Corsaro and Comcare [2009] AATA 429 (15 June 2009)

Last Updated: 15 June 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 429

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/0239

GENERAL ADMINISTRATIVE DIVISION		) 2008/5006
	Re		EMILE CORSARO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mrs Josephine Kelly, Senior Member Dr I Alexander, Member

Date 15 June 2009

Place Sydney

Decision

Proceedings 2007/0239 We set aside the reviewable decision and substitute the decision that Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of Adjustment Disorder manifesting with Anxiety and Depressed Moods suffered by Mr Corsaro from 20 September 2004. Proceedings 2008/5006 The reviewable decision is varied to the extent that liability is accepted pursuant to sections 16 and 19 of the Act from 20 January 2006 to 18 March 2006.

....................[sgd].........................
Presiding Member
Mrs Josephine Kelly, Senior Member

CATCHWORDS

COMPENSATION – Health Insurance Commission employee – Claim for anxiety and depression from perceived bullying and intimidation by management - Claim for medical expenses, incapacity and permanent impairment for psychological disorder – Claims rejected - Whether suffers disease caused by employment – Held suffers from Adjustment Disorder – Applicant’s employment materially contributed to Adjustment Disorder – Decision set aside and liability found – Decision varied - Entitled to medical expenses and incapacity payments

Safety, Rehabilitation and Compensation Act 1988, ss 4, 14, 16, 19, 24, 27, 36

Guide to the Assessment of the Degree of Permanent Impairment (2nd edition), Table 5.1

Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV)

Wiegand v Comcare (2002) 72 ALD 957

REASONS FOR DECISION

15 June 2009

Mrs Josephine Kelly, Senior Member Dr I Alexander, Member

INTRODUCTION

1. In 1999, Mr Emile Corsaro began working as a printer for the Health Insurance Commission (HIC), now Medicare Australia. Following an injury to his right shoulder in a motorcycle accident in December 1999, he was redeployed to a clerical position. He was working in such a position in 2004 when he alleges he suffered the injury the subject of the two proceedings before us, for which compensation is claimed pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (the Act).
2. Proceedings 2007/0239 relate to a claim for compensation dated 17 January 2005 for anxiety and depression which was suffered on the morning of 20 September 2004 as a result of bullying, intimidation, and verbal abuse on three occasions, by management. It is apparent that another claim was lodged at the same time for aggravation of rotator cuff (capsule) strain (right) which we understand from the evidence was accepted. However, the claim with which we are concerned was rejected on 19 May 2005. Following Mr Corsaro's request to reconsider the decision, it was affirmed on 18 October 2005. That is the reviewable decision before us.
3. The reviewable decision in proceedings 2008/5006 was made on 23 September 2008. It affirmed a decision made on 5 February 2008 to deny liability for compensation for compensation for medical expenses, incapacity, and permanent impairment (ss 16(1), 19, 24 and 27 of the Act respectively) in respect of the injury claimed 17 January 2005 The claim for incapacity was for the period 20 January 2006 to 29 August 2006, when incapacity payments ceased in relation to the accepted claim for aggravation of the right shoulder injury, until Mr Corsaro commenced work with a swimming pool company.
4. For the reasons that follow we make the following decisions:

a) In proceedings 2007/0239, we set aside the reviewable decision and substitute the decision that Comcare is liable under section 14 of the Act in respect of Adjustment Disorder manifesting with Anxiety and Depressed Moods suffered by Mr Corsaro from 20 September 2004.

b) In proceedings 2008/5006, the reviewable decision is varied to the extent that liability is accepted pursuant to ss 16 and 19 of the Act from 20 January 2006 to 18 March 2006.

THE ISSUES

5. The principal issue is whether Mr Corsaro suffered a disease (as defined in s 4 of the Act) which was contributed to in a material degree by his employment with HIC such that he is entitled to compensation under s 14 of the Act. Comcare did not assert that Mr Corsaro had not suffered a depressive condition at the relevant time.
   
6. If Mr Corsaro is successful on that issue, is he entitled to compensation for:

medical expenses (s 16 of the Act)

incapacity from January to August 2006 (s 19 of the Act),

permanent impairment (s 24 and s 27 of the Act?)

DID MR CORSARO SUFFER A DISEASE RELEVANTLY CAUSED BY HIS EMPLOYMENT?

Comcare’s Arguments

7. Mr Gollan, counsel appearing for Comcare, helpfully summarised his case on this issue as follows.
8. Mr Corsaro's behaviour in August and September 2004 reflected an underlying "organic" problem which had been apparent before that time. We understood this submission to refer to excessive drinking of alcohol, together with the taking of pain medication. In support of that submission, we understood Mr Gollan to rely on the evidence of Dr Lewin, consultant psychiatrist, and on a clinical note of Dr Lin, Mr Corsaro's general practitioner, dated 2 March 2001 which, as best we can decipher it, stated that "lately" Mr Corsaro was drinking alcohol excessively.
9. Next, Mr Gollan argued that Mr Corsaro's disease was suffered as a result of his failure to obtain a benefit in connection with his employment and therefore falls outside the definition of injury in s 4 of the Act and therefore no compensation is payable. The alleged benefit was Mr Corsaro's failure to have removed from his Personal Support Agreement (PSA), a performance goal relating to absenteeism. He was concerned that he would be penalised by not getting a 0.25% pay rise if he did not agree to its inclusion. Mr Gollan acknowledged that Mr Corsaro was eventually successful in having the goal removed, however, Mr Gollan emphasised that the genesis of Mr Corsaro's disease was during the negotiations before the removal of the goal.
10. Finally, it was argued that Mr Corsaro was not subject to bullying and intimidation in the workplace or in relation to the PSA as alleged because the state of affairs that Mr Corsaro claims gave rise to the claimed condition did not actually occur.

Consideration

Lay Evidence

11. Mr Corsaro suffered an injury to his right shoulder on 2 December 1999 when he was involved in a motorcycle accident while travelling to work. Liability was accepted for that particular injury. At the time of the accident Mr Corsaro was employed as a printer by the HIC. He underwent shoulder surgery twice. On 21 October 2002 it was recommended that his rehabilitation file be closed. By that time Mr Corsaro's duties had been altered. He no longer worked in the printing section but had been moved to a section where he was doing office and administration tasks. He was in such a position in August and September 2004, which is the critical period for the present claims.
12. We had evidence before us of what happened in that period in the form of diary notes, correspondence, statements and oral evidence. We make the following findings. The course of events is not really in dispute, however, the perception of Mr Corsaro differed from that of other people who were present.
13. Ms Reid was the manager of the Research and Analysis team in which Mr Corsaro worked during the relevant period. Ms Endycott was Ms Reid's manager. We accept Ms Reid's evidence that the PSA was created through consultation with members of the team, and one was created for the team and then she created Mr Corsaro's.
14. On 2 August 2004, Mr Corsaro, Ms Reid and Ms Endycott had a meeting. Mr Corsaro said that he was not happy about signing the PSA. The goal in dispute was to include measures such as scheduling appointment on flex days and to use leave appropriately where possible (the absenteeism goal). Ms Reid noticed that Mr Corsaro appeared to be annoyed but no one raised their voice. She noticed he grasped the side of the table and leant forward to make his point. Later that day Mr Corsaro spoke to Ms Reid about the matter again, having spoken to the Union. Ms Reid invited Ms Endycott to join the discussion. Ms Reid considered that Mr Corsaro was extremely rude towards Ms Endycott, and also arrogant and dismissive of her. She thought he thumped the table. Ms Reid spoke to Mr Corsaro again on 4 August 2004 about the PSA and told him that he had behaved in an unprofessional manner towards Ms Endycott in the earlier meeting. Mr Corsaro said he refused to sign the PSA at the meeting.
15. A further meeting was held on 16 August 2004 which was attended by Ms Reid, Mr Corsaro, Ms Endycott and Ms Westbrook from HIC’s Human Resources. We accept that Mr Corsaro was offered compromise wording for the goal but he did not agree. We accept the evidence of Ms Endycott that he shook his finger at Ms Reid and spoke loudly and aggressively. When told by Ms Endycott that he was threatening and his behaviour was not appropriate, he stopped and then appeared obstinate. Ms Endycott and Ms Reid recommended that he approach an Executive Team Manager, such as Mr Green, or another to resolve it. Mr Corsaro said that he would not, but later he did so.
16. Mr Corsaro sent an email to Ms Reid on 19 August 2004 apologising for "being such a stubborn bull headed Taurus and causing you so much anguish".
17. A typed note made by Ms Endycott on 26 August 2006 recorded that Mr Green had met with Mr Corsaro for one and a half hours on 25 August at Mr Corsaro's request,, and that Mr Green told her the issue of the inclusion of the goal still remained. Mr Endycott wrote that to her knowledge the issue of Mr Corsaro's PSA was resolved and no outstanding issue/s remained. She also wrote that it was apparent that Mr Corsaro had had communication with Mr Bartholomew from National Office on the issue of his PSA and in particular the performance goal on absenteeism. She believed "that whatever the information given has enraged" Mr Corsaro:

"to the point where he feels intimidated and threatened and is adamant on having this performance goal removed. I have agreed that this is perhaps the best option as the time spent on this cannot be truly justified".

Ms Endycott set out the time various members of staff had spent on the issue – a total of 10.5 hours.

18. Ms Endycott also noted that Mr Green mentioned that “during this very difficult meeting with” Mr Corsaro that:

“[he] had stated that he felt that Marie has picked on him for not completing some task in regards to 'filing'? and I advised Tony that I am aware of the incident, and that this was prior to the PSA issues. I felt that it is difficult to resolve issues with Emile as he is unable to resolve conflicts and move on. The fact that he was raising the issue of filing was an example of how presumed resolved issues are being unresolved by Emile”.

19. She also recorded that it was apparent from Mr Green that Mr Corsaro:

“is very upset over the whole incidents and in particular the first meeting with me and pursuing the meeting with Marie, Johanna and I to the extent that is speaking of the stress this has caused him and the damages he is contemplating”.

20. The email correspondence between Mr Bartholomew and Mr Corsaro shows that Mr Corsaro had a discussion with Mr Bartholomew on the morning of 17 August 2004, which Mr Corsaro followed up with an email. There were ten emails in total. The last communications were on 25 August 2004. The question Mr Corsaro wanted answered was:

“Is it with in the parameters of the PSP, that I could be graded below Target within the HIC Values of my PSA, at my quarterly assessment, if I did not sign my PSA with Leave include as a goal, and then Counselled”.

21. On 26 August 2004 Mr Corsaro sent an email to Mr Green requesting that the absenteeism goal be removed from his PSA. He said that it had been included as a result of harassment and extreme duress. Ms Endycott's typed notes made on 26 August 2004, and a further memorandum from her dated 21 March 2005, indicate that the goal was removed from Mr Corsaro's PSA on that day.
22. However, having successfully had the absenteeism goal taken out of his agreement, Mr Corsaro was not satisfied. He drafted a letter addressed to "R & A Management NSW PRB" signed by all members of his team and by him as "In support" seeking to have the performance goal relating to absenteeism removed from "our PSA". We infer that to mean the team's PSA, and that Mr Corsaro signed as he did because he had already had the term removed from his PSA. The document asserted that the team had been misled by being told that the goal was compulsory but had found out that that was untrue. It went on:

“As individuals, we feel intimidated and are reluctant to discuss/negotiate this matter on an individual basis for fear of repercussions and retribution. We request that should there be a need to further discuss this matter that it be in a group situation. We also wish to make it quite clear that our concerns and this decision is a group one and no individual should be singled out”.

23. The document was critical of management's conduct in relation to the matter. The PSA had previously been signed by the members of the team apart from Mr Corsaro. We infer that, having been successful in having the absenteeism goal removed from his PSA, Mr Corsaro lobbied his fellow team members to do the same thing. The letter strongly reflects Mr Corsaro's views.
24. We accept Ms Reid's evidence that the Team called her in to a meeting room and presented the letter to her when she returned to work on 2 September 2004, after taking compassionate leave for a few days. We find that on that day Ms Reid expressed her hurt and disappointment that the Team had put their concerns in writing rather than speaking to her in person. She told us that she had decided to take the absenteeism goal out of the Team's PSA while she had been off work.
25. On 20 September Mr Corsaro sent a letter to "Trish" asking that he be removed from the Prescription Shopping Project “at the earliest possible opportunity to relieve the enormous pressure I am feeling”. He said that his team were bending the rules, that he continually expressed his concern to the team to no avail and that the management chain did not foster open communications and he felt like some kind of whistleblower.
26. A further team meeting was held on 23 September 2004. Ms Reid apologised to the team for the handling of the PSA and said that she had probably not handled it as best she could have. By this time, the contentious goal had been removed from all the PSAs for the Team. The perceptions of what happened at this meeting differ between Ms Reid and Mr Corsaro.
27. The next day, 24 September, Mr Corsaro met with Mr Paul McMahon. This was Mr Corsaro’s last day at work. On 28 September 2004 Mr Corsaro sent to Mr McMahon a "Letter of Complaint as discussed on the 24 09 2004". He stated that the "real issue" " is the abuse of power by management, which has caused so much anguish within the Team, which at the least, has been bullied in this process". Under the introductory sentence "You asked me what I would like to see happen", Mr Corsaro set out eight paragraphs of criticisms and recommendations. He criticised Ms Reid and "PRB Management" for the handling of the PSA issue, that is, the "compulsory addition of absenteeism" in them".
28. Mr McMahon investigated Mr Corsaro's complaints. As well as meeting with Mr Corsaro on 24 September 2004 and taking into account the Letter of Complaint referred to above, Mr McMahon also interviewed Ms Reid and members of the Research and Analysis Team. He prepared an internal management report dated 4 October 2004. He reported that the team members said that their choice of words "feeling intimidated" and "fear of repercussions and retribution" in their letter dated 30 August 2004 "was perhaps wrong". We infer that these were in fact the words used by Mr Corsaro and the other team members had not reacted as strongly as he had.
29. Mr McMahon's findings included that there was no technical problem with the absenteeism goal, that most of the team concerns centred on the view that management was imposing the goal on them and that:

“Emile Corsaro's experience in trying to resolve this matter had a negative influence on team members' views. The team have clearly expressed their desire to move on and not to spend any more time or emotion on this issue”.

30. Mr McMahon also wrote that, while Mr Corsaro was requesting an apology from Ms Reid, the team said that she had already apologised and they were not seeking further apology. He also found that there was no evidence that Ms Reid acted in an intimidatory manner or in a manner that would breach the HIC Harassment Policy.
31. Mr Corsaro responded to Mr McMahon's investigation report on 7 October 2004 in a two page letter of criticisms. In oral evidence, Mr Corsaro said that the matter should have been submitted to Canberra for independent inquiry but that he did not have the strength to do that.
32. We also take into account the evidence of Ms Perrone and Mr Antkowiak about Mr Corsaro's behaviour. Ms Perrone is a Workplace Safety Manager with Medicare Australia.. Her evidence included a document called Summary of Events for Emile Corsaro, which set out various difficulties and incidents from 2 December 1999 until 10 May 2005 when Mr Corsaro's rehabilitation in relation to the 2004 injury was closed "due to safety issues and lack of communication".
33. Notably the summary set out an incident on 30 April 2002 when Mr Corsaro accused a rehabilitation provider in relation to his shoulder injury of mismanaging his rehabilitation. The verbal sparring escalated and, consequently, the rehabilitation provider requested to be relieved of that role. The next incident was the allegation made in September 2004 against Ms Reid for workplace harassment during the PSA process. On 29 October 2004, Mr Corsaro alleged that the workplace safety manager had breached the HIC Code of Conduct. On 20 December 2004, communication with the rehabilitation provider became difficult after it supplied HIC a copy of a documented inappropriate call made by Mr Corsaro which had been requested as part of action taken by HIC about a call that had been made to an employee. Mr Corsaro asked to change providers. Ms Perrone said that while working with HIC Mr Corsaro was:

“a man who challenged authority, at times verbally aggressive, at times quite pleasant. He had a recurring pattern of conflict with staff regardless of changes in his duties and management. Wherever he worked this pattern followed him it wasn't just at one location”.

34. Mr Antkowiak managed Mr Corsaro from 1999 until late 2002 while he was working in the printing section of HIC. Mr Antkowiak found Mr Corsaro difficult to manage and provided details of difficulties with Mr Corsaro set out in contemporaneous documents dated 4 February 2002 and 11 February 2002. In summary, he thought that Mr Corsaro had an overbearing attitude and would be verbally aggressive and move close to you. Mr Antkowiak was not intimidated by Mr Corsaro's physical presence, but he could understand that others might be.
35. Mr Corsaro last worked at Medicare Australia on 24 September 2004 when he went off work following a reported incident involving his previous shoulder injury. Although not in evidence the incident was referred to in the reviewable decision in proceedings 2007/0239. The first medical certificate obtained by Mr Corsaro after going off work was from Dr Lin, general practitioner and dated 27 September 2004. It referred to aggravation of shoulder injury.

Medical Evidence

36. The first notation of an anxiety depression condition was in a medical certificate from Dr Lin dated 23 October 2004.
37. It is not necessary to trace the trail of medical practitioners who saw Mr Corsaro in relation to his physical injury because that has been the subject of a separate successful claim and is not before us. However, it is relevant to these proceedings that Mr Corsaro was treated extensively with narcotic analgesia for that condition.

Mr Rodriguez

38. On 30 October 2004 Dr Lin referred Mr Corsaro to see Mr Rodriguez, psychologist, who had previously treated Mr Corsaro in 2002 in relation to the right shoulder injury suffered in December 1999.
39. Mr Rodriguez prepared a report dated 10 November 2004. He wrote that on 9 November 2004, Mr Corsaro presented as extremely anxious and depressed and spoke at length about his work situation, and in particular about what he perceived as very upsetting dealings at work. Mr Rodriguez diagnosed Adjustment Disorder manifesting with Anxiety and Depressed mood in accordance with the criteria in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV). He also noted that Mr Corsaro reported suffering chronic pain affecting primarily the areas of his neck, upper back, and radiating to his right shoulder. Mr Rodriguez said:

Due to the severe and urgent nature of Mr Corsaro's symptoms I have arranged for treatment at my rooms to commence immediately.

He proposed cognitive behavioural therapy (CBT).

40. In a follow up report dated 2 December 2004, Mr Rodriguez noted that Mr Corsaro had had four treatments, was responding positively but still manifesting considerable anxiety and depressive moods, and demonstrated high distress when having to address relating to work. Four further sessions were proposed.
41. Mr Corsaro was referred to a rehabilitation provider on 22 December 2004. He did not attend the first scheduled meeting with his rehabilitation provider but did attend the premises of the rehabilitation provider on 31 January 2005, with his partner. The rehabilitation provider and the manager, workplace safety for HIC were also present. The file note of that date shows that in response to being asked by the rehabilitation provider how he felt, Mr Corsaro replied:

“You've screwed up my life, I don't speak to my wife anymore, I don't speak to my kids anymore, people at work have been threatened not to speak to me, I've been harassed by 5 managers at work and my treating doctor doesn't want to treat me anymore".

He then stood up, started to slap his face screaming and yelling "kill me, kill me", punched his own face and punched a huge hole in the wall less than half a metre away from where the workplace safety manager was sitting. He then opened the door and head butted it a number of times before storming off. The rehabilitation provider and HIC's workplace safety manager contacted his general practitioner and his psychologist.

42. Mr Rodriguez prepared a report addressed to Comcare dated 1 February 2005. In our view, this report is the key to the determination of this matter. He recounts the difficulties Mr Corsaro experienced in his home life when growing up, his employment history, that his first marriage lasted 12 years until 1993 and that he was currently in a solid, stable and fulfilling relationship, and that he and his partner were expecting a baby in two weeks' time. Mr Rodriguez wrote:

In general, background history of Mr Corsaro indicated he very likely suffered from childhood psychopathology manifesting with Anxiety and Depression and with some features of Personality Disorder primarily comprising of interpersonal functioning difficulties and poor impulse control; these traits appear to have been quite inflexible and pervasive across a broad range of personal and social situations during his childhood and adolescence. Mr Corsaro’s personality problems however did not prevent him from developing appropriate employment history and interpersonal relationships as an adult and thus it seems that it is not in order to assume that he had suffered a full-blown Personality Disorder condition. Nonetheless, some personality difficulties have been evidence subsequently, which have pervaded until the present, including an overly passionate response to what he perceives as prejudice.

43. Mr Rodriguez recorded that Dr Lin had referred Mr Corsaro to him on 4 February 2002 in relation to his shoulder injury and work related stress. Mr Corsaro attended seven treatment sessions with Mr Rodriguez in February and March 2002. He went on to record that Mr Corsaro told him that during August 2004 he noticed the onset of a marked deterioration in his moods and an intensification of his neck and shoulder pain, which he attributed to stress and conflict at work. He described a bitter conflict with management over his award which resulted in his condition deteriorating and becoming incapacitating. Mr Rodriguez wrote:

In general, Mr Corsaro's current condition is not unlike his presentation in 2002 when I conducted my previous assessment, and it comprises of intense Anxiety and Depression accompanied with agitation, cognitive dullness and confusion and a poor zest for living. He becomes easily agitated when having to deal with matters regarding his work situation.

Strictly from a psychological point of view Mr Corsaro’s condition is consistent with the provisions set down for an Adjustment Disorder manifesting with Anxiety and Depressed Moods in the Diagnostic and Statistical Manual of Mental Disorders – Fourth Edition (DSM-IV), clause 309.28.

44. Mr Rodriguez recorded that progress had been moderate and that Mr Corsaro was still unable to deal with issues related to return to work without becoming unduly distressed and anxious. He proposed to continue CBT and relaxation therapy.

As during the work episodes in 2002 a major stumbling block in Mr Corsaro’s rehabilitation has been the highly conflictive nature of his dealings with management. Prompted by his passionate personality traits, low levels of tolerance and his strong tendency to response angrily and defensively to confrontations Mr Corsaro becomes easily overwhelmed emotionally and he has difficulty in exercising full cognitive or emotional control when dealing with these issues. This behaviour was evident during a recent meeting that Mr Corsaro had with his rehabilitation provider on 31/1/05.

45. Mr Corsaro's evidence was that his partner gave birth to their son on 6 February 2005. He also told us that he had assaulted her when she was seven months pregnant, which was probably around the end of November, early December 2004, when he was not going through a good stage of his life.

Other Psychiatric and Psychological Evidence

46. Mr Corsaro saw his treating psychiatrist, Dr Chaudhary, first on 3 March 2005. Mr Corsaro presented as being aggressive and angry and did not know why he was seeing Dr Chaudhary. Dr Chaudhary recorded the history of the 1999 shoulder injury, and that Mr Corsaro was suffering shoulder and neck pain and would not work with pain. He also complained about being pressured by his managers at work and being intimidated and threatened. He was angry at the way he had been treated. He was taking Tramal and Ms Contin for pain relief and was taking an anti-depressant, one Efexor 75 mg twice daily. Previously he had been taking Avanza which did not work. Dr Chaudhary advised him to continue taking the Efexor and seeing the psychologist. The doctor did not make a diagnosis but referred to anxiety and depression symptoms.
47. Dr Synott saw Mr Corsaro for HIC on 19 April 2005 and prepared a report dated 28 April 2005. He diagnosed Major Depressive Disorder. Dr Synnott considered that the most significant factor impacting on Mr Corsaro's recovery was his fear of being targeted by management when he returns to work. There was also uncertainty about his work options, his potential to work in other areas being limited, given his physical incapacity to work as a printer and lack of significant retraining to work in other areas. Dr Synnott considered it unlikely that psychiatric intervention would be of great benefit whether of psychotropic medication or psychotherapy. Dr Synnott took a history that Mr Corsaro had gone off work because of an exacerbation of his shoulder injury in September 2004. He also recorded that Mr Corsaro was socially avoidant, drank 1 to 1.5 litres of wine per day and was taking antidepressant medication, Venlafaxine 150 mg per day which was of some assistance, as well as Tramal and MS contin for pain.
48. In a document dated 10 May 2005, the rehabilitation consultant determined that occupational rehabilitation was not appropriate due to safety issues. The document refers to Mr Rodriguez's opinion that Mr Corsaro could be a dangerous man when he becomes angry and that suggestions of return to work can trigger that anger. In his opinion, Mr Corsaro was not fit to participate in occupational rehabilitation.
49. Dr Lin had advised that Mr Corsaro continued to have anger management issues but he did not think he would harm anyone other than himself.
50. Reports prepared by Dr Lin dated 17 February 2005 and 22 July 2005 were also in evidence.
51. Dr Chaudhary prepared a report dated 5 October 2005 at the request of Mr Corsaro's solicitor. Dr Chaudhary had seen Mr Corsaro on 7 April 2005, 6 May 2005, 3 June 2005 and 4 August 2005. On 7 April 2005, Mr Corsaro had reported that he was a recluse and was not eating very well. He felt guilty about causing his wife a lot of anguish. He cannot turn off, work overwhelms him and he is not looking forward to getting back to work. On 6 May 2005, Mr Corsaro reported that he was taking Efexor XR 150 mg capsule once daily which Dr Chaudhary advised him to continue, plus Tramal and morphine tablets to relieve pain. He was sleeping 15 to 16 hours but was still getting very agitated and upset over little things. On 3 June 2005, Mr Corsaro reported his usual anxiety symptoms, depression and pain and aches. On 4 August 2005 his condition was stable. His wife felt that he was much calmer. He was still having ups and downs but was not too aggressive. He has not done any damage to the property or household items in recent times". We infer from this report Mr Corsaro had damaged property and household items in the period before 4 August 2005, although Dr Chaudhary does not directly record such incidents.
52. Dr Chaudhary made a diagnosis of anxiety and depression and noted that Mr Corsaro's condition was stable and he had made optimal level of improvement. There was a possibility of further recurrence of symptoms. He was not fit for pre-injury level of work, and Dr Chaudhary could not forecast how long before he would be fit for some other kind of work. He needed to go through some rehabilitation process before he could embark on employment. In his opinion, employment was a substantial contributing factor to his psychological injuries. He considered that Mr Corsaro would need ongoing treatment from his psychologist and treatment with antidepressants because he was likely to suffer from further recurrence of symptoms of anxiety and depression depending on how much stress he is subjected to. He estimated a total body impairment caused by psychological injures of 10%. He referred to no guide or table to justify that figure.
53. Following a medical assessment by Dr Kafataris, held pursuant to s 36 of the Act, Mr Corsaro was referred on 25 October 2005 to another rehabilitation provider to assist him to return to work (redeployment) at an alternative government agency.
54. On 11 November 2005 Dr Griffiths, consultant clinical psychologist, saw Mr Corsaro and prepared a report, following a referral from Dr Ganora in whose practice she worked. Mr Corsaro had been referred to Dr Ganora, rehabilitation physician, by Dr Breit, orthopaedic surgeon, in November 2004. Dr Ganora had referred Mr Corsaro for manipulative physiotherapy at that time. In summary, she found high levels of stress and anxiety, that his depression was under control with medication (Efexor). She found that the results of a pain questionnaire classified his responses confirmed high levels of pain where were interfering with his life. He was taking Tramal and MS Contin and was drinking more than moderately. She noted that he had had psychological counselling for anxiety and stress but not for pain management and agreed with the recommendation of Dr Lin and Dr Ganora for psychological pain management, that is six sessions of CBT.
55. Following review by Dr Bornstein, consultant orthopaedic surgeon, on 22 November 2005, Comcare wrote to Mr Corsaro on 15 December 2005 giving him an opportunity to present further medical evidence supporting on ongoing entitlement to medical expenses and incapacity payments because Dr Bornstein's report indicated that he did presently suffer from the effects of aggravation rotator cuff (capsule) strain (right).
56. It is apparent from another letter from Comcare to Mr Corsaro also dated 15 December 2005 that Dr Ganora had recommended medial branch blocks of the lower Cervical zygapophyseal joint in a report dated 12 October 2005. Comcare refused the treatments recommended by Dr Ganora and Dr Griffiths.
57. As previously noted, Mr Corsaro's compensation benefits for his physical injury ceased on 20 January 2006. This decision was based on a report from Dr Bornstein, consultant orthopaedic surgeon, dated 23 November 2005.
58. On 24 February 2006, Dr Lin issued a medical certificate in which he diagnosed right shoulder and back pain / anxiety and depression which had been substantially contributed to by to his employment. Dr Lin described the management plan as "trial return part-time work HIC" and certified Mr Corsaro fit for suitable duties from 25 February to 24 March 2006. The work restrictions included a weight limit of 5 kg or less for the right shoulder, and avoiding repetitive movements with the right shoulder and high stress work environment.
59. Mr Corsaro was then referred to a rehabilitation provider, Active Working Solutions to assist him with redeployment to another job outside HIC. The psychologist who assessed Mr Corsaro reported on 6 March 2006 that Mr Corsaro was prepared to return to his pre-injury position with HIC and, given the history, recommended the involvement of the union and an independent facilitator to ensure a successful return to work. A graduated return to work plan was recommended and that he return to full-time duties in the quickest possible timeframe. Further, he recommended that Mr Corsaro be provided with pain management counselling to maximise his capacity to fully utilize the conflict resolution process. Mr Corsaro was taking Tramal on a daily basis and Oxycontin when the pain is worse, although he was reluctant to take it.
60. On 14 March 2006, Mr Corsaro saw Dr George, consultant psychiatrist, at the request of Medicare Australia. Mr Corsaro gave a history of leaving his workplace in 2004 because he re-injured his shoulder while lifting. He gave a history of conflict with management that caused him quite a degree of stress. He said that had been seeing a psychiatrist from Westmead and had taken anti-depressant medication up until the end of last year. Dr George diagnosed pain disorder and major depression which was in remission. Mr Corsaro was not taking medication but did not present as being depressed. He was under the care of a psychiatrist and a psychologist who had been providing him with coping strategies for his anxiety and conflict situations. His prognosis was somewhat guarded. Mr Corsaro indicated that he believed that he had moved on from past conflict with Medicare Australia and would have a support person with him at meetings in the future. He would prefer to work outside Medicare Australia but Dr George believed he was capable of a graded return to work and his strong recommendation was that Mr Corsaro be employed in an alternative government agency. Dr George noted:

"Often returning a person to the same situation whereby they had an onset of symptoms can place them at a risk of recurrence".

61. Dr Lewin, consultant psychiatrist saw Mr Corsaro on 18 August 2007 and prepared a report dated 14 September 2007, a supplementary report dated 2 October 2007, having read Dr Chaudhary's two most recent reports, and a further supplementary report dated 16 November 2007. Mr Corsaro told Dr Lewin that his wife had left him seven months ago, which we infer means February 2007, and that he had assaulted her about 18 months before that. He said that "only goal" was to be reconciled with his wife and to bring up his son decently. Mr Corsaro told Dr Lewin that he was taking Efexor (75 milligrams per day) and another medication he could not remember. Mr Corsaro told Dr Lewin that he had attended Dr Chaudhary until about a year ago when he felt somewhat better and decided to cease treatment but spoke of his recent decision to resume treatment in the light of his current difficulties. He had seen Dr Chaudhary recently at the request of his solicitor.
62. In relation to conflict he experienced in the workplace following his shoulder injury and the PSA negotiations, Mr Corsaro told Dr Lewin:

"that he recalled his own reaction to those two episodes have been unreasonable and excessive in the workplace. He recalled screaming and shouting and similar behaviour".

63. Dr Lewin did not diagnose a depressive or anxiety condition. He noted that Mr Corsaro did not report current anxiety or depressive symptoms. In his opinion a pattern of alcohol abuse was the main clinical problem when he saw Mr Corsaro. He also referred to an earlier pattern of inappropriate use of narcotic analgesic medication. He expressed the opinion that the medication had an adverse impact upon Mr Corsaro's emotional state and thought it likely that the concurrent use of analgesic medication and alcohol contributed to the violent outbursts and emotional instability in various contexts to a significant degree. He noted that Mr Corsaro was no longer taking narcotic analgesic medication on a daily basis. The reported pattern of use was unlikely to have a significant adverse impact on behaviour, but the reported daily pattern of use of alcohol was likely to have an adverse impact on behaviour. He thought it likely that the physical condition contributed to a depressive reaction experienced by Mr Corsaro in 2004 an 2005. He found no sign of dissimulation or exaggeration.
64. Dr Lewin wrote:

In this case, it would not be helpful to attribute Mr Corsaro’s current emotional difficulties to a Depressive Disorder when his complex of symptoms and his pattern of behaviour are explained upon the basis of a problem relating to substance use. When considering the diagnostic criteria for Major Depression, criterion D states “The symptoms are not due to the direct physiological effects if a substance (eg a drug of abuse, a medication) or a general medical condition. Similarly, criterion G with regard to Dysthymic Disorder.

My own opinion diverges from the opinion of Dr Chaudhary upon this question. If the fundamental problem rests with substance use, then treatments focussing upon problems in the workplace or problems in the workplace or upon problems arising from early emotional development are unlikely to be effective.

I agree with Dr Chaudhary that further treatment is required. The focus of that treatment programme should initially be upon the substance use issues. It is my opinion that Mr Corsaro’s psychiatric condition remains in the acute phase and has not reached maximum medical improvement. It would be inappropriate, at this stage, to comment upon questions relating to permanent whole person psychiatric impairment.

65. In his report dated 16 November 2007 prepared in response to a request for clarification, Dr Lewin said:

In response to your first question, I concluded as follows: "It is likely that Mr Corsaro experienced a depressive reaction at an earlier stage within the context of his emotional reaction to pain symptoms". A depressive condition is a general term which may encompass the diagnosis of an Adjustment Disorder or perhaps a Major Depressive Disorder. Both are recognised psychiatric conditions under the conventional diagnostic system. I also expressed the opinion in September 2007 that the depressive reaction occurred within the context of certain organic factors which might have magnified the intensity of Mr Corsaro's response. If the pain from the shoulder injury was troubling Mr Corsaro during the relevant period than (sic) this leads to the conclusion that there was a causal connection.

66. Dr Chaudhary prepared two reports dated 20 August 2007 at the request of Mr Corsaro's solicitors. A further letter of clarification was sent by Dr Chaudhary but we do not understand it to affect his opinion. He had seen Mr Corsaro on 11 August, not having seen him since 7 April 2006 when Mr Corsaro had told Dr Chaudhary that he would like to go back to work but unfortunately his employer would not allow him to. Dr Chaudhary recorded on 20 August 2007 that Mr Corsaro's wife had left him, and his 24 year old son would not speak to him. He diagnosed depressive illness according to DSM-IV and stated that stressors contributing to this condition included shoulder injury and bullying, intimidation and the pressure he was put under by his superiors whilst working with HIC. Mr Corsaro gave a history that his temper had become worse and he screams and yells and punches people. He was quite aggressive at times “and that was the case before he went on Zyprexa and since being on this medication he has calmed down to some degree”. He also told Dr Chaudhary that he was seeing another psychiatrist for the last couple of months. He was working at a pool shop but he did not like the job and his boss was very aggressive and he found it hard to cope with his attitudes. Dr Chaudhary was not sure whether he was using painkillers. He obviously had not inquired. Dr Chaudhary found 10% impairment according to Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (2nd edition).
67. Dr Chaudhary took no history of drinking from Mr Corsaro at any time, although he did address the question when asked during the hearing. Dr Lewin also gave oral evidence.
68. By the time of the hearing, Mr Corsaro had reconciled with his wife.

Conclusion

69. Taking into account all the evidence before us, we find that the appropriate diagnosis of Mr Corsaro's condition from August/September 2004 was that made by Mr Rodriguez, that is, Adjustment Disorder manifesting with Anxiety and Depressed Moods in accordance with the criteria in the DSM-IV. The contemporaneous evidence is overwhelming.
70. Further, we find that the Adjustment Disorder was contributed to in a material degree by Mr Corsaro's employment with HIC. We find that Mr Corsaro's dealing with management about the PSAs and the escalation of conflict materially contributed to his suffering Adjustment Disorder from August to September 2004.
71. We do not accept Mr Gollan's argument that Mr Corsaro's condition from August 2004 was a consequence of his underlying organic condition as described by Dr Lewin. To succeed, Mr Gollan had to satisfy us that Mr Corsaro's drinking and/or medication was causing his behaviour in August 2004 rather than the conditions of employment. It is curious that there is no contemporaneous reference in the evidence before us from the doctors and psychologist who were treating Mr Corsaro, about his alcohol consumption in 2004 and 2005, however, that does not cause us to doubt that this is the correct finding.
72. Mr Corsaro said during cross-examination that his drinking became worse after August and then worse again after September 2004 as a consequence of the conflict at work. Dr Lewin reported that Mr Corsaro was drinking very heavily, however, in context, we understand this to mean from August / September 2004.
73. Dr Lewin's report is helpful in explaining why Mr Corsaro's behaviour altered from August 2004, but it does not support a finding that the ingestion of alcohol and medication was causing an organic problem immediately before 2004.  Mr Gollan's examination of witnesses, and cross-examination of Mr Corsaro, seeking to establish a pattern of drinking before August 2004 did not succeed, but rather emphasised that drinking started to become a problem in August 2004, we infer, as a result of Mr Corsaro's perception of conflict with management.
74. We find that Mr Rodriguez's analysis of Mr Corsaro's personality traits, set out earlier in this decision, is helpful in understanding why Mr Corsaro reacted as he did following the 1999 shoulder injury and following the events in August / September 2004. We also find Dr Lewin's explanation helpful, although we do not accept his analysis of what happened in 2004. His primary focus was on Mr Corsaro's presentation and circumstances in August 2007, three years after the events with which we are concerned. Mr Corsaro's circumstances thenwere significantly different from his circumstances in 2004. He had resumed work, was separated from his wife and recounted incidents where he had been aggressive during that work. Further, we have the opportunity to carefully consider the contemporaneous documentation and consider the evidence of the witnesses who appeared before us.
75. We find that, when Mr Corsaro encountered certain circumstances in his life, he reacted aggressively, and this behaviour was aggravated by excessive drinking of alcohol and/or analgesic medication. However, there is no cogent evidence that Mr Corsaro was drinking excessively and/or taking excessive amounts of narcotic analgesia through 2003 until August 2004.  The evidence is clear that it was the perceived conflict with management in August and September 2004 which triggered Mr Corsaro's escalated aggressive behaviour and ultimately his Adjustment Disorder.
76. We also do not accept Mr Gollan's argument that the genesis of the disease suffered by Mr Corsaro was the failure to have the absenteeism goal taken out of his PSA or the team's PSA and therefore the disease is not an injury because it was suffered as a result of failing to obtain a benefit. First, Mr Corsaro achieved what he wanted. He did not fail. Secondly, we do not accept that causation can be limited to the period before he achieved what he wanted, which Mr Gollan expressed to be before 23 September 2004.
77. Finally, Mr Gollan argued that Mr Corsaro's perception was not based on reality. We understand his submission to be that the events that there was no bullying or harassment of Mr Corsaro by his managers in August and September 2004 and also Mr Corsaro was instigating the meetings and escalating the conflict. He argued that this was not a case where the principle enunciated in Wiegand v Comcare (2002) 72 ALD 957 applied. We disagree.
78. On the evidence, we find that it is clear that Mr Corsaro's perception was that he was bullied and harassed, although we find that objectively, he was not. The meetings and communications with management actually occurred. The incidents or state of affairs created a perception in Mr Corsaro’s mind, unreasonable as it was, and that perception materially contributed to Mr Corsaro’s Adjustment Disorder. As von Doussa J said in Wiegand at 797:

“...there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”

COMPENSATION FOR MEDICAL EXPENSES, INCAPACITY AND PERMANENT IMPAIRMENT

79. When Mr Corsaro saw Dr Lewin and Dr Chaudhary in 2007, his major concern was his separation from is wife several months earlier.  He had been working from August 2006. He told us that he was successful in getting a job the day he started looking.
80. We find that Mr Corsaro was no longer incapacitated by his injury or required medical treatment for it from 18 March 2006, when he saw Dr George. By that time, the reason Mr Corsaro could not return to work was a risk that he might suffer a recurrence of his anxiety and depression if returned to the same workplace. That was because of his personality traits and not because of any HIC work-related factors. This conclusion is supported by the report of the psychologist who saw him in March 2006 and, in our view, by Dr Lin's medical certificate dated 24 February 2006, which certified Mr Corsaro fit for suitable duties (not involving lifting greater than 5 kg or repetitive movements of the right shoulder or working in a high stress environment).
81. It follows that Mr Corsaro is entitled to compensation pursuant to s 16 and s 19 of the Act from 20 January 2006 to 18 March 2006 when he saw Dr George.
82. We do not accept Dr Chaudhary's opinion that Mr Corsaro suffered a 10% permanent impairment as a result of the injury. Although taking a history of separation early in 2007 he gives no consideration to the possible impact that circumstance had on Mr Corsaro's psychological condition.  Further, he took no history of Mr Corsaro's admitted drinking as described to Dr Lewin around the same time, and consequential aggression towards a co-worker at one of the swimming pool companies for whom he worked from 2006. These are significant omissions which brings into question Dr Chaudhary’s assessment.  Further, his opinion given in October 2005 made no reference to any table and was before Mr Corsaro returned to work.

DECISION

83. In proceedings 2007/0239, we set aside the reviewable decision and substitute the decision that Comcare is liable under section 14 of the Act in respect of Adjustment Disorder manifesting with Anxiety and Depressed Moods suffered by Mr Corsaro from 20 September 2004.
84. In proceedings 2008/5006, the reviewable decision is varied to the extent that liability is accepted pursuant to sections 16 and 19 of the Act from 20 January 2006 to 18 March 2006.
    

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr I Alexander, Member.

Signed: .........[sgd]..........

Steven Mulipola, Associate

Dates of hearing: 8 and 11 December 2008

Date of decision: 15 June 2009

Counsel for the Applicant: Mr R O’Neill

Solicitors for the Applicant: McDonnell Schroder Solicitors

Counsel for the Respondent: Mr M Gollan

Solicitors for the Respondent: Sparke Helmore