Mason and Australian Postal Corporation [2011] AATA 12 (12 January 2011)

Last Updated: 14 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 12

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/3119

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CHRIS MASON

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Deputy President, R D Nicholson Member, Dr A Frazer

Date 12 January 2011

Place Perth

Decision

The Tribunal therefore decides that the decision under review, affirming the determination dated 21 May 2009, should be affirmed.

..(sgd) R D Nicholson......
Deputy President

CATCHWORDS

REASONS FOR DECISION

12 January 2011

Deputy President, R D Nicholson Member, Dr A Frazer

1. The applicant seeks review of a reviewable decision of the respondent dated 29 June 2009, which affirmed a determination dated 21 May 2009. The reasoning of the re-consideration officer was that having regard to the medical evidence, she was not satisfied that the applicant’s employment with Australia Post had significantly contributed to his mental health. She said that the opinion of Dr McCarthy was preferred over that of Dr Perica as Dr McCarthy had taken into account the applicant’s history of mental illness. The determination dated 21 May 2009 determined under section 14 (1) of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) that the applicant’s claim for compensation for “mental health” is denied.

APPLICANT’S PARTICULARS

2. The applicant was born on 4 May 1966. He was employed by the respondent as a postal delivery officer on the date material to his claim for compensation. That date was 21 June 2007. While he was on his round delivering mail on that date for the respondent he rode into Chateau Court in Mount Richon. He was following a car. He looked half way up the road and saw police officers. It was around 9.30am. Looking over to his left hand side he was a youth who had hanged himself on a tree (“the incident”). The youth was clearly dead. He claims this made him feel very sick but he kept on doing his round in the cul-de-sac. On exiting the street he saw the hanging body again. When he returned to the respondent’s centre he spoke to Stuart Falcon, acting floor manager, about what had taken place. He also telephoned the Australia Post counsellor, Tim Law and discussed with him his feelings about the incident.
3. He claims that prior to the incident he had enjoyed his job with the respondent and often started work early. He says that although he suffered from mental health problems in the past, after the incident he felt much worse and his depression increased. He became more irritable, unable to concentrate, cried and unable to sleep properly. He also had self harm feelings that came and went and he was feeling anxious. After the incident he was constantly having flash backs of the man in the tree with his eyes and face dangling from it looking at him. This, he said frequently made him feel suicidal.
4. On 22 June 2007 the applicant lodged an incident report regarding emotional trauma following the incident.
5. On 12 May 2008 he lodged a claim for worker’s compensation, which is the claim which is currently in dispute. He claim was pursuant to the SRC Act.
6. The applicant has not worked since 8 February 2008.
7. In September 2009 the respondent terminated the applicant’s employment on incapacity grounds.
8. The applicant’s claim is that the incident seriously exacerbated his mental health problems. Subsequent to the incident his mental health problems required treatment and resulted in his inability to work.
9. In the determination dated 21 May 2009, the respondent denied liability for the claim, stating it was not satisfied the condition for which the applicant had claimed compensation had been significantly contributed to by the incident of 21 June 2007.
10. In reaching this view the respondent relied on documentation including the report of Dr McCarthy dated 21 March 2009. His opinion was that the applicant’s condition was not related to any work place experiences or injury arising from such experiences.
11. By letter dated 11 June 2009 the applicant requested a reconsideration of the determination dated 21 May 2009. By a determination dated 29 June 2009, the respondent affirmed the determination dated 21 May 2009.
12. The applicant supports his case by the views of his treating psychiatrist, Dr
    Perica, who provided a detailed report dated 25 September 2008. He also provided brief reports dated 18 September 2008 and 19 November 2008.
13. Consequently the applicant claims he has suffered an injury pursuant to the SRC Act and has been unable to work and has remained totally unfit for work as a result of the incident. He therefore claims compensation.

THE APPLICANT’S ORAL EVIDENCE

14. The applicant said that he lives at home with his wife, Nicole, and his 3 boys. Nicole’s grandfather, who is 83, also lives with them. He said he had some concerns for his wife as she has used marijuana for a long time and he is worried for her health. His 3 boys also have some health issues. Eric is prescribed medication for depression and Dillon has issues with Attention Deficit Disorder. His youngest boy, Travis, has been diagnosed with Autism. Travis can attend a mainstream school; however, he has a daily assistant.
15. The applicant’s father lived in Bunbury with his mother and the applicant has had long standing concerns about his father’s health. His father was diagnosed as being terminally ill in early 2008 and passed away on 10 February 2009. His mother now also needs some support which is mainly provided by extended family members. The applicant has not worked since leaving Australia Post on 30 January 2008 where he was retired on medical grounds.
16. The applicant said that he suffers from long standing mental health issues, which have been present most of his adult life. This mainly includes mood swings and depression with suicidal thoughts and other thoughts of self harm. The applicant said he has always been open about this and that he told this to Australia Post in his pre-employment medical.
17. The applicant said in cross-examination that around 1981 when he was a 15 year old teenager he took an overdose of panadol. He said this was because he was not thinking clearly and it was over an issue with a girl. He said then when you are young you do silly things. The applicant said that between 1981 and 2000 there was a “lighter bit of depression there.”
18. The applicant said that he had significant mental health problems around 2003. The family had moved to Perth and the applicant was not employed between May 2001 and October 2004. The applicant described himself as a ‘Mr Mum.’ In May 2003 he became depressed and he was referred urgently to the Bentley Hospital by his general practitioner Dr Meshgin for psychiatric assessment. Dr Meshgin prescribed an anti-depressant drug (Aropax) for him at this time.
19. On 28 August 2003 the applicant said he had some suicidal ideation in that he stood on a balcony at home for a long time contemplating jumping off. He also said that on one occasion he poured boiling water over his arm.
20. Around August 2003 the applicant’s wife was admitted to Armadale Mental Health Unit with some significant mental health issues. In September 2003 Dr Meshgin referred the applicant to the Armadale Mental Health Unit. The applicant had said his wife was getting him down as a result of her being critical and negative. The referral from his general practitioner stated the applicant had labile moods, bouts of anger, paranoia and suicidal ideation. Dr Meshgin also noted many stresses affecting the applicant including his wife’s mental health admission, the death of a close friend and his brother’s ongoing mental health problems.
21. The applicant said that in late 2003 he “dropped a brick on his foot.” The applicant said that he did this because he was angry with his wife. He said “I was angry at her for hurting herself so I hurt myself instead of hurting her.”
22. Between April and September 2004 the applicant presented on at least 3 occasions to his GP, Dr Meshgin. Over this time Dr Meshgin doubled the applicant’s dose of Aropax. The applicant was suffering from feelings of anxiety and depression and reported he had some benefit from the Aropax. On 30 September 2004 the applicant told Dr Meshgin that he still had some relationship difficulties with his wife and that he felt down and had taken some of his son’s Ritalin because he had heard it allowed a person feel ‘high’.
23. The applicant then worked full time at Australia Post from October 2004 to November 2007. The applicant said he used to love his job. He was committed, would arrive to work early and was a highly functional team member.
24. The applicant described the incident on 21 June 2007 when he saw a youth hanging from a tree who appeared dead. This occurred during his postal round. The applicant reported the distressing incident to Australia Post later that day and received a debrief from Tim Law, the workplace counsellor.
25. The applicant then continued to work at Australia Post until January 2008. The applicant did not need to take any sick leave and continued to perform to a high standard until late 2007. The applicant said “I did the best I could every day.”
26. The applicant said that on 4 January 2008 he saw his GP, Dr Meshgin. The applicant said he had decided to stop taking his Aropax a few weeks before the appointment. He said he did this because he thought he was on too much medication. At that time he told Dr Meshgin he had vertigo (dizziness) for a week. He also said he felt a little flat and down.
27. On 11th January 2008 the applicant had contact with an Australia Post Counsellor and told him he had ceased his Aropax recently and was going downhill. He said this stemmed from the incident. On 16th January he saw an Employee Counsellor and said he had a lot on his shoulders and was not coping.
28. In the absence of Dr Meshgin, the applicant saw Dr Wu (a GP in the same practice) on 18 January 2008. At that time he had still ceased the Aropax and described feeling low and having increased thoughts of suicide. He said this was after arguments with his wife.
29. The applicant said he did not tell Dr Meshgin or Dr Wu about the incident from June 2007 because “it had slipped his mind.” He first told Dr Meshgin about the incident on 14 February 2008.
30. The applicant stated that since the incident in June 2007 up to the present time he has suffered from feelings of depression and anxiety. He also has thoughts about self harm and problems with his sleeping. He regularly sees his GP, Dr Mesghin, and also his treating psychiatrist, Dr Perica. The applicant said he has a positive, trusting relationship with both health professionals and he believes they both care for him. The applicant said that his depression and thoughts of self harm were because of the incident he witnessed in June 2007. He said he has multiple flashbacks a day when he can see the youth hanging and he thinks of killing himself sometimes around 15 times a day.
31. On 22 February 2008 the applicant said he saw Dr Mesghin and that he was feeling down, anxious and had racing thoughts. He wanted to see Dr Risbey, his wife’s psychiatrist, but there were no appointments available till May 2008.
32. The applicant then saw Dr Perica, Psychiatrist, on 27 February 2008. Dr Perica agreed to bulk bill him for the consultations. He has continued to see Dr Perica as his treating psychiatrist up to the present time.
33. On 29 February 2008 he saw Dr Mesghin. He said that he had confronted his wife about her marijuana use again the week before and since then has had thoughts of death.
34. On 3 April 2008 the applicant confided to Dr Perica that he was concerned about his sister-in-law as she was engaging in prostitution and also using marijuana. He was concerned about this role modelling for the children.
35. On 1 May 2008 Wanslea (a family support and advice group) visited the family to help with some of the behavioural issues around the applicant’s children and to give advice about limit setting and developing a routine.
36. On 7 May 2008 the applicant stated he was rung by a support officer at Australia Post and the applicant told him about seeing Dr Perica and taking medication. The applicant said that Dr Perica had told him that his health problems are a result of the incident in June 2007. The applicant said his father was terminally ill and also his step grandfather had died recently. The applicant stated he was not coping and these additional burdens made it harder.
37. He first told Dr Perica about the hanging incident on 13 May 2008 and this was the day after he lodged his compensation claim on 12 May 2008.
38. On 13 May 2008 the applicant also saw his GP, Dr Mesghin, again. He described recurrent thoughts of self harm again especially as his father has been diagnosed with a terminal condition. Since that news he has had recurrent flashbacks to the hanging incident.

APPLICANT’S GENERAL PRACTITIONER’S REPORT

39. On 12 January 2009 the applicant’s general practitioner, Dr Neda Meshgin provided a written report on his condition. She stated that the onset of depression and suicidal ideation followed the incident. Dr Meshgin said this occurred on a background of mild depression managed well with an anti-depressant with no prior recent history of major depression or suicidal ideation or any compromise of ability to work or perform socially or at work. She said that the applicant had been well for many years prior to his current episode (with only mild depression managed well on medication) and had engaged in full time regular work and managed his responsibilities as a father and husband in the household as well.
40. Dr Meshgin said the specific condition suffered by the applicant is post-traumatic stress disorder manifesting with suicidal ideation, recurring thoughts of the incident, and dysfunction with all activities of daily living and work. Her current treatment consisted of another anti-depressant Lexapro and a mood stabliser Epilim, psychiatric and supportive counselling and review by his general practitioners. She said that in the foreseeable future the applicant would continue to need medication, psychiatric review and eventually would return to work with rehabilitation and support although he was not mentally in a position to undertake any form of work currently.
41. In conclusion Dr Meshgin stated that the workplace incident had triggered an acute bout of depression and post-traumatic stress disorder and had been managed well for several years. She said that the incident seemed to have resulted in a depression that was more marked and has had a more significant adverse effect on the applicant’s ability to work and function and on his general mental health compared to previous exacerbations.

APPLICANT’S PSYCHIATRIST’S REPORT

42. On 26 April 2010 Dr John Perica, Consultant Psychiatrist of the Balga Specialist Centre provided a psychiatric report concerning the applicant. He said that he had first seen the applicant on 27 February 2008. Since that initial consultation he had seen him on well over 30 occasions, the most recent being on 21 April 2010.
43. He said that in terms of medications he prescribed for the applicant to take Lexapro 80 mg in the morning and Epilim 1000 mg twice daily. He said that until the end of January 2010 the applicant had also been taking Zyprexa 10 mg at night for anti-psychotic purposes. However this was reduced and ceased due to a side effect of significant weight gain.
44. He said that the applicant would, in all likelihood, require life-long psychiatric supervision, including medications to keep him stable. Given the persistence of symptoms dating back to the incident on 21 June 2007, he did not believe that the applicant would be able to resume his usual occupation with the respondent.
45. It was also Dr Perica’s view that the applicant had not received timely medical intervention and care and that this no doubt contributed to the worsening and persistence of his mental heath problems.
46. He said that of particular concern was the fact that the respondent had ignored specific medical advice designed to assist the applicant in his recovery process. He claimed that on the 2 September 2009, he had telephoned and spoke to an Australia Post representative, Mr Bill McDonald, requesting that any meetings with the applicant that may include adverse information would be best scheduled early in the week, so that Dr Perica could provide or arrange necessary follow-up. However, this was ignored and the applicant was given adverse news on a Friday, with the consequence that he was admitted to the Armadale Adult Mental Health unit from 5 September 2009 through to the 24 September 2009 because he could not cope.
47. In the opinion of Dr Perica, the incident on 21 June 2007 seriously and permanently exacerbated the applicant’s mental health problems, introduced a new problem, namely Post-Traumatic Stress Disorder and ultimately caused his inability to continue working.
48. Dr Perica said that upon his examination of the applicant on 21 April 2010, the applicant was still having problems with sleep, flash-backs to the hanging, irritability, depressed mood, attention and concentration, motivation, planning energy levels and impulsivity. At the present, he was in Dr Perica’s view, certainly not mentally fit to be working safely in the workplace.
49. In his report, Dr Perica said that he had mentioned these views in an earlier report dated 25 September 2008.

DR JOHN PERICA’S ORAL EVIDENCE

50. Dr Perica said in cross-examination he first saw the applicant on 27 February 2008. Dr Perica said he has regularly reviewed the applicant, at times on a weekly basis, up to the present time.
51. Dr Perica stated that a definitive diagnosis is difficult to make in the applicant’s case. However, his initial or provisional diagnosis was that of a Major Depressive Disorder. Dr Perica noted many psychosocial stressors that the applicant faces in his daily life. Dr Perica stated these included interpersonal issues with his wife and her substance abuse and some issues with his sister in law. Dr Perica also commented on the deteriorating health of the applicant’s father and that he was also aware that the applicant’s brother, Mark, had significant mental health issues.
52. Dr Perica said that by April 2008 the applicant’s mental health was continuing to deteriorate. He was describing increasing insomnia and agitation and a somewhat elated state. At this stage Dr Perica considered a diagnosis of Bipolar Disorder.
53. Dr Perica said on 8 May 2008 the applicant complained to him about his workplace and said they had dismissed concerns about his health. The applicant told Dr Perica he had problems with his manager and said his manager was not listening to him.
54. Dr Perica gave evidence that the applicant did not tell him about the hanging incident of June 2007 until 13 May 2008. Dr Perica stated that following this new information from the applicant he then formed the opinion that the applicant suffers from Depression and a Post Traumatic Stress Disorder. He also said that in his clinical experience the time between a stressful incident occurring and the development of symptoms can be variable.
55. In cross-examination Dr Perica noted that the applicant was prescribed a very high dosage of anti-depressant. He had considered reducing the dose but decided not to do so. He also agreed that the applicant’s abrupt ceasing of the dosage of Aropax in December 2007 could have contributed to the applicant’s mood disturbance early in 2008. In his experience the majority of patients who cease medication abruptly may develop mood consequences over the next six to twelve weeks.
56. Dr Perica said that he believed the incident of the hanging was an outstanding event in development of the applicant’s mental health. He said that for four to five years the applicant had functioned well in the workplace. When it was put to him that the applicant had suffered similar problems in 2003 Dr Perica that such history, of which he had not been aware, was important.

RESPONDENT’S SPECIALISTS’ REPORTS

Dr Peter McCarthy, Consultant Psychiatrist’s Report

57. Dr McCarthy provided a detailed written report. However, as he stated in his evidence and cross-examination, he did not have before him in its preparation any evidence pertaining to the applicant’s previous mental health history. He commenced the conclusions to his report by stating that ‘it would be useful and I suspect enlightening if we had access to reliable information about his pre-June 2007 psychiatric and medical history.’
58. In Dr McCarthy’s opinion the available information suggested a past history of chronic, episodic mood symptoms involving depression and perhaps hypo-manic or manic symptoms warranting the diagnosis of either a Recurrent Uni-Polar Depressive Disorder or, if one was able to confirm the history of elevated mood, Bipolar Affective Disorder. He said the applicant denied any personal psychiatric history in the form of significant stress or mood symptoms, the use of antidepressant or related medications or ever taking stress leave prior to 2007. Dr McCarthy had considerable doubt that the applicant had been entirely frank about his psychiatric and medical history.
59. Dr McCarthy said that if it was accepted that the applicant was taking antidepressant medication and was psychiatrically well at the time of the incident, which he was not sure was established, then it was fair to say that he suffers some degree of an Adjustment Disorder Anxiety Depressed Mood as a result of the incident. Alternatively, if one believed his psychiatric state reflected the relapse of his recurrent depressive disorder with a major depressive disorder following the incident, the diagnosis would be of a Recurrent Major Depressive Disorder. Here the incident would be seen to have precipitated rather than caused or maintained his depressive disorder. Dr McCarthy said that the applicant’s continued various and variable mood symptoms with dramatic complaints of thinking of hanging himself 13 to 15 times a day, head banging, wrist slashing and mutilation and persistent vivid memories, were in his view, highly likely to reflect personality issues and dysfunction with an emotional lability and impulsiveness, rather than specific mood disorder such as adjustment disorder, major depressive disorder, or relapse of Bipolar Affective Disorder.
60. His diagnosis on the information was, therefore, in relation to Axis 1, Severe Chronic Adjustment Disorder with Mixed Disturbance of Emotions and Conduct in partial remission and Major depressive disorder recurrent in partial remission. As to Axis II, Personality Disorder Not Otherwise Specified, Dr McCarthy said the applicant had problems with his primary support group, his social environment, occupational problems, economic issues, problems with access to health care services and problems related to his interaction with the Workers Compensation litigation.
61. Dr McCarthy says that the applicant had suffered from his psychiatric condition previously. He said that a highly likely but to date unrevealed history of psychiatric difficulties and symptoms not unlike his current symptoms are likely to be found on exploring his medical past further if his appraisal of the applicant was correct.
62. In the opinion of Dr McCarthy, it was apparent there was a significant immediate and extended family issue affecting the applicant. He said that the applicant’s adjustment disorder did not settle with time and support although his vague and evasive answers did not enable any clear chronology of events to be made.
63. In his opinion over the last three or more years, the applicant had had significant non-work related stressors. He began to have conflict in the work place with his superiors, the development of events at work and at home affected him. The applicant went on to develop what was, if we accept his history, a major depressive disorder of moderate severity. He said that the further in time that the incident was left behind the less role he believed that it was playing in his psychiatric disorder. He considered it likely that a sense of perceived entitlement to the worker’s compensation claim, with encouragement of his treating doctors, and acting out of abnormal personality traits in the workplace and the stress from non-work related factors becomes increasingly significant and now predominant factors in the applicant’s distress.
64. Dr McCarthy’s view was that there are a number of non-work-related factors significantly contributing to the applicant’s psychiatric state. These may include a genetic as well as a developmental contribution and what appears to be a pre-existing significant psychiatric disorder. The applicant has a father who has been seriously ill, had chronic marital issues with a wife who is alleged to have a marijuana addiction and he has the stressors of managing together with his wife their three children including a 10 year old autistic son. Further, his brother had previously had psychiatric and drug issues, appears to have recovered and is now a minister of religion in Melbourne. The applicant’s past difficulty with business with his other brother is unlikely to have helped their relationship or his sense of social support now.
65. Dr McCarthy did not consider that the applicant’s current psychiatric condition was now significantly attributable to the events of 21 June 2007. He considered personality factors and non-work-related factors were now the most significant factors contributing to his psychiatric state. This addresses his state at the time of interview, not at the time of the incident.
66. The suggestion of Dr Perica that the applicant would require lifelong psychiatric care was regarded by Dr McCarthy as an extraordinary suggestion. He considered it was likely that the applicant does suffer from a chronic serious psychiatric disorder which almost certainly predated the incident. However he did not think that this chronic psychiatric disorder or requirement for further or lifelong psychiatric care was at all related to any workplace experiences or injury arising from such experiences. He considered that the applicant would benefit from psychiatric treatment including medication indefinitely. He considered that was the case prior to the incident and continued to be the case apart from the incident.
67. In the view of Dr McCarthy it was likely that the applicant does suffer from an underlying personality disorder. He considered it possible that he suffered from a Bipolar Affective Disorder but even if so, he thought that the behaviour indicated significant personality difficulties.
68. By virtue of his family and personal psychiatric history, it was considered by Dr McCarthy that the applicant had a pre-disposition to Adjustment Disorder in response to the incident even if he was psychiatrically well at the time. He considered the psychiatric symptoms of the applicant we are now seeing reflect his endogenous and pre-existent psychiatric disorder and the other factors discussed above rather than the incident in question.
69. In conclusion, Dr McCarthy said that it was likely that the applicant could return to appropriate work if he wished, but he did not think he was currently motivated to do so rather than psychiatrically prevented from working. He did not consider he had any employment incapacity attributable to any incident related psychiatric disorder.

DR PETER MCCARTHY’S ORAL EVIDENCE

70. Dr McCarthy gave evidence that he assessed the applicant on one occasion on 27 November 2008. Following this assessment Dr McCarthy had been provided with the additional clinical information pertaining to the applicant’s previous mental health history. Dr McCarthy said this additional information was relevant and confirmed his view that the applicant suffers from a borderline personality disorder with periodic episodes of decompensation (deterioration in mental health and functioning) related to interpersonal psychosocial stressors. Dr McCarthy opined that the applicant has suffered from this for most of his adult life.
71. Dr McCarthy said the applicant has a long standing personality disorder which is characterised by significant episodic periods of decompensation in response to psychosocial stressors. At these times the applicant will have feelings of anger, emotional lability and a tendency to self harm as a response to stress. In particular, Dr McCarthy opined that the applicant’s personality disorder is of the borderline type as the applicant reacts significantly to interpersonal stressors, such as those he faces with his wife, children, parents and brother. The applicant has a fear of abandonment and will react in a maladaptive and unhelpful way. This may include acting out behaviours which are impulsive and irresponsible, such as when the applicant took his son’s Ritalin or poured boiling water on his (the applicant’s) arm.
72. Dr McCarthy opined that the applicant’s deterioration in his mental health presented in the same way in 2003 as it did in early 2008. Dr McCarthy said that the reasons the applicant decompensated in early 2008 was secondary to the significant psychosocial stressors he was facing including his wife’s cannibis use, his father’s illness and his children’s ongoing behavioural challenges. Dr McCarthy stated that the applicant’s decision to cease his Aropax was also a “significant factor” in the applicant’s decompensation. Dr McCarthy stated that the vertigo experienced by the applicant in January 2008 is a common feature of Aropax “discontinuance syndrome” and can also be associated with changing emotional state and agitation.
73. Dr McCarthy said that the incident in June 2007 did not contribute at all to the applicant’s decompensation in January 2008. Dr McCarthy notes that the incident did not impact on the applicant’s ability to do his job or impact on his functioning with respect to his work colleagues over the next 6 months.
74. Dr McCarthy considered that the applicant, following his decompensation in early January 2008, then starts to retrospectively attribute in his own mind the difficulties with Australia Post and the incident in June 2007 as being the cause of his decompensation.
75. Dr McCarthy stated that the reason he considers the event in June 2007 to not be causally related to the applicant’s decompensation in January 2008 is because of the significant time delay (6 to 7 months) between the event and the decompensation. He said it was absurd that the incident would have slipped the applicant’s mind so that he did not mention it to his treating doctor until February 2008. In his view his failure to mention the incident was because it was not significant to the causation. In particular Dr McCarthy states that the applicant’s usual pattern of behaviour over many years is a “prompt maladaptive response to a significant stressor.”
76. The diagnosis of post-traumatic stress disorder was not accepted by Dr McCarthy. He said that the applicant had demonstrated reactivity to personal stresses rather than the witnessing of events personally unrelated to him. He did not consider in this context that the witnessing of the incident was overwhelmingly distressing. Rather it had been latched on to retrospectively by the applicant. If the applicant had been severely stressed by the incident there would have been evidence of him decompensating quickly. The main source of stresses for the applicant were from his family and home, not from his work.
77. In conclusion Dr McCarthy said that the incident was not compatible with the source of a major psychiatric impact. Also that it may have had no effect except retrospectively as a consequence of attribution by the applicant. He had changed his opinion to that extent as a result of consideration of evidence of the applicant’s prior psychiatric history which had not been available

DR “A’S REPORT AND ORAL EVIDENCE

78. Dr A gave evidence by telephone to the Tribunal. Dr A stated she has never met the applicant; however, she has provided her professional opinion on the basis of the extensive documentation that was provided to her. She gave her evidence without identification of her identity as the consequence of directions made by a Deputy President prior to the commencement of the hearing. Dr A’s evidence was heard on the basis submitted for the applicant that the weight to be accorded to it would be less than that to identified witnesses. However, she was open to cross-examination in the usual way.
79. Dr A submitted a written report dated 17 May 2010. In the report Dr A stated:

“In summary [the applicant] has a history prior to June 2007 of a psychiatric disorder, either Bipolar II Disorder with dysfunctional personality traits, or a recurrent Major Depressive Disorder (of both melancholic and non-melancholic type) with significant dysfunctional personality traits. The medical records before and after June 2007, also raise the possibility that [the applicant] may not only have Bipolar Disorder but that he has the rapid cycling variant and this could have developed for a variety of reasons including the prescription of antidepressants. It is unclear when he may have begun rapid cycling as there was evidence earlier of hypomania but certainly by February 2008, his condition was not one of pervasive Major depression.
The cause of [the applicant’s] condition is not entirely clear and indeed the precise cause of all psychiatric disorders is unknown. He has a history of significant family psychiatric disorder, with a brother reported to suffer from major mood disorder, possibly Bipolar Disorder. In addition the records indicate that his three children all suffer from psychiatric disorders. The records indicate that [the applicant] may therefore have a genetic or biological predisposition to psychiatric disorder. His described personality traits suggest that he has temperamental or constitutional vulnerabilities, which have both predisposed him to and maintained any psychiatric disorder. In addition, there are a number of references to marital problems, including his wife’s significant psychiatric disorder and marijuana use, which are likely to represent chronic psychological stressors.”

80. In her oral evidence Dr A opined that the applicant suffers from a borderline personality style or dysfunction. She said the applicant shows features consistent with this dysfunction in that his personality is more on the dramatic end; he has ongoing disturbances in interpersonal relationships and shows significantly more reactivity to psychosocial stressors. Dr A said that this dysfunction is characterised by an “exquisite sensitivity to perceived rejection or abandonment” and that the applicant’s behaviour is consistent with this when he became extremely distressed on one occasion (5 September 2003) because his wife had gone for a walk and he concluded he had been abandoned.
81. Dr A said that the applicant started to decompensate in terms of his mental state and functioning in early January 2008. At this time the applicant reported feelings of being low and depressed to his treating GP. Dr A noted that the applicant did not mention the June 2007 incident at this time to his GP and this is because the incident was not at the forefront of his mind and therefore it was not a causal factor. Dr A stated that if the incident were a significant factor then the applicant would have mentioned it to his treating doctors. Dr A also stated that if the incident were a significant factor then the applicant would have relapsed earlier than 6 months after the incident and an earlier presentation to his GP could have been anticipated.
82. Dr A’s opinion was that in January 2007 and over the course of the next few months the applicant mostly focussed on difficulties he was having with his interpersonal relationships and it was these issues he raised with his treating doctors. Dr A stated it was these issues that were at the forefront of the applicant’s mind, not the June 2007 incident. If the incident was a contributing factor to the applicant’s condition, it was a contributing factor among other factors. There was no evidence that the incident had affected his condition until after the applicant had relapsed in early 2008.
83. Dr A then said that as the applicant became more unwell mentally over the first few months of 2008 his way of thinking changed so that he focuses more and more on negative factors. This shift in thinking is commonly seen in depressive disorders. Therefore, the applicant starts to ruminate more on the June incident and experience flashbacks about the incident. Dr A noted that the applicant had previous intrusive thoughts of suicide by hanging and other means in the past. However, rumination was a symptom, not a cause and the two become muddled.

LEGISLATION

84. Section 14(1) of the SHC Act provides that ‘subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect on an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.’
85. Section 5B of the SRC Act provides:

(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”

REASONING

86. It is common ground that the applicant has a long standing disease. In our view the evidence show this to be a personality disorder characterised by episodic periods of decompensation in mood, behaviour and ability to function. It requires long term use of anti-depressant drugs and, over periods of decompensation, the use of a mood stabilising drug.
87. In January 2008 the applicant entered into a period of decompensation. This was related to the many interpersonal psychosocial stressors in his life. These included behavioural issues and functioning of his wife, his children and his brother.
88. We accept the evidence of Dr McCarthy that the period of decompensation was not causally related to the incident in which the applicant saw the body of a youth hanging from a tree during his postal rounds. We reach this view because in the past the applicant has shown similar symptoms without a cause such as the incident. Furthermore, he had a period of approximately six months prior to entering upon the period of decompensation in which he worked at a high level with no disturbance. He did not make any report of the incident to his GP or to his treating psychiatrist until February and May respectively. We do not accept that the occurrence of the incident in a way which appeared to the applicant as a major cause of his decompensation would have ‘slipped his mind.’ He had no period of prompt decompensation following the occurrence of the incident. It appears from the evidence that the period of decompensation was caused by the applicant ceasing to regularly take his prescribed anti-depressant drug in the context of various psychological stressors in his personal life.
89. We accept that the applicant has had flash backs to the incident and that he has focussed on that as a cause of his decompensation. In our view the correct understanding of that occurrence is that the applicant has retrospectively attributed causal effects to the viewing of the incident when in fact he has confused the symptom with causal effect.
90. In our view Dr McCarthy’s evidence is the only evidence which explains all the evidence pertaining to the applicant’s condition. It explains the six or so months following the incident in which the applicant worked at a high level and accounts for the significant delay before his first report of the incident to his General Practitioner and his treating Psychiatrist.
91. We also consider that Dr McCarthy’s evidence is substantially supported by the evidence of Dr A.
92. As a matter of law the evidence establishes that it cannot be concluded that the applicant’s disease was contributed to in a significant degree by the employee’s employment by the Commonwealth. The applicant’s disease is, in our view on the evidence, a long standing disorder or dysfunction as described above. This personality dysfunction is characterised by intermittent periods of decompensation, such as occurred in 2003 and 2008. Such periods are secondary to the various psychological stressors experienced by the applicant. It is the personality disorder which provides the factors which are the material causes of the applicant’s decompensation. Consequently, if the applicant’s employment contributed to his disease it did not do so in a degree substantially more than material.

CONCLUSION

93. The Tribunal therefore decides that the decision under review, affirming the determination dated 21 May 2009, should be affirmed.
    

I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President, R Nicholson and Dr A Frazer, Member

Signed:.(sgd) T Freeman.............

Associate

Date/s of Hearing 30 November - 3 December 2010

Date of Decision 12 January 2011

Solicitor for the Applicant Mr C Prast

Slater & Gordon

Counsel for the Respondent Mr P Jones

Solicitor for the Respondent Ms R Waldron-Hartfield

Sparke Helmore