. On his discharge the applicant was asked to complete a history questionnaire relating to his health. He marked all of the questions negatively except for the question, “23. Recurrent indigestion, ulcer of stomach or duodenum” which he marked affirmatively. In further explanation for that item it is recorded:
    23. X Ray report (PM 112. 31/8/73.) = Duodenal Ulcer.

Member c.o. “heartburn” and epigastric pain.
Having ant-acids with relief.

78. In particular, he denied the following:

20. Frequent severe depression
21. Mental illness – nervous breakdown
...
39. Any other illness or injury

79. He underwent a medical examination and a report was prepared on 19 September 1973 which indicated that the only disability discovered was duodenal ulcer. At the time of discharge, he was assessed as having a degree of incapacity of 15%.
80. A document was created, apparently, on 25 September 1973 entitled “Notification of Medical Assessment” which was signed by an Army officer. It records the Board’s examination of the applicant on 19 September 1973. There are two versions of the document. One has no handwriting on it except a signature. The other has at the top of the document in handwriting the words “Major Depression”. The words are written outside the margin of what must have been the original document. Mr Kowalski seized upon this document as evidence that he was diagnosed as suffering from depression, indeed major depression, whilst in the Army.
81. We reject that contention. We do not accept the words “Major Depression” were written on one version of the document at the time it was created or at any time near the time it was created. We do not know who wrote the words on that version of the document but we do not accept that the words were written by a medical practitioner or that the words reflect any medical practitioner’s opinion of Mr Kowalski’s state of mental health at any time whilst he was in the Army.
82. There are three reasons for that conclusion. First, there is a version of the document which does not have those words on it. That would mean that the words were written on the second version at a later time and after the original had been copied. Indeed, as we have said, the words are written outside the margin of the original document. The words must have been written on a copy. There would not have been any need for a copy of this document at the time it was created. Secondly, if it did represent a considered opinion of a medical practitioner the words would have been written on the original document. There would be no point in making a copy upon which to write the words and at the same time leave the original unendorsed. Thirdly, the term “major depression” was not in use in Australia when this document was created. The words, Professor Goldney said, and we accept, did not enter the psychiatric literature until the mid to late 1970s. The expression was not used in 1973 in the diagnostic systems.
83. We do not need to decide who wrote those words upon the version of the document relied upon by Mr Kowalski. We find that the words do not express any opinion by anyone qualified to give an opinion of Mr Kowalski’s mental health at any time during his Army service or upon his discharge.
84. On 19 October 1973 Mr Kowalski was discharged from the Army and shortly thereafter resumed employment with Chrysler. He was then symptom-free.
85. Subsequently, Mr Kowalski made a number of claims for compensation arising out of his duodenal ulcer, including claims for medical and pharmaceutical expenses which were accepted by the Commission.
86. His first claim after discharge led to him being referred to Dr Hugh Gilmore, physician, who was asked to examine the applicant at the request of the Commonwealth Department of Health in relation to his duodenal ulcer. In a written report dated 26 February 1974, Dr Gilmore relevantly reported:

1. The employee suffered from a duodenal ulcer proven by barium meal.

2. On the balance of probabilities, the condition arose as the result of the stress which started in December 1972, when National Service came to an end as the result of change of Government, and which resulted in heavy pressure and the need to keep to deadlines being placed on the claimant.

...

3. The incident of December 1972 and thereafter are the factors contributing to the development of a duodenal ulcer.

...
3c. Relevant in as much as the work with which the claimant was familiar became a burden by virtue of the quantity required him (it has been stated that he was doing the work that three personnel formerly did).

4. The effects were of a temporary nature, and it would seem reasonable to assume that the effects ceased in about July 1973 when his problem was recognised and treated. However, the healing of the ulcer probably took some months, further treatment, although it seems at the time of discharge in October 1973, he was symptom free and healing can reasonably be assumed at this time.
5. Appropriate treatment with antacid and anti-cholinergic medication has been provided.
6. No restrictions are imposed on the employee’s capacity for employment, other than employment which would expose him unreasonably to stress.
   
87. On 4 April 1974 a delegate of the Commissioner for Employees Compensation advised Mr Kowalski that his claim for compensation had been considered and it had been determined that there was a liability under the SRC Act for duodenal ulcer. He was provided with the formal determination.
88. On a number of occasions in 1974 and 1975 he claimed and was paid compensation leave for his duodenal ulcer.
89. Dr Gilmore reassessed Mr Kowalski and reported on 20 October 1976. He gave the following answers to questions asked of him:
    1. The employee suffered from a duodenal ulcer which was proved by barium meal.

2a. On the balance of probabilities this duodenal ulcer arose as the result of the stress which commenced in December 1972, when National Service came to an end following the change of Government, and which resulted in heavy pressures being placed on the claimant, and the need to keep deadlines in his work schedule.
2b. Not relevant.
2c. Nature of the employment referred to above whilst in the service of the Commonwealth Government, is held responsible for the contraction of a duodenal ulcer.
...
3c. The characteristic of the work performed by the employee for the Commonwealth, and the conditions under which it was peformed, (sic) became a burden to the claimant by virtue of the amount of work required of him, and the tight time schedules imposed on him to have the work completed. He stated to me when I saw him originally, and again today, that he was doing the work that three personnel formerly did, and there is documentary evidence to support this view.

4. Though the provoking factors as described above can be held to be responsible for the development of a duodenal ulcer, and also though these in the main have now abated since discharge from the Services, I think it would be generally acknowledged that once an individual has acquired a duodenal ulcer, it may despite the loss of such stress factors, recur from time to time, requiring continuing treatment with ant-acids and other medication. My interrogation of the claimant today has revealed that since I saw him in February 1974, he has had recurrence of ulcer pain, usually quite quickly relieved by standard ulcer treatment, which he had for some time ready to hand, by virtue of supplies given him at the time of discharge from the Services. The need to acquire further supplies took him along to the designated local medical officer, and it has been following this attendance to Dr. R. Pearlman, the designated L.M.O., that the Department has apparently refused, what I would think should have been a state of continuing acceptance by them of responsibility for the duodenal ulcer which this man has had.
5. The treatment which he needs for this ulcer condition consists of antacid and anti-cholinergic medication, and which from enquiry clearly quickly keeps him comfortable, though it can be anticipated that he will have recurrence of ulcer pain from time to time, and not necessarily related to any present stress factors in his environment. He also keeps to the pattern of having frequent small meals, treatment which I regard as quite appropriate to his condition.
6. I find there are no restrictions imposed on the employee’s capacity for employment, other than aspects of employment which would prevent him from having frequent small meals, and employment which by its very nature imposed unreasonable stress on him. His present employment appears quite satisfactory assuming that the motor industry in which he works remains stable and progressive, and able to provide him with a continuing state of security and employment.
7. There is a clear relationship between the acknowledged duodenal ulcer acquired during service conditions, and the symptoms which he has had off and on since discharge from the Army. From what I have mentioned above, I believe that from time to time he has recurrence of symptoms which are identical with those arising from a duodenal ulcer, and which in all probability will continue to trouble him in the indefinite future. He will need regular medical supervision and supplies of medication to control this problem, and prevent further complications.
   
90. As we have said, he made nine claims in all up to and including 17 March 1981.
91. There is objective evidence that Mr Kowalski was suffering stress at work during his military service. Major Fenton’s statement is to that effect and there is no reason therefore not to accept that evidence and Mr Kowalski’s evidence to that effect.
92. It may be inferred that Flight Lieutenant Dr Wilson, who was treating Mr Kowalski in the middle of 1973, treated his diagnosed duodenal ulcer on the basis that it was either caused or contributed to by stress. That inference arises from the references in his notes of 14 June 1973 and 20 August 1973. In particular, the note of 20 August 1973 would indicate that diagnosis. It may also be inferred that was Flight Lieutenant Dr Wilson’s opinion because, on 20 August 1973, having been told that the pain was more significant at night and that Mr Kowalski was under stress at work, he prescribed Librax. Librax was described in a document sent to the Tribunal by the applicant:

Librax combines in a single capsule formulation the antianxiety action of Librium (chlordiazepoxide hydrochloride) and the anticholinergic/spasmolytic effects of Quarzan (clidinium bromide), both exclusive developments of Roche research.
Each Librax capsule contains 5 mg chlordiazepoxide hydrochloride and 2.5 mg clidinium bromide. Each capsule also contains corn starch, lactose and talc. Gelatin capsule shells may contain methyl and propyl parabens and potassium sorbate, with the following dye systems: FD&C Yellow No.10 and either FD&C Blue No.1 or FD&C Green No.3.
Librium (chlordiazepoxide hydrochloride) is a versatile, therapeutic agent of proven value for the relief of anxiety and tension. It is indicated when anxiety, tension or apprehension are significant components of the clinical profile. It is among the safer of the effective psychopharmacologic compounds.
Chlordiazepoxide hydrochloride is 7-chloro-2-methylamino-5-phenyl-3H-1,4-benzodiazepine 4-oxide hydrochloride. A colorless, crystalline substance, it is soluble in water. It is unstable in solution and the powder must be protected from light. The molecular weight is 336.22.
...
Quarzan (clidinium bromide) is a synthetic anticholinergic agent which has been shown in experimental and clinical studies to have a pronounced antispasmodic and antisecretory effect on the gastrointestinal tract.

93. We think it safe to assume that Librax was designed because some medical practitioners at that time held the opinion and earlier medical opinion had been that stress caused or contributed to the occurrence of a duodenal ulcer. The drug was designed to alleviate stress and to cure the ulcer.
94. Another drug which was available and prescribed at this time was Librium. That drug contained a chemical, chlordiazexpoxide which had the effect of reducing anxiety. It was prescribed for symptoms of anxiety.
95. The evidence is clear that Dr Gilmore was of the opinion in 1974-1976 that stress caused or contributed to a duodenal ulcer and that Mr Kowalski’s duodenal ulcer had been caused or contributed to by the stress which he was occasioned during his military service.
96. Mr Kowalski endeavoured to have the expert witnesses who were called say that the Librax was prescribed by Flight Lieutenant Dr Wilson to treat Mr Kowalski’s stress/anxiety. Dr Thompkins was prepared to give that evidence but neither Professor Goldney nor Dr Reid was prepared to agree with that proposition.
97. However, it is enough to say that the evidence before the Commission in 1974-1976 was that stress caused a duodenal ulcer and that, in Mr Kowalski’s case, he had been subjected to stress which, in the opinion of Dr Gilmore, had caused or contributed to that duodenal ulcer. In those circumstances, the Commission accepted liability for Mr Kowalski’s duodenal ulcer.
98. That determination remains in place at the present time. Although for reasons which we will explain, we think Dr Gilmore’s opinion to be wrong and that, in fact, stress does not cause or contribute to the contraction of a duodenal ulcer, we do not think it would be appropriate to set aside that determination. The Commission did not seek such a result and, in those circumstances, although we think the determination is based upon a flawed opinion, we think the determination should stand. For reasons which we will give, however, that does not mean that Mr Kowalski can succeed on his claim for incapacity benefits or for compensation for impairment as a result of his duodenal ulcer because, as a matter of fact, the uncontradicted evidence is that he no longer has a duodenal ulcer. For reasons which we will give, he is also not entitled to compensation for permanent impairment because the 1971 Act did not provide for payment of a lump sum compensation for a duodenal ulcer prior to the enactment of the SRC Act.
99. Mr Kowalski’s evidence was that when he returned to Chrysler he was working seven days per week with one Sunday off a month as well as overtime on two days per week which he found stressful. His working conditions were stressful.
100. In an undated letter written more than two years after his discharge and probably prior to 17 November 1976, Mr Kowalski said:

On being discharged from the 5 Base WKSP at the Amberley Air Force Base in Queensland, in mid 1973, I was given a prescription of five bottles of Kolantyl Gel, Mylanta tablets and Lybrax tablets. During the past two and a half years, since being discharged, I have been having ulcer pains, but because I had a supply of medication, I saw no reason to see a doctor about the problem with the ulcer.
I have now run out of Kolantyl Gel (which is what was most effective as a pain relief) and after being prescribed some Kolantyl Gel by my doctor I am claiming a refund for it and the doctor’s visit on my approved Army Compensation Reference No. 73/3959.

101. On 17 November 1976 the delegate of the Commissioner for Employees Compensation considered that liability for the ulcer condition should continue to be found and that Mr Kowalski should be entitled to compensation in respect of any medical expenses and certified periods of incapacity for work due to that condition.
102. In 1980/1982 he was involved in an accident whilst on a motor cycle which resulted in an arthroscopy to his left knee. On 24 August 1984 he was diagnosed as suffering from hypertension which was treated by medication. Mr Kowalski said he had high blood pressure in the early 1980s which Mr Kowalski attributed to stress because of his general working conditions. His general practitioner’s notes show that his blood pressure was high in the early 1980s but he was not diagnosed as having hypertension until 24 August 1984 for which he was prescribed drugs. In 1986 a foreign body lodged in his right eye and was removed by his general practitioner. He is left with a dry eye. He suffered a right middle finger injury in 1988. In 1989 he ceased medication on his own initiative for hypertension. His general practitioner subsequently agreed that he could do without medication.
103. On 9 May 1989, whilst at work, Mr Kowalski slipped in a pool of oil lying on the factory floor and sustained a back injury. Mr Kowalski was able to recommence work for about two and a half months but then claimed that he was unable to continue to work. He was examined by orthopaedic surgeons, one of whom said that his condition was stable and that he could resume work. That led to a dispute between Mr Kowalski and Mitsubishi in relation to a claim for compensation which he made under the Workers Rehabilitation and Compensation Act 1986 (SA).
104. The workers compensation claim required Mr Kowalski to attend conferences with WorkCover and in the District Court. In accordance with a company protocol, Mr Kowalski had to obtain the permission of his supervisor to attend Court and conferences with WorkCover. Each fortnight he was obliged to sign a timesheet indicating hours worked which was used to calculate his wages. Apparently, Mr Kowalski on one occasion did not indicate that he had attended a conference and was therefore paid for a full day’s work although he was absent for part of the day.
105. On Friday, 16 August 1991 Mr Kowalski was called to the office of the Employee Relations Manager of Mitsubishi. There is a dispute as to what occurred at that meeting but it is no part of this inquiry to determine what occurred. Mr Kowalski said that he was accused of committing fraud and threatened with dismissal. He said that he broke down in front of the others at the meeting and suffered physical symptoms including pins and needles in the arms and legs and acute stomach discomfort. He told medical practitioners that his mind was drawn to dwell on the memory of a “friend who committed suicide two years ago”. He did not tell them that he had a flashback to the incident when he was “frog marched” at Amberley.
106. He did not work at Mitsubishi again, although his employment was not terminated until, as we have said, either 1994 or 1998.
107. His general practitioner referred him to a psychiatrist, Dr Karl Jagermann who first saw Mr Kowalski on 22 August 1991. It would appear that Dr Jagermann was the first psychiatrist that Mr Kowalski had consulted. In his letter of report dated 23 August 1991, Dr Jagermann recorded as part of Mr Kowalski’s history:

The examination of the more distant past revealed that Mr Kowalski had been with Mitsubishi Motors for 26 years where he was employed as a tooling analyst. Whereas he had ‘an anxiety problem years ago, it was brought under control’ upsetting events of the immediate past proved that otherwise with Mr Kowalski falling victim to injury, antagonism vicissitude and rejection promoting tension and concern and ‘distrust of everything’.

108. Dr Jagermann did not record any matter of relevance relating to Mr Kowalski’s service in the Army. Indeed, there is no reference to Mr Kowalski having been in the Army. It may be inferred, because of the detail apparent from the report, that Dr Jagermann was not given any information relating to the applicant’s Army service. Dr Jagermann did not record any history of a duodenal ulcer. Mr Kowalski’s evidence, to which we have referred, confirms that inference.
109. Dr Jagermann was of the opinion that Mr Kowalski was suffering from dysthymia which incapacitated him from work. He thought he had a pathologically intense state of anxiety secondary to exposure to an unwarranted verbal attack on Friday, 16 August 1991. He deemed Mr Kowalski unfit to work and provided him with a medical certificate covering him from 22 August 1991 to 15 September 1991 inclusive.
110. Dr Jagermann subsequently issued certificates of unfitness to work and Mr Kowalski did not resume his employment with Mitsubishi.
111. In October 1991, Mitsubishi sent Mr Kowalski to Dr Edmund Scanlon, psychiatrist, for an assessment. On 28 October 1991 Dr Scanlon provided a very detailed report in which he recorded a history of the initial injury being a left lateral disc protrusion at the level of his lumbo-sacral spine which had caused Mr Kowalski to suffer a left S1 compressive sciatica.
112. Mr Kowalski gave Dr Scanlon a very long history about his difficulties with Mitsubishi and its management, and the way in which management had dealt with him since at least 1986. He told Dr Scanlon that he was sacked five or six years previously for refusing to go into permanent afternoon shift. Eventually, after a Commission hearing, he agreed to go on to that shift. He recounted differences he had had with a supervisor at work. He had commenced keeping a diary on 26 January 1989 in which he recorded his employer’s conduct insofar as it related to him. He went into lengthy detail in relation to a motor vehicle which he had bought from Mitsubishi and the difficulties he had had with Mitsubishi.
113. Whilst Dr Scanlon took a most detailed history of events in Mr Kowalski’s life, there is no mention of Mr Kowalski ever having been in the Army. Dr Scanlon recorded that Mr Kowalski had started work at Mitsubishi in 1964 when aged 17. There is nothing in the history taken that Mr Kowalski’s employment was ever interrupted by Army service. There is, as well, no mention of Mr Kowalski ever having suffered from a duodenal ulcer. He does, however, record that Mr Kowalski had a motor cycle accident in 1980/1982 and a foreign body in his right eye in 1986. He took a long history of the 1989 incident which was said to give rise to the bad back injury. Mr Kowalski’s evidence confirms that Dr Scanlon was not told of his service in the Army, any stress suffered in the Army or Mr Kowalski contracting a duodenal ulcer.
114. Dr Scanlon was of the opinion that Mr Kowalski was suffering from depression of middle age relating to his personality and style. He was suffering from paranoid features. He said Mr Kowalski had a mixed anxiety/depressive state.
115. Mr Kowalski continued to consult Dr Jagermann for treatment for his psychological problems. On 23 February 1993 Dr Jagermann reported:

... there is a direct and convincing line of development and evolution between the occasioning of Mr Kowalski’s industrial back injury and the causation of physical stress and the subsequent causation of emotional injury and psychological distress upon Mr Kowalski finding himself unfairly and unjustly “got at” at work ...

116. Mr Kowalski was advised, so he said, to claim damages (rather than worker’s compensation) against Mitsubishi in the District Court under the Occupational Health legislation. The action was unsuccessful and on 3 July 1992 he was ordered by Judge Lee to pay $12,000 costs. Mr Kowalski was of the opinion that his lawyers were negligent in the presentation of his claim against Mitsubishi and he brought a claim against his former lawyers. That claim was also unsuccessful and Mr Kowalski was ordered to pay $173,000 costs. As we understand it, payment of those costs has still not been made.
117. At or about this time, he assumed the conduct of his worker’s compensation claims. Dr Jagermann, in a series of reports between 1992 and 1996, identified the history of those claims and Mr Kowalski’s reactions.
118. Sometime in 1995 Mr Kowalski was again diagnosed with hypertension and was again prescribed drug therapy.
119. On 6 August 1996 Deputy President Judge Gilchrist sitting in the Workers Compensation Appeal Tribunal dismissed an appeal from a review officer who had made a determination confirming a determination made by Mitsubishi rejecting the applicant’s claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1986 (SA): Kazimir Kowalski v Mitsubishi Motors Automotive Ltd (No 2) [1996] SAWCAT 111.
120. On 11 April 1997 Deputy President Judge McCusker dismissed an application by Mr Kowalski to set aside consent orders which had been made in the Workers Compensation Tribunal. Judge McCusker rejected Mr Kowalski’s evidence which he found to be unreliable.
121. On 26 December 1997 Mr Kowalski suffered a myocardial infarction and on 27 December 1997 was admitted to the Flinders Medical Centre. On 6 January 1998 Mr Kowalski underwent double bypass heart surgery. He was discharged from the Flinders Medical Centre on 13 January 1998.
122. On 7 April 1998 Dr Jagermann issued a medical certificate in which he said:

After examining the worker, it is my opinion that he is suffering from:
After effects of recently sustained myocardial infarction secondary to stress overload, particularly events of hectic prolonged and sleep depriving written Court submissions taking place prior to suffering his heart attack with the onset of symptoms emerging on 26.12.97 and Kaz’s myocardial infarction becoming established on 27.12.97.

123. Dr Jagermann said in a report dated 15 April 1998, after referring to that certificate, that he had last seen Mr Kowalski a week before he suffered his myocardial infarction when he discerned that Mr Kowalski was visibly labouring under disquiet and pressure. He said in his report that there was a positive correlation which had been established between “an overburden of stress and promotion of myocardial disease”. He concluded:

In my view it is therefore legitimate enough to invest Kaz with the likelihood and probability that his myocardial infarction was indeed brought about by unrelenting and untoward work pressures, persisting work conflict and work derived and cost intensive Court proceedings left single-handedly to Kaz to sort out and manage – directly responsible for, and contributing toward the making of his heart attack.

124. At about this time on 1 April 1998 Mr Kowalski resumed pharmaceutical treatment again for hypertension.
125. On 22 April 1998 he lodged a further claim for compensation against Mitsubishi alleging the “aggravation, acceleration, exacerbation and deterioration of a pre-existing heart disease and depression, heart attack (myocardial infarction)”. He based his claim on the stress which he had suffered for long periods without relief whilst preparing for legal actions in the Workers Compensation Tribunal, the District Court, the Industrial Court and the Supreme Court.
126. On 3 September 1998 Dr Sangster, cardiologist, reported that Mr Kowalski had advised him that he had been particularly stressed over the last few years whilst involved in his various claims against his employer. Mr Kowalski told him that stress had aggravated his blood pressure, which subsequently aggravated his coronary heart disease and subsequent infarction. It was Dr Sangster’s opinion for that to be a perfectly reasonable hypothesis and said he would support it:

... I believe that the stresses perceived by the worker in dealing with these legal cases contributed to the existing hypertension and made it more difficult to control and subsequently aggravated the underlying tendency to coronary artery disease and eventual infarction.

127. Professor McFarlane interviewed Mr Kowalski on 25 August 1998 for the purpose of providing a medico-legal report. He said that Mr Kowalski told him that he had suffered his myocardial infarction at 11.00 pm on 26 December 1997 and claimed that the infarction was due to events of 22 December 1997 where the barrister acting for his employer tried to prevent the proceeding going further. Mr Kowalski told him that on the date of his myocardial infarction he was updating his reports of the review hearing, having worked from 10.00 am to 10.30 pm.
128. Professor McFarlane offered the opinion that the diagnosis of dysthymia made by Dr Jagermann and Dr Scanlon was still appropriate. Professor McFarlane thought that Mr Kowalski had suffered stresses in his litigation.
129. On 19 October 1998 Dr Aylward, a cardiologist, expressed the opinion that the opinions given by Dr Hetzel and Dr Sangster that Mr Kowalski’s stress would have aggravated his hypertension and his hypertension would have aggravated his coronary heart disease, appeared to him to be reasonable.
130. Professor McFarlane was called upon to consider the origin of Mr Kowalski’s stress and he reported on 27 October 1998. He accepted that Mr Kowalski was suffering from dysthymia which was likely to have been exacerbated by the ongoing legal proceedings. In particular, Professor McFarlane thought his mental state had deteriorated by reason of a major depressive episode as a result of the rejection by Judge Lee in the District Court on 3 July 1992 of his claim for common law damages.
131. He also thought that a further cause of distress was a rejection in March 1994 of his stress claim related to the August 1991 incident and stress caused by his perception of his former solicitors and his perception of the conduct of Mitsubishi’s solicitors and counsel.
132. Professor McFarlane was asked to comment as to whether Mr Kowalski’s psychiatric condition was due to or aggravated by the back injury which occurred on 9 May 1989 and in his report of 27 October 1998 he said:

The original report of Dr Jaggermann (sic) of 23 August, 1991 documents how Mr Kowalski was particularly distressed following the counselling session which occurred and on this occasion he also was drawn to the memory of a friend who committed suicide two years previously in similar circumstances.

The counselling session is the 16 August 1991 meeting.

133. Professor McFarlane said that in his opinion Mr Kowalski was suffering from a psychiatric condition, namely dysthymia, about which he said:

The current stress complained of by Mr Kowalski is the ongoing litigation and the attitude taken to him by Mitsubishi and their legal counsel. An individual who suffers from dysthymia is likely to find life stresses more upsetting than an individual without such a condition. His condition is also likely to increase the sense of aggravation and distress as a consequence of the ongoing legal proceedings. The essence of the issue, is whether the legal proceedings are a direct consequence of his continued pursuit of litigation and whether these [are] matters that he has either initiated or whether they are initiated by his employer.

134. It was Professor McFarlane’s opinion that the stress which Mr Kowalski suffered was a result of a judgment given by Judge Lee in the District Court on 3 July 1992 which caused a significant decline in his mental state which led to a major depressive episode. A further cause of his distress was a rejection in March 1994 of his stress claim related to the August 1991 counselling session. His failure to have consent orders which reflected the settlement set aside was a further factor in his distress. Another cause was his sense of persecution and mistreatment by his legal counsel.
135. In summary, Professor McFarlane said:

Consistently he had stated that the counselling session in 1991 was the cause of his stress. His complaints about the back injury and finger injury appears (sic) to have only begun after the loss of the appeal. This indicates his propensity to misattribute the onset of his symptoms. As outlined in my evidence for the Review Officer, this is a major cause when judging patients/plaintiffs’ capacity to correctly identify the factors leading to the onset of their distress.

136. He concluded by saying that, in his opinion, there was no known relationship between dysthymia and hypertension.
137. On 27 October 1998 Mr Kowalski and Mitsubishi executed the Heads of Agreement, to which reference has already been made: [33].
138. On 5 November 1998 Review Officer Duigan made a consent order:

With the consent of both parties I hereby dismiss all claims made by Mr Kowalski against Mitsubishi which are currently before the review panel.

139. On 23 November 1999, notwithstanding the provisions of the Deed, Mr Kowalski filed an application under s 88H of the Workers Compensation and Rehabilitation Act seeking to have the orders made by the conciliation officers revoked as a result of Mr Kowalski discovering in other proceedings that “the employer had failed to acted (sic) in good faith, therefore, the terms of the agreement which were made in good faith have not been met”.
140. The thrust of Mr Kowalski’s case was that he had not been provided with a draft report which had been written by Professor McFarlane and had been misled about a report from a Dr Sangster. The application was dismissed.
141. The medical evidence contained in the reports of Dr John Sangster of 3 September 1998, Dr Peter Hetzel of 22 September 1998 and Dr Philip Aylward of 19 October 1998 supports the hypothesis that the stress and strain that Mr Kowalski suffered after 1989 in pursuing his remedies at common law and under workers compensation legislation contributed to his hypertension which led to a progression of ischaemic heart disease which, in turn, resulted in the acute myocardial infarction and the need for coronary artery surgery.
142. Dr Cheung provided a medical report dated 23 May 2005 detailing the history Mr Kowalski had given Dr Cheung in relation to his duodenal ulcer. Mr Kowalski first consulted Dr Cheung on 3 January 1995 complaining of a burning sensation in his throat which he had for a period of two years but which was relieved by Quikeze. A barium meal undertaken was normal but he was referred to Dr Williams for endoscopic examination. Mr Kowalski did not keep that appointment. He told Dr Cheung that he could not afford the investigation. Instead, Dr Jagermann commenced him on Pepcidine and his symptoms resolved.
143. He returned to Dr Cheung in July 1998 in relation to stress-related problems. He was treated with Rani 2 for his dyspeptic symptoms. Because he was still symptomatic on 9 December 1998, he was referred to Dr David Hetzel, a gastroenterologist who carried out an endoscopy upon which he reported on 7 May 1999 saying that Mr Kowalski had a mild gastritis and Mr Kowalski was positive for Helicobacter Pylori. The duodenum was then normal. He was treated by Dr Hetzel to eliminate the Helicobacter Pylori and a subsequent urea breath test indicated that the helicobacter had been eradicated.
144. It was Dr Hetzel’s opinion that as at July 1999 that Mr Kowalski was not suffering from a duodenal ulcer. In due course, Dr Reid reached the same opinion.
145. After Dr Jagermann’s death, Mr Kowalski’s general practitioner, Dr Cheung, referred him to Dr Zsolt Lukacs, psychiatrist. In a report dated 18 November 1999, Dr Lukacs records that Mr Kowalski told him that in the past the stress of his WorkCover claim had been associated with cardiac problems, including a heart attack and hypertension. Mr Kowalski also told Dr Lukacs that his lifestyle revolved extensively around litigation. Dr Lukacs does not record that he was told by Mr Kowalski that he had been in the Army.
146. Some time in July 2003 Dr Cheung referred Mr Kowalski to another psychiatrist, Dr Richard Thompkins who reported on 11 July 2003. Dr Thompkins’ report is important because his evidence was relied upon by Mr Kowalski in support of these applications.
147. Dr Thompkins introduced his report with the following comments:

Thank you for referring Kaz who I had the opportunity to interview on the 7th July 2003. His is an extraordinary tale of progressive embroilment with the legal system.
Of course, my sole responsibility is Kaz’ psychiatric welfare.
However, that can only really be understood in the context of, firstly, a physical injury sustained at work in 1989 and, secondly, his progressive descent into the interstices of the legal system.

148. He took a history from Mr Kowalski including his schooling. He noted that Mr Kowalski joined Mitsubishi in 1964 at the age of 17 and that he worked for the next 30 years with Mitsubishi as a production engineer and toolmaker. He did not record any history of Mr Kowalski being in the Army. It may be inferred that he was not told by Mr Kowalski that Mr Kowalski had been conscripted and served in the Army in 1972 and 1973. Mr Kowalski’s evidence, and Dr Thompkins’ evidence, would confirm that.
149. Insofar as his medical history is concerned, Dr Thompkins wrote, “Prior to 1989, his only Workcover claim was in 1988 for a minor finger injury.”
150. He then documented the injury which Mr Kowalski suffered in 1989 to his lumbar spine and then dealt with what he described were Mr Kowalski’s forensic dramas:
     1. 1994 was the last time he attended the work place. He was at that point deemed by the employer to be no longer employed, on the basis of a legal doctrine known as Kaz having “frustrated the contract”.

On Kaz’ account, this had far more to do with an exacerbation of his back injury (April 1991) and with his suffering a psychiatric decompensation, once again probably in 1991, leading to his referral to a psychiatrist.

2. Kaz was ultimately dismissed from his employment in 1998, receiving an ex gratia payment, the amount of which he was disinclined to share with me. Since that time, Kaz has been financially supported by his wife.
3. Between 1991 and 1998, he regularly attended a psychiatrist, frequently weekly or fortnightly. Unfortunately, in 1998 the psychiatrist in question committed suicide.
4. After unsuccessfully attempting to form a therapeutic alliance with another psychiatrist, Kaz has for the last four years been solely looked after by his general practitioner.
5. Through a combination of legal events which I more or less was able to follow, but the details of which seem unnecessary to be repeated here, Kaz has problems including the following:-

a). A debt of $175,000 for unpaid legal fees.

2. These legal fees allegedly arise because of his attempts to sue the firm of solicitors which negligently allowed his claim for the 1991 exacerbation of his back injury to become statute barred (because of excessive delay).

100. On Kaz’s account, a District Court Judge made what is, on its face, an unlawful order for costs pursuant to Rule 101. Somewhere tied in with all this are further bills of costs, which Kaz has not paid, on the reasonable grounds (as explained to me) that the parties on the “Allocaturs” were expressed the wrong way round. In other words, it is not Kaz who owes the money to the solicitor, but the other way round.

4. Be that as it may, Kaz has to attend next month to “pay” these debts which are in fact owed to him, in default of which a warrant will be issued for his arrest.
5. Kaz has the distinction of apparently being an unrepresented litigant in the High Court of Australia. This concerns an application for Leave to Appeal, due for hearing in Adelaide in the next couple of months, wherein Kaz is taking proceedings against the Mitsubishi Superannuation Fund who have refused his access to $200,000 in accumulated superannuation entitlements. Their apparent reason for so refusing is that Kaz is only deemed to be temporarily unfit for work, and not permanently incapacitated. This decision has been reached notwithstanding that he has been under essentially constant psychiatric care for the past twelve years; that he has suffered a heart attack and required a Coronary Artery Bypass Graft; that he has high blood pressure, ongoing back problems, numerous gastrointestinal problems, and various other ailments which you list in your very helpful referral letter.
   

151. Dr Thompkins then discussed “other aspects of the history”. He noted that Mr Kowalski had had a left knee arthroscopy after a motor cycle accident in 1982 and he also noted that there was no reported forensic history.
152. He discussed Mr Kowalski’s family and wrote:

Furthermore, I failed to elicit any history suggestive of any pathologically raised levels of anxiety. When I started talking about panic attacks, Kaz digressed into the palpitations which heralded his heart attack in 1997. I understand that these cardiac symptoms have disappeared with the assistance of the Coronary Artery Bypass Graft.
By contrast, depressive symptomatology is longstanding and profound.
Ever since 1991, Kaz appears to have been chronically depressed to some degree. At initial presentation back in those days, he was not eating, not sleeping, he had become reclusive, his brain was filled beyond capacity, and he lacked energy and motivation.

153. Dr Thompkins discussed Mr Kowalski’s symptoms since 1991 and addressed Mr Kowalski’s pre-morbid personality and said:

Premorbidly, hobbies included going for walks, collecting stamps, playing tennis and watching golf. Nowadays, his only distractions are the computer and researching legal texts in connection with his ongoing litigation.
To summarise role collapse, premorbidly Kaz portrayed himself as happy, outgoing, sociable and friendly. Prior to the recent introduction of the SSRI, he portrayed himself as sad, pessimistic, reclusive, chronically suicidal, and “glad that I got rid of the gun.”

154. Dr Thompkins offered as his opinion:

In diagnostic terms, I trust it sufficiently appears that I think Kaz has suffered a life threatening episode of Major Depression. This has been variably treated, with differing degrees of success, since about 1991. The recently instituted Luvox appears to have been a very timely intervention.

155. The striking aspect of Dr Thompkins’ opinion is that there is no reference whatsoever to Mr Kowalski’s service in the Army or any anxiety, depression or any other form of mental illness prior to 1991.
156. Dr Thompkins sheets home the whole of Mr Kowalski’s mental problems to post-1989 events. That indeed was Professor McFarlane’s and Dr Jagermann’s opinion. That was Mr Kowalski’s case in the State compensation claims.
157. On 27 April 2004 Mr Kowalski made his first claim for compensation to the Military Compensation and Rehabilitation Service under the SRC Act. We have already set out the key aspects of that claim. At the time he made that claim, as we have demonstrated, he had not told any medical practitioner at any time after at least 1989 and probably earlier, that he had served in the Army or that he had suffered stress or that he had been diagnosed with a duodenal ulcer whilst in service.
158. On 1 July 2004 Mr Kowalski wrote to the Commission claiming he was suffering from Type 2 Diabetes contributed to by weight gain and obesity as a result of his military service.
159. On 1 November 2004 Dr Christina Cheung wrote to a delegate of the Commission in response to a request for a report on Mr Kowalski “regarding his claim for compensation for a number of conditions which he attributes to stress and anxiety in military service which led him to becoming overweight and suffering from the conditions arising from his physical state”.
160. This is the first mention in a medical report of a claim for stress and anxiety during Mr Kowalski’s military service. Dr Gilmore, of course, had in 1974, and again in 1975, offered the opinion that Mr Kowalski’s duodenal ulcer was as a result of stress in his work environment. There will be a need to examine that opinion in the light of contemporary medical science but it is enough to note at this stage that Dr Gilmore did not indicate that Mr Kowalski ever suffered anxiety. The stress, in Dr Gilmore’s 1974 and 1975 opinion, was the cause of the duodenal ulcer. It was not suggested by Dr Gilmore that the stress was the cause of any other disability.
161. Dr Cheung’s report is the first occasion where a medical practitioner suggested that Mr Kowalski suffered from stress and anxiety as a result of military service which has led him to become overweight and suffering from conditions arising from his physical state.
162. Dr Cheung identified the conditions which have been identified above and, in addition, made reference to a duodenal ulcer:

Duodenal ulcer H/P eradication 1999
Chronic dyspepsia

163. In relation to his military service, Dr Cheung writes:
     3. I have only been his treating doctor on a regular basis since 1998. Most of the stresses he has been under have been caused by his WorkCover claim. I have not been aware of the stresses during his military service and furthermore I was not even aware that he was in military service. In my opinion as his treating doctor from 1998 all the conditions secondary to stress and the anxiety depression itself have been caused by his ongoing dispute with Mitsubishi relating to his WorkCover claim.
     4. In my opinion except for D/U the answer is yes.

...

9. In my opinion the factors contributing to his conditions are stresses relating to his WorkCover claim and lifestyle

...
12) a) Mr Kowalski is totally incapacitated for work because of his major depression which is currently treated by Dr. Richard Thompkins

2. The period of incapacity is ongoing and he is being reviewed by Dr. Thompkins on a regular basis

13. Ongoing psychotherapy with Dr R. Thompkins, anti-depressants, anti H/T, low dose aspirin, statins and PPI
    
164. It is interesting to note that Dr Cheung was not aware that Mr Kowalski was ever in military service until presumably shortly before that report was written. That would seem to be borne out by a later report of Dr Cheung dated 23 May 2005 in which the general practitioner addressed Mr Kowalski’s history of duodenal ulcer.
165. In Dr Cheung’s report of 1 November 2004 she mentions that the applicant was diagnosed as suffering from Type 2 diabetes which was “secondary to sedentary life style and obesity”.
166. On 16 February 2005 Dr David Hetzel who had carried out an endoscopic examination of Mr Kowalski in 1999 wrote to the Tribunal. Dr Hetzel had first seen Mr Kowalski in November 1998 in relation to an abnormal liver function test. At that time, he noted a past history of duodenal ulcer and that a barium meal in 1973 showed a small ulcer crater in the base of the duodenal cap. He noted that Dr Gilmore’s opinion in 1974 was that duodenal ulcers were caused by stress.
167. On 7 May 1999 he carried out an endoscopy at the Royal Adelaide Hospital which showed a small sliding hiatus hernia without ulcerative oesophagitis. As already noted, Mr Kowalski was then positive for Helicobacter Pylori and was treated with Ranitidine bismuth citrate, Clarithromycin and Amoxicillin for the Helicobacter Pylori. The Helicobacter Pylori was eradicated by 1 July 1999. Mr Kowalski did not then suffer from a duodenal ulcer and he has not suffered from a duodenal ulcer since that time.
168. Dr Hetzel was asked to address the question of the cause of Mr Kowalski’s duodenal ulcer on the basis of current mainstream medical opinion. He wrote:

The theories of stress causing duodenal ulcer have largely been discounted. The major risk factors include Helicobacter pylori, and the use of aspirin or anti inflammatory drugs. Mr Kowalski’s ulcer occurred in the 1970’s and at that stage I am not aware that he had received aspirin or anti inflammatory drugs, although he has received both of these since that time in the late 1980’s for back pains and in the 1990’s for ischemic heart disease following his heart attack in 1997 and coronary artery vein grafting in 1998.
In some individuals without Helicobacter pylori or aspirin or NSAID usage, duodenal ulcer can still occur for reasons that are unknown. There is a weak inherited family tendency which does not appear to be the case with Mr Kowalski. There are also rarities such as diseases which cause hypersecretion of gut hormones such as gastrin or histamine but none of these appear to apply to Mr Kowalski.
...
You ask is there a causal relationship between a duodenal ulcer as diagnosed above and his military employment. In my opinion the duodenal ulcer is unlikely to be directly due to his military employment. We know that in most individuals Helicobacter pylori is contracted before the age of 5 years, usually from parents or siblings or other individuals who are in close physical contact with the patient in childhood. I am not aware of any evidence that members of the military are at any greater risk of suffering from Helicobacter pylori or duodenal ulcer than a civilian population of similar age, sex, social class or country of birth, all factors which may of course influence the presence of H. pylori and the risk of ulcer disease.
In my opinion it seems likely that Mr Kowalski would have suffered from the condition regardless of his military employment. Please let me know if there are any other questions that you require answered.

169. Dr Hetzel was of the opinion that Mr Kowalski would need acid inhibition for heartburn and regurgitation because of the condition of reflux oesophagitis and to that extent required ongoing treatment for gastrointestinal symptoms.
170. It would appear from a report written by Dr Thompkins on 14 April 2005, Mr Kowalski first asked Dr Thompkins to express an opinion as to whether or not Mr Kowalski’s service in the Army “materially or substantially caused or contributed to [Mr Kowalski’s] present psychiatric decompensation” shortly before that date.
171. Before addressing that opinion it should be noted that Mr Kowalski did not apparently tell Dr Thompkins, his treating psychiatrist, that he had been in the Army and suffered a duodenal ulcer until 21 months after first seeing him. If, as Dr Thompkins says, he has seen Mr Kowalski every month then Mr Kowalski did not tell Dr Thompkins of these facts at about 20 consultations.
172. On 14 April 2005 Dr Thompkins referred to Dr Gilmore’s reports of 26 February 1974 and 20 October 1975 (sic) that Mr Kowalski’s working environment in the Army gave rise to the ulcer through his psychological mechanisms. He said:

To the best of my knowledge, it is the case that ever since your time in the Army you have never been free of psychiatric symptoms. This appears to be amply borne out by the transcript of Doctor Jagermann’s evidence in the hearing dated 6th May 1993.

173. Two things should be noted in relation to this paragraph of Dr Thompkins’ report. Prior to writing his report, he had not known that Mr Kowalski had been in the Army. He could never have had the knowledge which he claims. At best, he could say that he was told of those matters by Mr Kowalski.
174. The transcript of Dr Jagermann’s evidence in the hearing of 6 May 1993 was not put before the Tribunal and we have not had access to it. However, we can assume because Dr Jagermann had no knowledge of Mr Kowalski’s service in the Army that Dr Jagermann did not address Mr Kowalski’s Army service and therefore could not have made the statement in the first sentence of the paragraph.
175. Dr Thompkins concluded:

Moreover, given that there have now been judicial determinations that your subsequent Workcover claim against Mitsubishi has found an absence of psychiatric decompensation attributable to your time with Mitsubishi, (here I am accepting your understanding of the decision), then there equally appears to be no basis for the suggestion that any psychological injury relating to your military service has, so to speak, been subsumed by subsequent events during your employment after leaving the Army.

176. It is hard to understand how Dr Thompkins could reach that opinion. He had no knowledge of any psychiatric symptoms claimed to have been suffered by Mr Kowalski earlier than 1991 until three days before he wrote the report.
177. We also are somewhat puzzled by Dr Thompkins’ conclusion that because there has been a judicial determination of the absence of “psychiatric decompensation” attributable to his employment at Mitsubishi, that there can be no suggestion that any psychological injury relating to his military service has been subsumed by subsequent events.
178. The opinion assumes psychological injury was caused to Mr Kowalski in the Army without identifying what psychological injury is being addressed. There is, as Professor Goldney has said, no evidence that Mr Kowalski suffered from any psychological illness whilst serving in the Army.
179. The first question which has to be determined is whether or not Mr Kowalski suffered any psychological injury in 1972/1973 as a result of his service in the Army. Dr Gilmore, of course, assumed because it was then the opinion of some medical practitioners that stress and anxiety caused duodenal ulcer. As Dr Hetzel’s report of 16 February 2005 has already demonstrated, that is no longer accepted mainstream medical opinion.
180. On 22 April 2005 the Director of the Military Compensation and Rehabilitation Service affirmed a determination made on 10 December 2004 that Mr Kowalski’s claim for compensation should be rejected.
181. On 26 April 2005 Mr Kowalski made a further claim for compensation in relation to the duodenal ulcer diagnosed in 1974 caused by stress in the Army. In relation to the extent of his impairment, he said the duodenal ulcer was symptomatic until December 2002 when he commenced on Nexium. He said that the duodenal ulcer had been asymptomatic since.
182. Some time before 9 May 2005, Mr Kowalski provided a copy of the Director’s decision to Dr Thompkins.
183. On 9 May 2005, Dr Thompkins wrote to Mr Kowalski relating to that part of his previous report in which Dr Thompkins referred to the judicial determination relating to Mr Kowalski’s employment with Mitsubishi and said:

Accordingly, I can confirm that you have supplied me with direct evidence in written form of the decision which is unequivocally to the effect that you did not suffer a psychiatric decompensation attributable to your employment with Mitsubishi.

184. It is difficult to understand what importance Dr Thompkins puts upon this statement. Mr Kowalski reasons that because the State Courts have dismissed his claim for compensation against Mitsubishi in which he claimed to have suffered injury which was caused or contributed to by his employment, his psychiatric and physical conditions must be due to his service in the Army. That, of course, is not an example of logical reasoning. Insofar as Dr Thompkins reasons the same way and we think regrettably that he does, he also reasons illogically. The fact that the State Courts have dismissed Mr Kowalski’s claims it seems to us is historically interesting and may explain why Mr Kowalski has proceeded in the way that he has, but it is not relevant in determining whether Mr Kowalski suffered any injury whilst in military service.
185. On 11 November 2005 the Military Compensation and Rehabilitation Service affirmed a determination made on 22 June 2005 dismissing Mr Kowalski’s claim for incapacity payments in respect of duodenal ulcer. The claim was rejected because Dr Cheung’s evidence did not support a claim for any incapacity at that time. The Commission wrote:

The medical information shows that you are not suffering from a duodenal ulcer:
● in 1995, when referred by Dr Cheung for a barium meal; or
● in May 1999 when you underwent an endoscopy.
Furthermore in Dr Cheung’s report of 26 April 2005 she stated you had been symptomatic until December 2002 but were currently asymptomatic due to medication. Given this information I fail to see how you could be suffering incapacity due to any ulcer condition.

186. On the same day the Military Compensation Rehabilitation Service also rejected the claim for permanent impairment in respect of duodenal ulcer.
187. The Director affirmed the decision because Mr Kowalski was not suffering from a duodenal ulcer in 1995 when referred by Dr Cheung for a barium meal and, in May 1999, when he underwent an endoscopy. He found that the condition of duodenal ulcer was a temporary condition evidenced by the fact that the condition was not present in 1995 or 1999.
188. He found further that there was insufficient evidence that any condition of duodenal ulcer has been contributed to in a material degree by Mr Kowalski’s Army service. He also found that if Mr Kowalski suffered a permanent impairment as a result of the condition of duodenal ulcer which had been contributed to by the Army service, any such condition would have become permanent as defined in the SRC Act prior to 1 December 1988 and while the 1971 Act was in operation. He wrote:

Pursuant to subsection 124(3) of the SRCA a person who has an impairment that became permanent prior to 1 December 1988 is not entitled to compensation under section 24 of the SRC Act in respect of permanent impairment, if that person was not entitled to receive lump sum compensation in respect of the impairment under the compensation legislation in force when the impairment became permanent. As the 1971 Act did not provide for payment of lump sum compensation for conditions such as duodenal ulcer, pursuant to subsection 124(3) of the SRCA, an entitlement does not exist under the SRCA.

189. As can be seen from [4] of these reasons, Mr Kowalski rejects the Commission’s determinations. He seeks compensation, namely incapacity benefits, in respect of the duodenal ulcer. He also seeks compensation for permanent impairment from that duodenal ulcer. He further seeks medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or a psychiatric illness. Lastly, he seeks compensation for “major depression and generalised anxiety, heart attack and open heart surgery” and “obesity and Type 2 diabetes”. Mr Kowalski seeks compensation in relation to all of his medical conditions which he says are attributable to his service in the Army.
190. He pursues the claim for incapacity benefits in respect of the duodenal ulcer and compensation for permanent impairment in relation to the duodenal ulcer, notwithstanding that all of the evidence is one way and that is that he no longer suffers from a duodenal ulcer. On his own case, the decisions of the respondent of 11 November 2005 affirming the determination of 22 June 2005 that the applicant was not entitled to receive incapacity benefits in respect of a duodenal ulcer, and the determination of 6 May 2005 that the applicant was not entitled to compensation for permanent impairment from a duodenal ulcer must be affirmed, for the reasons he does not suffer incapacity or permanent impairment.
191. However, Mr Kowalski argues that all of his present medical conditions are due to the stress under which he was put during and before his military service.
192. Mr Kowalski relies on two notes in his medical practitioner’s notes in 1973 and the fact that he was prescribed Librax for his contention that all of his medical conditions which have manifested themselves since 1989 are the result of his service in the Army. He relies on the notes of 14 June 1973 and 20 August 1973 which say, respectively, “pushed with job” and “under stress at work” and the fact that he was prescribed Librax on 20 August 1973 as supporting his claim that his medical conditions since 1989 are a result of the stress which he suffered whilst in service in the Army.
193. Further medical evidence has been obtained which ought to be addressed.
194. At the request of the Commission the applicant was seen by Professor Goldney, a psychiatrist, on 17 November and 12 December 2005, and Professor Goldney reported to the Commission’s solicitors on 19 December 2005.
195. Mr Kowalski told Professor Goldney that he had always blamed Mitsubishi for his health problems but, when he obtained legal determinations that Mitsubishi had not been responsible for his emotional difficulties, he began to attribute his problems to his Army service.
196. It was Professor Goldney’s opinion that Mr Kowalski suffers a depressive condition which is either that of chronic dysthymia or a major depressive disorder. He said that the conditions are often seen together where the term “double depression” is sometimes used. In addition, he opined that Mr Kowalski has quite marked obsessive compulsive personality traits. He was of the opinion that it was probable that Mr Kowalski’s depression was contributed to by the incident of 16 August 1991. However, he said that a depressive condition can simply arise without any specific external cause.
197. He was of the opinion, however, that it was most unlikely that Mr Kowalski’s psychiatric condition was related to his employment with the Army. He was unable to relate any specific issue to his service.
198. On 20 March 2006 Dr Donald Reid, a consultant physician, provided a report at the request of the Commission. He was of the opinion that Mr Kowalski presently suffers from a gastrointestinal condition, being gastro-oesophageal reflux disease which was not materially contributed to by his employment with the Army.
199. He said that whilst a barium meal in 1973 disclosed a duodenal ulcer, a subsequent barium meal and an endoscopy have not shown the existence of any duodenal ulcer. There was no evidence, on his examination, of duodenal ulcer disease or any aftermath from duodenal ulcer. He was of the opinion that there was no good evidence to prove that stress causes duodenal ulcer.
200. Two particular questions which were asked of Dr Reid in his answers ought to be set out in full:

(d) Mr Kowalski says he was prescribed Librax, initially in 1973, for control of a psychological condition. We would appreciate if you could take a history of this and provide any comments you may have regarding the prescription and use of Librax during the 1970s and since that time and what this medication was prescribed to do.

Librax is no longer available in Australia. Librax is a mixture of Chlordiazepoxide (anti-anxiety drug) and Clinidium Bromide (anticholinergic-spasmolytic drug). The theory was that by treating anxiety, hopefully reducing gastic (sic) acid and by reducing spasm, the combined tablet would help both anxiety and duodenal ulcer. There was never a good empirical evidence base for this. My opinion is that it was probably given mainly to Mr Kowalski in 1973 for anxiety.

He described to me much anxiety and nervous tension before and during his Army service and his desire not to be in the Army. He says he was also over-worked in the Army and stressed, and these altogether led to anxiety. I note his assertion but cannot make any other useful comment about them.

(e) Please also comment on the opinion of Dr Gilmore and whether you agree with it and if not why not.

I have two reports from the late Dr Hugh Gilmore, dated 26 February 1974 and 20 October 1976.

In regard to the report of 26 February 1974, I do not agree with Dr Gilmore’s answer to Question 2, in which he thought stress induced the duodenal ulcer. In 1974, the cause of duodenal ulcer was unknown. One of the theories of causation was that stress caused duodenal ulcer. It was always debatable, even at that time, and I did not myself accept that theory in 1974. I do not accept it now. In the 32 years since then, it has become clear that duodenal ulcer is principally due to either the germ helicobacter pylori in the stomach, or to the use of anti-inflammatory tablets. The current view is that stress is not a significant causative factor in duodenal ulcer.

In Dr Gilmore’s letter of 20 October 1976 re-affirms that he thinks stress contributed and caused the duodenal ulcer (sic). He thought that once an ulcer had been induced by Army service, then it might continue after Army service. My opinion is that Army service and any associated stress did not cause the initial duodenal ulcer and did not cause any exacerbations of duodenal ulcer after leaving the Army. My reasons are as elaborated above.

201. The hearing of this matter commenced on 17 October 2006 when Mr Kowalski gave the evidence to which we have referred.
202. Professor Goldney and Dr Reid were called by the Commission. Dr Thompkins’ attendance was secured by the Tribunal after Mr Kowalski indicated that he was not in the position to pay the very high fee that Dr Thompkins was seeking to give evidence. Dr Thompkins gave evidence in February 2007.
203. After Dr Thompkins had given his evidence and the parties had addressed, Mr Kowalski wrote to the Tribunal on a number of occasions making a number of submissions and including further evidence.
204. Eventually, he made an application to re-open his case and on 28 November 2007 orders were made allowing him to re-open the case and, in due course, the Tribunal accepted a number of further documents, some by way of evidence and the others by way of submission: Kowalski v Military Rehabilitation and Compensation Commission [2007] AATA 1988.
205. Mr Kowalski also wrote to the three medical practitioners putting a series of questions which were answered in the case of Dr Thompkins, and some of which were answered in the case of Professor Goldney and Dr Reid. Professor Goldney and Dr Reid did not answer some of the questions on the advice of those acting for the Commission.
206. The effect of all of those matters was that further medical reports were provided by Dr Thompkins, and Professor Goldney and Dr Reid.
207. Dr Thompkins gave two further reports; the first dated 17 March 2008 and the second dated 15 April 2008.
208. In the first report he was asked by Mr Kowalski to address the last paragraph of his report dated 11 July 2003. In that report he had written:

In diagnostic terms, I trust it sufficiently appears that I think Kaz has suffered a life threatening episode of Major Depression. This has been variably treated, with differing degrees of success, since about 1991. The recently instituted Luvox appears to have been a very timely intervention.

209. In his report of 17 March 2008 he wrote:

I understood you to say that the sentence reading “this has been variably treated, with differing degrees of success, since about 1991” has been interpreted to mean that you did not suffer from Major Depression prior to 1991.
That was certainly not the intention behind my choice of words.
There are many reasons why such an interpretation is erroneous.
One obvious reason is that (unlike, for example, a compound fracture of the tibia in orthopaedic practice) there is almost invariably a very substantial lag time between clinical onset of a psychiatric condition and the patient presenting for treatment. A whole galaxy of circumstances may have come together leading you to seek treatment in about 1991, which in no way excludes the diagnosis being present prior to that time.
Furthermore, presentation in 1991 is not to be confused with the suggestion that the Major Depression only assumed clinical significance in 1991.
The lag period may have been twenty months or twenty years, or even longer.
A further complication is that “Major Depression” is not interpreted consistently even at the present day. Just what “depression” has meant over the last thirty-five years has been a variable feast.
That is not to say that the symptoms have changed, rather that psychiatric nomenclature is an evolving art.
I trust that the above sufficiently answers your inquiry.
I also hope that the above is self-explanatory.
If not, please feel free to contact me seeking further clarification.

210. It is difficult to understand what point Dr Thompkins is attempting to make in that report except to contradict what he wrote in the earlier report. In his first report, he had no history of stress or anxiety or any psychiatric illness prior to 1991. His opinion reflected the history which Mr Kowalski had given him.
211. In his second report of 15 April 2008, Dr Thompkins addressed a number of questions which had been asked him in a letter dated 23 February 2008. It is not necessary to set out those questions to obtain the flavour of the report of 15 April 2008, but it is enough to set out some aspects of the report.
     1. The Notification of Medical Assessment dated (at the bottom) 25th September 1973 bears what appears to be a handwritten annotation stating “MAJOR DEPRESSION.”

Assuming this annotation is contemporary with the original document, I would interpret it as evidence that somebody at that time was of the opinion that you were suffering from that condition.

2. Yes, with appropriate caution. Such blanket exhortations from the manufacturer commonly accompany most if not all prescription drugs.

In the case of Librium and Mylanta, to the best of my limited understanding the interaction is purely one of dilution and/or providing some degree of physical barrier to absorption. I am not privy to any true pharmacokinetic or pharmacodynamic drug interactions between those two substances.
I remind myself that dilution or other effects influencing absorption constitute pharmacokinetic interactions.
Answering this question lies to some extent outside my area of specialist expertise.
...

9. Judging by the entries in the notes, the assertion that Librax was prescribed to treat the duodenal ulcer does not appear to me to be logical.

I am fortified in that conclusion by the entry dated 17th July 1973 which appears to state that epigastric pain occurring [for?] one and a half hours after food, during the previous four to five weeks, is relieved by antacids.
I am further fortified in that conclusion because the entry dated 20th August 1973 appears to state, in part:-

“Night pain ++ ... on examination no epigastric tenderness ... treatment [continue Duogastrone] and increase [some form of] Gel up to 20ml four times per day ... Librax 1 three times per day and 2 at night.”

The difficulty I have is that the first two lines appear to say, in part, “strain at work.” However, I cannot confidently decipher the word that immediately follows “night pain ++.” My best guess is that it says “under” – reading therefore “under strain at work.”

10. In Edinburgh, the cause was largely a mystery. Of course there was the usual mish-mash of genetic predisposition, acutely stressful situations and the like. For example I remember an incident in a maternity ward when, immediately after the birth of the baby (the mother and baby doing well), the father collapsed with a copious haematemesis from an acute duodenal ulcer – his Haemoglobin dropping to about 5 as I recall.

At medical school, the basic story was that excessive acid was being produced over and beyond what the acid resistant lining of the stomach (particularly the mucus) could withstand. Hence, the mainstay of surgical treatment in those days (ie when antacids, bed rest etc failed) was vagotomy (and pyloroplasty), on the footing that that would decrease the secretion of hydrochloric acid.
...

12. I think the issue is what did this particular doctor (Flight Lieutenant Wilson) think he was treating on this particular occasion with this particular patient on this particular day in August 1973. I do not think references to the drug company’s literature help a great deal.

To answer your question, I find Doctor Reid’s apparent change of opinion in his answer to question 4 to be less than convincing (report dated 15th February 2008).
The whole thrust of the notes appears to be a duodenal ulcer is diagnosed and treated with standard medications such as Mylanta and Duogastone.
On the 20th August 1973, something new is reported. There is now night pain++. There is now being “under strain at work.” That something new being complained about results in something new being prescribed, namely Librax. That appears to be the opinion stated by Doctor Reid in paragraph 3.3 of his report dated 20th March 2006. In my view, nothing can escape the obvious logic and commonsense of that original answer.

13. In answer to questions 2 and 3, my recollection is that Librax and Valium were prescribed more or less interchangeably, at least in the ward situation. Librax ultimately fell by the wayside because of its greater cost, and also its association with fatalities in overdose.
    
212. There is no need to comment on the whole of the part of the report to which we have referred. It can be seen that Dr Thompkins descends into argument. We cannot, for example, understand how Dr Thompkins could write that “the assertion that Librax was prescribed to treat the duodenal ulcer does not appear to be logical”. Librax was designed to treat duodenal ulcers. It also had a property which was used for the treatment of stress. However, it was a drug used for the treatment of duodenal ulcers. Librium was designed only for the purpose of treating stress. If one assumes that the prescribing medical practitioner was only intending to treat stress, it would be “logical” to prescribe Librium rather than Librax.
213. We do not accept the suggestion that Librax and Valium were prescribed interchangeably. Valium was prescribed for stress and anxiety. It had no properties which would treat a duodenal ulcer. Librax was prescribed to treat a duodenal ulcer and stress which was then wrongly thought by some to be the cause of the duodenal ulcer.
214. We think these two reports indicate, as we have found, that Dr Thompkins is incapable of giving detached and objective evidence in relation to Mr Kowalski’s complaints.
215. Dr Thompkins, both in his written and oral evidence, found it necessary, unfortunately, to act as it were as Mr Kowalski’s advocate. It may be that he thought it necessary to give Mr Kowalski his full support in order to maintain his relationship with Mr Kowalski so that he could treat Mr Kowalski’s ongoing psychiatric problems.
216. However, if that is the reason, that does not make his evidence any more credible but only explains why it is that he gave evidence of the kind which he did.
217. Dr Thompkins was prepared to put himself in a position where he was commenting on the evidence of witnesses in another specialty. Dr Thompkins was formerly a legal practitioner. One would have thought he would have known that was not his role.
218. He also gave evidence outside his specialty and was prepared to assert, notwithstanding that mainstream medicine and all other witnesses said otherwise, that stress could cause a duodenal ulcer. He is the only medical practitioner in contemporary times who has been asked to give an opinion on that subject who has said that stress could cause a duodenal ulcer. That is an opinion outside his specialty.
219. Unfortunately, for the earlier reasons which we gave and for these further reasons, we have to say that we find Dr Thompkins to be an unreliable witness. We reject his opinion on the cause of a duodenal ulcer which is inconsistent with the specialist medical practitioners who practise in that area.
220. We have therefore had the opportunity of hearing the evidence of all three medical practitioners on two occasions. For the reasons we have given already, we prefer the evidence of Professor Goldney and Dr Reid to that of Dr Thompkins.
221. Mr Kowalski insisted in his examination of Professor Goldney and Dr Reid in asking them why it was that Flight Lieutenant Dr Wilson prescribed him Librax on 20 August 1973. He could not understand why it was that the medical practitioners could not answer that question in that form because, of course, they could not know what was in Flight Lieutenant Dr Wilson’s mind.
222. Although the question was disallowed on a number of occasions, Mr Kowalski repeatedly put the question to the medical practitioners. Eventually he obtained their answers but the answers were, from his point of view, unfavourable.
223. Professor Goldney in his further report and in his evidence did not depart from the opinion which he expressed in his first report. His diagnosis of Mr Kowalski’s illness remained the same. In particular, he remained of the previously expressed view that there was no evidence in Mr Kowalski’s Army records that Mr Kowalski had suffered from a psychiatric illness during his Army service. He was of the opinion that the fact that it was recorded that Mr Kowalski suffered stress on 14 June 1973 and 20 August 1973 could not lead to a conclusion that at any time during his Army service did Mr Kowalski suffer from a psychiatric illness such as anxiety or depression, or anything of the kind.
224. We accept that evidence. As we have shown and Professor Goldney has accepted, there is nothing in Mr Kowalski’s Army records which indicate that he suffered a psychiatric illness at any time whilst he was in Army service. There is evidence that he either complained of stress or was asked whether he was suffering stress and agreed on the two occasions we have mentioned. We accept Professor Goldney’s evidence, however, that complaints of that kind do not indicate that Mr Kowalski was suffering a psychiatric illness at the time.
225. We reject Mr Kowalski’s evidence and submissions insofar as they were made that he was suffering from anxiety or anything of that kind at that time.
226. Dr Reid explained one aspect of his first report both in his further written reports and in his evidence. He gave two further written reports dated 15 February 2008 and 3 April 2008. Whilst he had said in his first report that Mr Kowalski was probably prescribed Librax for the treatment of his anxiety, he said in his further written report of 15 February 2008:
     4. In paragraph 3.3(d) of your report dated 20 March 2006, you stated “My opinion is that if [Librax] was probably given mainly to Mr Kowalski in 1973 for anxiety”. Please clarify what this sentence means.

The sentence needs to be read in the context that it was part of a quite long answer to a five-line question. The question that had been put to me was: “Mr Kowalski says he was required Librax, initially in 1973 for control of a psychological condition. We would appreciate if you could take a history of this and provide any comments you may have regarding the prescription and use of Librax during the 1970s and since that time and what this medication was prescribed to do?
When I rethink this question today my opinion is that the doctor prescribed Librax in 1973, his primary intention was to treat duodenal ulcer. In 1973 there were no truly proven effective drugs for the curing of duodenal ulcer. The drugs available included antacids (rationale to reduce acid in the stomach), anticholinergics, such as clinidium, (rationale to reduce secretion of acid by the lining of the stomach and to reduce muscle spasm in the stomach) and benzodiazepines (rationale the presumption that anxiety and stress predisposed to the formation of duodenal ulcer). None of these three drugs was truly effective in curing duodenal ulcer and the actual effectiveness and the rationale for use of the benzodiazepine class of drug in duodenal ulcer were doubtful.
I have reviewed the medical records for Mr Kowalski supplied to me in the past, and refer now to a page entitled ‘Attendance and Treatment Card’, with the date of 20 August 1973. I read the longhand note, “Night pain, under strain at work. On examination no epigastric tenderness, Rx Duogastrone, illegible four times per day, and Librax, one in the morning and two at night”. I think this is the first record of the prescription of Librax in his medical records, although I am not certain of this because the hand writing is difficult to read.
I note that Mr Kowalski told me he had much anxiety and tension in his life in 1973. When I met him in March 2006 he told me that he was troubled by psychological symptoms.
Putting all the above together, my opinion is the treating doctor in 1973 had the principal intention of treating duodenal ulcer with Librax. He chose the combination of anticholinergic and an antianxiety drug because it was fashionable to use it for duodenal ulcer at that time, because of the presumption among part of the medical profession at that time that anxiety and psychological factors contributed to duodenal ulcer, and possibly because he observed anxiety and nervous tension in Mr Kowalski (the fact that he wrote down on 20 August 1973 “under strain at work”, supports this latter statement.)
On reflection I think I worded the reply to the question poorly. Rather than saying the Librax was mainly given to treat anxiety I should have said the Librax was mainly given to treat duodenal ulcer.

227. He also addressed two other matters raised by the applicant:
     5. In an email to the Administrative Appeals Tribunal dated 22 February 2007, the Applicant stated:

‘On another issue, on 20 February 2007 by GP, Dr C Cheung, said to me that in the 1970s it was her opinion and the opinion of the majority of medical doctors that stress and anxiety caused ulcers’.
Do you agree with (what the Applicant reports) Dr Cheung believes?
I note that Dr Christina Cheung graduated from the University of Adelaide in 1978 as a medical doctor, MBBS. She is a general practitioner. My opinion is that it is likely the majority of general practitioners in the 1970s would have had the opinion that stress and anxiety contributed to the causation of ulcers. My opinion is, this would not have been the opinion of gastroenterologists in the 1970s.

6. In the above email to the Administrative Appeals Tribunal dated 22 February 2007, the Applicant further stated:

‘On 21 February 2007 my Chemist informed me that in the 1970s Librax was a first generation drug that was mainly prescribed to people for the treatment of stress and anxiety’.
In your view, do you consider in the present case that Librax was prescribed mainly for the Applicant’s ulcer condition, or for an alleged psychiatric condition?
My opinion is that the chemist’s statement that Librax was mainly prescribed for people for the treatment of stress and anxiety is wrong. A doctor wishing to treat mainly stress and anxiety would prescribe Librium. The adding of the clinidium to the Librium to make the combination drug Librax would have meant that the main intention was to treat duodenal ulcer.
My opinion is that in the present case the Librax was prescribed mainly for the applicant’s ulcer condition and not mainly for an alleged psychiatric condition.

228. We accept that explanation and we accept his evidence in that regard. Dr Reid more importantly, and Professor Goldney less importantly, were both of the opinion that stress did not cause or contribute to the formation of a duodenal ulcer. Dr Reid was of the opinion that whilst some general practitioners, even some physicians who were not gastroenterologists, might be of the opinion that stress caused or contributed to a duodenal ulcer, gastroenterologists were not of that opinion in the early 1970s.
229. In any event, his opinion was clear and that is that mainstream medicine rejected that hypothesis having regard to the isolation of the Helicobacter Pylori bacterium and its effect on the duodenum. Dr Reid’s opinion is consistent with that of Dr David Hetzel.

Findings

230. We make the following findings, in addition to the findings already expressly made. In 1967 Mr Kowalski, whilst employed at Chryslers, was conscripted to serve in the Australian Army. Between the date of his conscription and the second half of 1971, Mr Kowalski was concerned and stressed by the prospect of having to serve in Vietnam and undertook courses of study so as to avoid that consequence. Any stress that he suffered during this period is non-compensable. He was not then in any form of employment for which the respondent could be liable. On 28 July 1971 the Prime Minister told the State Council of the Liberal Party that Australian troops were likely to be withdrawn within six months. On 18 August 1971 the Prime Minister announced in Parliament that the Government had decided to withdraw all remaining combat forces from Vietnam. In that announcement he said that most of the forces would be withdrawn by Christmas 1971.
231. Mr Kowalski entered the Australian Army on 20 April 1972 at which time he was aware of Mr McMahon’s announcement. At the time he entered the Army he knew that he would not have to serve in Vietnam. Whilst in the Army, he was falsely accused of leaving the Amberley base without permission but never charged or any disciplinary action taken. We are not prepared, however, in the absence of evidence supporting Mr Kowalski’s claim, to find that he was marched into the presence of an officer by two soldiers armed with machine guns or that the incident resulted in the degree of stress asserted by Mr Kowalski.
232. During the period of his service, between 20 April 1972 and 19 October 1973 and after his basic training, he worked under difficulties and was forced to work extremely hard especially after conscription ended in December 1972. He suffered stress in his work. In 1973 he contracted a duodenal ulcer which was diagnosed on 1 August 1973. The symptoms had commenced in May 1973.
233. On 14 June 1973 he told a medical officer that he was “pushed with job”. On 20 August 1973, after the diagnosis was made, he told Flight Lieutenant Dr Wilson that he was “under stress at work”.
234. On 7 August 1973 Major Fenton wrote that the applicant had “been placed under great stress and over employed since December 1972 ... performing mechanical drafting duties when previously three personnel were employed”.
235. On 20 August 1973, as part of his treatment, he was prescribed Librax which he took during and after service. Librax was a drug which contained dual properties for the treatment of stress and the treatment of a peptic or duodenal ulcer. It is probable that the Librax was prescribed for the treatment of his duodenal ulcer and because Flight Lieutenant Dr Wilson thought (wrongly) that stress was the cause of the ulcer. Flight Lieutenant Dr Wilson therefore would have seen the prescription of that drug which was no doubt manufactured on the mistaken misunderstanding that stress could cause a peptic ulcer as treating both the cause and the effect. Specifically, we accept Dr Reid’s opinion that in 1973 Librax, which was both an anti-cholinergic and anti-anxiety drug was prescribed cause “it was fashionable to use it for duodenal ulcer at that time, because of the presumption among part of the medical profession at that time that anxiety and psychological factors contributed to duodenal ulcer”.
236. We accept Professor Goldney’s opinion that if the treating medical practitioner was concerned to treat any anxiety state from which the applicant suffered it would have been more likely that Librium would have been prescribed. That drug was designed for that purpose.
237. On 19 October 1973 when Mr Kowalski was discharged from the Army he was symptom-free. It was his treating doctor’s opinion, and the opinion of Dr Gilmore, that his duodenal ulcer was caused by stress. He was subject to stress whilst in the Army, more so after December 1972. At the time of his discharge there was no evidence that he suffered from any other illness or disability apart from the duodenal ulcer. In particular, when he was discharged he did not suffer from any mental or psychiatric illness or disability. He had not suffered from any mental or psychiatric illness or disability at any time during his Army service. It follows from these findings that the stress to which he was subject did not cause any mental or psychiatric illness.
238. We accept Professor Goldney’s evidence that there is no evidence that the applicant was suffering from any mental or psychiatric illness at any time during is Army service.
239. Mr Kowalski resumed work with Chrysler/Mitsubishi shortly after his discharge from the Army on 20 October 1973. His working conditions were again stressful. On 4 April 1974 a delegate of the Commissioner for Employees’ Compensation determined that there was a liability under the 1971 Act for a duodenal ulcer.
240. Notwithstanding Dr Gilmore’s opinion, we find that the applicant’s duodenal ulcer was not caused by stress. We accept the evidence of Dr Reid, Dr Hetzel and Dr Cheung to that effect. Contrary to Dr Gilmore’s opinion, duodenal ulcers may be caused by any of three factors: Helicobacter Pylori; the use of non-steroidal anti-inflammatory drugs; and aspirin. Stress does not cause or contribute to the onset of a duodenal ulcer. We find that the duodenal ulcer was caused by the applicant acquiring Helicobacter Pylori, there being no evidence that he either used non-steroidal anti-inflammatory drugs and aspirin which are the other causes of duodenal ulcer. That finding is consistent with Dr David Hetzel’s observations in May and July 1999 when he found that the applicant had acquired Helicobacter Pylori and a duodenal ulcer. The Helicobacter Pylori was eradicated and so was the ulcer. The applicant has not suffered from a duodenal ulcer since July 1999.
241. We accept Dr Reid’s opinion and Dr David Hetzel’s opinion on the causes of duodenal ulcer.
242. We reject Dr Thompkins’ evidence insofar as he has offered an opinion that stress can cause an ulcer.
243. The determination made on 4 April 1974 has not been varied or revoked.
244. Mr Kowalski suffered from the effects of his duodenal ulcer between 1974 and 1981 which gave rise to the payment of benefits under the 1971 Act for periods that he was unable to work and for medical expenses.
245. On 23 August 1984 Mr Kowalski was diagnosed as suffering from hypertension which was treated through the 1980s.
246. His hypertension was treated by drugs. He ceased medication on his own initiative in 1989. Mr Kowalski suffered injuries in a motor cycle accident in the early 1980s and an injury to his eye in 1986. Those injuries are not relevant in a consideration of the present matter.
247. On 9 May 1989 Mr Kowalski slipped in a pool of oil whilst working at Mitsubishi and suffered low back pain. Mr Kowalski returned to work about two and a half months after he sustained his injury but then asserted that he was unable to continue work. A dispute arose and Mr Kowalski bought a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA).
248. On 16 August 1991 there was an incident at Mitsubishi which caused Mr Kowalski to have a significant psychiatric reaction when he was threatened with dismissal. He broke down in front of his accusers. Mr Kowalski told medical practitioners whom he consulted after this incident that his mind was drawn to dwell on the memory of “a friend who committed suicide two years ago”.
249. He was referred to a psychiatrist, Dr Jagermann. He did not tell Dr Jagermann that he had ever served in the Army or that he had suffered stress whilst in the Army or that he had suffered any physical, mental or psychiatric illness while serving in the Army. He did tell Dr Jagermann that he had suffered “an anxiety problem years ago, it was brought under control”. Mr Kowalski consulted a number of medical practitioners but at no time prior to the termination of his employment with Mitsubishi did he tell any of those medical practitioners that he had served in the Army or that he had suffered any mental or psychiatric illness or any stress while serving. He made a conscious and deliberate decision not to tell his medical practitioners of his history in the Army because his then claim was against Mitsubishi. He decided to not advise his medical practitioners and examining medical practitioners that he had suffered a duodenal ulcer whilst serving in the Army. He also deliberately decided not to inform those medical practitioners that he had suffered any stress whilst serving.
250. Mr Kowalski did not work again at Mitsubishi before his employment ceased in either 1994 or 1998. Mr Kowalski brought claims against Mitsubishi both at common law and under the workers’ compensation legislation. The common law action was dismissed because of the provisions of the workers’ compensation legislation and, in due course, the workers’ compensation claims were also dismissed.
251. Mr Kowalski suffered stress after the slipping accident on 9 May 1989 and, more particularly, after 16 August 1991 in dealing with the claims brought against Mitsubishi. Dr Jagermann was of the opinion that Mr Kowalski suffered a pathologically intense state of anxiety as a result of the events of Friday, 16 August 1991. It was Dr Jagermann’s opinion that Mr Kowalski’s psychiatric condition began at that time. We accept that evidence.
252. Dr Sangster was of the opinion that the stresses that Mr Kowalski had suffered in dealing with his legal cases contributed to his existing hypertension and aggravated the underlying tendency to cause coronary artery disease and, eventually, infarction. We accept Dr Sangster’s evidence and the evidence of Dr Aylward given in his report on 19 October 1998.
253. We also accept Professor McFarlane’s evidence that Mr Kowalski’s mental state had deteriorated by reason of a major depressive episode which followed the rejection of his common law claim by Judge Lee on 3 July 1992.
254. Between 1992 and 1997 the applicant failed in three separate court proceedings. On 3 July 1992 Judge Lee dismissed his claim for damages and awarded costs against Mr Kowalski. Mr Kowalski brought a claim against his lawyers for negligence and failed, and was ordered to pay $173,000 costs.
255. On 6 August 1996 Deputy President Judge Gilchrist dismissed Mr Kowalski’s appeal from a review officer who had made a determination affirming a determination made by Mitsubishi rejecting the applicant’s claim for compensation.
256. On 11 April 1997 Deputy President Judge McCusker dismissed an application by Mr Kowalski to set aside consent orders made in the Workers Compensation Tribunal.
257. We accept Professor Goldney’s opinion as to the applicant’s present psychiatric condition. We find that Mr Kowalski has a depressive condition, being either chronic dysthymia or major depressive disorder. He suffers from double depression. In addition to his depressive condition, he suffers from marked obsessive compulsive personality traits.
258. We accept Dr Jagermann’s diagnosis that the applicant was suffering in 1991 from dysthymia and a pathologically intense state of anxiety. Further, we accept his opinion that those conditions were “a direct and convincing line of development and evolution” between the date of the applicant’s back injury and the incident of 16 August 1991.
259. We also accept the evidence contained in the report of Professor McFarlane that the applicant was suffering from dysthymia and Professor McFarlane’s evidence as to the cause of the psychiatric illness.
260. We reject, however, Dr Thompkins’ opinion that the applicant does not suffer from obsessive compulsive personality traits but suffers from narcissistic traits having an unrequited sense of entitlement.
261. We find that there is no evidence that he suffered from major depression or any form of depression whilst in the Army. He did not suffer anxiety. He was, however, under stress at work.
262. In our opinion, the applicant’s national service did not contribute to the cause of any psychiatric illness or personality disorder from which the applicant now suffers.
263. On 26 December 1997 Mr Kowalski suffered an anterior myocardial infarction. On 6 January 1998 he underwent open heart surgery which resulted in a double coronary artery bypass.
264. He subsequently suffered obesity and Type 2 diabetes. There is also no evidence that the applicant’s service in the Army caused or contributed to the applicant’s obesity or the onset or development of his Type 2 diabetes. Whilst it is not entirely clear when he became obese and was first diagnosed with Type 2 diabetes, those conditions were caused by his sedentary life style. The Type 2 diabetes was a consequence of his obesity.
265. Dr Jagermann, who treated Mr Kowalski between 1991 and 1998, offered an opinion in a written report dated 15 April 1998 that Mr Kowalski’s myocardial infarction “was indeed brought about by unrelenting and untoward work pressures, persisting work conflict and work derived and cost intensive Court proceedings”. Dr Jagermann was there referring to work at Mitsubishi.
266. We accept that opinion. That opinion is consistent with the information the applicant provided Dr Sangster and the opinion of Dr Sangster based upon that information which was to the effect that the applicant’s stresses arising from the legal cases in which he had been involved “contributed to the existing hypertension and made it more difficult to control and subsequently aggravated the underlying tendency to cause coronary artery disease and eventual infarction”.
267. Both those opinions are consistent with the information that Mr Kowalski gave Professor McFarlane and the opinion expressed by Professor McFarlane in his report of 27 October 1998.
268. We also accept the evidence contained in the reports of Dr John Sangster of 3 September 1998, Dr Peter Hetzel of 22 September 1998 and Dr Philip Aylward of 19 October 1998, all of which is to the same effect as the other medical evidence that it was the events after 1989 which caused stress, anxiety, psychiatric illness, and attributed to the hypertension and the coronary artery disease.
269. We find, as the medical evidence demonstrates, that the applicant’s hypertension and subsequent coronary artery disease was caused or contributed by the stresses at work after 9 May 1989 and, in particular, after 16 August 1991, and in relation to the litigation in which Mr Kowalski was involved between 1989 and 1998.
270. There is no evidence that the applicant’s service in the Army caused or contributed in any way to the applicant’s hypertension or aggravated that hypertension or in any other way caused or contributed to his coronary heart disease.
271. In 1999 Dr Hetzel found that Mr Kowalski was no longer suffering from a duodenal ulcer. He was tested positive for Helicobacter Pylori which was eradicated by 1 July 1999. He no longer suffers from a duodenal ulcer and has not suffered from a duodenal ulcer since 1999. We accept both Dr David Hetzel’s evidence and Dr Reid’s evidence to that effect. Indeed, there is no evidence that the applicant suffers from a duodenal ulcer.
272. Dr Thompkins first saw Mr Kowalski on 7 July 2003. Mr Kowalski did not tell Dr Thompkins that he had ever served in the Army or that he had suffered from any mental or psychiatric illness whilst serving in the Army. He did not, of course, tell Dr Thompkins of any stress which he suffered whilst in the Army.
273. It was Dr Thompkins’ opinion, as at July 2003, that Mr Kowalski’s mental or psychiatric illness was as a result of the events which commenced in 1989 and which continued throughout the 1990s.
274. Dr Cheung became Mr Kowalski’s treating general practitioner in 1995 and his regular general practitioner in 1998. She was not aware that he had ever been in military service until some time in 2004, probably October 2004. However, her opinion was that in November 2004 all of his conditions “secondary to stress and the anxiety depression itself had been caused by his ongoing dispute with Mitsubishi relating to his WorkCover claim”.
275. She was also of the opinion that at the time that he suffered his infarct on 26 December 1997 “the only identifiable risk factor was his hypertension and anxiety depression relating to his WorkCover claim. No other risk factors were identified at the time”.
276. The first time that Mr Kowalski complained of any stress in relation to his Army service, after seeing Dr Gilmore in the 1970s, was to Dr Cheung some time in probably October 2004. At the same time, he complained of anxiety which he suffered whilst in the Army, a complaint which he had never made to any other medical practitioner at any time prior to making that complaint to Dr Cheung in October 2004.
277. Mr Kowalski did not tell Dr Thompkins that he had served in the Army until about 21 months after he first consulted Dr Thompkins. He consulted Dr Thompkins regularly each month during that period.
278. There is no evidence that any stress which Mr Kowalski suffered whilst in Army service caused or contributed to the hypertension which was diagnosed in 1984 or the coronary artery disease or the obesity or the Type 2 diabetes which Mr Kowalski subsequently suffered.
279. On the other hand, there are a number of opinions of medical practitioners who Mr Kowalski consulted between 1989 and 2004, all to the same effect that Mr Kowalski’s psychiatric illness, hypertension and coronary artery disease and myocardial infarct are the result of the events including the litigation with Mitsubishi itself between 1989 and 2004. We accept those opinions.

Legislation

280. During the period that the applicant served in the Army, the right of a member of the Defence Force to be entitled to compensation for an injury or disease was governed by the 1971 Act.
281. The applicant’s first claim was lodged on 27 April 2004. By that time the 1971 Act had been repealed by s 139 of the SRC Act.
282. The SRC Act applies, however, in relation to an injury, loss or damage suffered by an employee whether before or after the commencing day: s 124(1).
283. Section 124(1A) which was inserted by the Industrial Relations Legislation Amendment Act 1991 provides:

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

284. That subsection therefore, relevantly, provides positively that the applicant is entitled to compensation under the SRC Act for an injury, loss or damage suffered before the enactment of the SRC Act if compensation was payable to the applicant in respect of the injury, loss or damage under the 1971 Act.
285. Section 124(2) provides:

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:
...
(c) in any other case—under the 1971 Act as in force when the injury, loss or damage was suffered.

286. Section 124(2) seems to be the obverse of s 124(1A).
287. It is necessary therefore to make a finding as to when any injury or disease for which compensation is sought by the applicant was suffered to determine whether the applicant’s eligibility for compensation is to be assessed by reference to his entitlements under the 1971 Act or by reason of his rights under the SRC Act.
288. In this case the applicant claims that he suffered a duodenal ulcer which manifested itself in May-August 1973. He also claims that he suffered major depression, heart attack and open heart surgery, and obesity and Type 2 diabetes, all of which manifested themselves on or after 16 August 1991. The applicant claims that the duodenal ulcer was contracted during the currency of the 1971 Act and the other diseases during the currency of the SRC Act.
289. We turn to the individual claims.

S2005/112

290. In this claim the applicant claimed compensation for major depression and generalised anxiety, heart attack and open heart surgery, and obesity and Type 2 diabetes.
291. The respondent contended that finding as to when the diseases for which this claim is made was determined by s 7(4) of the SRC Act. That subsection provides:

(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.

292. Mr Kowalski first sought medical treatment for major depression on or shortly after 16 August 1991; for a heart attack on 27 December 1997; for open heart surgery on 6 January 1998; and for Type 2 diabetes on or about June 2004. He probably sought medical treatment for his obesity at or about June 2004 but, in any event, years later than 1988. The respondent’s contention must therefore be accepted. It follows that the date of the injury for the purpose of this claim ought to be assessed by reference to the SRC Act. None of the matters of which the applicant complains occurred prior to the enactment of the SRC Act.
293. Section 14 of the SRC Act controls a party’s right to compensation. The right to compensation arises in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “Injury” is defined in s 4 to mean:

(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.

294. “Disease” is defined also in s 4 to mean:

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

295. If the claimant claims to have suffered an injury under the SRC Act the applicant must establish that the injury arose out of or in the course of the employee’s employment.
296. If, on the other hand, a party is seeking to be compensated for a disease “the applicant must establish that the disease was contributed to in a material degree by the employee’s employment by the Commonwealth ...”.
297. The applicant is, in this claim, claiming that he suffered disease. He therefore must establish that the ailment was contributed to in a material degree by the employee’s employment.
298. In our opinion, for the findings we have already made, the applicant’s employment with the Defence Force did not contribute in any degree, let alone a material degree, to the diseases of which the applicant claims compensation. In those circumstances, we do not need to consider what aspects of Mr Kowalski’s employment might have been a material contribution to the contraction of the disease: Treloar v Australian Telecommunications Commission [1990] FCA 511; (1999) 26 FCR 316; Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232. See also Canute v Comcare (2006) 86 ALJR 1578 which reversed the Full Court decision but did not consider the meaning of “material”.
299. At its highest, the applicant has proved that he was under stress at work. There is not, however, a scintilla of evidence to establish that that stress at work in any way contributed to any of the diseases of which he complains, let alone that the stress contributed materially.
300. For those reasons, we affirm the decision made.

S2005/308

301. This is a claim for compensation for the duodenal ulcer. The duodenal ulcer was contracted in May-August 1973 but, in any event, during the currency of the 1971 Act.
302. The undisputed evidence of Dr David Hetzel is that the duodenal ulcer has been cured and he was free of that disease as at 1 July 1999. Dr Reid is of the same opinion. There is no evidence at all that Mr Kowalski suffers from a duodenal ulcer. For that reason alone, it was appropriate to reject that claim.
303. The respondent contended that even if the Tribunal were of the opinion that the applicant continued to suffer from a duodenal ulcer any entitlement to compensation would have to be assessed by reference to the SRC Act. Although we have no doubt that the applicant does not suffer from a duodenal ulcer, we shall mention the argument briefly.
304. The respondent accepts that there is in place a determination made on 4 April 1974 that the applicant’s Army service contributed to the cause of the duodenal ulcer. The respondent does not, properly we acknowledge, seek to set that determination aside. We agree with the respondent’s contention that if, contrary to our findings, the applicant does suffer from a duodenal ulcer, his entitlements would be assessed by reference to Part II Division 3 of the SRC Act. In view of our findings, we do not need to consider that assessment.
305. For those reasons, we affirm the decision.

S2005/309

306. The applicant claims that he continues to suffer from a condition of duodenal ulcer and claims permanent impairment. For the findings already made, we reject the applicant’s cause because the undisputed evidence of Dr David Hetzel is that the duodenal ulcer was cured by 1 July 1999 and that the applicant no longer suffers from a duodenal ulcer. Dr Reid is of the same opinion.
307. Even if the applicant did suffer from a duodenal ulcer, he would not be entitled to compensation for a permanent impairment if the impairment became permanent prior to the commencement of the SRC Act: Comcare v Levett (1995) 131 ALR 645; Brennan v Comcare (1994) 122 ALR 615. Where the impairment was permanent prior to the commencement of the Act, the provisions of s 124(1A) and s 124(2) of the SRC Act apply and consideration needs to be given to the 1971 Act to determine whether the 1971 Act allowed for a lump sum payment for permanent impairment of the digestive system. Section 39 of the 1971 Act discloses that no such lump sum was payable for such a permanent impairment.
308. If, on the other hand, the duodenal ulcer became a permanent impairment after the enactment of the SRC Act, then the applicant is still not entitled to compensation under that Act because it has been determined that the degree of permanent impairment is less than 10%: s 24(7).
309. For those reasons, we affirm the decision.

S2006/185

310. In this case, a review officer reviewed a determination of the respondent made on 22 May 2006. That determination had denied the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or a psychiatric illness. The decision under review was made pursuant to s 62 of the SRC Act and revoked the determination and, instead, a decision was made that no determination should be made on the applicant’s claim until such time as liability was accepted to pay compensation under s 14 of the SRC Act in respect of the claimed psychological or psychiatric condition in S2005/112.
311. We have now determined that there is no liability resting upon the respondent to pay compensation under s 14 of the SRC Act in respect of the claimed psychological or psychiatric condition in S2005/112. In those circumstances, it would be appropriate to revoke the reviewable decision and instead affirm the decision of 22 May 2006 denying the applicant’s claim for medical expenses, incapacity payments, permanent impairment and non-economic loss for psychological and/or a psychiatric illness.
312. There will be orders accordingly.
     

I certify that the 312 preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President B T Lander

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

S Rogers Associate

Date/s of Hearing 17, 18, 19, October 2006; 15 December 2006; 31 January 2007; 5, 6 February 2007; 21 March 2007; 12 April 2007; 16 May 2007; 13 December 2007; 21 February 2008; 3 April 2008; 12 May 2008; 18, 19 and 20 June 2008

Date of Decision 21 January 2009

Counsel for the Applicant Mr K Kowalski

Counsel for the Respondent Mr J Wallace; Ms Evans; Mr M Dwyer

Solicitor for the Respondent Sparke Helmore