Powell and Comcare [2010] AATA 639 (26 August 2010)

Last Updated: 13 September 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5616

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DAVID JAMES POWELL

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Deputy President D G Jarvis and Professor P Reilly AO, Member

Date 26 August 2010

Place Adelaide

Decision

The tribunal affirms the decision under review.

..............................................
(Signed)
(Deputy President)

CATCHWORDS

COMPENSATION – Commonwealth employee – employee of DSTO – claim for major depressive disorder – liability denied – employment-related events contributed to adjustment disorder – effect of employment on tinnitus – failure to obtain benefit – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 14

Comcare v Sahu-Khan [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) 170 FCR 531

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

Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286

Re Carpenter and Comcare [2010] AATA 62

Trewin v Comcare (1998) 84 FCR 171

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

REASONS FOR DECISION

26 August 2010	Deputy President D G Jarvis
	Professor P Reilly AO, Member

1. The applicant, David James Powell, was employed by the Defence, Science and Technology Organisation (DSTO) of the Department of Defence from July 2002 until August 2006, when he was suspended on full pay. He was finally made excess to requirements in October 2008.
2. On 20 June 2006, Mr Powell claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) for major depressive disorder. Comcare decided to reject his claim. This decision was subsequently affirmed by Comcare in a reviewable decision made at his request on reconsideration. Mr Powell has applied to this tribunal for review of this reviewable decision.

ISSUES BEFORE THE TRIBUNAL

3. The issues before the tribunal are as follows:

(a) what is the nature of the condition(s) from which Mr Powell is suffering;

(b) whether those condition(s) were materially contributed to by his employment with the Commonwealth; and

(c) whether Mr Powell’s condition(s) are the result of a failure by him to obtain a benefit in connection with his employment with the DSTO within the meaning of the exception to the definition of “injury” in s 4(1) of the SRC Act.

BACKGROUND FACTS

4. Mr Powell is aged 46. He participated in the cadets at school, and when he was in year 12 he applied for a scholarship to Duntroon. He was short-listed for the scholarship out of about 5,000 applicants, but was not successful. He then joined the regular Army and served for six years. This included service as a paratrooper.
5. After leaving the Army, he had about 30 different jobs. In 2000 he completed a Bachelor of Information Technology at Flinders University, and then succeeded in obtaining employment in the Australian Taxation Office in Canberra for about two and a half years.
6. In April 2002, he was interviewed in Adelaide by an interview panel for a position with the DSTO, for which he had applied. Shortly after the interview, a letter was sent to Mr Powell to advise that he had been selected for an APS Level 5 (S & T Level 3) position with the Land Operations division at the DSTO in Edinburgh, South Australia. The letter advised of the expected date of gazettal of his promotion, his salary and other administrative matters (exhibit R1, T3, pages 10 – 11). Mr Powell subsequently accepted the offer and commenced with the DSTO in July 2002.
7. In or about August 2002, Mr Powell’s former wife was interviewed for an APS 2 position at the Defence Security Authority, but was subsequently informed that no one had been appointed to that position. No other offer of employment was made to her. The failure of his wife to obtain an APS Level 2 position was distressing to Mr Powell and his wife. It caused financial pressures, and these were increased because his wife’s three children from a former marriage lived with them after they moved from Canberra to Adelaide, as well as the two children from their marriage.
8. At first he was employed in the CASTFOREM team at the DSTO, under the direct supervision of the witness Colin Wayne Stanford, who was the leader of that team. CASTFOREM involved various computer based battle simulations, and was intended to provide support analysis for the Australian Defence Forces. Mr Stanford expected that Mr Powell’s Army experience would assist in creating the simulations.
9. In October 2003, Mr Powell was transferred to a team led by the witness Bruce Malcolm Bennett. He commenced work on a new task with the witness Stephen Bourn during 2004 and the first half of 2005. He worked as an analyst, and was required to visit various Defence bases throughout Australia, and gather information from Defence personnel to better understand the Defence Forces’ logistic capabilities. He enjoyed this work. He received a satisfactory performance rating, and a salary increment. He remained under the supervision of Mr Bennett until 2006. He was suspended pending a code of conduct inquiry in August 2006.
10. As mentioned above, Mr Powell claimed compensation for a major depressive disorder in June 2006. He claimed that the “DSTO recruitment process” started the chain of events that led to his condition. In answer to a question as to what caused his condition, he stated on the claim form:

“REDRESSING DSTO RECRUITMENT PROCESS. Exacerbation of Sensineural [sic] Deafness exposing tinnitus condition and Major Depressive Disorder.” (exhibit R1, T57, page 184)

In answer to the next question of the claim form, in which he was asked to say what actually injured him or made him ill, he stated “Process of work/life balance.”

11. Mr Powell elaborated on the matters referred to in the claim form in a document dated 22 August 2006 (exhibit R1, T70, page 239). This document commenced as follows:

“This document comprises my claim for a Major Depressive Disorder due to Work on the Balance of Probabilities.
To assist assessment and in supporting my claim, I have grouped the various areas which have added to the onset of this condition.”

12. The document then refers to various matters under six headings. His assertions by reference to these headings may be summarised as follows.

(a) Under the heading “Interview”, Mr Powell referred to the interview in April 2002, and to an APS 2 position for his wife. We will refer below to his evidence as to this matter.

(b) Under the heading “Recruitment Redress Process”, he referred to subsequent discussions he had had with Mr Bourn, who had been the chair of the interview panel, and to subsequent discussions with other persons. He included references to a telephone call of July 2006 with a Mr Quinn, a discussion with the CPSU, apparently in about April 2005, and an email at that time referring to this issue.

(c) Under the heading “Performance Conduct”, Mr Powell referred to a discussion with the witness Warren Harch, apparently within the first six months of his work at the DSTO, about his concern that he would not be eligible for an increment until he had worked at the DSTO for at least six months, in circumstances where his starting salary was in the middle of the S&T 3 range. He asserted that Dr Harch said at the end of the interview, “You know we can get rid of you via the security process.” (exhibit R1, T70, page 240).

He also referred to discussions in 2003, and assurances that he would get an increment pursuant to the performance process at that time. However, the 2003 increment was deferred, and he described his severe reaction to that.

(d) Under the heading “Study”, Mr Powell asserted that, resulting from the interview for the position at the DSTO, he was led to believe that he could pursue studies that would suit both him and the DSTO. He stated that he was allowed to commence certain studies at the Australian Defence Force Academy without having obtained 18 months’ service with the DSTO. He stated that he was then asked to defer those studies after the first semester, and that, when he was producing a significant report for the subject he was studying. he was subjected to pressure to complete tasking by his then supervisor, Mr Stanford. He said that the decision not to allow him to continue with the next subject “added further stress, frustration and anxiety to an already disastrous promotion and transfer process that [he] was experiencing due to inconsistent and flawed decision making and producing confusing and conflicting views.” (exhibit R1, T70, page 242).

On being allowed to resume the second subject in the first semester of 2005, he stated that he experienced the same events as had occurred in relation to the first semester in 2003.

He finally referred to being unable to log on to his desk-top computer on 30 or so occasions in a very short time frame, and said that this culminated in his smashing his keyboard violently against the monitor; he stated that the reason was that he was “absolutely disgusted with this [sic] seemingly endless barriers for me to achieve at DSTO.” (exhibit R1, T70, page 242). According to other evidence, these difficulties with logging on occurred in May and June 2005.

(e) Under the heading “Duty of Care”, Mr Powell referred to experiencing, during the latter part of 2002, levels of tinnitus, and to Mr Stanford’s unsympathetic attitude to his condition and his “total disregard” of a duty of care to Mr Powell as an employee.

Mr Powell also referred to having been assaulted by his then supervisor, Mr Bennett, on 21 April 2006 following a weekly graduated return to work progress meeting.

(f) Under the heading “Outcomes”, he referred to his situation prior to moving from Canberra, and contrasted this with the following statement:

“Four years experience with DSTO, I am divorced, paying maintenance and seeing my children every other weekend, paying rent, facing bankruptcy, assaulted by my supervisor, on extended leave, Chronic Tinnitus Illness, Major Depressive Disorder, achieved two subjects of study in four years and now facing the security vetting process which can result in not working for DSTO (brought forward by a year and reinforcing Mr Warren Harch’s statement, ‘You know we can get rid of you via the security process’).” (exhibit R1, T70, page 243)

13. In the course of his evidence, Mr Powell provided further information relevant to the reference to an APS 2 position for his wife. He said that reference was made to his wife near the end of the interview. He had said that she had an assistant manager’s role at the Belconnen Bowling Club in Canberra, and in response to a question from one of the persons present at the interview, the witness Carolanne Oxley, as to what he “planned to do with his wife”, Ms Oxley said “How about an APS 2?”. He gave evidence that from that remark, he had assumed that his wife was going to be offered an APS Level 2 position. He added:

“I guess I was just happy and ecstatic that out of this promotion for myself, that the wife wouldn’t be losing in the process as well. It would be a positive experience.” (transcript 24.05.10, page 37, lines 29 – 31)

14. Mr Powell had previously claimed a disability pension under the Veterans’ Entitlements Act 1986 (Cth) for sensorineural deafness, and his claim was accepted in 1987. During his employment with the DSTO, he also claimed for tinnitus, and this claim was accepted in July 2006. As a result, he is entitled to a disability pension of 40% of the general rate.
15. Mr Powell’s employment with the DSTO was suspended in August 2006 pending a code of conduct inquiry. This arose because he had used a DSTO travel card when he hired a motor vehicle during a visit to Sydney for personal reasons. This was on the day after the date of the asserted assault by Mr Bennett. The code of conduct proceedings that ensued were eventually abandoned by DSTO. He was then put on a retention program, which was completed by May 2009. He received his full pay during the period from his suspension until the completion of the retention program. In the meantime, according to the medical evidence before us, he has recovered from the incapacity for work that had been caused by his psychological condition.
16. Mr Powell had been married previously. His first marriage broke down in 1991. He married again in 1997, but separated from his second wife on 21 October 2003. This was the date when he received a letter from Dr Harch to advise that his salary increment would be deferred by three months. He went home that day in an angry state, and there was an altercation with his wife. She called the police, left home and took the children with her. After that, his wife commenced proceedings in the Family Court in November 2003. The family home was sold in March 2004, and in February 2006, the parties agreed on a property settlement and on access to their children. During this period Mr Powell experienced financial difficulties, and he became bankrupt in September 2006.
17. According to the claim form, Mr Powell sought medical advice from his general practitioner, Dr Brimage, on 24 March 2003. A Defence OHS Incident Report of that date includes a statement that Mr Powell was then suffering a major depressive disorder (although that statement does not appear to have been supported by any medical certificate or contemporaneous medical evidence). In the OHS report he designated that the part of the body affected was “mental”, and in answer to a question “Describe the incident and what went wrong”, he stated that he attributed this to “Exacerbation of previous tinnitus/sensoneural [sic] Deafness condition whilst employed as a paratrooper with 3 RAR.” (exhibit R1, T7, page 16). He subsequently consulted psychologists and psychiatrists about psychological and emotional symptoms, and other clinicians to assist with his tinnitus. In a medical certificate dated 22 May 2006, Dr Brimage certified that Mr Powell was suffering from stress, anxiety and depression, with major depressive disorder, and that he was fit to return to modified duties for four hours a day from 9 May to 30 June 2006 (exhibit R1, T54, page 178). A subsequent certificate from Dr Brimage dated 19 June 2006 extended this period to 30 September 2006 (exhibit R1, T56, page 181). In a report dated 15 September 2006 Dr Brimage stated that on 22 May 2006, Mr Powell was suffering from “stress, depression and anxiety related to experiences he went through following his transfer and promotion from Canberra in 2002”. He also reported that Mr Powell was taking medication for depression (exhibit R1, T76, page 280).

LEGISLATIVE SCHEME

18. 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.”

19. The requisite connection between a psychological condition suffered by an employee and his or her employment is provided for indirectly, via the definitions of “injury” and “disease” in s 4(1) of the SRC Act. Under the Act as then in force, these definitions provided 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.”

20. 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”.
21. By virtue of s 7(4) of the SRC Act, the condition of major depressive disorder for which Mr Powell claims compensation is deemed to have occurred on the date when Mr Powell first sought medical treatment for it.

Applicant’s evidence as to stressors

22. We have referred above to T70, in which Mr Powell provided further information in support of his claim. He also referred to these matters, and to his perception of the various events, in evidence. During the hearing, in an endeavour better to understand Mr Powell’s claim and the events on which it is based, we prepared a list which identified the work-related events referred to in exhibit R1, T70, and we asked him to rank the events in order of their significance. He ranked the events as follows: (a) assault on 21.04.06; (b) relevance of tinnitus; (c) events during first semester to 2005; (d) inability to log on desktop computer; (e) meeting with Dr Warren Harch re performance, November 2002; (f) Colin Stanford’s attention at end of semester one; (g) decision by Messrs Stanford and Bourn not to allow continuance with next subject in second semester of 2003; (h) discussions with Stephen Bourn and Colin Stanford re increment in 2003 and aftermath; and (i) discussion at interview concerning wife.
23. Mr Powell further supplemented his claim for compensation in a document lodged on 25 January 2010 (exhibit A14). This confirmed the significance that he attributes to the asserted assault by Mr Bennett. He also asserted, by reference to the questions that appear in the Comcare claim form (exhibit R1, T57, page 184), as follows:

“5. Qn: 20 ‘what started the chain of events that led to your injury or illness’ I would now state, the perception in my mind that I was being bullied and or harassed during the course of my work with DSTO.

6. 6. Qn: 21 ‘What action, exposure or event happened to cause your injury or illness’ Attempting to remedy the perception in my mind that I was being harassed and or bullied in the workplace. Aggravation of existing illness of Tinnitus.
7. 7. Qn: 22 ‘What actually injured you or made you ill’ I would now contend that the key board incident was the event that provided significant evidence to the perception in my mind that I was being harassed or bullied in the work environment in attempting to achieve my goals at work.”
   
24. He was cross-examined about his asserted perception that he was being harassed and/or bullied in the workplace, and he said that he should have also included a perception of discrimination. We found his evidence as to these matters to be vague and unsatisfactory. He was evasive when asked to provide specific examples of relevant events, and his perceived concerns about the processes of the code of conduct inquiry cannot be relied upon to support his claim for compensation. We do not accept that any relevant conduct occurred that constituted harassment, bullying or discrimination on the part of the DSTO. Indeed, Mr Powell acknowledged that Mr Bennett, who was his supervisor for the longest period of his employment at the DSTO had been very supportive. We will refer below to Mr Powell’s perceptions and their relevance to his claim for compensation.
25. In a document entitled “Supporting information to PT94” (exhibit A15) lodged on 25 January 2010, Mr Powell described the asserted assault on 21 April 2006 by Mr Bennett, and also events that happened when he travelled to Sydney, as well as events following his return. On the same date he also lodged a Chronology (exhibit A16) that refers to a number of asserted events from when he commenced employment at the DSTO until the termination of his employment on 21 April 2009.
26. In a further Statement of Facts, Issues and Contentions filed on 17 May 2010, Mr Powell referred to the issues regarding his study during his employment with the DSTO, and also to certain aspects of letters from the respondent’s solicitor containing requests for psychiatric assessments. The Statement then records:

“22. The applicant contends there are two claims to be considered by the tribunal, aggravation to Tinnitus condition that was materially contributed by events discussed by the promotion from Canberra. Secondly a claim for Psychological injury caused by a workplace event in 2005. An event which is necessary for an Adjustment Disorder to be diagnosed.”

The Statement goes on to say that if his first claim is refused “due to exclusionary provisions” of the SRC Act, then he asks the tribunal to determine if “an ‘estoppel by conduct’ has been committed in the recruitment process” (paragraph 23 of the Statement). Mr Powell did not pursue this request at the hearing, and in any event, the tribunal does not have jurisdiction to determine this issue.

27. Counsel for Comcare, Mr Krupka, contended that Mr Powell is suffering from a personality disorder, and that workplace events did not make a material contribution to the subsequent development of adjustment disorder or depressive disorder. In the alternative, he contended that any psychological condition from which Mr Powell suffered was contributed to, at least in part, by his failure to obtain a benefit in connection with his employment, being one of the exceptions to the definition of “injury” in the SRC Act, and as a result, he was not entitled to compensation.

Medical evidence

28. There is extensive medical evidence before us, including copies of reports from clinicians with various specialties who provided reports during the period of Mr Powell’s employment with the DSTO. There are also some historical reports relating to psychological issues that gave rise to reports provided by two psychiatrists in 1993 and 1994. In addition, reports were obtained from psychiatrists whom Comcare asked to provide assessments after Mr Powell had made his claim for compensation. Two of these psychiatrists, Doctors Davis and Kutlaca, gave evidence. We have carefully considered all of the evidence and material before us in relation to the issues of diagnosis and the connection between Mr Powell’s condition and his employment with the DSTO.
29. Subject to one qualification, to which we refer in paragraph 42 below, we found Dr Davis’s evidence and opinions to be helpful and reliable, and the history to which he refers appears to be generally consistent with the contemporaneous medical and other material before us, as well as with relevant evidence of DSTO officers called by Comcare. In a report dated 9 April 2009 (exhibit R11), Dr Davis concluded, after referring to the history he obtained, and from reviewing extensive earlier medical assessments, as follows:

“Whilst I consider that Mr Powell had features of a personality disorder and that he was prone to various psychological symptoms from time to time, I did not identify a history to suggest the presence of another psychiatric disorder prior to 2002.
Reviewing the history obtained and the extensive documentation of other specialists, I have concluded that Mr Powell experienced an adjustment disorder with mixed disturbance of emotions and conduct, whilst employed with DSTO. At times symptoms of depression may have been of sufficient intensity to make a diagnosis of major depression, but this was not sustained or associated with any melancholic or psychotic features. Symptoms fluctuated from time to time, depending on his circumstances. Whilst there were a number of erratic behaviours, including overspending and some dis-inhibition, I was unable to satisfy myself that he has experienced a bipolar disorder. I consider it more likely that the behavioural disturbances that arose were a consequence of an interaction of his personality disorder and his adjustment disorder, as he struggled to deal with some overwhelming stressors over an extended period.
Mr Powell indicates that he is now free of any disabling psychological symptoms, such that there is no ongoing psychiatric diagnosis.” (exhibit R11, page 7)

30. Dr Davis went on to refer to a build up of anxiety and tension in 2005 which culminated in the incident in July 2005, when Mr Powell damaged his computer, and reported that this was followed by a number of reported symptoms. He thought that that was the point in time when it was reasonable to make a diagnosis of an adjustment disorder. He also referred to the persistence of various symptoms prior to the alleged assault by Mr Powell’s supervisor in April 2006, and said that this led to “further psychological decompensation, and more severe symptoms”, with the situation being complicated by other factors (exhibit R11, page 8).
31. In response to a question as to what had contributed to Mr Powell’s condition, Dr Davis reported:

“I consider that the adjustment disorder is a consequence of multiple factors. There are background personality issues which predispose Mr Powell to psychological symptoms when exposed to various stressors. He described a number of workplace issues that contributed to his psychological disturbance, as well as some overwhelming personal issues. He had to deal with the break-up of a marriage, a protracted conflict in relation to access to his children and property settlement, bankruptcy, social isolation and a more recent legal matter. It is difficult to quantify the contribution of each factor. I consider that personality and personal issues are the predominant causal factors.” (exhibit R11, page 8)

32. Dr Davis confirmed, in a subsequent report of 22 February 2010, that Mr Powell was suffering a pre-existing condition prior to commencing his employment with the DSTO, namely a mixed personality disorder (exhibit R12). He also said, in response to a question about the relevance of Mr Powell’s failure to obtain certain employment related benefits:

“Mr Powell’s narcissism is likely to be associated with an inflated view of his own abilities and accomplishments and a heightened sense of entitlement to benefits, that may or may not be earned or due to him. I consider that this was one of the contributing factors to his adjustment disorder.” (exhibit R12, page 2)

He also added that in his opinion, Mr Powell’s personality disorder was such that his history of work-related experiences was tainted by “idiosyncratic perceptions and beliefs that do not necessarily have any basis in reality.” (exhibit R12, page 2). He said that the disturbance of personality function dated back to adolescence and early adult life. He confirmed that Mr Powell had been symptom free for many months prior to his assessment in early 2009. Dr Davis later confirmed his views in a further report dated 16 March 2010 (exhibit R13), and in his evidence.

33. In a report to Comcare dated 1 September 2006, Dr Jha said that his diagnosis of Mr Powell was “(a)djustment disorder with mixed disturbance of emotions and conduct” (exhibit R1, T72, page 263). He added that Mr Powell seemed to have had long-term adjustment problems in his personal life and place of work. Like Dr Davis, he thought that some of Mr Powell’s presenting symptoms were suggestive of depressive illness. Dr Jha repeated this diagnosis and expressed similar views in a subsequent report of 16 July 2007. In that report he also referred to Mr Powell having “obsessive and narcissistic personality traits as a pre-existing or underlying condition”, and referred to there being “definitely a flavour of paranoia in his presentation” (exhibit R1, T93, page 345). He thought that this underlying condition might have made some contribution to the initiation and maintenance of the condition, but that Mr Powell’s then current condition was not an aggravation, acceleration or recurrence of a pre-existing underlying condition. He considered that Mr Powell’s condition had been caused or aggravated by employment factors, which he enumerated in paragraph 11 of his later report. He also said that at the date of this report Mr Powell had no incapacity for work.
34. Dr Kutlaca interviewed Mr Powell on 4 September 2008, and reviewed many earlier reports from other psychiatrists and clinicians. He concluded that Mr Powell was “suffering from a personality disorder (unspecified) on the basis of substantial interpersonal adversity at work and in terms of intimate relationships. These matters are not work-related in terms of causation.” (exhibit R14(b), page 10). In subsequent reports dated 20 January 2009 and 17 February 2010 (exhibits R15 and R16(b)) he confirmed his opinion that Mr Powell has a personality disorder. In the latter report he referred to reports prepared by Doctors Shaw and Rozenbilds in 1993 and 1994, and thought that there was “little doubt” that Mr Powell developed a personality disorder from aspects of his development, and that this disorder first became apparent to professionals in 1993-94 (exhibit R16(b), page 5). He also referred to paranoid, narcissistic and impulsive components to the personality disorder, and said that he did not consider that Mr Powell’s employment with the DSTO aggravated his personality disorder “to a substantive extent”. He also expressed the opinion, from his review of the earlier reports, that Mr Powell had been suffering from an adjustment disorder rather than a major depressive disorder. He agreed in evidence that work-related factors contributed to Mr Powell’s condition, but was reluctant to express any view as to the extent of their contribution. He also recorded that when he had examined Mr Powell, he did not consider that Mr Powell was depressed to the extent of a diagnosis (exhibit R16(b), page 9). Dr Kutlaca confirmed his views in evidence.
35. Comcare also arranged for Mr Powell to be assessed by Dr J Begg, another psychiatrist. In a report dated 5 September 2005 (exhibit R1, T22, page 61) he diagnosed Mr Powell as suffering “(a)djustment (d)isorder with depressed mood, moderate severity” (at page 66), and also referred to obsessional narcissistic personality traits which could be exacerbated by stressful life events. He was not inclined to make a diagnosis of a personality disorder. In a second report dated 19 April 2006, Dr Begg considered that Mr Powell’s depressive disorder symptoms were not as severe as they had been in August 2005, and made a diagnosis of “(m)ajor (d)epressive (d)isorder single episode, moderate severity without melancholic or psychotic features.” (exhibit R1, T46, at page 164). He also noted that Mr Powell’s depression had been temporarily exacerbated by the loss of his hearing aids. In a further report dated 20 September 2006, Dr Begg considered that Mr Powell’s condition was worse than it had been, and he diagnosed “bi polar 2 mood disorder with mixed mood state” (exhibit R1, T78, at page 289).
36. Mr Powell was also assessed at Comcare’s request by another psychiatrist, Dr L Ding. In a report dated 6 October 2006, he assessed Mr Powell as suffering from a major depressive disorder then in partial remission (exhibit R1, T79, at page 299). He also thought that there was no pre-existing diagnosable psychiatric condition, and referred to the combination of workplace and personal events that had caused his condition. In a subsequent report dated 2 September 2008 (exhibit R22) Dr Ding confirmed his earlier diagnosis, but said that the major depressive disorder was then in remission. He also changed his earlier opinion as to the relative contribution from personal circumstances and workplace events, and he then thought that work-related stress accounted for 80 percent of his depressive disorder, and attributed 20 percent to the marital separation of 2003.

CONSIDERATION

Diagnosis

37. We referred above to the evidence and material before us in relation to Mr Powell’s medical condition. We find, particularly by reference to the evidence of Doctors Davis and Kutlaca, and from the reports of Dr Jha, that during his employment by the DSTO, Mr Powell suffered from an adjustment disorder, with fluctuating symptoms that might also at times have been sufficient to lead to a diagnosis of major depression. We further find, on the basis of the report from Dr Jha, that he had recovered from his adjustment disorder (or major depression, if this could be diagnosed) by 16 July 2007, when Dr Jha reported that there was no incapacity for work (see exhibit R1, T93, page 346).
38. Mr Powell’s condition, whether it constituted an adjustment disorder as we have found, or whether at times it amounted to a major depressive disorder, constituted a “disease” within the meaning of the SRC Act in that it was an “ailment” as there defined. That is because “disease” is defined to mean (inter alia) an “ailment”, and “ailment” is defined to mean “a mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. This was the nature of Mr Powell’s condition, in contradistinction to an “injury”, which involves a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”. Those were the words of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 at [39] in considering what constituted an “injury” compared with a “disease” for the purposes of the Workers’ Compensation Act 1951 (ACT).
39. Mr Powell first sought medical treatment for his condition prior to 13 April 2007, and so the requisite relationship between his employment and the disease is to be determined by the provisions of the SRC Act as they were before the amendments to the Act that took effect from that date. Comcare’s liability to compensation will accordingly depend on whether his condition was “contributed to in a material degree” by his employment with the DSTO.
40. 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: Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795 (for the full text of this judgment see [2002] FCA 1464), 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].
41. Further, 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.”

He added, at [24]:

“All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.”

42. We note that in his report dated 9 April 2009 (exhibit R11) Dr Davis said in effect that his opinion on whether employment-related events had made a material contribution to Mr Powell’s condition depended on whether Mr Powell’s assertions were substantiated. However, that is not the correct legal test, as was made clear in Wiegand (supra). It is necessary to have regard to Mr Powell’s perception of the events, subject to the qualifications referred to in that case. Our findings in relation to the perceptions held by Mr Powell are outlined in paragraphs 46 and 47 below.

Did the applicant’s employment contribute to his condition in a material degree?

43. In Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536, Finn J referred to the change in terminology between the Compensation (Commonwealth Government Employees) Act 1971 (Cth) and the SRC Act in relation to the requisite causative connection between an employee’s employment and the suffering or aggravation of an ailment 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 an ailment. He 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.”

44. It does not matter that other factors not related to employment contribute to the claimed disease, but where the disease was suffered before the 2007 amendments to the SRC Act, 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.
45. Counsel for Comcare submitted by reference to the medical evidence before us that Mr Powell had a pre-existing personality disorder. We are mindful of Dr Davis’s opinion that it is not always easy to draw the line and make a diagnosis that particular personality traits are such as to constitute a personality disorder. There is strong support for counsel’s contention in the evidence before us. Because of Mr Powell’s pre-existing personality traits, it is clear that he was vulnerable to the development of depressive disorders as a result of stressful events, or events that he perceived to be stressful, when he commenced employment with the DSTO. Even if he was suffering from such a disorder, it is clear from the evidence of Doctors Kutlaca and Davis that the disorder was a developmental disorder that pre-dated his employment with the DSTO, and that it was not contributed to or aggravated by that employment. In view of the conclusions we have reached it is unnecessary for us to decide whether or not he had a pre-existing personality disorder.
46. The work-related events that constituted the stressors upon which Mr Powell’s claim is based are referred to in his claim for compensation, the elaboration of that claim in the document dated 22 August 2006 (exhibit R1, T70, page 239), the further supplement lodged on 25 January 2010 (exhibit A14), the document entitled “Supporting information to PT 94” (exhibit A15), the Chronology of Events (exhibit A16), the Statements of Facts, Issues and Contentions filed by the applicant, and his evidence. Employment-related events on which Mr Powell relies are also variously referred to in the reports by Doctors Jha, Begg and Ding, and also in the evidence of Doctors Davis and Kutlaca. We do not accept the accuracy of Mr Powell’s evidence as to the matters on which his perceptions are based, and as was made clear in Wiegand (supra) the reasonableness or otherwise of his perception is not relevant. However, subject to our findings below regarding the asserted assault by Mr Bennett, we find that in a number of cases, Mr Powell’s perception related to incidents or circumstances that actually occurred, and that his perception as to those incidents and circumstances is honestly held. We refer in particular to his perceptions relating to his expectations regarding his wife’s employment after he commenced at the DSTO, the deferral of his study in the second semester of 2003, the deferral of his salary increment in 2003, perceived pressure when he was under Mr Standford’s supervision, and his difficulties in logging on to his computer.
47. We find that Mr Powell’s perception of the above events and circumstances made a material contribution to the onset of his adjustment disorder, and perhaps at times, to the onset of a major depressive disorder. We also find that a number of significant stressors that were unrelated to his employment also made a significant contribution to the onset of his psychological condition, but in view of our above finding, that would not relieve Comcare of liability.

Was the condition the result of a failure to obtain a benefit in connection with employment?

48. The definition of “injury” in s 4 of the SRC Act expressly excludes an injury suffered by an employee as a result of a failure to obtain a “promotion, transfer or benefit in connection with his or her employment”. In Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29, a Full Court of the Federal Court held that where one of those excluded factors is a cause of an employee’s injury or disease, Comcare is not liable even though the relevant condition was also caused by other non-excluded factors.
49. In Re Carpenter and Comcare [2010] AATA 62 we analysed the relevance of the exceptions to the definition of “injury” and concluded at [104] that on the proper interpretation of the definition “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. We understand from counsel’s submission that Comcare accepts this position.
50. In Trewin v Comcare (1998) 84 FCR 171 Heerey J considered the meaning of “benefit” where that word is used in the exception to the definition of “injury”. His Honour applied the second meaning of this word in the Macquarie Dictionary definition, namely “anything that is good for a person or thing”, and decided that the word would extend to something obtained as a matter of right, such as a medical benefit to which a person was entitled as a matter of contractual right, or career-related legal rights that might arise from industrial awards or workplace agreements. Applying this interpretation, we accept the submission by counsel for Comcare that the following matters relied upon by Mr Powell constituted a failure to obtain a “benefit” in connection with his employment within the meaning of that word in the exception to the definition of “injury” in the SRC Act:

(a) the fact that his wife was not offered an APS level 2 position;

(b) the deferral of his increment in 2003; and

(c) the deferral of his studies after the first semester in 2003.

51. As mentioned in paragraph 22 above, we asked Mr Powell to rank the work-related events referred to in the first supplement to his claim form (exhibit R1, T70) in order of their significance. He then ranked the above three asserted excepted events last.
52. We consider that the appropriate way of assessing the materiality of the three events in question is to have regard to the evidence before us as to the nature and extent of the stress caused to Mr Powell by those events, and the extent of any contribution they made to the psychological condition(s) for which he is claiming compensation. As mentioned in paragraph 7 above, the failure of Mr Powell’s wife to obtain employment caused financial pressures and distress. This is confirmed in an email of 14 October 2002, which he sent to the chair of the interview panel (exhibit R1, T6, pages 14 – 15). This email refers to the “added financial burden” and his wife’s “resentment” as she had left a good job in Canberra. His continuing concern that his wife failed to obtain an APS 2 contract is further evidenced by his reference in T70 to arranging a follow-up meeting with Mr Bourn, an interview seven months after he had joined the DSTO with the recruitment manager, a telephone conversation in July 2006 with a Mr Quinn, a meeting with a Mr Coleby on 28 April 2003, and an email from the CPSU of 4 April 2005.
53. We also find that the advice to Mr Powell that his increment had been deferred in October 2003 was a very significant stressor. It resulted in the altercation with his wife, to which we referred above, when she and the children left, and that was when his marriage broke up. That in turn led to the various significant personal stressors that are referred to in the various medical reports.
54. In order to determine the significance of the three events in question it is also appropriate to refer to other contemporaneous documents. As well as raising concerns about his wife attaining an APS Level 2 position in the email of 14 October 2002 (exhibit R1, T6), Mr Powell referred to a potential concern about his “study option”. A report from a psychologist, Ms Jo-Anne Hamilton, dated 27 February 2004 (exhibit R1, T12) refers to Mr Powell having exhibited “inappropriate behaviour and emotional outbursts within the workplace”; this is further referred to in a subsequent report (exhibit R1, T14) following two further consultations, the most recent having occurred on 28 April 2004, when Ms Hamilton referred to Mr Powell’s understanding that his new position with the DSTO offered a number of “advantages and inducements” that were subsequently not forthcoming. An email from Mr Powell of 10 August 2005 (exhibit R1, T19) refers to his tinnitus and also to difficulties with a Mr Millikan, and also to having been denied access to study in the second semester of 2003, his concern about the “increment issue” and the failure of his wife to obtain work at the APS 2 level. References to his concern about the lack of employment for his wife, having to withdraw from Semester 2 studies in 2003, and/or the delay in his increment also appear in the report from Dr Begg of 31 August 2005 (exhibit R1); the report of another psychiatrist, Mr Anthony Bevan, dated 18 November (exhibit R1, T34); notes of a meeting on 28 April 2003, which refer to Mr Bourn having “made a mistake with the interview” (exhibit R1, T70, page 246); notes of a “required” meeting between Messrs Bourn, McClennan and Powell dated 12 February 2003 (exhibit R1, T8, page 17); the reports of Dr Jha dated 1 September 2006 and 16 July 2007 (exhibits R1, T72 and T93); the report by Dr Ding dated 6 October 2006 (where the perceived broken promise in respect of his wife is described as the “first major issue”, and workplace disputes are described as having “rapidly intensified in the course of 2003 with salary matters, permission to pursue tertiary studies and by the end of that year his marriage separated” (exhibit R1, T79, pages 297 – 298); the reports of Dr Davis dated 9 April 2009 and 22 February 2010 (exhibits R11 and R12); and the claim form itself (exhibit R1, T57) where “DSTO recruitment process” is the answer given to questions about both what started the chain of events that led to the injury, as well as who was responsible for the injury (see questions 20 and 24) (exhibit R1, T57, pages 184 - 185).
55. In our review of the contemporaneous material we have not overlooked an email from Mr Powell to Mr Colby dated 20 February 2004 (exhibit A21) in which he advises that he would like to “formally bring closure to the recruitment issue regarding Gina and withdraw any further action”, and advises that Gina had secured a position with their child’s school, and was happy. The advice to Mr Colby of that date does not lessen the impact of the so-called “recruitment issue” prior to that date, and in any event, Mr Powell continued to refer to that issue on subsequent occasions, as well as when describing employment related issues to the various psychiatrists to whom he was referred.
56. We have taken into account that Mr Powell also referred to other stressors related to his employment with the DSTO, but the contemporaneous material to which we have referred above contains frequent references to all or some of the three excepted events when recording the employment-related stressors which Mr Powell was asserting, and this reinforces our assessment that those excepted events made a material contribution to the depressive disorders which Mr Powell suffered.
57. Reviewing contemporaneous documents is often helpful in compensation cases in order to determine the reliability of oral evidence given some years after asserted events occurred. We think that this is particularly important in the present matter because we do not accept the veracity of Mr Powell’s evidence in describing the significance of the three excepted events to which we have referred. He admitted in cross-examination that he became aware of the Federal Court decisions in Hart (supra) and Trewin (supra) in August 2009, that is before he gave his evidence in the present proceedings, and also before he lodged various further documents this year to supplement his claim. When he gave evidence, he said that he wanted to strike out certain paragraphs of a Statement of Facts and Contentions that had been lodged on his behalf on 10 November 2008 by his then solicitor (exhibit A2), because they were not “relevant” (transcript 24.05.10, page 12, lines 4 – 34). Those paragraphs related to the employment of his wife at an APS 2 level and to an inability to undertake study financed by the DSTO for a period of 18 months. In addition, as a general comment, we found Mr Powell’s evidence to be unsatisfactory, in that on many occasions, he digressed, and his answers in cross-examination were not to the point or were unduly prolix or discursive. We are also concerned that when it was suggested to him in cross-examination in effect that he wished to resile from five factors referred to by Dr Jha because he had since found out that they may not mean that his claim was compensable, the following passage of evidence occurred:

“My intent here is to present my best case.
Even if it’s untruthful? --- Now, I hesitate because I feel like making a sarcastic legal question or comment but I won’t and I retract that. I’m just giving you the benefit of me under oath.
But - - -? --- I’ll say again that I am here to present the best case I can for me.
THE D.PRESIDENT: You are also here, Mr Powell, to give a truthful account of the facts relevant to your claim and I think what Mr Krupka is asking you is whether what you said to Dr Jha is true or not? --- Well, if it was a reasonable world, people that assault people at work wouldn’t then get promoted to the next level and moved on to other places, and here I am, I haven’t even got money to toss a coin. So let’s not get the truth into the argument of justice.” (transcript 24.5.10, page 67, lines 34 – 47).

58. We do not accept Mr Powell’s evidence that he was assaulted by Mr Bennett. Mr Bennett denied this, and also said that nothing had occurred that might have given rise to a perception by Mr Powell that he had been assaulted. We prefer Mr Bennett’s evidence to that of Mr Powell. Mr Powell was clearly mistaken in his narration of the events that immediately preceded the asserted assault, when he referred to providing an explanation to Mr Bennett of difficulties that he was having in making computer entries onto his time sheets when he was working a four-hour day. Other evidence before us establishes that Mr Powell did not commence working four hours a day until after the assault is asserted to have occurred. Further, Mr Powell did not make any report or complaint to anyone else at the time of the assault or at any time before he left work on the day when he asserts that it occurred, and we found his explanation for not having done so unconvincing.
59. We are satisfied that the three excepted events to which we have referred above made a material contribution to Mr Powell suffering the adjustment disorder, and also any episodes of major depression that occurred during his employment with the DSTO. As a result, the exception to the definition of “injury” applies, and Mr Powell did not suffer an “injury” as defined in s 4(1) of the SRC Act. He is therefore not entitled to compensation under s 14 of the SRC Act.
60. Mr Powell has also based his claim in the alternative on exacerbation of his tinnitus condition. Reports and certificates from his general practitioner, Dr Brimage, and other clinicians, including Mr Mark Reid, a neuropsychologist, refer to this condition and to difficulties that it caused him at the DSTO. Mr Powell also referred in his evidence to his tinnitus, and it appears that this was exacerbated by stressors, some of which were caused by employment-related events. However, whilst there is some evidence that his tinnitus resulted in a depressive condition, there is no evidence that his tinnitus as such caused incapacity for work. In any event, we find that the onset or aggravation of his tinnitus, or any depressive condition resulting from it, was also contributed to in a material degree by the three excepted events to which we referred above, and so again, to the extent that he claims compensation for his tinnitus or an aggravation of that condition, he did not suffer an “injury” within the meaning of s 4(1) of the SRC Act, and has no entitlement to compensation under s 14.

DECISION

61. The decision under review is affirmed.
    

I certify that the 61 preceding paragraphs

are a true copy of the reasons for the decision herein of Deputy President D G Jarvis

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

Associate

Date/s of Hearing 24, 25, 26, 27 and 28 May 2010 and 5, 6, 8 and 9 July 2010

Date of Decision 26 August 2010

Applicant In person

Counsel for the Respondent Mr B Krupka

Solicitor for the Respondent Australian Government Solicitor