Carpenter and Comcare [2010] AATA 62 (29 January 2010)

Last Updated: 23 July 2010

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/3125
GENERAL ADMINISTRATIVE DIVISION ) and 2007/3126

Re: Geoffrey Carpenter
Applicant

And: Comcare
Respondent

And: Bureau of Meteorology
Other Party

CORRIGENDUM TO DECISION NO. [2010] AATA 62

TRIBUNAL: Deputy President D G Jarvis

DATE: 21 July 2010

PLACE: Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in the within proceedings by deleting the words “that definition only arises”, after the word “injury” in the third sentence of paragraph 104 on page 37, and replacing those words with the words “the exceptions to that definition only arise”.

D G Jarvis
(Signed)
(Deputy President)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2007/3125
GENERAL ADMINISTRATIVE DIVISION )

Re: Geoffrey Carpenter
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL: Deputy President D G Jarvis

DATE: 1 February 2010

PLACE: Adelaide

Pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), the TRIBUNAL DIRECTS the Registrar to alter the text of the reasons for decision in this matter by:

1. deleting the words “word “results””, where those words appear in the anti-penultimate and penultimate sentences of paragraph 105 on page 36 of the decision; and
   
2. substituting the words “expression “as a result of”” in each sentence.
   

D G Jarvis
(Signed)
(Deputy President)

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 62

ADMINISTRATIVE APPEALS TRIBUNAL ) Nos. 2007/3125

) and 2007/3126

GENERAL ADMINISTRATION DIVISION		)
	Re		GEOFFREY CARPENTER

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President D G Jarvis

Date 29 January 2010

Place Adelaide

Decision

The Tribunal sets aside the decisions under review, and: (a) in place of those decisions decides that the respondent is liable for the condition of generalised anxiety disorder from which the applicant has been suffering since November 1990, and the degree of permanent impairment resulting from the applicant’s generalised anxiety disorder should be assessed at 10%; (b) remits the matter to the respondent for reconsideration in accordance with these reasons; (c) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and (d) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant.

D G Jarvis
(Signed)
Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employee – whether generalised anxiety disorder was contributed to by employment in a material degree – claim for permanent impairment – meaning of “injury”, “disease”, “aggravation” and “results” – pre-existing vulnerability of applicant to stressful events – perception of victimisation, bullying and illegal practice in connection with employment – onset of anxiety disorder some years after cessation of employment – relevance of applicant’s intervening unsuccessful grievance complaints and activities as a whistleblower – held that employment contributed to anxiety disorder in a material degree – held that failure to obtain benefit contributed, but not to a material degree, to anxiety disorder – decisions under review set aside.

STATUTORY INTERPRETATION – exceptions to definition of “injury” in Safety, Rehabilitation and Compensation Act 1988 (Cth) to be interpreted in content of provision imposing liability – implication of requirement of materiality in causation of excepted events – meaning of “results”.

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14 and 24

Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536

Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Fellowes v Military Rehabilitation and Compensation Commission [2008] FCAFC 140; (2008) 103 ALD 552

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

Ilsey v Wattyl Australia Pty Ltd (1997) 75 FCR 1

Kirkpatrick v Commonwealth (1985) 9 FCR 36

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

March v E & MH Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506

Re Layton and Comcare (2007) 99 ALD 96

Wiegand v Comcare (2002) 72 ALD 795; [2002] FCA 1464

Wiegand v Comcare (No.2) (2007) 94 ALD 154

Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532

D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, 2006)

REASONS FOR DECISION

29 January 2010

Deputy President D G Jarvis

1. This matter has a long history. The applicant, Geoffrey Carpenter, was employed at the Bureau of Meteorology (BOM) from 1975 until 1983 or 1984. He was then employed in various positions by Australian Construction Services (ACS) until July 1992, when he accepted voluntary redundancy. Prior to that, on 29 November 1990, he had suffered a stress related illness. He claimed compensation, and Comcare accepted liability for a temporary aggravation of a chronic underlying anxiety condition. In 1991 Comcare decided that it was no longer liable to pay compensation for an aggravation of his anxiety condition.
2. In 2001 Mr Carpenter requested reconsideration of Comcare’s 1991 decision that it was no longer liable for compensation for the aggravation of his condition, and in 2004 this Tribunal affirmed Comcare’s decision on reconsideration to affirm its 1991 decision.
3. On 6 April 2006 Mr Carpenter lodged a further claim for compensation, this time for his underlying generalised anxiety disorder, which he claimed had arisen from his employment with the BOM as a result of improper actions on the part of the BOM in administering the transfer system, and victimisation, bullying and harassment of observers. Comcare rejected the claim. A reviewable decision dated 8 December 2006 and a reconsideration of own motion dated 6 June 2007 each affirmed the determination to reject the 2006 claim.
4. In addition, Mr Carpenter made a claim for compensation for permanent impairment in respect of “generalised anxiety disorder, depression, panic attacks, irritable bowel & frequent cold sores & tension headaches” (exhibit R39). Comcare also decided to reject this claim, and a reviewable decision affirmed that determination.
5. Mr Carpenter has applied to this tribunal for review of the above reviewable decisions in respect of his claims for compensation and for permanent impairment.

ISSUES BEFORE THE TRIBUNAL

6. The issues before the tribunal are as follows:

(a) whether Mr Carpenter’s employment by the BOM made a “material contribution” to his generalised anxiety disorder within the meaning of the definition of “disease” in s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act);

(b) whether Mr Carpenter’s generalised anxiety disorder is the result of failure by him to obtain a transfer or benefit in connection with his employment with the BOM within the meaning of the exception to the definition of “injury” in s 4(1) of the SRC Act; and

(c) if Comcare is liable under s 14 of the SRC Act to pay compensation in respect of Mr Carpenter’s generalised anxiety disorder, whether he suffers a permanent impairment as a result of his compensable injury, and if so, the degree of that impairment.

7. Mr Carpenter believes that he had been victimised during his employment by the BOM and that a number of other incorrect, unfair or illegal practices had occurred. For reasons referred to below, I am satisfied that his perceptions of certain work related events contributed to the conditions for which he is claiming compensation, that his perceptions are honestly held, and that certain events actually occurred which formed a sufficient basis for those perceptions. In these circumstances, as explained below, it is unnecessary for me to determine the correctness or otherwise of the relevant assertions that Mr Carpenter has made regarding the events in question, or whether or not the various relevant perceptions were reasonable.

BACKGROUND

8. Mr Carpenter is aged 60. In 1975 he was living and working in Adelaide, and in July that year he commenced employment with the BOM in Melbourne as a trainee observer. He was then aged 26.
9. After graduating as an observer he was transferred to Sydney. He said that he understood that this was to be a two-year posting. However, after six months he was transferred to Richmond to relieve another officer, and he remained there for four months. After that he was transferred to Tamworth for six months. While he was there he had a major accident; he was severely burnt, and was hospitalised for seven weeks.
10. Some two years later, in early 1980, he was transferred to Williamtown. Later, due to family matters, he requested a transfer to return to Adelaide. He then returned to Adelaide, and commenced work at the Adelaide Regional Forecasting Centre in June 1980. He said that he believed that his posting to Adelaide would be for at least two years, and decided to purchase a house as an investment.
11. In circumstances to which I will refer below, he was transferred to the BOM’s Edinburgh observatory at his request in June 1981, and then downgraded to a clerical position commencing March 1983. He later left the BOM’s employment. It is unclear from the material before me whether he left later that year, or in 1984.
12. As mentioned above, Mr Carpenter started work at ACS after leaving the BOM. He also experienced work-related stress during his employment, and in his 1990 claim for compensation, asserted amongst other things that he had been inadequately trained to carry out certain of his functions with the ACS. He participated in a rehabilitation program and returned to work in 1991, but in 1992 accepted voluntary redundancy. He had several months off work and an overseas vacation, and then set up a spec building business with his wife, but said that he was unable to continue with this work. He received treatment from various psychiatrists and psychologists, and in October 1994 obtained a disability support pension. According to his witness statement, his marriage “significantly deteriorated” after his breakdown in 1990, and he eventually separated from his wife in 1997 and moved to Port Lincoln. He attributed his marital breakdown to the events at the BOM (exhibit A1, page 122).
13. He underwent further psychological and psychiatric treatment in Port Lincoln. He follows a regime of medication prescribed by his treating psychiatrist, but only sees his psychiatrist on an as needed basis. He is now estranged from his wife and children, and has not formed a new relationship. He works on a part-time basis as a handy man, and has modified his lifestyle so as to avoid stress as far as possible. He is a volunteer with the Country Fire Service, and engages in various recreational activities involving communications with others, but said that he “prefer(s) solitude due to (his) illness” (exhibit A1, page 139).

APPLICANT’S EVIDENCE AS TO HIS CONCERNS IN ADELAIDE

14. The following summary of Mr Carpenter’s perceptions and concerns at the BOM after his transfer to Adelaide in 1980 is based upon his witness statement, his evidence and the large number of documents that were tendered. I have kept in mind the submission of counsel for Comcare, Mr Berger, that Mr Carpenter’s witness statement includes hearsay and other material that is objectionable, irrelevant or inherently unreliable, or of little or no weight. I also record that I accept that Mr Carpenter was a truthful witness, and as I have said, I accept that his perceptions of relevant events are honestly held.
15. Soon after being transferred to the SA region, Mr Carpenter witnessed colleagues having to cope with the threats of transfers, and “bullying and snide remarks”, mainly made by a Mr Weaver, who was “a dictator” when it came to the transfer of observers (exhibit A1, page 28). Mr Carpenter and other observers were told that they were members of a field officers’ pool, and were subject to being transferred to other locations. Some locations were remote. He and other observers felt intimidated by bullying practices and improper selection procedures, and this caused him significant concern and anxiety.
16. Five months after his transfer to Adelaide Mr Weaver telephoned Mr Carpenter, awakening him from sleep after a shift roster, and told him that he was to be transferred to Canberra for a six month temporary transfer, and that he was chosen because he was the only single observer available. Mr Carpenter believed that this was unfair, and amounted to discrimination. After he unsuccessfully endeavoured to object to the transfer, his union intervened, and on 30 January 1981, his transfer to Canberra was cancelled. However, from the day of the above phone call onwards, instead of leaving work stress free at the end of his shift, he began to worry about his impending transfer, and was subjected to repeated requests to change his mind, and “snide comments” from co-workers (exhibit A1, page 33). He became concerned about his superiors’ conduct, and this began to affect his work and sleep pattern.
17. He began questioning what he regarded as the BOM’s improper use of term transfers, his position in the field officers’ pool and his obligation to transfer without remuneration that was similar to that being paid to other BOM and Commonwealth staff, who also had transferable positions. He was not allowed free access to an updated copy of the Public Service Act, Regulations or Determinations, or the BOM’s Personnel Management Manual. He said:

“The BOM policy of deliberately secreting any information about modes of transfer and conditions of employment, from those who were employed under those conditions, caused me to worry excessively, sowing the seeds of the significant anxieties I now suffer from.” (exhibit A1, page 43)

18. Mr Carpenter said that he and others had no option but to accept that management had told observers the truth about the field officers’ pool and about term transfers of observers, since they had been denied access to documents relating to their conditions of service. However, he later discovered that those matters had not been documented. He believed that the BOM used term transfers to non-remote locations illegally, as a way of avoiding an obligation to pay temporary transfer allowances, that the BOM were incorrectly applying a 1983 Public Service Board determination retrospectively, that the BOM had been duplicitous and misleading in referring to a field officers’ pool, and that transfers of observers were also invalid because they had not been gazetted, as required by the Public Service Act. He referred to difficulties experienced by a number of observers as a result of unwelcome or inappropriate transfers, and cited various instances where he believed the BOM was using term transfers for movements which were temporary transfers so as to avoid paying allowances to which the observers in question would have otherwise been entitled.
19. In April 1981 Mr Weaver advertised a vacancy for an Observer Grade 1 at the Edinburgh observatory for a six or twelve months’ term transfer, commencing on 1 June 1981 (exhibit A1.25, also R46). Mr Carpenter applied for this position on condition that his transfer would to be permanent. He understood that Mr Weaver had verbally agreed to this, and had authority to enter into a verbal agreement to that effect. However, a few days later he received a form signed by Mr Weaver headed “Notification of Temporary Transfer” advising that his “movement” had been approved, with a term at Edinburgh of “1 year (option of extension)” (exhibit R6). He said that he was “horrified” after reading this movement notice. According to his witness statement:

“Murray Weaver had failed to honour our verbal agreement and I had now become an unattached officer. I knew I would be the next to go on any interstate transfer, as I was unattached, and feared that I would be transferred as reprisal.” (exhibit A1, page 56)

20. Nevertheless, Mr Carpenter took up the position at Edinburgh. Later, in April 1982, he and a colleague requested a roster change. This led to a “hostile” meeting with the acting administrative officer. Complaints were made about safety and working conditions at Edinburgh, and Mr Carpenter maintained that there were no such things as term transfers for Edinburgh or a field officers’ pool. The acting administrative officer subsequently reported that Mr Carpenter was on a temporary transfer to Edinburgh entailing eligibility for certain allowances, and recommended that his transfer be made a term transfer, or that he be brought back to Adelaide immediately and paid any moneys owing to him. At some stage a BOM file copy of the movement advice form advising Mr Carpenter of his transfer to Edinburgh was altered, so that the word “temporary” in the heading of the form was altered to “term”.
21. Soon after the above meeting, Mr Weaver returned from leave. He rang Mr Carpenter and sounded very angry. He said that he had inadvertently omitted to delete the word “temporary” from the heading of the movement advice form, but Mr Carpenter discovered that (contrary to Mr Weaver’s claims) movement advice forms issued to other observers did not have the word “temporary” removed from the heading of the forms. Mr Weaver also maintained that the transfer was a term transfer for one year which had been extended until another observer wished to go to Edinburgh or alternatively, until Mr Carpenter and his colleague wanted to leave (see exhibit A9).
22. According to Mr Carpenter’s witness statement, following the above telephone call from Mr Weaver:

“I could no longer cope with a high pressure job, significant safety concerns plus the stress associated with knowing I had severely upset the BOM’s management and administrative officers, so I sought a transfer to a clerical position to avoid an eminent (sic) reprisal transfer.” (exhibit A1, pages 78 - 79)

This position was a downgrade, with significant salary loss. He was appointed to the position with effect from 10 March 1983, and his appointment was gazetted. He then “planned to seek justice” because clerical staff were not subject to “reprisal transfers” (exhibit A1, page 79).

23. After that Mr Carpenter proceeded to raise many and varied concerns, initially with the management of the BOM, then with the Grievance and Appeals Bureau (GAB) and later with the Merit Protection and Review Agency (MPRA). He first lodged a claim for a car allowance and other benefits, on the basis that his transfer to Edinburgh had been a temporary transfer. Over the ensuing years his communications canvassed a much wider range of grievances, and I accept Mr Carpenter’s own assessment that he became a whistleblower. He believed the BOM had defrauded observers out of millions of dollars of legitimate entitlements.
24. I will refer below to various documents that evidence Mr Carpenter’s persistent and protracted pursuit of his grievances. For present purposes, it is sufficient to record that in about June 1990, he requested Senator Amanda Vanstone to support his request for the MPRA to re-open its investigations into his grievances, but during November 1990 he received a copy of a letter from the MPRA to Senator Vanstone in which the MPRA made it clear that the matter was closed. Soon afterwards, on 29 November 1990, Mr Carpenter suffered a breakdown due to a stress condition.

EARLIER CLAIMS FOR COMPENSATION

25. As mentioned above, Mr Carpenter claimed compensation for a stress related illness following his breakdown on 29 November 1990, when he was working for ACS. On 11 March 1991, Comcare accepted liability for an aggravation of a chronic underlying anxiety condition which had manifested itself on 29 November 1990. After rehabilitation training, Mr Carpenter returned to work at ACS. In August 1991 Comcare determined that it was no longer liable to pay compensation in respect of his condition with effect from 10 July 1991.
26. By letter dated 4 March 2001 Mr Carpenter requested a reconsideration of Comcare’s determination. Comcare agreed to a reconsideration, notwithstanding the lateness of his request, but a review officer decided to affirm the 1991 determination. Mr Carpenter then applied to this tribunal for review of this reviewable decision. In May 2004, the tribunal, constituted by Deputy President SP Estcourt QC and Dr ET Eriksen, affirmed the reviewable decision, and found that on 29 November 1990, Mr Carpenter had suffered an acute aggravation of an underlying generalised anxiety disorder, but that he had not suffered an incapacity for work at any time after the cessation of his employment by the Commonwealth that was due to the acute aggravation of his underlying chronic anxiety condition.
27. In the course of its decision, the tribunal made the following comment:

“7. It is common ground that the applicant was suffering, prior to November 1990, from a Generalised Anxiety Disorder which on any view of the evidence was ‘contributed to in a material degree’ by the applicant’s employment with the Bureau of Meteorology between 1975 and 1983.”

However, the tribunal went on to point out that it had no jurisdiction in the proceedings then before it to determine liability for compensation for the underlying condition, as opposed to the aggravation of that condition.

28. I note in passing that the decision of the tribunal in the earlier proceedings incorrectly suggests that the reviewable decision there under review arose from a letter from Mr Carpenter of 5 April 2004 claiming compensation (see paragraph 2 of the decision of 25 May 2004), whereas as mentioned above, it arose as a result of Mr Carpenter’s letter of 4 March 2001 requesting a reconsideration of Comcare’s 1991 decision. The earlier decision also referred to the need to consider over 1,000 pages of documents. The number of pages in the pre-hearing material provided by the parties in the present proceedings increased to well over 2,000 pages.
29. Mr Carpenter also made a claim for compensation dated 27 July 2004 for a stress-related illness which was asserted to have been started by workplace discrimination when he was employed by the BOM. This claim was rejected by Comcare, and Mr Carpenter did not proceed with an earlier application to this tribunal to review that rejection, but proceeded instead with the present proceedings, where the subject reviewable decision of own motion took into account a considerable amount of further information, which Mr Carpenter had provided in support of his request for reconsideration, but which Comcare had not considered.

LEGISLATIVE SCHEME

30. Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, and provides as follows:

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

31. By virtue of s 7(4) of the SRC Act, the condition for which Mr Carpenter claims compensation is deemed to have occurred on 29 November 1990, being the date when Mr Carpenter first sought medical treatment for it. Under the Act as then in force, the requisite connection between the condition and employment was provided for indirectly, via the definitions of “injury” and “disease” in s 4(1) of the SRC Act. The relevant definitions provide relevantly as follows:

“injury means:

(a) a disease suffered by an employee; or

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

32. The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
33. I will refer below to the legislative provisions that are relevant to the claim for permanent impairment.

RESPONDENT’S CONTENTIONS

34. Mr Berger accepted that it was not necessary for me to decide whether or not Mr Carpenter’s perceptions as to various of his concerns and the events he asserted were correct, and did not challenge his evidence as to a number of such matters. He advised that in any event, Comcare was not able to dispute the allegations involving Mr Weaver, as he is deceased.
35. Counsel also submitted that Mr Carpenter had reconstructed the cause of his anxiety condition and attributed it to his employment by the BOM using hindsight, and also relying on the tribunal’s comments in its decision in the earlier proceedings to the effect that it was “common ground” that Mr Carpenter’s condition was contributed to in a material degree by his employment with the BOM between 1975 and 1983 (see paragraph 27 above). As to this latter submission, Mr Berger pointed out that in fact Comcare had asserted in the earlier proceedings that there was no basis for a compensable injury in the assertions that had been made against the BOM, and that that was clear from Comcare’s outline of argument in the earlier proceedings (exhibit R44).
36. Mr Berger further contended that Mr Carpenter’s employment by the BOM, which ceased approximately six years before his breakdown, did not contribute to his generalised anxiety disorder. He pointed out that Mr Carpenter did not seek medical attention for any anxiety disorder until 29 November 1990, being approximately six or seven years after he left the BOM’s employment and did not experience any significant symptoms during that time. He also submitted that the anxiety disorder was the result of Mr Carpenter’s concerns about the protracted grievance process that was remote from his employment by the BOM, and had broken the chain of causation contemplated by the provisions of the SRC Act. Mr Berger accepted that those concerns and Mr Carpenter’s resulting condition would not have occurred “but for” his employment with the BOM, but contended that there was not a sufficiently close nexus between Mr Carpenter’s employment and his condition, that his employment did not contribute to the condition, and that I should accept medical evidence to that effect called by Comcare. In the alternative, Mr Berger contended that if Mr Carpenter’s employment by the BOM did make a contribution to that disorder, it was not a material contribution, and so was not a “disease” or “injury” within the meaning of ss 4 and 14 of the SRC Act.
37. In the further alternative, Mr Berger contended that Mr Carpenter had failed to obtain a transfer or benefit in connection with his employment with the BOM, and that this failure had made a material contribution to his generalised anxiety disorder, so that his generalised anxiety disorder was not an “injury” within the meaning of s 4(1) of the SRC Act by virtue of the exception to the definition of “injury”.
38. As to the permanent impairment claim, Mr Berger contended that any permanent impairment from which Mr Carpenter is suffering was not the result of a compensable injury or alternatively, that the extent of any permanent impairment was less than 10%, and so no compensation for permanent impairment is payable by virtue of s 24(7) of the SRC Act.

CONSIDERATION

Was the applicant’s anxiety disorder contributed to in a material degree by his employment with the BOM?

39. It is clear from such cases as Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795, Federal Broom Company Pty Limited v Semlitch [1964] HCA 34; (1964) 110 CLR 626 and Fellowes v Military Rehabilitation and Compensation Commission [2008] FCAFC 140; (2008) 103 ALD 552 at [33] that in considering Comcare’s liability for compensation, Comcare must take the employee as it finds him or her, that is, with any pre-existing vulnerability to injury that the employee might have. This principle is relevant to Mr Carpenter’s claim, because it is common ground, and apparent from the medical evidence before me, that he has obsessional and dependent personality traits requiring a need to be in control and to be perfect, and that these traits rendered him vulnerable to feelings of anxiety in various circumstances.
40. It is also relevant to observe that a perception held by an employee about a state of affairs or events relevantly related to his or her employment that actually happened and contributes in a material degree to the occurrence of a disease will give rise to an entitlement to compensation under s 14 of the SRC Act, even if the perception is not objectively reasonable: Wiegand (supra). In that case, after referring to the medical evidence of the applicant’s pre-existing personality traits that rendered him vulnerable to stressors, von Doussa J said that the applicant’s depression would nevertheless be compensable if it was “an aggravation of an ailment to which the employment was merely one of a number of factors that contributed in a material degree” ([2002] FCA 1464 at [20]). His Honour continued, at [21]:

“It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors ... The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.”

41. In support of his above contentions, Mr Berger relied upon a well known passage in the judgment of Windeyer J in Federal Broom (supra) where his Honour said:

“When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.” [1964] HCA 34; (110 CLR 626 at 641)

42. He further relied upon cases such as Kirkpatrick v Commonwealth (1985) 9 FCR 36 in support of the distinction between employment merely providing a focus for a disease, and other factors that contribute to illness and incapacity.
43. I am mindful that there is a very long delay between the events that occurred during Mr Carpenter’s employment by the BOM that gave rise to his perceptions and the onset of his anxiety condition. Other events also occurred during this lengthy passage of time. However, as pointed out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, the mere passage of time between a work incident and subsequent incapacity is not determinative of the entitlement to compensation. His Honour said, at 464:

“In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. ... (A) point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

44. The relevant statutory formula in the present case involves the question of whether the anxiety condition was “contributed to in a material degree by the employee’s employment by the Commonwealth.”
45. It is common ground that Mr Carpenter’s generalised anxiety disorder is a disease within the meaning of the SRC Act. In Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536, Finn J referred to the change in terminology between the SRC Act and in relation to its predecessor, the Compensation (Commonwealth Government Employees) Act 1971 (Cth), in relation to the requisite causative connection between an employee’s employment and the suffering or aggravation of a disease in order for the employee to be entitled to compensation under the SRC Act. His Honour pointed out that by virtue of the definition of “disease”, the employee’s employment is now required to contribute “in a material degree” to the suffering or aggravation of a disease. His Honour concluded at [16] that the definition of “disease”:

“(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.”

46. It follows from the above authorities that it does not matter that other factors not related to employment contribute to the claimed disease, but what is required by the definition of “disease” in the SRC Act is that the relevant ailment or aggravation must be contributed to by employment “in a material” degree. This is a question of fact that must be determined on the evidence before me. I need to approach this question by making a common sense evaluation of the causal chain, as explained in cases such as March v E & MH Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506, which was applied in the context of workers’ compensation claims in Ilsey v Wattyl Australia Pty Ltd (1997) 75 FCR 1.

Medical Evidence

47. Mr Carpenter called a psychiatrist, Dr Raeside, in support of his claim. He had previously treated Mr Carpenter, and saw him on 33 occasions between April 1995 and July 1997. He last saw Mr Carpenter in December 2005, when at Mr Carpenter’s request he assessed him in order to complete the doctor’s section of the claim for permanent impairment form. At the time of this assessment Dr Raeside considered that Mr Carpenter was suffering from a generalised anxiety disorder, chronic depression and irritable bowel syndrome, being gastrointestinal symptoms adversely affected by psychological factors. He assessed overall impairment at 10%.
48. Dr Raeside provided a report dated 28 April 1995 to Dr Fogarty, another psychiatrist involved in Mr Carpenter’s treatment. In that report, Dr Raeside said:

Mr Carpenter presented with a history of panic attacks, irritable bowel, difficulty with anger, long-standing depression, and anxiety. He dates these problems from the time at which he was working with the Bureau of Meteorology as a weather forecaster. Whilst there he became a ‘whistle blower’ with subsequent large bureaucratic entanglements.” (exhibit A21)

49. Comcare’s solicitor requested a report from Dr Raeside, and provided him with extensive documentation containing background information relevant to the claim for compensation and the issues raised in the present proceedings. In his resulting report dated 27 July 2009 (exhibit A5), Dr Raeside provided his opinion as to approximately when he considered Mr Carpenter’s condition developed. Dr Raeside said:

“I would concur with the opinions of Dr Marty Ewer in that, although the onset of Mr Carpenter’s problems related to the difficulties experienced whilst working as an observer for the Bureau of Meteorology in the early to mid-1980s, the onset of clinical symptoms does not appear to have begun until his compensation claim was rejected. Thereon he developed a range of anxiety and depressive symptoms.
It is relevant that his pre-existing underlying obsessional and dependent personality traits would have rendered him vulnerable to this outcome, but not actually caused it. Rather, as is evident from the repeated documentation outlining Mr Carpenter’s complaints regarding the Bureau of Meteorology, he appears to have become increasingly preoccupied, focused on the compensation matter (driven by his obsessional and dependent personality traits), and then suffered a major loss (in his perception) upon rejection of the claim, not simply a loss in terms of economic terms, but loss in the sense of investment that he placed in it”. (exhibit A5, page 3)]

In the course of his evidence, Dr Raeside said that his above reference to the “compensation matter” was the “grievance process” Mr Carpenter had been pursuing prior to 1990 (transcript 5.11.09, page 120, line 19).

50. Dr Raeside’s report goes on to refer to there having been a number of contributing factors to Mr Carpenter’s condition, some of which pre-dated the onset of that condition. These comprised his personality traits, his various claims and the various rejections of them, temporary matters at the ACS, the breakdown of his marriage and family relationships (which he thought were secondary rather than causative) and the ongoing litigation itself. He explained that Mr Carpenter had an underlying vulnerable personality, involving obsessional personality traits, and that while persons with such traits may not necessarily have a personality disorder, they seek to control their own environment, so as to have things under as much control as possible. He estimated the percentage of contribution from each factor as follows:

“Therefore, for the sake of attributing percentages, I would attribute 25% to the underlying personality vulnerabilities, 35% to the workplace issues at the Bureau of Meteorology and the subsequent failed litigation, 30% to the effects of the ongoing medico legal compensation process itself, and the final 10% to the impact of the breakdown of the marriage and family relationships. However, as noted there is strong evidence to suggest that this relationship failure was secondary to the current matters, rather than independent of it.” (exhibit A5, page 5)

51. In the course of his evidence, Dr Raeside made it clear that it was not possible to attribute an accurate percentage to the various factors, and thought it more appropriate to rank the factors from those that were more important to those that were less important. In cross-examination Dr Raeside said in effect that this was not a case where there had been stressors eight years before 1990, and then in 1990 the clinical development of his psychiatric condition; rather, there had been a series of stressors that had had a cumulative effect in a situation where Mr Carpenter had invested himself and his time and effort into the claims and grievance process over a period of time. Dr Raeside further said that he was unable to further apportion the 35% between workplace issues at the BOM and the subsequent failed grievance process, because he perceived the various stressors to be part of the same “bundle of stress, with the rejection leading to the ultimate collapse of (Mr Carpenter’s) psychological state” (transcript 5.11.09, page 121, line 4). Dr Raeside also said in effect that a final rejection of the grievance complaint was the “straw that (broke) the camel’s back” (transcript 5.11.09, page 112, line 37), and that Mr Carpenter perceived this as a rejection of himself and his views and his concerns, and he was no longer able to cope with the stressors that had been building up prior to then.
52. The solicitors acting for Comcare in connection with Mr Carpenter’s earlier claim for compensation referred him to a consultant psychiatrist, Dr Ewer. In a report dated 10 July 2002, Dr Ewer concluded as follows:

“In my opinion, the substantial causes of the Generalized Anxiety Disorder Mr Carpenter was suffering from in 1990 were:

• A pre-existing Anxiety Disorder caused by a dispute with the Bureau of Meteorology.
• the perception that he was inadequately trained at the Australian Construction Services (in my opinion this temporarily aggravated Mr Carpenter’s already existing Anxiety Disorder.)

Mr Carpenter’s personality was a contributing factor but not the substantial factor. I believe his matrimonial disharmony was a consequence of him becoming unwell rather than a cause of his illness.” (exhibit R33, page 15)

Earlier in his report, he had recorded a history that Mr Carpenter had started to experience marital problems towards the end of 1990, and that his marriage ended five years prior to the time of his examination.

53. In subsequent reports and in his evidence, Dr Ewer said that with the benefit of further information, including the deciphering of Professor Murrell’s notes of a consultation with Mr Carpenter on 29 November 1990, he considered that the clinical onset of the condition did not occur until 1990. He further considered that Mr Carpenter’s disappointment at learning that his dispute with the BOM had been concluded unsatisfactorily was the substantial cause of his condition, and that the initial events that had occurred while he was employed by the BOM were not a substantial cause of his condition. In addition he considered that Mr Carpenter’s marital problems probably also significantly contributed to the onset of the anxiety disorder in 1990. His reasons for his opinion included the absence of any evidence of symptoms, medical treatment or loss of time from work prior to 1990 and the absence of any report of psychological difficulties to the BOM. Further, he regarded the matters that had occurred during Mr Carpenter’s employment with the BOM as objectively insignificant.
54. The material before me includes a number of reports or records relating to Mr Carpenter’s condition after his breakdown in November 1990. I am mindful that the histories and opinions expressed in these reports were not tested, because the clinicians concerned were not called. Nevertheless they constitute contemporaneous records and do not suffer from the difficulty that arises from medico-legal assessments made many years after the occurrence of relevant events. Mr Carpenter’s then general practitioner, Professor Murrell, diagnosed a stress related illness on 29 November 1990. Extracts of Professor Murrell’s progress notes were tendered. The parties agreed that his notes for the attendance on that day should be deciphered to read as follows:

“Saw Harley Tues – absolutely nothing wrong – work stress syndrome.
Very tense, irritable bowel “wound up like a spring”. Not coping with life after psycho-social traumas. Angry about job loss [with] Dept Meteorology – has walked away from problems. Attending COPE stress management course using [sick] leave to cope. Reactive depression. Counselled. Certificate 2/5 (i.e. two days) Doxepin 25 mgs.” (exhibit R36)

55. The reference to “Harley” is a reference to Dr Harley, a gastroenterologist, who provided a report dated 3 December 1990 to Professor Murrell. Mr Carpenter had become unwell earlier in 1990 with stomach problems, and had his gallbladder removed in September 1990. He continued to have problems after that, and in the above report Dr Harley said that the symptoms were “functional with a strong undercurrent of psychological factors particularly related to his dissatisfaction at work”. He added that there was “apparently an unresolved appeal within the public service against a reclassification six or seven years ago.” (exhibit A1.83).
56. The surgeon who removed the gallbladder, Dr Jury, reported in August 1990 that Mr Carpenter had been under a lot of stress at work and had symptoms of gastric discomfort for three months, and he felt that there was a psychosomatic component to his pain (exhibits A1.81 and A1.82). The reports of Doctors Harley and Jury suggest that Mr Carpenter had developed symptoms of stress earlier in 1990, and prior to the diagnosis by Professor Murrell of a stress related illness.
57. Professor Murrell subsequently provided medical certificates in support of Mr Carpenter’s 1990 claim for compensation. In certificates dated 11 December 1990 and 17 December 1990, he expressed the opinion that Mr Carpenter was suffering from a “stress related illness” caused by “work grievance over 6 years” (exhibits TRIB 3 and TRIB 4). The reference to the duration of the work grievance indicates that it embraced Mr Carpenter’s concerns arising out of his work with the BOM and subsequent actions as a whistleblower to remedy the subject of his concerns, as well as embracing stress related to his then employment with the ACS.
58. Professor Murrell referred Mr Carpenter to a psychologist, a Mr Thelning, and in a report dated 13 December 1990 to Professor Murrell (exhibit A24) Mr Thelning said that he supported a diagnosis of work-related stress and that the relevant case history “most probably dates back to the times that he was working with the Australian Bureau of Meteorology”.
59. In a report dated 11 February 1991 to Comcare (exhibit A1.86, also A25) Professor Murrell, in response to a question as to the relationship between Mr Carpenter’s then condition and his then employment with ACS, referred to “(u)nresolved past work grievances with Australian Bureau of Meteorology and current statements about lack of retraining with Australian Construction Services” .
60. Professor Murrell also referred Mr Carpenter to Dr JS Wurm, a psychiatrist, in December 1993. In a report dated 7 July 1994, Dr Wurm reported:

“I diagnosed Mr Carpenter as suffering from a chronic anxiety disorder, resulting from years of adverse psychological circumstances in his employment. He had undergone an extraordinarily prolonged sequence of frustration, pressure, and injustice, as he perceived it.” (exhibit A20)

61. As mentioned above, Dr Fogarty referred Mr Carpenter to Dr Raeside, and in her referral letter dated 28 February 1995, said that Mr Carpenter’s psychiatric problems dated from “a period of difficulty when working as a weather forecaster and trying to change the system as a ‘whistle blower’” (exhibit A19). She also said that he was having “major problems in his marriage and home life” which seemed to be related to his personality style.
62. In many respects the opinions of Dr Raeside and Dr Ewer correspond, but where their views differ, I prefer the evidence of Dr Raeside. In particular, I do not accept Dr Ewer’s assessment that the events that occurred during Mr Carpenter’s employment by the BOM did not make a significant contribution to the onset of Mr Carpenter’s anxiety disorder. The historical opinions of the doctors who were involved in treating Mr Carpenter in 1990 and in the period after his breakdown included reference to his long-standing issues with the BOM as a cause of his psychological condition, and indicate that such issues had been a cause of continuing stress; these opinions are consistent with Dr Raeside’s opinion as to the effect of such issues on Mr Carpenter. Further, I do not think it correct to describe the events at the BOM as relatively mild from an objective point of view, as Dr Ewer did. In any event, as appears from contemporaneous documentary material to which I will refer below, the events were of great significance in Mr Carpenter’s perception; and this seems to me to be of more significance to an evaluation of potential stressors that might have caused the onset of the anxiety condition. After all, the events at the BOM led Mr Carpenter to down-grade his position to a clerical officer with the BOM in order to avoid being vulnerable to future unwelcome transfers imposed by the BOM, at a time of his life when he was wanting to settle down, and he perceived that the BOM was using the transfer system illegally and in such a way that he would be unfairly victimised. I also consider that Dr Raeside appeared to have a more thorough understanding than Dr Ewer of events that had preceded the clinical onset of the anxiety condition in 1990. I think it likely that Dr Raeside was assisted in this regard by having treated Mr Carpenter for a lengthy period prior to his later involvement in the present proceedings. He was also no doubt assisted by having read a number of contemporaneous documents that demonstrated the nature of Mr Carpenter’s concerns about events at the BOM and his attempts as a whistleblower to reform perceived illegalities and deficiencies within the BOM, whereas it appears that Dr Ewer did not review or evaluate those documents. In addition, Dr Ewer regarded it as highly significant that Mr Carpenter had contemplated returning to work at the BOM after his breakdown, but appears not to pay sufficient regard first to Mr Carpenter’s explanation that by then the persons who had caused his concerns had left the BOM, and second, that when he came to fill out the BOM application forms, Mr Carpenter was overcome and found he could not proceed. I think that the above matters outweigh Mr Berger’s criticism of Dr Raeside’s evidence, some of which I think was in any event misplaced when seen in the context of all of the oral and documentary evidence before me.

Other contemporaneous documentary evidence

63. In view of the conflict between the opinions of Doctors Raeside and Ewer, and the respondent’s submission to the effect that Mr Carpenter has attributed his generalised anxiety disorder to his employment with the BOM by reconstructing the cause of his condition with hindsight, I think it important to analyse the relevance of the contemporaneous documentary material during the period of Mr Carpenter’s employment with the BOM and up to and following his breakdown in 1990.
64. There appear to be no contemporaneous documents that support Mr Carpenter’s claim insofar as it is based on a number of the matters that he now claims constituted stressors. These matters include his assertion that the nature of his training at the BOM caused his perfectionist character traits, and his assertions relating to the failure by the BOM to properly document and gazette his transfer to Sydney, his inability to manage his finances while in Sydney, improper descriptions and duty statements, the failure by the BOM to provide suitable accommodation at Richmond or at Tamworth for a shift-worker’s needs, or stress resulting from searching for accommodation while coping with work-related issues.
65. Mr Carpenter gave evidence that while he was still working at the BOM as an observer, he felt too intimidated to put various concerns in writing, for fear of reprisal, although he did make a claim for a car allowance for driving to an instrument screen when he was stationed at Edinburgh, and he also recorded his concerns about the condition of the toilets there. However, he said that after he had accepted the down grade to the clerical position with the BOM on 11 March 1983, he was no longer at risk of being transferred, and after that he did put his concerns in writing. This process commenced with a letter dated 12 April 1983 to the regional director of the BOM, and proceeded to the formal grievance processes to which I have referred above, to enlisting the assistance of various politicians, to the making of FOI requests, and requesting the assistance of the Ombudsman.
66. In his letter of 12 April 1983 Mr Carpenter claimed that certain allowances were due to him under his conditions of employment. He also complained in effect in his next letter, dated 27 April 1983, that his claim had been determined on the assumption that his appointment to Edinburgh had not been permanent (see exhibit R2 and exhibit R3, page 4), whereas it was clear from other documents that his appointment to Edinburgh had been a permanent appointment to that location. When his claims were not accepted he continued to follow them up.
67. In a letter dated 26 September 1983 to the permanent head of the BOM, he requested an investigation under Regulation 33A(1) of the Public Service Regulations (exhibit R8(b)). Whilst the letter sought to justify his claim for allowances, he also referred to having been concerned that if he had contested the BOM’s assertion that he was on a temporary transfer at Edinburgh, he would have been transferred to another location within a short period of time; and he said that as he had already been transferred seven times in as many years, he was worried about another transfer, and took a down grade to a clerical position to avoid being transferred once again. He also referred to the alteration of the movement advice that advised him of his transfer to Edinburgh, the payment of relevant allowances to other employees, and an admission by the Acting Administrative Officer that he did not know what the words “term transfer” meant, despite using the phrase as a means to stop payment of temporary allowances to him.
68. Mr Carpenter was dissatisfied with the response from the BOM to his formal grievance letter of 26 September 1983, and by letter dated 13 December 1983 (exhibit R9(c)) requested that the matter be referred to the GAB. A little over nine months later, in a letter dated 20 September 1984 (exhibit R10), the GAB advised Mr Carpenter that his grievance was not sustained (exhibit R10). The GAB’s letter referred to conditions of employment approved by the Public Service Board in 1965 and 1968, and to a subsequent advice of 1979 from the BOM to that Board concerning term transfer arrangements for transferable field staff positions.
69. It appears from subsequent correspondence that Mr Carpenter then attempted to pursue the matter with the assistance of the Professional Radio and Electrical Institute of Australasia (PREIA) and one or more unions, but without reaching any resolution. In a letter dated 5 September 1985 to the Hon. J S Dawkins, the then Minister assisting the Prime Minister for Public Service Matters (exhibit R12), Mr Carpenter criticised the failure of the GAB to investigate his original grievance adequately, and asserted that the 1965 document previously referred to by the GAB only applied to observers stationed in isolated districts (which would not include Edinburgh), that the 1968 and 1979 documents were respectively a discussion paper and a questionnaire, that there was no legal basis for term transfers, and that the BOM was possibly acting illegally. He also referred to the use of transfers as a punitive matter, and to having been forced to take a down grade and to give up a rewarding career.
70. Mr Carpenter sent a further letter, dated 18 September 1985, to the GAB (Exhibit R13(a)) in which he requested a statement setting out the GAB’s findings on material questions of fact, referring to evidence on which those findings were based, and in particular, he sought “reasons for the following decisions/non decisions”. He then proceeded to list a large number of matters that he said had been ignored, dismissed or decided adversely to him. These matters included implied assertions of discrimination between officers in the payment of car allowances, that his transfer to Edinburgh was to have been permanent, that transfers were used as punitive measures, that two other observers had been appointed permanently to Edinburgh, that the explanation for the failure to delete the word “temporary” from the heading of the movement advice form in relation to his transfer to Edinburgh was untrue, that there were discrepancies between the original and copies of the form, that contrary to the GAB’s conclusion, the form did have legal authority, that he had been threatened with immediate transfer on two occasions within the two-year period during which he was at Edinburgh, and that the GAB should not have relied upon the 1965, 1968 and 1979 documents. The letter also sought an explanation as to why the GAB had not interviewed certain witnesses who (he said) would have supported his case. The letter also reiterated his assertion that in accordance with a verbal agreement, his transfer to Edinburgh was to be permanent, and that he had subsequently down graded to a clerical position because the BOM had not honoured its verbal agreement, and had given him misleading and deficient information.
71. I infer from this letter that Mr Carpenter was not only concerned about perceived inadequacies in the steps taken by the GAB to investigate his grievance, but also remained concerned about the basis of his transfer to Edinburgh, the legality of the BOM’s practices in relation to transferring observers and its inappropriate and punitive use of transfers, the absence of written conditions of his employment by the BOM, and his having down graded to a lower paid clerical position in order to avoid his vulnerability to future transfers. There is only passing reference to the failure to pay allowances, and I further infer that by then, Mr Carpenter was not unduly concerned by his monetary claim for the car allowance.
72. The acting director of the GAB declined the requests in the further letter of 18 September 1985, and following a suggestion from the Hon. Peter Walsh, the then Minister assisting the Prime Minister for Public Service Matters, Mr Carpenter sent a letter dated 1 January 1986 to the newly established Merit Protection and Review Agency (exhibit R15(a)). In this letter he complained about the inadequacies of the decision of the GAB, and asked the MPRA to completely review his case. He proceeded to reiterate a large number of his perceived concerns with the BOM, many of which had been set out in his letter of 18 September 1985 to the GAB.
73. The MPRA replied to Mr Carpenter’s request by letter dated 12 August 1986 (exhibits R16(a), A1.31 and A1.70)). This letter enclosed a detailed report by an investigating officer which dealt with many of the wider issues raised by Mr Carpenter. The report includes a comment, at page 11, that at an interview with Mr Carpenter:

“(h)e gave the impression that the matter of temporary transfer and additional allowances had become secondary to a number of other perceived grievances regarding victimisation of himself and other staff of the Bureau in South Australia because of alleged maladministration in the Personnel area of the Bureau’s Regional Office.”

A similar comment is made on page 3 of the report of the investigating officer’s interview with Mr Carpenter. The officer also noted in effect that Mr Carpenter had claimed that other aggrieved observer staff could not speak out for fear of reprisal, but as he (Mr Carpenter) had by then left the BOM, he could speak out. These comments reinforce my conclusion that by this time, Mr Carpenter had embarked upon making a series of complaints about perceived irregularities in the administration of the BOM. The report supports Mr Carpenter’s evidence that by this time he had assumed the role of a whistleblower.

74. This interpretation of Mr Carpenter’s position is also confirmed by his letter of 9 September 1987 to the MPRA, where he refers on page 1 to the terms of reference of the investigation, and says:

“As I was forced out of my position of Observer grade I by ‘shonky’ transfer practices, I wanted this to be included, but my only avenue to air this grievance was via the claim for payment of mileage and other allowances.” (exhibit R17(a))

His letter then proceeded to refer to evidence which he thought had not been adequately taken into account by the MPRA, and he requested that its decision should be reversed. This request was refused by a letter dated 4 January 1988 (exhibit R17(b)).

75. Mr Carpenter pursued his concerns through his local Federal member, Mr Duncan, during 1988, and in correspondence with Mr Duncan, he again criticised the processes of the MPRA’s investigation, and referred to his down grade to a clerical position and to his assertions regarding BOM procedures and administration, including his concerns regarding his transfer to Edinburgh and the “illegal use and manipulative use” of the term “transfer system”. He commented that his grievance was “aimed at these illegal transfers but directed at the payment of allowances” (exhibit R19(a), page 2). His approach to Mr Duncan resulted in further correspondence, from the then Prime Minister, the Hon. R J Hawke (which correspondence also recognised that Mr Carpenter’s submission had gone beyond his own grievance to encompass concerns about the legality and operation of the transfer policies of the BOM), and the Minister for Administrative Services. However, their responses did not satisfy Mr Carpenter, and he wrote again to Mr Hawke on 20 March 1989. Mr Hawke’s private secretary reiterated that Mr Hawke was satisfied that the matter had been thoroughly and properly examined. Mr Carpenter then pursued his concerns by making a freedom of information request of the MPRA and by approaching the Ombudsman, and communications with those two parties continued during 1989.
76. In January 1990 Mr Carpenter advised the MPRA that he intended to institute legal proceedings (exhibit R22). In or about June 1990 he approached Senator Amanda Vanstone, who sought to clarify what action he wanted her to take, and made the comment (consistently with the inference to which I have referred above): “It would seem to have gone past any claim to allowance monies” (exhibit R23(a)). Senator Vanstone subsequently followed the matter up on his behalf with a further letter to the MPRA, which questioned why certain witnesses had not been called as part of its investigation. But by a letter dated 29 October 1990, the Director of the MPRA, a Ms Forward, advised Senator Vanstone that the MPRA was not prepared to devote any more resources to the matter, or to discuss it with Mr Carpenter, and said that it would be a “misuse of public money to continue debate with Mr Carpenter when there are significant other calls on the Agency’s very limited resources.” (exhibit R23(d)). Senator Vanstone sent a copy of this letter to Mr Carpenter on 9 November 1990, and he experienced his breakdown at work soon afterwards, on 29 November 1990. This event is recorded in a notification of accident form dated 6 December 1990 (exhibit TRIB 1).
77. Apart from Professor Murrell’s notes of 29 November 1990 a number of documents that came into existence soon after Mr Carpenter’s breakdown provide evidence of his then concerns and the stressors that caused his breakdown, and indicate that these included matters related to the BOM.
78. On 11 December 1990 Mr Carpenter completed a compensation claim form (exhibit R28). This included a four-page handwritten attachment. This records that he believed that his stress related illness was the result of two actions by the Commonwealth, namely his grievance with the BOM, and his redeployment to the position of a debtor’s clerk with ACS with “less than minimal training provided in this position despite repeated requests for training”. In the context of the BOM, the attachment includes reference to Mr Carpenter’s downgrading to a clerical position with the BOM, the use of transfers as disciplinary measures and the failure to comply with a verbal agreement for a permanent transfer to Edinburgh, as well as concerns regarding the GAB and the MPRA and their failure to resolve his grievance in accordance with natural justice.
79. Two medical certificates were then issued by Professor Murrell, dated 11 and 17 December 1990. As mentioned above, each certificate states that Mr Carpenter’s “stress related illness” was caused by “work grievance over 6 years” (exhibits TRIB 3 and TRIB 4). The reference to the period of over six years suggests that the cause identified by Professor Murrell at least included the events at the BOM, and was not confined to any issues with Mr Carpenter’s then employer, ACS.
80. There is then a letter dated 17 December 1990 from a representative of Comcare to the Regional Director of ACS requesting comments on Mr Carpenter’s claim. This letter refers to his allegations against the BOM and the MPRA, and advises that no comments were required from ACS on those aspects of the claim. The letter then says:

“In any event I do not consider any reaction to this grievance and appeal process to be compensable. I will advise the employee of this.” (exhibit TRIB 5)

This letter supports a comment made by Mr Carpenter to the effect that he had been advised in 1990 not to pursue a claim against the BOM, and the focus of his then claim related to the events at ACS (transcript, 11.11.09, page 283, lines 1 and 6).

81. I also refer for the sake of completeness to a minute dated 6 December 1990 from a Mr Groom, the Manager of the Australian Department of Administrative Services, which records a telephone conversation with Mr Carpenter on 5 December 1990. This minute records concerns that Mr Carpenter had expressed about difficulty understanding his then work with ACS and his lack of training for that work, despite frequent requests for training. The minute also states:

“He said that although he is still pursuing his grievance claim against the Meteorological Bureau, without success to date, he did not consider that this was the cause of his stress condition.” (exhibit TRIB 2)

82. Following the hearing I gave Mr Carpenter leave to comment on this document. He said that he could not recall the conversation with Mr Groom, but whilst accepting that he would have relayed to Mr Groom a diagnosis that the cause of the injury was his employer’s failure to provide adequate training, he also believes that he would have also attributed blame to the BOM and the grievance process, and he disputes that he said that he did not consider that the BOM’s actions were the cause of his stress condition. The statement referred to by Mr Groom is inconsistent with the other contemporaneous records to which I have referred. I accept Mr Carpenter’s evidence as to this matter, and attach no weight to the minute.
83. I have referred above to further medial reports from clinicians who treated Mr Carpenter after that date. However, it is clear that after he had lodged his claim for compensation in 1990, Mr Carpenter continued to be concerned about his employment with the BOM. He again wrote to the MPRA, on 5 July 1991, and again referred to a range of matters, including his concern about the transfer to Edinburgh, the legality of term transfers, the use of transfers as disciplinary measures and the observers’ fear of reprisals if they discussed “illegal” transfers with their union (exhibit R23(e), page 4). Mr Carpenter also approached Senator Coulter, who wrote to the Minister for Justice on his behalf on 16 July 1991, referring to Mr Carpenter’s concerns that neither the MPRA nor the GAB had called a number of witnesses who could have corroborated his claims that “transfers were used as disciplinary measures despite the denials by the (BOM)” (exhibit A1.72). These documents indicate that even after Mr Carpenter’s breakdown in November 1990, he was still agitating his concerns regarding his perception that the transfer system had been misused by the BOM.
84. Apart from the various communications to which I have so far referred, which involved Mr Carpenter or persons representing him, other documents indicate that events occurred that provided a basis for Mr Carpenter’s perceptions, including issues arising from the transfer of staff by the BOM. In particular, there are many references to the absence, during Mr Carpenter’s employment by the BOM, of a properly documented policy on the difference between term transfers and temporary transfers and the circumstances in which observers could be transferred to other locations, and difficulties that these matters were causing. For example, the hardship of officers being under a continuing obligation to be transferred to remote localities and the “traumatic effect of instability of location on family” is referred to in the memo dated 20 January 1978 from the officer in charge of the Metoffice Richmond to the regional director of the BOM in Sydney (see exhibit A1.8, which also refers to the high death rates of field pool officers compared with other industries). Another example is a letter dated 11 January 1984 from the Regional Director of the BOM Kent Town to the Director of Meteorology Melbourne, which refers to “an earnest endeavour to rectify what in this Region had developed into bad staff morale as a result of bungled staff movements” (exhibit A1.36, page 3). Various other documents tendered by Mr Carpenter also suggest that the absence of a documental policy in relation to such matters was a cause of ongoing difficulty with the BOM, and that a written policy on transferring observers was not finalised until 1993. As against these matters, I should also add that other documents suggest that there was a well-established convention that was used by the BOM as the basis of transferring persons in the field officers’ pool, and further, in the document signed by Mr Carpenter when he first accepted employment by the BOM (exhibit R32), he expressly acknowledged that his future employment as an observer was conditional on his willingness to serve at any meteorological office of the BOM in Australia and its territories. However, it is unnecessary, having regard to the relevance of Mr Carpenter’s perception, to determine the legality or appropriateness of the BOM’s practices in relation to transferring observers or the field officers’ pool.
85. I conclude from my review of the documents referred to above that as at the date of Mr Carpenter’s breakdown in November 1990, his perceptions regarding bullying, victimisation, illegality and discrimination arising from the administration by the BOM of the transfer system had continued undiminished over the years since he downgraded to a clerical position with the BOM, and he continued to agitate his concerns at regular intervals after he left the BOM. On my reading, the contemporaneous documents are inconsistent with Mr Berger’s contention that Mr Carpenter has used hindsight to reconstruct the cause of his anxiety condition. On the contrary, in my opinion they support the view that Mr Carpenter’s perceptions of events and practices at the BOM did make a material contribution to the onset of his psychiatric disorders in 1990.
86. It also appears that other non work-related matters also contributed to his condition. These included Mr Carpenter’s personality traits, and his frustration and concerns about perceived inadequacies of the investigations of the GAB and the MPRA, the outcome of his complaints and requests to those bodies, and his inability to rectify those matters. However, liability under s 14 of the SRC Act is not negated by such other non-compensable concurrent causes.

Was the anxiety condition suffered by him as a result of his failure to obtain a transfer or benefit?

87. I now refer to the contention by Comcare that Mr Carpenter’s condition was the result of events excepted from the definition of “injury”, namely his failure to obtain a transfer or benefit in connection with his employment, and so he has not suffered an “injury” within the meaning of s 14 of the SRC Act.
88. Mr Carpenter’s plethora of complaints and grievances directed to or at the BOM started with a claim by letter dated 12 April 1983 that he had not been paid certain allowances that were due to him. However, by the time of his letter of 18 September 1985, it appears that Mr Carpenter was not unduly concerned by his claim for unpaid allowances, and this is also confirmed by subsequent records (see paragraphs 71 and 73 - 76 above). I find that the failure to obtain the allowances was not a stressor that resulted in the onset of the anxiety condition in 1990, and accordingly Mr Carpenter’s anxiety condition was not suffered as a result of a failure by him to obtain a benefit in connection with his employment insofar as the asserted benefit relates to his claim for allowances.
89. It is also necessary to consider whether Mr Carpenter’s condition was the result of his failure to secure a permanent transfer to the Edinburgh office of the BOM. In fact he succeeded in obtaining a transfer to Edinburgh, and so this is not a case of a failure to obtain a transfer in connection with his employment.
90. However, Mr Carpenter did not obtain a transfer on the terms he required (and thought he had achieved, as a result of his discussion with Mr Weaver), that is, that he would remain at Edinburgh permanently. On the face of it, therefore, this is a case of a failure to obtain a benefit in connection with employment, because as the transfer was not a permanent transfer, Mr Carpenter continued to remain vulnerable to future transfers, at least after the initial term of one year and any extension of it, being the period of his transfer to Edinburgh as advised in the written notification issued by Mr Weaver (exhibit R6(a)).
91. It is therefore necessary to determine whether Mr Carpenter’s anxiety disorder was the result of his failure to obtain the benefit of a permanent transfer to Edinburgh.
92. Mr Carpenter’s belief that there was a verbal agreement for a permanent transfer was dispelled within a few days of his discussion with Mr Weaver, when he received the written notification that advised him that this term at Edinburgh was for one year with an option of an extension of time for a further year (see paragraph 19 above). After he received the notification, and in the short term, it appears clear that his failure to obtain a permanent transfer did cause him considerable concern; it led to his accepting, in 1983, a downgrade to a clerical position, with loss of salary. However, after that he was not at risk from the BOM’s transfer practices which had led in the past to the difficulties that he had personally encountered, and this immunity from any such future difficulties was reinforced when he later left the BOM’s employment, in 1983 or 1984. His failure to obtain a benefit in the sense of his continuing vulnerability to being transferred therefore continued for a relatively short closed period, ending in 1983, once again many years before his eventual breakdown.
93. I am mindful that in his evidence and in subsequent correspondence and complaints with the BOM, Mr Carpenter continued to refer to his failure to obtain a permanent transfer to Edinburgh. However, his complaint as to this matter was but one of many issues that he raised in his evidence and in relevant communications between 1983 and his breakdown on 29 November 1990. Further, on my analysis of the various contemporaneous documents, this complaint related to the BOM’s failure to honour what he thought was a verbal agreement and to the BOM asserting that the transfer was a term transfer, being a form of transfer which Mr Carpenter perceived was either illegal or a fiction. It also led to his complaint that the file copy of the movement advice had been altered by deleting the word “temporary”. His complaints regarding, and arising from, the failure to obtain a permanent transfer to Edinburgh, which he persistently pursued over the years after his downgrade to the clerical position, appear to have become part of his larger concerns as to the legality of the transfer system and his determination to rectify those matters through his actions as a whistleblower.
94. I find from the above documentary evidence that Mr Carpenter continued to be concerned about his failure to obtain a permanent transfer to Edinburgh or the benefit of such a transfer, and that that concern made a minor, but not a material, contribution to the development of his anxiety condition in 1990.
95. Mr Carpenter contended at the hearing, in support of his criticism of the use of the transfer system by the BOM, that Mr Weaver had no authority to enter into a verbal agreement that the transfer to Edinburgh would be permanent, because this would contravene s 50 of the Public Service Act and the Public Service Regulations. The position at Edinburgh had been advertised to BOM staff as a 6 or 12 months’ term transfer (exhibits A1.25 and R46). If Mr Carpenter’s argument is correct, Mr Weaver would not have had authority to enter into a verbal agreement to create a position entailing a permanent transfer. On this analysis, it could be said that Mr Carpenter had not failed to obtain the benefit of a permanent transfer, because no position entailing a permanent transfer had been available to him or anyone else. However, the legality of Mr Weaver’s asserted verbal agreement was not argued before me, and for reasons referred to below, it is unnecessary for me to determine this issue in view of my finding that Mr Carpenter’s anxiety condition was not contributed to in a material degree by his failure to obtain a permanent transfer.
96. I have concluded for the above reasons that even if the failure by Mr Carpenter to obtain a permanent transfer to Edinburgh did constitute the failure to obtain a transfer or benefit in connection with his employment by the BOM, it made a contribution, but not a material contribution, to the development of his anxiety disorder when he sought treatment for it many years later, on 29 November 1990 (that being the date when the condition is deemed by the SRC Act to have occurred).
97. For a “disease” to be an “injury” within the meaning of the SRC Act, an employee’s ailment must be “contributed to in a material degree” by his or her employment. But for a disease to fall in the exception to the definition of “injury”, it must be suffered by an employee “as a result of” the failure to obtain a promotion, transfer or benefit. The legislative formulation of the test of causation is different in each definition. The wording of the exception contains no requirement that there should be a material connection between the injury and the excepted event.
98. Mr Berger conceded on behalf of Comcare, consistently with its position as a model litigant, that the definition of “injury” should be interpreted on the basis that the exceptions would not apply if they did not contribution in a material degree to the disease. However, I think it appropriate to examine whether any authorities assist in the proper interpretation of the relevant definitions, and to formally determine this issue, in view of its significance to the parties’ rights and obligations in consequence of my findings.
99. The exceptions to the definition of “injury” were considered by a Full Court of the Federal Court in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29. In that case, the applicant claimed compensation for various conditions, including depression and anxiety, caused by events associated with events occurring during her employment by the Department of Defence. The tribunal had identified two concurrent causes of the applicant’s conditions. One was an excluded event, namely the failure to obtain promotion. The Full Court decided that as the applicant’s condition was a result of an excepted factor under the proviso to the definition of “injury” the applicant had not suffered an injury as defined. The tribunal had decided that the failure to obtain a promotion had made a material contribution to the applicant’s condition. It was not necessary therefore for the Court to express any opinion on whether an event that made a non-material contribution to the condition would have produced the same result, and the Court did not comment on that question.
100. In Re Layton and Comcare (2007) 99 ALD 96, the tribunal decided that once a causal connection between the employee’s injury and one or more of the excluded elements was established, it did not matter whether the contribution was of a greater or lesser degree. The tribunal rejected an argument that a test of materiality should be imported into the words “as a result of” appearing in the exceptions to the definition of “injury”.
101. There have been other decisions of this tribunal where it has been found that the exclusions to the definition of “injury” were applicable, but in each case, the tribunal found that the excluded event had made a material contribution to the disease in question, or assumed that the definition required there to be a material contribution, but without analysing the language used in the definition.
102. The SRC Act is drafted in such a way that substantive provisions as to liability to compensation or exceptions from such liability are included in the definitions of “injury” and “disease”. This makes the construction and application of the SRC Act more difficult (see the criticism of such drafting in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (6th Edition, 2006) at [6.63]).
103. Recent decisions of the High Court of Australia make it clear that legislation must be interpreted to give effect to the intention of Parliament, and whilst the best guide to that intention is to look at the words of the Act in question, those words must be construed in their context and so that the Act is consistent internally.
104. If the interpretation of “disease” and the exception to the definition of “injury” is approached in this way, I think that a requirement of a “material contribution” should be implied into the exceptions to the definition of “injury”, since otherwise the exceptions to the definition would be wider than the primary requirements of the definition of “disease”, which is a subset of “injury”. This would be incongruous, and would not, I think, accord with Parliament’s intention. I accordingly conclude that on the proper interpretation of the definition of “injury” the exceptions to that definition only arise where the excepted events contribute in a material way to the disease in respect of which compensation is claimed. I do not, with respect, agree with the contrary view expressed by the tribunal in Layton (supra), and I note that in any event, the Tribunal’s views were obiter, because it had found that the excepted event in question in that case had made a material contribution to the applicant’s disease.
105. I think my above conclusion is also supported by the consideration that the SRC Act is remedial legislation, and where two constructions are possible, that which is favourable to the worker should be preferred: Whittaker v Comcare [1998] FCA 1099; (1998) 86 FCR 532 at 544. Issues of causation have long caused difficulties in many areas of the law, and various tests of causation have been formulated, taking into account the context in which the issue has arisen, considerations of policy and value judgments, and ultimately the need to arrive at a just and reasonable outcome in particular cases. The expression “as a result of” in the exception to the definition of “injury” does not have a precise meaning, just as the concept of causation in the law is flexible. The expression “as a result of” is capable of denoting various degrees of relationship between the injury in question and the excepted events. I consider that it should be construed in a way that is beneficial to the injured employees.

Summary and Conclusion re liability under s 14 of SRC Act

106. In summary, therefore, I find as follows.

(a) Mr Carpenter had pre-existing personality traits which made him vulnerable to the onset of an anxiety disorder from events which would not have produced any such disorder in a normal person.

(b) Following his transfer to the Adelaide office of the BOM in June 1980, Mr Carpenter became concerned about perceived maladministration of the transfer scheme, with associated harassment and bullying. His concerns increased after he objected to being transferred to Canberra, and after he realised that his transfer to Edinburgh was not a permanent transfer. He began to have some symptoms of stress while he was still employed at the BOM. His concerns became so significant that he applied for a clerical position to avoid future transfers, notwithstanding that this entailed a significant downgrade in salary and withdrawing from a specialist position, entailing work for which he had been trained and which he enjoyed.

(c) After commencing in the downgraded position, he submitted a claim for various allowances on the basis that his transfer to Edinburgh had been a temporary transfer, and not a term transfer.

(d) Following the rejection of his claim for allowances, he instituted grievance complaints with the BOM, the GAB and the MPRA. His grievance complaints became much more wide-ranging than his initial claim for allowances, and embraced his perceptions about the maladministration of the transfer scheme, victimisation, bullying, discrimination, illegal practices and avoidance of the BOM’s obligations to pay allowances for temporary transfers; he was pursuing wide-ranging concerns as a whistleblower.

(e) His personal experience with the BOM, including his perception that he had been victimised and bullied and prejudiced by maladministration of the transfer scheme, was central to the wider concerns that he pursued as described in paragraph (d). His personal experiences and perceptions were not merely the background to his later wide-ranging concerns and the subsequent development of his anxiety condition, in the sense that they were an antecedent condition or a sine qua non of those matters, that is, that they merely satisfied the “but for” test of causation. They were the catalyst of, formed the basis of, and were the very essence of those later complaints.

(f) His concerns and perceptions continued unabated until at least the time of his breakdown on 29 November 1990, as evidenced by his persistent pursuit of his grievances, and his attempts to remedy what he perceived to be illegalities, abuse and maladministration of the transfer system, which extended to enlisting the help of his unions and politicians. This continued pursuit perpetuated his concerns and perceptions.

(g) The final rejection of his claim, which he learned of on receiving the letter from Senator Vanstone of 9 November 1990, was the immediate precipitator of his breakdown. Other matters also contributed to his breakdown, namely his personality traits, events at the ACS where he was then working, and his concerns about the processes of the GAB and the MPRA. However, whilst those contributing causes were also significant, for the reasons referred to in paragraphs (e) and (f), his concerns and perceptions arising from his experiences during his employment with the BOM made a material contribution to the onset of his anxiety disorder and resulting breakdown.

(h) His anxiety disorder was not a result of failure to obtain a transfer or benefit in connection with his employment by the BOM, within the meaning of the exceptions to the definition of “injury” in the SRC Act.

CONSIDERATION OF CLAIM FOR PERMANENT IMPAIRMENT

107. Section 24 of the SRC Act provides for Comcare to be liable to pay compensation to an injured employee where the injury results in a permanent impairment by reference to a Guide prepared pursuant to s 28. The amount of compensation payable to the employees is assessed as a percentage of impairment. Under s 28(4), where Comcare (or on review, this Tribunal) is required to assess the degree of permanent impairment of an employee resulting from an injury, the provisions of the Guide are binding in the carrying out of the assessment, and the assessment must be made under the relevant provisions of the Guide.
108. Table 5.1 of the Guide relates to psychiatric conditions. It provides relevantly as follows:

“% DESCRIPTION OF LEVEL OF IMPAIRMENT
...

5. 5 Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance.

. reactions to stressors of daily living with minor loss of personal or social efficiency
. lack of conscience directed behaviour without harm to community or self
. minor distortions of thinking.

10. Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.

. reactions to stressors of daily living with minor loss of personal or social efficiency
. lack of conscience directed behaviour without harm to community or self
. minor distortions of thinking.”

109. In the claim for permanent impairment form (exhibit R39), Dr Raeside assessed Mr Carpenter as having an overall permanent impairment of 10%. According to his letter dated 2 May 2006, he had based this opinion on Table 5.1 of the Guide, and considered that Mr Carpenter met two of the three factors required to meet a 10% assessment, namely minor distortions in his thinking and reactions to stressors of daily living with minor loss of personal and social efficiencies (exhibit A26).
110. Dr Raeside did not examine Mr Carpenter prior to providing his report of 27 July 2009 (exhibit A5). In answer to a question of whether he was still of the view that permanent impairment should be assessed at 10%, Dr Raeside said:

“I note evidence of recent improvement, particularly as outlined in the reports of Dr Ewer. Mr Carpenter’s occupational function has improved from the time of my last assessment and I think it is reasonable to concur with Dr Ewer’s view that the permanent impairment has reduced from 10% to 5%.” (exhibit A5, page 7)

111. Dr Raeside did not examine Mr Carpenter prior to providing this report, and had not seen him since 2005. When he gave evidence, Dr Raeside at first affirmed his revised assessment of 5% permanent impairment. He then changed his assessment to 10%. Mr Berger criticised this change of opinion. However, Dr Raeside explained in effect that in agreeing with the 5% assessment, he had taken into account Dr Ewer’s comments regarding the overall improvement in Mr Carpenter’s level of functioning in recent times, but when reflecting on the provisions of the Guide, he thought that permanent impairment should continue to be assessed at 10%, because Mr Carpenter still satisfied the same two factors in the 10% level of Table 5.1 of the Guide. He attributed these factors, including in particular the minor distortions of thinking, to Mr Carpenter’s psychiatric condition, which he in turn thought had been caused not only by Mr Carpenter’s personality traits, but also by the psychiatric condition which resulted from the effects on Mr Carpenter’s vulnerable personality of his employment by the BOM. Dr Raeside further considered that whilst there was likely to be some improvement in Mr Carpenter’s condition following the conclusion of the present proceedings, it was nonetheless appropriate to make an assessment of permanent disability, and the relevant level would remain at 10%.
112. Dr Ewer expressed a different opinion in a report dated 18 March 2009 (exhibit R35). He reiterated his opinion that the generalised anxiety disorder was probably not caused by events during employment by the BOM, but by that time was substantially related to personality traits and the dispute with the Commonwealth. He also referred back to other factors that he had identified in his earlier report of 9 January 2008, namely previous difficulties arising from the early death of Mr Carpenter’s father, the serious burns he sustained early in his employment with the BOM, the bush fires in Port Lincoln, the end of his marriage, and his estrangement from his children. Nevertheless, in case the Tribunal decided otherwise, Dr Ewer proceeded to assess permanent impairment at 5%. He accepted that the same two factors in Table 5.1 applied, but considered that any minor distortions of thinking were probably due to pre-existing personality traits.
113. As I have already said, I am satisfied that Mr Carpenter has been suffering from chronic generalised anxiety disorder since 1990, and that his employment with the BOM made a material contribution to that condition. For the reasons referred to above, I accept the evidence of Dr Raeside in preference to that of Dr Ewer, and find that the minor distortions of thinking is a symptom of Mr Carpenter’s chronic anxiety condition, which was contributed to in a material degree by his employment with the BOM, notwithstanding that it might have been aggravated by subsequent non work-related factors. In assessing the level of impairment Dr Ewer was dealing with an alternative hypothesis, which he had rejected. It also seems inappropriate to notionally segregate one of the symptoms of the disorder and attribute it to other causes when that symptom has been a long-standing feature of Mr Carpenter’s chronic anxiety disorder, and that disorder on my findings was materially contributed to by his perception of employment related events. I am accordingly satisfied that Mr Carpenter is affected by the first and third factors listed under the 10% category of Table 5.1 of the Guide, and those factors are the result of his work caused generalised anxiety disorder. For these reasons, I assess the degree of permanent impairment at 10%.
114. In reconsidering this matter in consequence of my decision on liability, Comcare will be required to consider whether it is liable for incapacity payments under s 19 of the SRC Act. In its decision in the earlier proceedings, the tribunal referred in paragraphs 18 and 19 to difficulties that would be entailed in the claim insofar as it relates to such payments. My decision in the present proceedings does not relate to the issues that the tribunal there identified, but should not be interpreted as detracting from those difficulties.

DECISION

115. The tribunal sets aside the decisions under review, and:

(a) in place of those decisions decides that

• the respondent is liable for the condition of generalised anxiety disorder from which the applicant has been suffering since November 1990, and
• the degree of permanent impairment resulting from the applicant’s generalised anxiety disorder should be assessed at 10%;

(b) remits the matter to the respondent for reconsideration in accordance with these reasons;

(c) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

(d) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by the applicant.

I certify that the 115 preceding paragraphs are a true

copy of the reasons for the decision herein of

Deputy President D G Jarvis

Signed: .................... (Signed) ...................................

Associate

Date/s of Hearing 4, 5, and 6 November 2009 and

11 and 12 November 2009

Date of Decision 29 January 2010

Applicant In Person

Counsel for the Respondent Mr A Berger

Solicitor for the Respondent Australian Government Solicitor