[2013] AATA 73
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/0434
2012/0443
Re
Benjamin Smith
APPLICANT
And
John Holland Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 15 February 2013 Place Perth Application 2012/0434
The decision under review is affirmed.
Application 2012/0443
The decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable, under s 14(1) and Part VIII of the Safety, Rehabilitation and Compensation Act 1988 (Cth), to pay compensation, in accordance with that Act, to the applicant in respect of a mental “injury”, namely, major depressive disorder, deemed to have been sustained by him on 2 February 2011.
Application may be made to the Tribunal in relation to the costs of the proceedings in Application 2012/0443 within 14 days of the date of this decision. In the event that no such application is made by that date, the Tribunal orders, pursuant to s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), that the costs of those proceedings incurred by the applicant be paid by the respondent in accordance with Section 6.8 of the Tribunal’s Guide to the Workers' Compensation Jurisdiction.
..(sgd) S D Hotop..............
S D Hotop, Deputy President
CATCHWORDS
COMPENSATION – employee of licensed corporation – applicant suffered anosmia and loss of taste – applicant claimed compensation – anosmia and loss of taste a compensable injury – incapacity for work – amount of compensation payable to applicant – applicant's normal weekly earnings – amount applicant able to earn in suitable employment – amount of compensation payable to applicant for incapacity for work is nil – applicant suffered major depressive disorder – applicant claimed compensation – applicant’s anosmia and loss of taste contributed significantly to applicant's major depressive disorder – applicant’s major depressive disorder a disease – applicant's major depressive disorder a compensable injury – respondent liable to pay compensation to applicant for major depressive disorder – decision under review regarding liability to pay compensation for incapacity for work affirmed – decision under review regarding liability to pay compensation for major depressive disorder set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4(1), s 4(9), s 4(10A), s 5A(1), s 5B, s 7(4), s 8, s 9(1), s 14(1) and s 19
CASES
Commissioner of Taxation v Salenger (1988) 19 FCR 378
John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member15 February 2013
Introduction
Benjamin Smith (“the applicant”) has applied to the Tribunal for review of two “reviewable decisions” made on behalf of John Holland Pty Ltd (“the respondent”) under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”), namely:
·a reviewable decision, dated 19 January 2012, which affirmed a determination, dated 14 October 2011, that the respondent is not liable to pay compensation to the applicant, pursuant to s 19 of the SRC Act, for incapacity for work resulting from an injury, namely “anosmia” (deemed to have been sustained on 8 May 2009), during the period from 8 May 2009 to 25 August 2011 (Application 2012/0434);
·a reviewable decision, dated 19 January 2012, which affirmed a determination, dated 18 November 2011, that the respondent is not liable under s 14 of the SRC Act to pay compensation to the applicant in respect of a mental ailment, namely, “Major Depressive Disorder, single episode with psychotic features”, claimed to have been suffered on 31 January 2011 (Application 2012/0443).
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T116, pp 1–573) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1–A2 tendered by the applicant;
·Exhibits R1–R24 tendered by the respondent; and
·the oral evidence of the applicant and each of the following witnesses:
- Dr Philip Beinart, Professor Terence McManus, Dr Alan Home and Shane Taranto (who were called by the applicant); and
- Jeremy Gledhill, Peter Metcalf, Jack Bowden and Professor Aleksandar Janca (who were called by the respondent).
The Applicant’s Evidence
The applicant confirmed that he had signed a witness statement, dated 18 May 2012, for the purpose of these proceedings and that its contents are true and correct.
The contents of the applicant’s witness statement are as follows:
“ 1. My name is BENJAMIN SMITH.
2. I was born … March 1977.
3.Prior to my working at John Holland, Blue Water, Collie site, for 1 year I worked out of my trade, where I was not surrounded by toxic fumes, or any dangerous substances that could affect my health.
4.From December 1997, I ceased all Boiler Maker work, and all other forms of work, where I enjoyed the Gascoyne lifestyle, coastline and all other activities, and lived of (sic) all monies I had save, until June 1999, when I took up Professional fishing, as it had always been a dream of mine.
5.I worked in different aspects of this field until June 2003. In the off season I would do labouring work for friends on their plantations.
6.In November 2002, I obtained gardening work, and courier work, and supplemented this with a second and sometimes, third job working for abattoirs, security, and again for friends on plantations.
7.I continued with security, and started with Retail, as the hours suited my lifestyle.
8.I left security in 2005, and began driving trucks for a local fruit and veg packing and freight company.
9.In March 2006, I left these financially futile types of employ and these hours were dangerous to my health.
10.I moved to Perth in March 2006, following employment as a Boiler Maker/Coded Welder. I immediately started working for Austline Fabrication and then Alltype Engineering.
11.During these engineering positions at no time was I inflicted with any injury or illness.
12.I started working for John Holland on 21 July 2008 where I started working in confined spaces from 22 July 2008, during working in confined spaces for a length of time I noticed deterioration in my sense of smell & taste.
13.I therefore advised my supervisor of this, namely Jack Bowden. After a couple of weeks I had lost complete sense of taste & smell.
14.I advised Jack ‘Jack there is something really wrong, I have now no sense of smell or taste’ Jack advised ‘see how you go over the weekend, if still no better then you had better go see a doctor’.
15.During a prestart meeting there was a discussion regarding the concern of what we were dealing with and side effects of NR604 aluminium paint.
16.It was a heated discussion and not the first on this matter, guys were refusing to work with the product unless a MSDS [Material Safety Data Sheet] in English was supplied and correct PPE [Personal Protective Equipment] was issued.
17.A few work colleagues commented ‘Bens already affected were not going to be next’.
18.Colin BMWE [Boiler Maker Welder], a 457 welder completed works in the penthouse, grinding paint off penthouse floors. MSDS was handed around in the crib room.
19.During work at Bluewater Collie JHG, more than half of the work completed was inside confined space and 75% welding on or in proximity to painted surfaces.
20.This is to the best of my knowledge and experience, the direct cause for the complete deterioration of my senses.
21.It was the project manager’s duty of care to ensure safe operating procedures.
22.These welded surfaces should have been ground clean proper to assembly and this had not taken place prior to my commencement of employment at John Holland.
23.During my time working in confined spaces, Management did not acknowledge them:
a.As confined spaces, never once, in my recollection, used a gas monitor to test these confined spaces. Whilst a storm ravaged the site, and every other employee, obtained shelter in the crib room, or sent home, John Holland staff were instructed to ‘go out to work’ whilst flying objects and pieces of structure were picked up and thrown across the work site.
b.I blatantly refused, and sheltered in a sea container. I later found out that, colleagues, had their lives at risk by objects and many near misses were reported.
24.After my confined space and working at heights tickets elapsed, on the 7th and 8th June 2009. After three weeks of notice for requirement of retraining, 1. No training was given, 2.
25.I was still asked to work at heights and confined space work, even though my tickets were out of date. The day I refused to work at such tasks without a ticket (which is a criminal act), I was told my employment was to cease that afternoon.
26.For the entire month I had been asking my direct supervisor, Peter Metcalf, and in addition, the Project Manager Aaron for Workers Compensation forms, and every request had been dismissed.
27.This is again, another criminal act by management.
28.After being laid off by John Holland I went about looking for work not thinking about not having any support about the implications or potential incidents, that could occur or I could have caused due to my loss of both senses.
29.During the past John Holland work it is true, that I did work in confined spaces on iron ore mines fixed/mobile plant and equipment. Welding, whilst in these confined spaces would have been less than 10% of the total time whilst employed.
30.The majority of works was liner or wear plate replacement (fitting). Not one of the surfaces I welded on had any paint or foreign body in proximity to the weld zone in these following employment/roles.
31.Furthermore no toxic fumes or flammable gases were used by myself or co-workers whilst within confined spaces on these sites so any possible thought of further degradation of health during this further employment is not possible.
32.After handing Supervision my work cover form precluding me from working in confined spaces, I noticed an immediate lack of usefulness, supervision found no immediate task I was suitable for.
33.Once certification of confined space and working at height expired and JHG reluctance to pay for my retraining had become clear my role was non-existent and I was repeatedly asked to continue working unsafely in these roles.
34.Further that day I was laid off. Between my doctor’s appointments & Termination management were reluctant to hand over/provide and complete my claim forms.
35.On 10th December 2009, I had an appointment with ENT Dr Latif Kardhim, who also gave me further referrals to eliminate other possible causes for the Anosmia.
36.Although I was in contact with Forrest Family Practice, being my GP Practice, Compensation to this date was not yet recognised.
37.Constant Invoices, and contact with management, right up to 21 Jan 2010, my partner and I conceded John Holland would not accept liability for my work place accident, which is why the referrals, were never acted upon.
38.During post John Holland employment, tended pre-employment medicals, for different employers, during which, they could find no physical or other injury that would make me unfit for work.
39.When asked if there was any other information I would like to disclose, which could make me unfit for work, therefore unemployable, for fear of financial failure and bankruptcy, I failed to inform medical practitioners, of my condition/affliction, namely Anosmia.
40.Due to the fact, John Holland SMP, Bunbury, had all but collapsed, my After being laid off by John Holland I went about looking for work not thinking about not having any support about the implications or potential incidents, that could occur or I could have caused due to my loss of both senses.
…
46.Continued attempts to obtain Workers’ Compensation paper work, took some time, and exhaustive contacting.
47.The forms were submitted on 9th December 2009.
48.On 2 February 2010 I spoke JHG Workers’ Compensation Department.
49.Jade Kimi, after previous, exhaustive failed contact, stressed my concern, the following day I posted further documents, regarding Dr Kardhim’s appointment.
50.On 24 March 2010 we made a Medicare Claim for Dr Singh’s appointments.
51.On 23 June 2010 we received a letter advising Liability is accepted regarding Anosmia.
52.A further appointment was arranged to meet Ear, Nose & Throat specialist Dr McManus subsequent to a telephone conversation between myself and JHG representative.
53.On 7 July 2010, I attended Dr McManus’ office for an assessment.
54.On 26 July 2010, I received Dr McManus’ report, after I had made numerous requests and demands from the John Holland team.
INCIDENCES THAT HAVE OCCURRED AS A RESULT OF MY ANOSMIA
55.In my post John Holland employment I have lost count of the number of times I have been performing hot-work, that has caused my work wear to smoulder and have been unaware of this, until either, colleagues have informed me I am on fire.
56.One particular incidence whilst working on site for RCR Tomlinson in Port Hedland. It occurred whilst I was oxy thermal cutting, at night, with double eye protection, consisting of, oxy goggles, and welding helmet.
57.The cuff around my ankle caught fire to such an extent, flames were licking above me knee, and I was oblivious to this, as the welding helmet, blocked my vision, and sense of smell was gone so I could not smell burning material.
58.My leg continued on fire, until physical burns made me aware of the fact I was on fire.
59.I notified Management and had to be re-issued clothing.
60.In following days, other staff members jested, joked and made a mockery of me.
61.This has caused me considerable embarrassment and damage to my self esteem.
62.This caused me to distance myself from my co-workers.
63.This was a weekly or every other week occurrence where clothes would catch on fire whilst working in my trade.
64.The abovementioned instance was by far the most severe and really made it apparent how dangerous continuing in my trade was to my and others safety and wellbeing.
65.Another particular incident, I was working on another site for Transfield at BHP Yandi on a stacker platform, repairing a ladder section, using oxy-acetylene to heat and straighten.
66.I was three platforms above ground level and whilst resting oxy-acetylene on grid mesh, a co-worker passed within 6 metres painting hand railing, and he asked me if I could smell acetylene gas leaking.
67.I immediately checked my hand piece, and noticed I had created a flammable gas plume of approximately 200 cubic metres, which had the explosive capacity to kill both co-workers and myself and cause hundreds of thousands of dollars in damage to structure.
68.Upon recollection of these past incidences, coupled with Dr McManus’ report, I conceded I was no longer fit to work on site or anywhere in my trade, and resigned in desperation.
69.I believed at this point, John Holland, after reading Dr McManus’ report, would pay my wages and accept full liability.
70.After receiving Dr McManus’ report and after I terminated my employment, I had been battling to grasp the aspirations and financial goals and career achievements I previously had no trouble achieving.
71.My sense of worth has almost completely diminished and I am unable struggling with day to day living.
72.I felt at this point I could not leave employment, even though I had a report to say I was unfit for work, because my life’s goals and dreams were ending up, in my opinion, the sewerage pit.
73.So I conceded that my affliction, being Anosmia, had in fact rendered me an extremely unsafe worker, which against the best safe work practices and safe working measures could not be put aside, that, not only was I endangering my own life, but that of all surrounding workers.
74.Since September 2010 when I resigned from site work and began living at home again, a further realisation has been made, that my limitations extend further than the work place.
75.There have been incidences around the home where I have passed out after using household cleaners, simply from the fact that I cannot smell them.
76.Additional incidents include, though very infrequent, but be that as it may, occurrence of a gas stove top, has not quite been turned off, engulfing the house with fumes.
77.This was only bought to my awareness some hours later, when my partner Natalee, returned from work. Upon request, she will testify to this.
78.Another more recent incident is whilst oiling timber in the shed, my mother-in-law walked into the house and was overcome by the fumes of the oil.
79.She came out to the shed, and made sure I was okay however because she was so overcome by these fumes, she started to feel physically sick.
80.The distance from the front door of the house. And the rear door to the shed is approximately 7 metres.
81.Who knows what the result would have been for me, even though I had an exhaust fan going, if she had not come to let me know how bad the fumes were.
82.This indicates further, how limited my recreational/hobbies could become, without being exposed to potentially harmful substances/gases.
83.Due to the fact my finances are so depleted, my partner, Natalee, purchases fuel for her car, and fills jerry cans, when the fuel price is at the lowest during the week.
84.Whilst refilling the vehicle in the carport, with the jerry cans, after being interrupted by my partner Natalee, who told me the petrol fumes were unbearable, and I must open the carport door.
85.During day to day living, I require the service of my partner, Natalee, or any friend or family member to instruct me, if foods and liquids are fit to consume as I have had the calamity several times, without such a service, of consuming, seemingly, to me, edible food, I have had food poisoning.
86.Additionally, during day to day living, where it be by friends, family or by my partner Natalee, I am occasionally informed my body odour or a piece of my attire smells unbearable after doing house chores.
87.As much as this keeps me decent, it is very destructive to my well-being and conscientious as I am totally unaware of this, and I do my best to keep myself in a clean and tidy manner.
88.In addition to this, the impact resulting on my day to day living has been quite substantial.
89.There are many hobbies I no longer partake in as I cannot enjoy them to the full extent.
90.Things like going out to dinner are no longer a joy for me as I have no sense of taste.
91.I cannot enjoy the simple pleasures of going to the beach and smelling the air.
92.In recent months, I have seen my General Practitioner who has referred me to a further two specialists.
93.The first specialist (who I believe was an Orthopaedic Surgeon) that I attended on, conducted an Electrical Conductivity Test of the veins that go from my left elbow to my wrist and found that I had a major blockage in the tendons/veins.
94.I then obtained a further referral from my General Practitioner to see another specialist and provided him with the details resulting from my attendance on the Orthopaedic Surgeon.
95.The second specialist advised that I would need to undergo keyhole surgery on my elbow.
96.I have lost feeling in my left pinkie & ring finger and have been advised by the specialist if I did not undergo surgery immediately, the damages would be permanent.
97.Undergoing such a surgery could impact on further job opportunities as it is likely there would be further duties I will be unable to fulfil subsequent to the surgery.
98.It will take from 2 to 4 weeks to recovery from that surgery.” (sic)(Exhibit A1)
In his examination-in-chief the applicant gave evidence as follows:
·his former occupation was that of a boilermaker/coded welder but his present occupation is that of a labourer, and he is currently working as an equipment wrapper;
·he has trade qualifications as a boilermaker and as a coded welder; in addition he has a “high risk work licence” (including a “dogging certificate” which qualifies him to “dog cranes”), an EWP (elevated work platform) certificate, and a “heavy rigid truck licence” as well as a motor vehicle licence;
·he has had approximately 9 years’ experience as a boilermaker/coded welder;
·prior to his employment with the respondent, he worked for Alltype Engineering doing maintenance and construction work around Western Australia, including work on mine sites and Water Corporation pipelines and pump stations;
·in his employment with the respondent, his “main duties consisted of general fabrication and welding in confined spaces, along with welding at height on the elevated work platform”;
·the “majority” of his work was “inside confined spaces” – inside a duct or in an elevated work platform outside a duct;
·welding in ducts comprised approximately 75% of his work;
·he was supplied with the following personal protective equipment: “riggers’ gloves, welding gloves, a welding jacket, a P2 respirator which filters dust and some fumes”;
·within two months of commencing work with the respondent he “noticed a small degradation” of his sense of smell, but he “didn’t think much of it”, and he “noticed a serious degradation after about three months of working for John Holland”;
·he “discussed it with work colleagues” and, after about one month, he mentioned it to his supervisor, Jack Bowden, whose response was to “wait and see what happens” and to “keep [him] posted”;
·he “formally notified” his supervisor in December 2008 and the following day he also notified “the safety adviser, Zac”;
·nevertheless he continued to perform his normal work duties – “… I just didn’t realise that I couldn’t smell the toxic fumes any more … I didn’t know anything was wrong with me, so that’s why I continued to work”;
·he finished working for the respondent in June 2009 when he was “stood down”;
·“two or three months after that” he commenced work with Linkforce Engineering – although employed as a boilermaker/welder, he worked as a “fitter”, his main duties including assembling the required tools and equipment, replacing/adjusting liners, replacing rollers, doing inspections;
·he was employed on a casual basis, earning $48 per hour – “somewhere around $600 a day probably, if I average it out, three or four days a week … so I would say 1200 to 1300 dollars a week on an average, if I average out all the time that I was and wasn’t working”;
·he did not disclose his anosmia condition to Linkforce because he feared that, if he did so, he “would become unemployable and … would become financially insecure and default of (sic) [his] … mortgages”;
·he worked for Linkforce for about five or six months; he resigned because of the company’s “unsafe work practices”, having been injured the previous night when a forklift drove over his foot;
·he then commenced work with Transfield in January 2010 until May 2010 – about a quarter of his work involved boilermaking/welding and about three-quarters of his work involved fitting;
·he then worked for RCR from May to late August 2010 as a boilermaker/welder, earning approximately $5,000 per week on the day shift, and approximately $5,500 per week on the night shift.
·while working for RCR he became aware that Dr T C McManus had made a report that he was unfit for work as a boilermaker – he nevertheless continued working because “the money [he] was making was helping [him] to pay down [his] mortgage” but 3–4 weeks later he was asked to resign because of an incident in a McDonald’s restaurant when he “harassed the manager” and asked for a refund of the cost of a hamburger because it was “so bland … like cardboard … tasted like nothing”, following which the manager made a complaint about him to RCR;
·in September 2010 he commenced work with Brian Cox Maintenance, mainly as a boilermaker rather than a welder, but, after three weeks, he “realised the error of [his] ways and … just walked out the door … didn’t go and talk to the management … just walked out, picked [his] tools up and left”;
·the “error of his ways” was that, because of his inability to smell a leak of acetylene gas, he “could seriously harm” other workers and “potentially kill [himself] and kill other workers … nearby” even if he followed “every safe work procedure that [he] could follow”;
·at Brian Cox Maintenance he was casually employed, earning $36 per hour, and he worked 42 hours in the first and third weeks, earning about $1,300–$1,400 each week, and 72 hours in the second week earning $2,400–$2,600 that week;
·he was then unemployed “for 12 to 18 months waiting for John Holland to provide rehabilitation and/or provide the insurance required for [him] to have on-the-job placement”, but, because the respondent would not pay for that insurance, he did not undergo any rehabilitation;
·during that period he had three appointments with Shane Taranto, a rehabilitation provider, and they discussed work that he could do, namely, welding inspector, trainer and assessor, mobile plant operator, truck driver, train driver, non-destructive testing technician;
·his anosmia is untreatable and, during that period, on Mr Taranto’s recommendation, he received psychological treatment from Graham Guest, and he also received psychiatric treatment for “major depression” from Dr Golic, which was “funded by John Holland”, and from “a government-funded psychiatrist”, Dr Kataria, whom he saw for approximately 5–6 months;
·in May or June 2011 he was admitted into Alma Street psychiatric clinic for “three or four days, maybe five days” for “major depression and suicidal tendencies because of the anosmia”;
·in October 2011 he commenced casual employment with “T & H Northam” (sic) as a storeman/truck driver; he had previously disclosed his anosmia condition to that employer;
·he worked for “T & H Northam” (sic) for approximately three months, earning from about $785 to about $900–$950 per week;
·his employment was terminated “because [he] was upset and depressed on a daily basis”, having explained to his employer that he was “very upset because [he] couldn’t taste or smell anything”;
·about a month later he obtained full-time permanent employment with Mick Davis as a truck driver, earning approximately $900–$950 per week – $24 per hour for a 40-hour week;
·he was employed for six weeks and he was then “fired” because he wanted to claim workers’ compensation for one day off work as a result of a muscle strain in his back;
·he then sought similar work as a truck driver, but was unsuccessful; however, on 28 February 2012 he obtained casual employment with CTI Logistics, a trucking company, as an “equipment wrapper” which involves “mostly labouring duties” including wrapping large items such as motor vehicles in plastic for transportation to Barrow Island for the Gorgon Project;
·he disclosed his anosmia condition to the manager of that company;
·he is still employed by CTI Logistics and, during that employment, his average earnings have been about $850–$900 per week.
In cross-examination the applicant acknowledged that:
·in the offer of employment from the respondent dated 18 July 2008, which he accepted on 21 July 2008, his employment classification was “Tradesperson” (Exhibit R1);
·in accordance with the John Holland Pty Ltd Bluewaters On Site Agreement 2008 (Exhibit R2), he was paid “special rates” for his boilermaking duties and his welding duties and he also received a site allowance, a tool allowance and a travelling allowance;
·he was required to work overtime and he was paid overtime rates;
·he received a letter, dated 4 June 2009, from the respondent informing him that the completion of his employment would be on 8 June 2009 (Exhibit R3).
As regards his earnings from employment after 8 June 2009, the applicant agreed that:
·at Linkforce Engineering he worked as a fitter and was paid $48 per hour;
·at Transfield he was paid $44.66 per hour;
·at RCR he was paid $97 per hour on the day shift and $110 per hour on the night shift and in some weeks he earned $6,984 per week on the dayshift and $9,240 per week on the nightshift;
·at Brian Cox Maintenance he earned $1,512 per week at the rate of $36 per hour for 42 hours;
·at T H Northern he was paid $23 per hour and earned between $1,207.50 and $782 per week, usually $977.50 per week;
·at Davis & Son Logistics he earned $860 per week at the rate of $24 per hour for 40 hours;
·at CTI Logistics he is paid $23.50 per hour and in the period 1 March–30 June 2012 he earned $15,944.22.
The applicant acknowledged that he had been informed that the respondent had accepted liability for his anosmia condition on 1 September 2010 and that he then consulted with his solicitors about his entitlement to compensation by way of incapacity payments.
The applicant confirmed that, between 1 October 2010 (when he finished his employment with Brian Cox Maintenance) and 19 October 2011 (when he commenced employment with T H Northern), he was not employed. He added:
“ I was suffering from a lot of stress, depression, and thoughts of suicide were common.” (Transcript, p 83)
The applicant confirmed that he had consulted Dr Phil Ibukunoluwa, a general practitioner, who, on 29 November 2010, issued a workers’ compensation progress medical certificate which certified him as being totally unfit for work until 31 December 2010. The applicant was referred to Dr Ibukunoluwa’s clinical notes regarding a consultation with the applicant on 29 November 2010 which state:
“ has been on workers comp
needs progress certificate”.
The applicant’s evidence continued:
“ So you don’t remember what you told him with respect to why you needed the certificate or why you needed to be certified totally unfit for work?---I don’t remember the conversation I had with him, no.
All right. Do you agree with me that this is the first time that you’ve been certified totally unfit for work since Dr Singh had certified you unfit for work on 15 May 2009? --- This was the first time I’ve seen doctor since Dr Singh in regard to the workers comp matter, yes. A GP in regard to workers comp matter.
Yes, okay. Did anyone suggest to you prior to going to seeing Dr Phil that you needed a medical certificate to certify you unfit for work so that you could get compensation payments for your incapacity for work?--- Not in those words, no.
All right. Well, in words similar to that? --- No, I was deemed unfit for work by Dr McManus.
All right. But Dr McManus certified you not – well, suggested that you work as a welder (sic). He didn’t say that you are totally unfit for work. Do you agree with that? --- Well, I can’t remember.
All right. Well, I can show you Dr McManus’ report. You saw Dr McManus’ report. That’s right? When it came? --- Yes.
All right. You’ve seen the T documents, page 62? If you added page 65, that’s where Professor McManus has expressed an opinion with respect to your fitness for work? ---Yes.
So Professor McManus was saying you shouldn’t be working as a welder but you were fit for most forms of work?--- I believe he meant, ‘Would prevent him from working safely as a boilermaker and/or welder.’ And it says that,
He would not be confident (sic) to work in any area that required a normal sense of smell.
Do you agree with me that Professor McManus’ report doesn’t say that you’re totally incapacitated for work? --- I don’t think I’m qualified to make that decision.
Well, can you tell me anywhere in that paragraph I’ve taken you to, where it says that you are totally incapacitated for any form of work?---In that paragraph, I cannot see that but in the situations that I’ve been in where I’ve caught on fire, I’ve made fires in workplaces, I’ve let gas plumes go which could potentially kill dozens of people, on that basis alone. There has been more than a dozen incidents where that has happened and in my current employment, one of my co-workers working with LPG has the LPG stored in the vehicle for transit between worksites. One of the cylinders was leaking and he, unfortunately, caused to himself serious burns to his face and hands because the gas was leaking and when he opened up the side door to the ..... (sic) there was an ignition source and he took about five weeks off work and his ability is he can smell. I cannot and I’m suffered – sorry – I’m faced with that every day when I walk into the kitchen.
Mr Smith, are you saying that you read Professor McManus’ report and as the result of that formed the opinion that Professor McManus was saying that you were totally incapacitated for work? --- Yes. That’s how I formed the opinion, yes.
And as a result of that and a discussion with someone who you haven’t identified, you were told or it was suggested to you that you needed a medical certificate from a doctor which said that you were totally incapacitated for work. Is that right? --- I can’t recall using unknown phrases. I can’t remember.
All right, I will put it another way. When you saw Trewin & Co Solicitors, did they suggest to you that to claim compensation, so to get weekly payments, you needed to have a medical certificate? --- I can’t recall.
So you don’t remember the basis upon why you went to see Dr Phil and told him that you had been on workers comp and that you needed a progress certificate? --- No.” (Transcript pp 84–85)
[The Tribunal notes that Professor McManus’ report is set out in paragraph 14 below.]
The applicant confirmed that he had contacted Shane Taranto of STAR Injury Management Services in December 2010 with a view to commencing his rehabilitation. His cross-examination continued:
“ Can I show you a document? --- Thank you. Would you like me to read the whole thing or would you like to just reference paragraphs in essence of time.
Well, there’s a heading which says, ‘progress notes’ and it refers to your first meeting with Mr Taranto and it says in there that you were, at the time of first meeting him in mid-December 2010, you were very motivated to return to work. Is that correct? ---Yes.
Yes. And were looking for some assistance with respect to rehab but that you were in a positive frame of mind that you would be able to get some work and get back on track? --- If that was his assessment of me.
All right. Well, do you agree that that was how you were feeling at that time? --- I was still suffering from depression but I needed to work.
Yes. All right. Well, Mr Smith, can I suggest to you that the documents suggests that the depression that you experienced came on after these initial – so it came on when nothing seemed to be happening. That was when you became depressed as opposed to earlier on in the process when you contacted Mr Taranto. You were very positive about the opportunities to return to work and be rehabilitated. Does that chronology sound correct?--- I don’t think anyone can get a fair assessment of a person in an hour or a two-hour session.
No. Well, that wasn’t my question. I’m asking you from your recollection, in early December 2010 when you were first talking to Mr Taranto, were you in a positive frame of mind that things could be done by way rehabilitation to get you back to work? --- I was in the frame of mind that rehabilitation would help me to get back on track.
All right. And is it correct to say that your view of how that was working or the fact that it wasn’t working, as it progressed in January and February, led to you becoming increasingly depressed and increasingly angry with the process that was happening? --- No, I wouldn’t.
You don’t agree with that? --- No, I don’t.
…
So do you not agree with me that things were going okay mid-December and early January 2011? --- Things haven’t gone okay since the day of the injury. When you meet a new person, generally you try and put on a brave face and try and seem upbeat and cheerful especially when you’re meeting a manager of a company who may be able to help you. There’s no point in going in there and telling him that you feel like killing yourself because generally that wouldn’t help you.
Do you agree with me, by the end of January 2011, you were extremely frustrated with the failure of John Holland to pay you any weekly compensation? --- I would say I was further depressed as a result.
All right. Well, let’s accept that you say you’re further depressed. My question was, do you agree with me that you were also extremely frustrated by the failure of John Holland to pay you weekly compensation?--- I will agree that there was a percentage of stress and depression that was related to the failure of John Holland but I still make the statement that the majority of the stress is in relation to having anosmia.” (Transcript, pp 86–87)
Finally, the applicant acknowledged that, as regards the incidents referred to in paras 55–67 of his witness statement under the heading “Incidences (sic) that have occurred as a result of my anosmia”, he has provided no written evidence from witnesses or other evidence corroborating his account of those incidents.
In re-examination the applicant gave the following evidence:
“ MS SILJANOSKA: So I will rephrase my question, that Mr Dube, in fact, put to you that it was, in fact, your frustration with the claim that – that led you to be, you know, frustrated or stressed or something to that effect. Is that the case? --- No, that’s not the case. Because I was under the impression that my health would return to normal and my senses of smell and taste would both return to normal, up until I saw Dr Terry McManus. And when he informed that if I hadn’t – if my senses hadn’t improved in the last 12 months, then they would never improve, it was at that point when I had received concrete evidence that I would not ever receive – I would not ever be able to smell anything again. I would never be able to taste anything again and – and from then on, basically my life started to collapse. My – that – that was basically the – the start of, you know, my depression and my anxiety and my stress.
And you gave some evidence yesterday about there being a significant period of unemployment for approximately 12 month period. And my question to you is, can you state clearly or give any explanation for what you believe the length of unemployment was caused by? --- Well, I believe the length of unemployment was caused by stress due to my anosmia condition. The claims process wasn’t going – sorry, I will rephrase that. The rehabilitation process wasn’t going as I thought it would and I was suffering from severe depression. I had been admitted to a psychiatric hospital. I was – my life was taken up by seeing doctors, psychologists, psychiatrists and I felt as if I was – I felt as if I was drowning.” (Transcript, p 104)
The Evidence of the Medical Witnesses
Professor Terence McManus
Professor McManus, Consultant Ear, Nose and Throat Surgeon, confirmed that he had
prepared a report, dated 21 July 2010, regarding the applicant. That report, which is addressed to the respondent and refers to his examination of the applicant on 7 July 2010, states as follows:
“ …
Medical History including Mechanism of Injury & Subsequent Progress:
Mr Smith reports that he was welding in a confined space, which exposed him to inhalation of noxious fumes, commencing in July 2008. In December of 2008 he noted marked loss of taste and sense of smell, which continued to deteriorate.
…
ASSESSMENT AND SUMMARY:
Diagnosis:
Complete anosmia and loss of taste.
Causation:
In my opinion, his symptoms are consistent with damage to his olfactory apparatus resulting from inhalation of toxic fumes resulting from welding activities in an enclosed space.
…
RECOMMENDATION:
Treatment:
There is no medical or surgical treatment that is likely to be of value. I consider his anosmia and loss of taste to be permanent.
Fitness for Work:
I consider that Mr Smith is fit for most forms of work, with the proviso that he would not be competent to work in any area that required a normal sense of smell. His current impairment would prevent him working safely as a welder, as he would be unable to smell gases such as acetylene used in his work as a welder.
COMMENT:
In response to the specific questions set out in your letter of referral, I advise:
1.The claimed injury
(a)Does the employee currently suffer from a diagnosable condition? Please provide a clinical explanation of how the employee’s symptoms are consistent with the diagnostic criteria for such diagnosis?
In my opinion Mr Smith suffers from anosmia and loss of taste. His symptoms are consistent with having inhaled noxious fumes to which he was exposed whilst welding in an enclosed space.
(b)If the employee does suffer from a diagnosable condition, was the condition significantly contributed to by their employment?
The SRC Act requires for there to be a ‘significant contribution’, that there be a close connection between the employment and the development or cause of the claimed condition. Please provide an explanation for your opinion, including details of the relevant employment factors.
In my opinion Mr Smith’s anosmia and loss of taste resulted from his employment where he was exposed to noxious fumes by carrying out welding in an enclosed space.
2.Relevant medical history
(a)Is there any pre-existing or non-work related medical history or condition relevant to this claim?
I found no evidence of any pre-existing or non-work related medical history or condition relevant to the claim.
…
3.Current condition
(a)Does the employee continue to suffer the effects of the work related condition? If not, when did the effects, such as incapacity, impairment and the need for medical treatment, cease?
Mr Smith continues to suffer the effects of the work-related condition described above under ‘Causation’.
(b)If the employee continues to suffer the effects of the work related condition:
(i) What is your prognosis as to this condition?
In my opinion Mr Smith’s disability of anosmia and loss of taste is permanent.
(ii) Do you consider the effects of the condition will cease and, if so, when do you anticipate the effects will cease?
I consider the effects are permanent.
(c)If you consider that the employee requires, and will require in the future, medical treatment for his work related condition:
(i) What form of treatment do you recommend?
(ii) For what period of time?
(iii) With what frequency?
There is no treatment likely to be of any benefit for his disability.
4.Work Capacity/Rehabilitation
(a)Is the employee currently incapacitated for pre-injury employment duties? If so, please provide particulars, including the extent of her (sic) restrictions.
In my opinion Mr Smith is significantly incapacitated for his pre-injury employment as a welder. He would be unable to smell noxious fumes such as acetylene used in his employment as a welder and as such would be at risk of significant complications due to inhalation of noxious gases that he was unable to smell.
…
5.Other factors
(a)Is there any evidence of any non-organic factors and voluntary or involuntary exaggeration of the symptoms or signs? Please explain.
I found no evidence of any non-organic factors or exaggeration of his symptoms.
…” (T10)
It is unnecessary to refer in detail to Professor McManus’ oral evidence in these reasons.
Dr Philip Beinart
Dr Beinart, Otorhinolaryngologist, confirmed that he had examined the applicant in January 2011 and had subsequently prepared a report dated 24 January 2011. That report, which is addressed to the applicant’s former solicitors, states as follows:
“ …
I confirm that consultation took place on Wednesday 12/01/2011.
Mr Smith informed me that he had developed loss of smell and taste in December 2008. This loss had occurred over a 2-3 month period and had become total. Mr Smith is a Boilermaker/Welder who completed his apprenticeship in 1997. He commenced work with John Holland on 21/7/2008 and remained until June of 2009. He attributes his loss of smell and taste to an incident when he was welding in a confined space. He was welding in proximity to paint which produced fumes in an enclosed space. He alleges that this incident caused his loss of smell and taste.
On examination, I found him to have a deviated nasal septum to the right but his anterior nasal airway was satisfactory. I could not visualize his right olfactory cleft due to his deviated septum but certainly, the left olfactory cleft was normal. There was no sign of nasal polyposis or allergic rhinitis. A CT scan has shown a normal anterior cranial fossa and cribriform plate and normal sinuses.
In answer to your questions:
…
c) the cause of our client’s injuries and symptoms;
Mr Smith has sustained total anosmia and loss of taste due to exposure to noxious fumes.
d) the treatment you would recommend for our client;
There is no effective treatment for this condition.
e) the likely development of our client’s condition into the near future;
It is likely that there will be no change in Mr Smith’s condition. Loss of smell and taste can improve for the 1st year to 18 months after occurrence. Mr Smith’s loss of smell and taste dates to 2 years ago.
f) the likely treatment our client will require in the foreseeable future;
No treatment is available.
g)our client’s ability to work, in detail, together with any limitations or restrictions you would impose upon the same, both as to the type of work our client can perform, and as to the hours our client is able to work;
Mr Smith is unable to perform any work which would require a sense of smell to be present. Examples of this would be working with any noxious fumes or volatile chemicals, which could damage his health, as he would be unable to know that he was at risk due to his inability to detect the odour.
…”(Exhibit A2)
Dr Beinart also gave oral evidence, including the following:
“ And do you consider that his condition was permanent?---Yes.
Would there be any likely prospect – since your examination to current, would there be any likely prospect of the condition resolving or improving? --- No, not after this period of time.
In those circumstances, and I suppose from the content of your report or the evidence you're giving, could you then provide your opinion about Mr Smith's ability to work or his capacity? --- Physically he's able to do any job that he would choose to do, provided that he does not require a sense of smell to be present. For example, if he tried to continue working as a welder he would be at risk because he wouldn't be able to smell noxious fumes. So any form of employment that doesn't require him to have a sense of smell.” (Transcript, p 51)
Dr Alan Home
Dr Home, Occupational Physician, confirmed that he had examined the applicant on 2 June 2011 and that he had subsequently prepared a report dated 8 June 2011. That report, which is addressed to the applicant’s solicitors, states as follows:
“ …
History From Examinee
Mr Smith states that he was employed as a boilermaker/welder for John Holland between 2004 (sic) and June 2009. He reports the onset of anosmia during the course of his work as a boilermaker/welder on or about 8 December 2008. He recalls that he was required to undertake gasless welding of steel covered by paint leading to emission of pain (sic) fumes whilst working in a confined space.
He has largely worked as a boilermaker welder throughout his life. He has, however, undertaken work as a security officer, truck driver and storeman for several years before returning to work as a boilermaker in 2006.
He recalls that he advised the supervisor of his complaints around December 2008. He continued to work over the next few months with no improvement in symptoms. Indeed, his symptoms of anosmia deteriorated to the extent that he lost all sense of smell and taste.
I did review the MSDS’s which he provided. In particular I note an MSDS regarding a pain (sic) labelled NR604 Sucheng Aluminium Painting, which contains silicone resin, aluminium, argent plasm, vitriolic barium and xylene, with several other minor components.
Mr Smith confirms that he has undergone review by several ENT specialists, but no other cause for anosmia has been detected. He has undergone CT scanning of the cranium and paranasal sinuses and there is no evidence of an abnormality within the anterior cranial fossa apart from deviation of the nasal septum. The nose and paranasal sinuses are normal.
In addition to his inability to smell and taste food, he reports an inability to smell fumes including acetylene and LPG.
Past Medical History
There is no past medical history of relevance, and in particular he declares a history of childhood asthma but no history of allergic rhinitis.
Rehabilitation
Since leaving John Holland he has attempted several periods of work as a boilermaker and welder for Link Force and Transfield. On both occasions he left due to his perception that he was not safe to undertake the work.
He recalls that his leg caught fire on one occasion when he was unable to smell the smoke. On another occasion he was unaware that he had released a large acetylene plume.
He discontinued boilermaking after receiving advice from Prof McManus.
He states that he is suffering from symptoms of depression including poor memory, distorted thinking, and difficulty with concentration. He has recently commenced anti-depressant medication and sedatives.
He has sought advice from Mr Shane Taranto, rehabilitation case manager. He has discussed a number of vocational options including work as an estimator (an office-based role), mobile plant operator, welding inspector, train driver and workplace assessor/trainer. Of these, he has concerns regarding safety issues if required to work as a welding inspector or workplace assessor/trainer.
He has little interest in office-based work.
Systemic Inquiry
Systemic inquiry was unremarkable. In particular, there are no symptoms to suggest a more widespread neurological condition.
Examination
Your client, Mr Smith, is a 34 year-old with medium height and build.
Examination of the nose reveals a deviated septum and nasal deformity with previous childhood fracture leaving him with deviation of the nose to the left side. Nasal membranes on the left side of the nose appeared normal. The right side could not be visualised clearly due to septal deviation.
The remainder of the examination is unremarkable.
Assessment
Your client Mr Smith has sustained total anosmia and loss of sense of taste due to inhalation of noxious fumes whilst welding in an enclosed space. It is accepted that a number of solvents can cause neurological damage. The olfactory nerves are vulnerable due to their proximity to the toxins.
Your client reports psychological disturbance, agitation and suicidal tendencies over recent weeks and has been referred to Dr Boon Loke, psychiatrist, for assistance with these complaints.
In my view he will require adequate management of his psychological status prior to commencing vocational rehabilitation.
In answer to your specific questions:
…
4. What is your diagnosis?
The diagnosis is outlined above.
5. What treatment do you consider may be necessary:
a) currently.
b) in the future.
There is no treatment available for management of anosmia. However, your client requires management of his adjustment disorder/stress complaints.
6.Your prognosis of my client’s condition.
The prognosis of your client’s condition is that he is unlikely to experience any recovery of olfactory function. Any neural recovery would be anticipated within twelve months of the exposure.
7.Do you consider my client will be restricted in any way in the type of work he is able to undertake:
a) currently,
b) in the future.
Your client’s condition may cause him safety issues if required to work in confined
areas with potentially noxious substances, as he does not have a sufficient sense of smell to alert him to unusual or pungent odours or the smell of smoke.
This would not disbar him from a wider variety of work including work as an estimator, mobile plant operator or train driver amounts those options to which he has given consideration over recent months.
…” (T79)
Dr Home also gave oral evidence, including the following:
“ And, in your medical and expert opinion, what was the direct cause of the total anosmia? --- Well, there was a history of exposure to noxious chemicals that preceded the development of the symptoms. I was not able to identify any other obvious cause. I noted at the time that he had also been assessed by several ENT surgeons, who had undertaken various investigations, including a CT scan of the cranium and paranasal sinuses, a direct visual examination of the nasal system, and, based on the history provided, I felt that the most likely cause was the exposures that he reported. I was not able to identify any other cause for total anosmia.
If I can just take you page (sic) 3 of your report dated 8 June 2011. You make a reference there right at the beginning:
I did review the MSDS, which he provided.
Could you please elaborate on what that was? --- MSDS, Material Safety Data Sheet – all workplace chemicals have MSDSs that can be obtained from various sources. He provided the MSDS, so it saved me looking it up, which was good. Basically, the MSDS he provided listed the exposures, the components of the ..... (sic) aluminium painting, which included amongst its components xylene. Xylene is a solvent and has been reported to cause certain neurological abnormalities in groups of workers. I felt that was probably the most likely component that may have contributed to his – may have caused his anosmia.
And what treatment is available for the total anosmia? --- There is no treatment for a neurologically-caused anosmia. Once the nerves are damaged generally they can recover, but if they don’t recover within a period of 18 months, two years at the outset – at the utmost, you won’t get neurological recovery beyond that time. There is no neurological condition in the body that recovers after two years.” (Transcript, pp 165–166 )
Professor Aleksandar Janca
Professor Janca, Consultant Psychiatrist, who was called as a witness by the respondent, confirmed that he had prepared three reports regarding the applicant.
Professor Janca’s first report, dated 14 July 2011, is addressed to the respondent and states as follows:
“ …
This report is primarily based on a single interview with Mr Smith that took place on 24 June 2011 … The interview lasted 1 hour and 20 minutes and at Mr Smith’s request was attended by his partner Ms Natalie Baker.
PRESENTING COMPLAINTS
Feeling ‘retarded’, useless, inadequate, anxious, angry, fatigued and being sad, tearful or crying 5 to 6 times every day. Having poor memory, appetite and frequent thoughts of suicide. Being suspicious of his employer/insurer’s intentions and thinking that they might be working against him or spying on him.
HISTORY OF PRESENTING COMPLAINTS
Two years ago, after prolonged exposure to toxic fumes while welding in a confined space, Mr Smith felt that he lost his sense of smell and taste. This loss changed his life and his life became more difficult as he was never sure if the food was right or not or if there was a fire in the house or if he had bad odour etc.
Mr Smith went to numerous examinations and consultations in the hope that he would be cured. As it did not happen, he became more and more anxious, worried and depressed. Several months ago, after a conversation with the claim manager who refused to refer him to an occupational therapist, Mr Smith ‘broke down’ and felt very angry, cried for a long period of time and became suicidal. Ever since he has had frequent suicidal thoughts thinking that he should go and drown in the swimming pool or drive his car into an oncoming truck or brick wall. On a number of occasions Mr Smith also felt like harming other people from his company or others who were in his view responsible for all his ongoing troubles and who ‘crippled’ him emotionally and financially. Mr Smith sometimes wanted to ‘burn them all’ for taking his senses, career and future away from him.
Over the past few months Mr Smith’s sleep deteriorated and became ‘erratic’. Mr Smith has lost his appetite and started to feel useless, ‘retarded’ and inadequate. He has also lost hope in the resolution of his ongoing physical, emotional and financial problems. He believes that his company mistreats him and that someone from the company or insurance might be spying on him. On occasions he had a suspicion that some unknown people across the road from his house might be watching him. He also thinks the doctors who examined him in the past might also be siding with the employer or insurer.
Because of all these problems Mr Smith’s general practitioner prescribed him Lexapro and several weeks ago Mr Smith self-admitted to Fremantle Hospital where he spent 3 days and was prescribed Mirtazapine and Chlorpromazine.
He took these medications for two or three weeks and after that Chlorpromazine was changed to Olanzapine and the dose of Mirtazapine was increased.
On 20 June 2011 Mr Smith had a boating accident in which he lost all the medications he was taking. Without these medications his anxiety, anger, depression and suicidality increased and he is now awaiting his next appointment with Dr Kataria, a psychiatrist working at Fremantle Hospital, which has been scheduled for 7 July 2011.
Mr Smith’s partner, Ms Natalie Baker, pointed out that over the past two years, and particularly over the past several months, his emotions often go up and down, he gets easily upset over small things and frequently asks questions about his personal odour and the smell of other things around him. She also stated that Mr Smith has lost contact with his friends and avoids social interactions as he gets easily upset, feels very depressed or worries that others may be offended by his body odour or behaviour.
PAST PSYCHIATRIC HISTORY
Nil reported
PAST MEDICAL HISTORY
Mr Smith had childhood asthma and was treated with Ventolin. As a child he also had pneumonia and had broken bones on several occasions.
He was diagnosed with an abdominal hernia 10 years ago.
He denies any other illness, allergies, surgery or medical procedures.
SUBSTANCE USE HISTORY
Mr Smith occasionally drinks a glass of wine in the evening. He sometimes drinks one or two cups of coffee during the day. He denies using tobacco or illicit drugs.
FORENSIC HISTORY
Mr Smith has a history of a Drink Driving offence and an alleged assault offence as a teenager with subsequent conviction, which he did not want to elaborate upon.
PERSONAL AND SOCIAL HISTORY
Mr Smith was born in Carnarvon and lived there until the age of 24. His early development was uneventful. He left school at the end of Year 11 and completed a boilermaker/welder apprenticeship. Prior to finding employment in this profession, he worked in a variety of jobs including fishing, farming, security work and driving trucks. He denies having any work-related problems in his previous jobs.
Mr Smith describes his parents as loving and caring. He has had a particularly close relationship with his father and since leaving Carnarvon keeps in frequent contact with him.
Over the past two years and particularly the last few months, Mr Smith feels that his ongoing work and health problems have influenced his relationship with his parents as he gets easily angry and agitated when talking to them. Sometimes he also feels alienated from them.
Mr Smith has a brother who lives alone and works as a computer technician in Melbourne. Mr Smith does not have frequent contacts with his brother.
Mr Smith has been in a 3½ year relationship with his current partner Natalie Baker. Their relationship has been good although over the past two years and particularly during the recent months his anxiety, anger and depression have had a significant influence on their day-to-day life as Mr Smith often gets upset or angry and is difficult to be around.
FAMILY HISTORY
Mr Smith denies any history of physical or mental illnesses in his family. Both his father and mother are in their late 60s and are healthy. His brother is also healthy.
MENTAL STATE EXAMINATION
Mr Smith was casually dressed and cleanly presented. He was cooperative throughout the interview. On numerous occasions he appeared to be restless and was often looking at his diary and his notes in order to be able to provide correct and precise answers to posed questions.
His speech was normal in terms of rate and flow. In terms of volume Mr Smith’s speech ranged from low to high indicating some tension and frustration.
Mr Smith’ affect was anxious and irritable and at times he was easily startled, nervous, and apprehensive. Mr Smith’s overall mood was dysphoric and depressed. At times he looked sad and tearful although such emotions would quickly be replaced by facial expressions of worry or anger.
Mr Smith’s thought process was sequential and goal directed. However, at times he looked distracted or frustrated by posed questions. Mr Smith’s thought content was characterised by depressive thoughts and ruminations (eg, his two senses, job, income and future being taken away), ideas of reference (eg, people from his company, insurance and doctors being unhelpful or even against him) and ideas of persecution (eg, people across the road watching or spying on him). Mr Smith also verbalised having frequent suicidal thoughts and plans but denied being suicidal during the interview or having such plans in the near future.
Mr Smith’s description of sometimes hearing small noises at the door without anyone being there appear to be illusions rather than hallucinations.
Mr Smith had a limited insight into his condition but his judgement was not impaired.
He was in clear consciousness and fully oriented.
There was no clinical evidence of cognitive deficit, although I did not undertake a formal cognitive assessment.
In response to your schedule of questions, I would like to state the following:
1.What is the history of Mr Smith’s condition(s) as reported to you?
This is summarised under ‘History of Presenting Complaints’ above.
2.In your opinion, from what specific condition(s) does Mr Smith currently suffer from (sic)? Please provide a description, including clinical signs and symptoms of the condition(s).
Mr Smith currently suffers from a Major Depressive Disorder, single episode with psychotic features (296.24).
A more detailed clinical examination including access to additional information such as documentation relating to his admission and discharge from Fremantle Hospital and a report from his treating psychiatrist are required for further diagnostic clarification of Mr Smith’s psychiatric condition.
However, the following symptoms and signs according to DSM-IV diagnostic criteria point towards the above-mentioned diagnosis.
(a)The presence of a single major episode characterised by depressed mood, markedly diminished interest, loss of appetite, fatigue, insomnia, psychomotor agitation, feelings of worthlessness, diminished ability to think or concentrate and recurrent thoughts of death or suicide.
The ‘severe with psychotic features specifier’ includes the presence of primarily (but not exclusively) mood-congruent psychotic symptoms.
(b)At the time of examination the major depressive episode is not better accounted by (sic) a schizophrenic disorder and is not superimposed on schizophrenia, schizophrenoform disorder, delusional disorder or psychotic disorder not otherwise specified.
(c)There has never been a manic episode, a mixed episode or a hypomaniac episode.
3.What is the intensity/severity of Mr Smith’s current clinical signs and symptoms?
As mentioned above, Mr Smith’s symptoms and signs are severe in intensity.
4.On the balance of probability as distinct from possibility, is the condition(s) currently suffered by the employee related to:
a. the reported stress associated with his accepted work related injury;
On the balance of probability the current condition suffered by Mr Smith appears to be related to reported stress associated with his accepted work related injury ie perceived loss of smell and taste.
b. the reported stress associated with the management of his claim for compensation;
It appears that the reported stress and frustration associated with the management of his claim contributed to the severity of Mr Smith’s psychiatric condition.
c. a pre-existing congenital, constitutional or underlying condition including any personality disorder or predisposition;
I have not been able to identify a pre-existing congenital, constitutional, underlying condition, personality disorder or predisposition related to his current psychiatric condition or claim for compensation.
d. family issues;
I was unable to identify any family issues of relevance to his psychiatric condition or claim for compensation.
e. lifestyle issues or life traumas;
I was unable to identify any lifestyle issues or life traumas of relevance to his psychiatric condition or claim for compensation.
f. financial issues;
It appears that the current financial situation has had an impact on the severity of Mr Smith’s frustration and his psychiatric condition.
g. other health issues;
It appears that perceived loss of smell and taste has had a significant impact on Mr Smith’s psychiatric condition.
5.In your opinion, would Mr Smith’s condition(s) have arisen in the absence of his work related injury at John Holland? Please explain.
It is difficult to speculate whether Mr Smith’s condition would have arisen in the absence of his work-related injury. However, the absence of previous mental health and work-related problems as well as the absence of family history of mental illness point towards a reactive and contextual nature of Mr Smith’s current psychiatric condition.
6.In your opinion, does Mr Smith currently have any incapacity to engage in any work, please describe:
In my opinion Mr Smith is currently incapacitated to engage in any work.
a. the reason(s) for his incapacity; and
The main reasons for this incapacity are severity his (sic) current psychiatric symptoms and their impact on his social, occupational and other functioning.
b. the likely duration of the incapacity.
The duration of Mr Smith’s incapacity will depend on his reaction to the ongoing psychiatric treatment and its outcome.
7.In your opinion, what current psychological and/or psychiatric treatment do you consider necessary for management of Mr Smith’s current condition(s)? Please provide details.
Mr Smith requires a comprehensive psychiatric treatment including medication and psychological support. His current financial problems might require involvement of social worker. Based on my interview with Mr Smith and very limited psychiatric documentation, it appears that Mr Smith has been involved in psychiatric treatment at Fremantle Hospital and that he is due to see his psychiatrist, Dr Kataria, soon. I would suggest that Mr Smith continues with this treatment and that my report is sent to both Dr Kataria and Mr Smith’s general practitioner.
8.In your opinion, what medication do you consider necessary for management of Mr Smith’s current condition(s)?
Mr Smith is currently on anti-depressant and anti-psychotic medications and I would recommend that he continues taking them regularly as prescribed by Dr Kataria.
9.Are you aware of any activities that might be impacting (either positively or negatively) on Mr Smith’s condition(s)? Please provide details.
Ms Smith has a very supportive partner, Natalie Baker, and I believe that any joint recreational or social activities would facilitate improvement of Mr Smith’s condition.
10.In your opinion, what is the prognosis of Mr Smith’s condition(s)?
The prognosis will depend on the final diagnosis of Mr Smith’s psychiatric condition and his reaction to the ongoing psychiatric treatment and its outcome. Good prognostic factors in Mr Smith’s case include the reactive nature of his condition, absence of previous mental health problems and absence of family history of mental illness. The severity of Mr Smith’s psychiatric condition and presence of some mood-incongruent psychotic symptoms may have a negative impact on his prognosis.
As mentioned above, Mr Smith’s condition requires further diagnostic clarification, regular monitoring and follow-ups, which I am sure will be done during his ongoing treatment at Fremantle Hospital.
…” (T88)
Professor Janca’s second report, dated 10 October 2011, is addressed to the respondent and states as follows:
“ Thank you very much for your letter of 27 September 2011 requesting my supplementary report in relation to Mr Smith’s claim for compensation.
In preparing this report I have reviewed quite extensive medical documentation you sent to me including the following:
·Letter and clinical notes sent to you by Mr Graham Guest, Clinical Psychologist, dated 02 August 2011.
·Letter sent to you by Dr D Oldham for and on behalf of Director Clinical Services, Fremantle Hospital and Health Service dated 05 September 2011.
·Mental Health Services Outpatient, Inpatient and other clinical notes and documents included in the file relating to Mr Smith’s treatment at Fremantle Hospital in May 2011.
Before revisiting the schedule of questions attached to your initial letter to me I would like to make the following comments relating to the above-mentioned letters and documentation.
Mr Graham Guest, Clinical Psychologist, has been treating Mr Smith since 04 February 2011 and found him to suffer from ‘a deep underlying depression with suicidal risk’.
He states that ‘Mr Smith’s loss of the sense of taste and smell is the factor primarily responsible for Mr Smith’s major depressive episode’. He also states that Mr Smith has ‘intense personality but not in any way pathological’. I would like to point out that Mr Guest’s clinical findings and diagnosis are consistent with those included in my initial report. In my initial report I did not make a comment on Mr Smith’s personality as I did not believe that it could have been properly assessed in the context of a single psychiatric interview.
According to Dr Oldham’s letter/report and other medical documentation from Fremantle Hospital Mr Smith has been diagnosed with Adjustment Disorder with depressive symptoms, Cluster B Personality Disorder (antisocial) and situational crisis.
In view of these diagnoses I must admit that it is not completely clear to me why, over the past several months, Mr Smith was treated with two anti-psychotic medications (Seroquel and Olanzapine) in addition to two anti-depressant medications (Sertraline and Mirtazapine). Also it is not completely clear to me why, while being voluntarily admitted with these diagnoses to Fremantle Hospital in May 2011, he was later on put on Forms 1 and 6 and transferred to a secure ward in the company of Security Guards with subsequent sedation on two occasions.
I was glad to learn from Dr Oldham’s letter that at psychiatric interviews on 5 July 2011 and 16 August 2011 Mr Smith was ‘bright, pleasant, co-operative and attentive’. However, I have noted some incongruence between Dr Oldham’s description of Mr Smith’s clinical progress and condition and Mr Guest’s report from the same month stating that Mr Smith’s ‘depressive symptomatology and suicide risk have remained’.
I am not in a position to provide further comment on these reports as I have seen Mr Smith only once on 24 June 2011. Henceforth my initial and this supplementary report are primarily based on my 1 hour 20 minutes long interview with Mr Smith on that day.
In response to your schedule of questions, I would like to state the following:
1. What is the history of Mr Smith’s condition(s) as reported to you?
The history of Mr Smith’s condition as reported to me is summarised under ‘History of Presenting Complaints’ of my initial report. In that report I pointed out under the section ‘Forensic History’ that during the interview Mr Smith was not willing to elaborate on his previous legal problems. I have noted from the Fremantle Hospital file that Mr Smith was found guilty of assaulting a Police Officer and of GBH and also that he had lost his driver’s licence five times for drink driving in the past. Although these facts may indicate presence of some antisocial personality traits, due to the fact that I saw Mr Smith only once for a relatively short period of time I am not in a position to make a firm conclusion about his personality.
2.In your opinion, from what specific condition(s) does Mr Smith currently suffer from (sic)? Please provide a description, including clinical signs and symptoms of the condition(s).
I remain of the view that at the time of my psychiatric examination of Mr Smith he suffered from a Major Depressive Disorder, single episode with psychotic features.
The description of this condition including relevant clinical signs and symptoms can be found in my initial report. The main reason for the qualifier ‘with psychotic features’ was the severity of Mr Smith’s depression including prolonged suicidality and mood congruent thoughts and ruminations, which in my view had delusional quality. In my initial report, I also mentioned the existence of some mood incongruent and referential symptoms and ideas that Mr Smith had at the time of the interview, but without having collateral information and opportunity for a follow up examination, I am not in a position to make a final judgement about them.
3.What is the intensity/severity of Mr Smith’s current clinical signs and symptoms?
As mentioned above, at the time of examination Mr Smith’s symptoms and signs were severe in intensity.
4.On the balance of probability as distinct from possibility, is the condition(s) currently suffered by the employee related to:
a. the reported stress associated with his accepted work related injury;
b. the reported stress associated with the management of his claim for compensation;
c. a pre-existing congenital, constitutional or underlying condition including any personality disorder or predisposition;
d. family issues;
e. lifestyle issues or life traumas;
f. financial issues;
g. other health issues;
My answers to the questions 4a-4g remain the same as they are in my initial report. I would like to point out that in his report Mr Smith’s Psychologist is also of the opinion that ‘the loss of sense of taste and smell is a significant and primary responsible factor for Mr Smith’s major depressive episode’ (sic).
5.In your opinion, would Mr Smith’s condition(s) have arisen in the absence of his work related injury at John Holland? Please explain.
My answer to this question remains the same as in the previous report. Additional clinical documentation has not provided any further clues regarding this issue which is in principle quite speculative in nature.
6.In your opinion, does Mr Smith currently have any incapacity to engage in any work, please describe:
a. the reason(s) for his incapacity; and
b. the likely duration of the incapacity.
I have not seen Mr Smith since 24 June 2011 and am not in a position to comment on his current work capacity. However, and as previously mentioned, I wish to draw your attention to some incongruence between Mr Guest and Dr Oldham’s assessments of Mr Smith’s clinical state and progress till August 2011.
7.In your opinion, what current psychological and/or psychiatric treatment do you consider necessary for management of Mr Smith’s current condition(s)? Please provide details.
I believe that Mr Smith should continue his psychological treatment with Mr Guest and psychiatric treatment with Dr Kataria or another Psychiatrist.
8.In your opinion, what medication do you consider necessary for management of Mr Smith’s current condition(s)?
I would leave the decision about Mr Smith’s medication to his treating Psychiatrist.
9.Are you aware of any activities that might be impacting (either positively or negatively) on Mr Smith’s condition(s)? Please provide details.
I agree with Mr Guest’s comment that an early resolution of the medico-legal issues related to Mr Smith’s case would diminish his distress and facilitate his recovery.
10. In your opinion, what is the prognosis of Mr Smith’s condition(s)?
My reply to this question is the same as in the previous report.
…” (T104)
Professor Janca’s third report, dated 8 October 2012, is addressed to the respondent’s solicitors and states as follows:
“ …
This report is primarily based on my follow up interview with Mr Smith that took place on 7 September 2012 … The interview lasted about one hour.
INTRODUCTORY REMARKS
Mr Smith is a 35 year-old Caucasian man who is a former employee of the John Holland Group Pty Ltd
PRESENTING COMPLAINTS
·Feeling upset, anxious and depressed because of loss of smell.
·Having poor concentration and memory.
·Having no enjoyment in life.
·Worrying about financial security and its impact on his future life and relationship with his girlfriend.
·Occasionally having thoughts of not wanting to have such a difficult life but not feeling suicidal because of the feelings of responsibility and obligation towards his girlfriend.
·Not being able to relate and socialise with other people including his family members.
HISTORY OF PRESENTING COMPLAINTS
Since my first examination of Mr Smith in June 2011, he continued to be anxious, distressed and depressed because of the loss of smell that he attributes to welding in closed spaces during his employment as a Boilermaker/Welder at John Holland Group Pty Ltd in the period of July 2008 – July 2009. Over the past year Mr Smith was often felt (sic) stressed, anxious and angry about the situation he found himself in including his unresolved workers’ compensation claim and subsequent legal process that he has been forced to go through. He believed that his anxiety and occasional anger had a negative impact on the relationship with his girlfriend who finds him to be difficult to be with but is afraid of leaving him because he might kill himself. Mr Smith did not have thoughts of suicide over the past year, which he believes is a result of his feelings of responsibility and desire to provide financial stability to his girlfriend. Over the past several months, their relationship further deteriorated to the point that they almost broke up and now ‘live more like house mates than partners’. Because of their relationship problems, Mr Smith’s girlfriend has been seeing a psychiatrist on a weekly basis over the past two months.
Towards the end of 2011, Mr Smith’s loss of smell bothered him so much that he had a need to constantly complain to people at work and was subsequently fired from a job as driver. This happened in December 2011 and it increased Mr Smith’s anxiety and depression to a significant degree. Because of financial difficulties he was unable to continue paying for his mortgage and started to sell things from his house in order to make mortgage payments.
In spite of the above-mentioned problems, Mr Smith believes that his symptoms of depression are less severe than in June 2011. He still has poor concentration and memory and finds no enjoyment in life. He feels that he cannot relate to and socialise with other people including his family members and co-workers. He constantly worries about his loss of smell, financial difficulties and the ongoing court process, which has had a very negative impact on his symptoms of anxiety. Although Mr Smith does not have suicidal thoughts, he occasionally thinks of death or dying particularly when watching TV or reading about sad events.
Mr Smith firmly believes that he has no professional future and that no-one cares about him. He has lost the feeling of self-worth and has no financial security due to the fact that he is untrained and unskilled for any other reasonable job but the one he used to do. He also worries about the future of the relationship with his girlfriend who often says that she has ‘to walk on eggshells’ in order not to upset him. Sometimes she goes for long drives just to be away from him for some time.
Over the past year, Mr Smith has been regularly taking Mirtazapine and Olanzapine and finds these medications to be helpful. Sometimes, he himself would increase the dosage of Olanzapine so as to be able to sleep better. Since starting to take these medications, Mr Smith noted that gained (sic) between 10 and 12 kg. In July 2012, it was found that he also has elevated blood sugar and cholesterol as well as some teeth problems that he attributes to his loss of smell and taste.
PREVIOUS HISTORY
Details about Mr Smith’s past psychiatric, medical, substance use, forensic, personal, social and family history can be found in my report of 14 July 2011.
MENTAL STATE EXAMINATION
At interview, Mr Smith was open and co-operative throughout. He was casually dressed and cleanly presented. Rapport was easily established and maintained. His speech was normal in terms of volume, rate and flow. His affect was anxious and depressed and on a few occasions he became irritable and snappy. His overall mood was low and depressed in quality. Mr Smith’s thoughts were logical, sequential and goal directed. He was very preoccupied with his loss of smell and related work and legal problems and while talking about them would often be tense, upset or angry. He also had a number of pessimistic thoughts and depressive ruminations about his future. He denied having suicidal plans and intentions but mentioned having occasional thoughts of death or dying, particularly when confronted with some sad events. Mr Smith had no delusions, hallucinations or other psychotic phenomena. He expressed a concern that sometimes in the past he thought that some people from the insurance company or his previous employer might be observing or following him as he had heard about such experiences form other people. These thoughts did not have delusional quality and appeared to be a result of Mr Smith’s pronounced anxiety and preoccupation with the ongoing worker’s compensation and legal issues. Mr Smith’s insight and judgment were not impaired. He was alert and fully oriented. There was no clinical evidence of cognitive deficit, although I did not undertake a formal cognitive assessment.
In response to your specific questions, I would like to state the following:
4.1What history of the claimed condition did Mr Smith give at examination? Please obtain details of any specific incidents reported by Mr Smith during the course of his employment and any other relevant incidents/matters.
Mr Smith’s history of the events and symptoms related to the claimed condition at examination was not different from the first interview in June 2011. The subsequent history including the relevant incidents/matters and Mr Smith’s symptoms can be found under the sections ‘Presenting Complaints’ and ‘History of Presenting Complaints’ of my current report.
4.2Did Mr Smith give history of psychological problems experienced prior to his employment with JHG in 2008?
Mr Smith denied having any history of psychological problems prior to his employment with John Holland Group Pty Ltd in 2008.
4.3Does Mr Smith suffer an underlying, pre-existing or constitutional condition relevant to the claimed psychological condition? If so, what is the nature of this condition and why did it arise?
I have not been able to identify any underlying, pre-existing or constitutional condition relevant to the claimed psychological condition.
4.4What psychological condition, if any, does Mr Smith currently suffer from?
Mr Smith currently suffers from a psychological condition. According to DSM-IV classification system, this condition fulfils diagnostic criteria for a Major Depressive Disorder of moderate severity without psychotic symptoms (296.22).
4.5Please outline each of the factors you consider have contributed to the diagnosed condition you describe in question 4.4. Of each of the factors you identify, please explain the degree to which each of those factors contributed to the diagnosed condition you describe in question 4.4.
In my opinion, the main and the most significant contributing factor to the diagnosed condition was Mr Smith’s very strong emotional reaction to the loss of smell and the consequent impact this loss might be having on his life and career. Other contributing factors, which are of lesser significance, include his subsequent worries about his financial situation, ongoing legal process and the deterioration of the relationship with his girlfriend.
4.6Further to question 4.5, specifically does it remain your opinion that Mr Smith’s claimed loss of sense of taste and smell continues to be a significant factor for his current psychiatric condition? (This question should be answered after reviewing Mr Mitchell’s further report.) In particular, there is repeated reference in the clinical notes to Mr Smith reporting symptoms arising from financial difficulties.
I remain of the opinion that Mr Smith’s claimed loss of sense of smell and taste continues to be a significant factor for his current psychiatric condition. I have noted Mr Mitchell’s diagnosis ‘Possible toxic injury to olfactory receptors however the degree of injury may be exaggerated’ and his comment about possible malingering. I agree that the level of Mr Smith’s preoccupation with the loss of smell and taste appears to be excessive and dramatic, but in my view such a presentation is more likely to be a result of his high levels of anxiety and depression including symptoms of pessimistic and catastrophic thinking and morbid preoccupation and interpretation of symptoms and events.
4.7If you consider Mr Smith has suffered or does suffer from a psychological condition contributed to by his employment:
I do consider that Mr Smith does suffer from a psychological condition contributed to by his employment.
a. Have the effects of the work related condition ceased, and if so, when? In other words, does Mr Smith’s employment continue to contribute to his condition and symptomatology? If the extent of that contribution has changed in some way, either to a greater or lesser contribution please also identify when, why and how that change has occurred?
The effects of the work-related condition have not ceased. In other words, the unresolved claim and ongoing legal process related to his previous employment with John Holland Group Pty Ltd continue to contribute to his current psychiatric condition and symptomatology. Over the past year, the extent of that contribution has not significantly changed although Mr Smith’s symptoms of depression appear to be slightly milder in their severity, which is most likely a result of the ongoing psychopharmacological treatment.
4.8Is Mr Smith incapacitated for work as a result of any psychological condition, and if so to what extent? If you consider that he has capacity to work notwithstanding his psychiatric condition, what restrictions, if any, would you place on the types of employment he could perform, bearing in mind only his psychological condition?
Although Mr Smith’s symptoms of depression and anxiety are still of moderate severity, he is currently not incapacitated for work as a result of his psychological condition. From a psychiatric point of view, there are no restrictions on the type of employment he could perform. However, it should be noted that Mr Smith firmly believes that because of his loss of smell and taste he will never be able to continue working as a Boilermaker/Welder.
4.9Does Mr Smith require psychiatric treatment, including the taking of medication, and if so:
Mr Smith does require psychiatric treatment including the taking of medication.
a. The nature of the treatment required;
Mr Smith should continue with his ongoing psychopharmacological treatment with Mirtazapine and Olanzapine.
b. The frequency and likely duration of the treatment required;
Mr Smith should be under regular control of a psychiatrist who would decide upon the frequency and likely duration of his ongoing treatment with these two medications. In my view, such psychiatric controls should be on a monthly basis over the next 12 months. In this regard, I would appreciate if (sic) a copy of my report could be sent to Mr Smith’s general practitioner.
c. The benefits anticipated from such treatment.
The anticipated benefits of such treatment would be further improvement of Mr Smith’s psychiatric symptoms including his better social and occupational functioning.
…” (original emphasis) (part of Exhibit R22)
[The Tribunal notes that the report of Mr Mitchell, referred to in question 4.6 in Professor Janca’s report, was not tendered by the respondent and is not in evidence.]
The respondent’s submissions continued:
“5.15 The propositions which flow from Robertson with respect to the adjustment of NWE under s 8(10) are as follows:
(a)Whereas paragraph 8(10)(a) of the SRC Act requires calculation of any adjustment on the assumption that an employee is not incapacitated by his/her injury, that same assumption does not apply in relation to paragraphs 8(10)(b)(i) and (ii);
(b)Paragraphs 8(10)(b)(i) and (ii) must be applied by reference to the exact same terms and conditions of employment as subsisted as at the date of injury and the date of cessation of employment respectively;
(c)Accordingly, any subsequent changes in the actual terms and conditions of employment of comparable employees are irrelevant;
(d)However, that does not necessarily mean that an employee has an entrenched entitlement to have included in his/her NWE all allowances and overtime actually being paid at the date of injury or cessation of employment;
(e)If, under the terms and conditions of employment in place at the relevant time, receipt of an allowance or payment of overtime was subject to a condition and, at a later point in time, that condition ceased to be fulfilled as a result of changed circumstances, then an adjustment to the calculation of NWE may be required by paragraphs 8(10)(b)(i) and (ii).
5.16The terms and conditions of the applicant’s employment with the Bluewaters Project are practically identical to those which applied to Mr Robertson in his employment with the respondent.
5.17The applicant’s employment with the respondent ceased on 8 June 2009 (Exhibit R3). The employment was terminated because of the completion of the tasks available for employees on the Bluewaters Project at the applicant’s classification. All tradespersons employed by the respondent on the project ceased by 26 June 2009.
5.18As outlined above, the terms and conditions of employment of tradespersons employed on the Bluewaters Project were such that overtime and other allowances were only payable upon the performance of those duties. Consistent with the Full Federal Court’s decision in Robertson, upon completion of the work available to tradespersons on the project s 8(10)(b) applies and the applicant’s NWE is reduced because of the total unavailability of any work including overtime.
5.19In the particular circumstances of the applicant’s employment, the same result of reduction of NWE applies under either s 8(10)(b)(i) or (ii). This is because the applicant’s terms and conditions of employment did not change between the commencement of his employment and the cessation of his employment. Terms and conditions of employment under the Agreement specified that overtime and allowances were payable only upon the performance of duties.
5.20Having regard to s 8(10)(b) from 26 June 2009, the applicant’s NWE is reduced to his ordinary base weekly rate of $1149.84 (see Attachment A).
5.21Under s 8(9B) of the SRC Act, upon the cessation of employment an employee’s NWE is increased annually having regard to the prescribed index. The respondent has calculated the applicant’s indexed NWE as at 1 July 2009, 2010, 2011 and 2012. Attached to these submissions and marked Attachment B is the calculation of the indexed NWE for the relevant period.” (original emphasis)
The applicant’s written submissions in relation to the application of s 8(10) of the SRC Act state as follows:
“37. In the present case the Applicant ceased employment with the Respondent so that section 8(10)(b)(ii) applies. Section 8(10)(b)(ii) applies rather than section 8(10)(b)(i) because the Applicant continued in the same employment post injury to the date of the termination of his employment (John Holland Group P/L v Robertson [2010] FCAFC 88).
38.Section 8(10)(b)(ii) counterfactually assumes the continuation of the pre-termination employment and requires the identification of the wages that would have been paid to the Applicant on this assumption. The actual wording of section 8(10)(b)(ii) defines the assumption to be ‘the employment in which he or she was engaged at the date the employment ceased’.
39.At 5.14 the Respondent cites and relies upon an obiter comment by Dowsett J to the effect that when applying the above assumption the Respondent was entitled to have regard to the fact that once the pre-termination employment ceased there would be no overtime payable.
40.The Applicant submits that this comment by Dowsett J is:
(a)Explicitly obiter only;
(b)Inconsistent with the counter factual assumption to be made that the pre-termination employment was continuing.
41.The obiter comments raise the issue of what is to be notionally assumed under section 8(10)(b)(ii). Is the assumption to be made:
(a)just that the Applicant would continue to work with the Respondent as a boiler maker under a particular industrial agreement and nothing more? or
(b)that the Applicant continued to work under the same industrial terms in the same established nature and pattern of employment as existed pre-termination in his particular case.
42.If the obiter comment of Dowsett J is adopted then there is in fact no counter factual assumption of continue (sic) pre-termination employment because the fact and effect of the later termination of employment trumps the counter factual assumption of continued employment. The obiter comments are, with no disrespect intended, inconsistent and contrary to the logic of the assumption of the continued employment.
43.If the second of the above interpretations of section 8(10)(b)(ii) is adopted then the counter factual assumption entails the ongoing pre-termination work according to its actual nature and pattern. The pre-injury work, as a fact entailed regular overtime which the Respondent concedes in its calculation of the pre-injury NWE.
44.Section 8(10)(b)(ii) explicitly requires an assumption that Applicant continued in the pre-termination employment and not some altered version of that employment as arises from some post-termination circumstances.
45.Section 8(10(b)(ii) does not however require any assumption as the (sic) amount of remuneration paid. In fact the whole point of section 8(10) is to adjust the quantum of NWE in response to post termination changes in remunerative circumstances. So if the terms of the industrial agreement under which the Applicant was employed pre-termination is varied post termination in a manner that would see a reduction in the Applicant’s NWE, then section 8(10) has regard to this change.
46.But there is a fundamental difference between:
(a)assuming the same pre-termination pattern of employment extending post termination, and asking how any post termination changes in industrial entitlements would have impacted on the Applicant’s notional NWE: and
(b)not assuming the constancy of the pre termination pattern of work but rather adopting a pattern of employment that never existed based on post termination changes that would have occurred if the Applicant had continued with the Respondent post termination.
47.The Respondent is arguing for (b) in that it argues that the fact of the regular overtime should be replaced with a notional post termination absence of regular overtime in the NWE.
48.The Applicant argues for 45(sic)(a) in that he argues that the fact of the regular over time in the pre-termination employment is to be assumed in calculating the post termination NWE.
49.As far as the Applicant is aware there is no authority on the above dichotomy since John Holland. Cases prior to John Holland have no continuing relevance post John Holland.” (original emphasis)
The Tribunal accepts, in substance, the respondent’s submissions. Although the applicant submitted that the remarks of Dowsett J in John Holland (set out in paragraph 75 above) were obiter and, furthermore, implicitly submitted that Dowsett J’s analysis should not be adopted by the Tribunal (see paras 40–42 of the applicant’s submissions), the Tribunal accepts that it should apply the relevant law, namely, s 8(10)(b) of the SRC Act, as expounded by Dowsett J (with whom Spender J agreed) in John Holland, even if Dowsett J’s exposition of the relevant legal principles was obiter: see Commissioner of Taxation v Salenger (1988) 19 FCR 378 at 387–388. Moreover, the Tribunal agrees with the analysis contained in the abovementioned dicta of Dowsett J in John Holland and it respectfully adopts that analysis.
Applying the abovementioned principles enunciated in John Holland, the task of the Tribunal, pursuant to s 8(10)(b) of the SRC Act, is to determine, on the basis of the terms and conditions of the applicant’s employment by the respondent, the weekly amount of earnings that the applicant would have received if he had continued to be employed by the respondent as a “tradesperson” performing the duties of a boilermaker/welder on the Bluewaters Power Station Project (“the relevant employment”).
The terms and conditions of the applicant’s employment by the respondent were, at all material times, those set out in the relevant contract of employment (Exhibit R1) and the John Holland Pty Ltd Bluewaters On Site Agreement 2008 (“the Bluewaters Agreement”) (Exhibit R2). Those terms and conditions provided for, inter alia, the payment of a base weekly wage, the payment of overtime, and the payment of certain “additional allowances” (including Meal Allowance, Site Allowance and Travel Allowance) and “Special Rates”.
The matter in dispute (as appears from the parties’ abovementioned written submissions) is whether the applicant would have received overtime payments and/or allowances, as provided for in the Bluewaters Agreement, if he had continued to be employed by the respondent in the relevant employment.
As regards overtime, it is clear from both the relevant contract of employment (Exhibit R1), at para 11, and the Bluewaters Agreement (Exhibit R2) at subclause 3.4, that the applicant had no entitlement to overtime and that overtime was assigned solely on the basis of “specific work requirements’. That being the case, and given the basis on which the applicant’s employment by the respondent ceased on 8 June 2009 – namely, the completion of the task assigned to him on the Bluewaters Power Station Project (see para 7 of the contract of employment (Exhibit R1) and Exhibit R3) – and the impending cessation of employment of all “tradespersons” on the Project for similar reasons (see Exhibit R24 which indicates, as stated in para 5.17 of the respondent’s submissions, that the employment of tradespersons by the respondent on the Project finally ceased on 26 June 2009), the Tribunal cannot be satisfied that the applicant would have been assigned any overtime or that he would have received any overtime payments if he had continued to be employed by the respondent in the relevant employment.
Similar considerations apply to the various allowances whose payment is provided for in the Bluewaters Agreement because, like overtime, payment of those allowances was conditional on the fulfilment of specified work requirements (see subclauses 3.11, 3.15 of the Bluewaters Agreement and Appendix A to that Agreement (Exhibit R2)). Accordingly, for reasons similar to those expressed in paragraph 82 above, the Tribunal likewise cannot be satisfied that the applicant would have received any of those allowances if he had continued to be employed by the respondent in the relevant employment.
The Tribunal concludes, therefore, that, by reason of the application of s 8(10)(b) of the SRC Act, the applicant’s NWE, for the purpose of calculating the amount of compensation payable to him in accordance with s 19 of the SRC Act, is reduced to his base weekly wage which, as calculated by the respondent in relation to the relevant period, was $1,149.84 (see para 5.20 of the respondent’s submissions and Attachment A thereto).
The Tribunal accepts the respondent’s calculations of the applicant’s indexed NWE, pursuant to s 8(9B) of the SRC Act, as at 1 July 2009, 1 July 2010, 1 July 2011 and 1 July 2012 (see para 5.21 of the respondent’s submissions and Attachment B thereto). The results of those calculations are as follows:
Date
Applicant’s indexed NWE
1 July 2009
$1,198.13
1 July 2010
$1,232.88
1 July 2011
$1,279.73
1 July 2012
$1,327.08.
Conclusion
Having regard to the Tribunal’s abovementioned findings, in particular:
·the findings on the amounts of the applicant’s NWE in the period from 8 May 2009 to date (see paragraphs 84 and 85 above); and
·the finding as to the amount per week that the applicant has been “able to earn in suitable employment” (for the purposes of s 19 of the SRC Act) in the period from 8 May 2009 to date (see paragraph 71 above);
the Tribunal finds that, throughout the whole of that period, the amount per week that the applicant has been “able to earn in suitable employment” has exceeded his NWE.
Pursuant to subss (2) and (3) of s 19 of the SRC Act, therefore, the Tribunal concludes that the amount of compensation which the respondent is liable to pay to the applicant in respect of the relevant injury in the period from 8 May 2009 to date is nil.
Analysis – Application 2012/0443
Is the respondent liable, under s 14(1) of the SRC Act, to pay compensation to the applicant in respect of a mental ailment?
The applicant’s mental ailment
It is common ground that the applicant has suffered a mental ailment, namely, major depressive disorder, and the Tribunal so finds.
Is the applicant’s major depressive disorder an “injury” within the meaning of s 14(1) of the SRC Act?
The word “injury” is defined in s 5A(1) of the SRC Act to mean (inter alia):
“ (a) a disease suffered by an employee”.
The word “disease” is relevantly defined in s 5B(1) of the SRC Act to mean:
“ an ailment suffered by an employee … that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee”.
Professor Janca (the only psychiatrist who gave oral evidence) was unequivocally of the opinion that the applicant’s loss of the sense of smell and taste was a significant factor contributing to the applicant’s suffering major depressive disorder. Indeed, in his report of 8 October 2012 (see paragraph 23 above), Professor Janca stated:
“ In my opinion, the main and the most significant contributing factor to the diagnosed condition was Mr Smith’s very strong emotional reaction to the loss of smell and the consequent impact this loss might be having on his life and career. Other contributing factors, which are of lesser significance, include his subsequent worries about his financial situation, ongoing legal process and the deterioration of the relationship with his girlfriend.”
Furthermore, as noted by Professor Janca in his report of 10 October 2011 (see paragraph 22 above), Graham Guest, Clinical Psychologist, had expressed a similar opinion in his report of 2 August 2011 (see paragraph 43 above) where he stated:
“ … The loss of the sense of taste and smell is a significant issue and I believe this is the factor that is primarily responsible for Mr Smith’s major depressive episode.”
Professor Janca acknowledged in his oral evidence that, in forming his opinion regarding the causation of the applicant’s major depressive disorder, he relied heavily on the history given to him by the applicant, but he said that he did not “get [the] impression” that the applicant was “not revealing the truth”. The Tribunal accepts that the applicant’s history, as recorded in Professor Janca’s initial report, dated 14 July 2011 (see paragraph 21 above), was accurate and reliable and provided a valid foundation for the opinions which Professor Janca expressed in that report and in his subsequent reports and oral evidence.
In the Tribunal’s opinion Professor Janca was an impressive expert witness who gave his evidence in a clear and objective manner and his abovementioned reports are comprehensive and balanced and the opinions expressed therein are persuasive. The Tribunal attaches great weight to his reports and to his oral evidence (set out in paragraphs 21–29 above).
The medical records of the Alma Street Centre, Fremantle, to which the applicant was referred by Mr Guest for psychiatric treatment in May 2011, provide evidence of the applicant’s ongoing psychiatric status and treatment in the period May–October 2011 but they provide little, if any, assistance to the Tribunal in relation to the degree to which various factors, including his loss of the sense of smell and taste, his ongoing workers’ compensation claim and his financial difficulties, had contributed to the earlier development of his psychiatric condition. The Tribunal notes, furthermore, that Professor Janca had been provided with those records by the respondent for the purpose of preparing his report of 10 October 2011 (see paragraph 22 above).
On the basis of the abovementioned reports and evidence of Professor Janca, and the abovementioned report of Mr Guest, the Tribunal finds that the applicant’s compensable injury, namely, anosmia and loss of taste, contributed, “to a significant degree” (as defined in s 5B(3) of the SRC Act), to the applicant’s suffering major depressive disorder.
Accordingly, the Tribunal finds that the applicant’s major depressive disorder was “contributed to, to a significant degree, by” his employment by the respondent, within the meaning of s 5B(1) of the SRC Act.
The Tribunal concludes, therefore, that the applicant’s major depressive disorder is a “disease”, as defined in s 5B(1) of the SRC Act, and an “injury”, as defined in s 5A(1) of the SRC Act.
The applicant’s major depressive disorder is, accordingly, an “injury” within the meaning of s 14(1) of the SRC Act.
The date of the applicant’s mental “injury”, namely, major depressive disorder
The Tribunal notes that the earliest medical certificates issued to the applicant by Dr Ibukunoluwa which refer, inter alia, to “stress”, were issued on 22 December 2010 and 19 January 2011 (see paragraph 41 above). The Tribunal notes, however, that no reference is made in Dr Ibukunoluwa’s clinical notes, regarding his consultations with the applicant on those dates, to the prescribing of any anti-depressant medication (see Exhibit R17).
It appears from Dr Ibukunoluwa’s clinical notes (Exhibit R17) that the first occasion on which the applicant actively sought treatment from him in relation to “stress” and “anxiety” was 2 February 2011, and that Dr Ibukunoluwa first prescribed anti-depressant medication, namely Lexapro, for the applicant on that date. Accordingly, for the purposes of s 7(4) of the SRC Act, the Tribunal finds that the applicant first sought medical treatment for a depressive condition on 2 February 2011.
Pursuant to s 7(4) of the SRC Act, the applicant is, for the purposes of the SRC Act, to be taken to have sustained the relevant mental “injury”(being a “disease”), namely, major depressive disorder, on 2 February 2011. The Tribunal finds, therefore, that, for the purposes of the SRC Act, the date of the applicant’s mental “injury”, namely major depressive disorder, is 2 February 2011.
Conclusion
Pursuant to s 14(1) and Part VIII of the SRC Act, the respondent will be liable to pay compensation to the applicant, in respect of the relevant mental “injury”, namely, major depressive disorder, suffered by him if that injury “results in death, incapacity for work, or impairment”.
There can be no dispute that that mental “injury” has resulted in “impairment” (as broadly defined in s 4(1) of the SRC Act). The Tribunal notes, furthermore, that, according to Professor Janca’s (uncontradicted) evidence, that “injury” has also resulted in “incapacity for work” (as defined in s 4(9) of the SRC Act), within the meaning of s 14(1) of the SRC Act.
The Tribunal concludes, therefore, that, pursuant to s 14(1) and Part VIII of the SRC Act, the respondent is liable to pay compensation, in accordance with that Act, to the applicant in respect of a mental “injury”, namely, major depressive disorder, deemed to have been sustained by him on 2 February 2011.
Decision
For the above reasons the Tribunal decides as follows:
Application 2012/0434
·the decision under review is affirmed;
Application 2012/0443
·the decision under review is set aside and, in substitution therefor, it is decided that the respondent is liable, under s 14(1) and Part VIII of the SRC Act, to pay compensation, in accordance with that Act, to the applicant in respect of a mental “injury”, namely, major depressive disorder, deemed to have been sustained by him on 2 February 2011.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member .....(sgd) T Freeman................
Administrative Assistant
Dated 15 February 2013
Dates of hearing 26, 27, 28 November 2012 Date final submissions received 23 January 2013 Representative of the Applicant Ms I Siljanoska Solicitors for the Applicant Slater & Gordon Representative of the Respondent Mr B Dube Solicitors for the Respondent Sparke Helmore
- AGLC
- Benjamin Smith and John Holland Pty Ltd [2013] AATA 73
- Case
- [2013] AATA 73
- Decision Date
CaseChat Overview and Summary
The Tribunal had to decide whether the injuries suffered by Smith were compensable under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The Tribunal found that Smith's anosmia and loss of taste were not compensable injuries under the SRC Act as they did not result in incapacity for work. However, the Tribunal found that Smith's major depressive disorder was a compensable injury under the SRC Act. The Tribunal concluded that the respondent was liable to pay compensation to Smith for his major depressive disorder, which was deemed to have been sustained by him on 2 February 2011.
The Tribunal affirmed the decision under review regarding the liability to pay compensation for incapacity for work. However, the Tribunal set aside the decision under review regarding the liability to pay compensation for major depressive disorder. Instead, the Tribunal decided that the respondent was liable to pay compensation to Smith for his major depressive disorder. The Tribunal's decision was based on the evidence presented by both parties, including medical reports, witness statements, and expert opinions. The Tribunal found that the evidence supported the conclusion that Smith's major depressive disorder was a compensable injury under the SRC Act.
In conclusion, the Administrative Appeals Tribunal decided that John Holland Pty Ltd was liable to pay compensation to Benjamin Smith for his major depressive disorder, which was deemed to have been sustained by him on 2 February 2011. The Tribunal affirmed the decision under review regarding the liability to pay compensation for incapacity for work but set aside the decision under review regarding the liability to pay compensation for major depressive disorder. The Tribunal's decision was based on the evidence presented by both parties and the applicable provisions of the SRC Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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