Re Margaret Nancy Smart and Commonwealth of Australia [1984] AATA 394 (13 September 1984)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: MARGARET NANCY SMART
And: COMMONWEALTH OF AUSTRALIA
No. V83/334
Compensation

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
GENERAL ADMINISTRATIVE DIVISION
I.R. Thompson (Deputy President)

CATCHWORDS

Compensation - essential mild hypertension - aggravated by acute stress reaction caused by employment - aggravation only temporary - incapacity total while aggravation having effect

Compensation - mental injury - acute stress reaction caused by work - some symptoms persisting - resulting pre-disposition to react to stress more than before - employee suffering from essential hypertension - acute stress reaction likely to increase risk of cardiac or cerebral catastrophe - incapacity to do work involving stress

Compensation (Commonwealth Government Employees) Act 1971 ss.45(2A), 45(7), 46, 46(3), 64(3)

HEARING

CANBERRA
13:9:1984

ORDER

1. The determination under review is set aside and the matter is remitted to the Commissioner for Employees' Compensation for reconsideration in accordance with directions:-

(a) that from 19 March 1978 to 18 September 1978

inclusive the applicant was totally
incapacitated for work as the result of the
aggravation of a disease, namely essential
hypertension, by her employment, that her
employment by the Commonwealth was a factor
contributing to the said incapacity and that the
Commonwealth is, therefore, liable to pay her
compensation in accordance with the provisions
of section 45 of the Compensation (Commonwealth
Government Employees) Act 1971 in respect of the
said incapacity; and

(b) that from 19 September 1978 to date the
applicant has been, and is, partially
incapacitated for work as the result of an
injury, namely a mental injury, suffered by the
applicant and arising out of or in the course of
her employment by the Commonwealth, that
throughout the whole of that period she has
been, and is, able to earn the wages payable
from time to time to a Typist Grade 1 in the
Commonwealth Public Service, and that the
Commonwealth is liable to pay her in respect of
the said incapacity compensation in accordance
with the provisions of section 46 of the said
Act.

2. The Commonwealth shall pay the applicant the costs of these proceedings incurred by her but the manner in which the quantum of those costs is to be calculated is to be the subject of a further decision of the Tribunal after counsel for both parties have had an opportunity to address the Tribunal on that matter.

DECISION

1. The applicant is now 59 years old; she is unmarried. On 16 March 1958 she was retired from the Public Service on the recommendation of a Commonwealth Medical Officer, who reported that she was suffering from an anxiety state and hypertension and was "unfit for employment in her present duties or in any other duties". In March 1982 she lodged a claim for compensation under the Compensation (Commonwealth Government Employees) Act 1971 ("the Act") stating the nature of the injury or disease which gave rise to the entitlement to compensation as "aggravation and acceleration of hypertension and atherosclerosis". The claim was rejected by a delegate of the Commissioner for Employees' Compensation ("the Commissioner") on 15 April 1983. That is the determination under review in these proceedings.

2. On the hearing of the application for review the documents which had been available to the Commissioner's delegate were received in evidence. They included the report of the Commonwealth Medical Officer in which the applicant's retirement on medical grounds was recommended, a medical report by the applicant's general practitioner, Dr D. Berman, dated 9 February reset 2 1978 in which he said that she needed "to cease work in the near future to aid her recovery" from hypertension, a later report by Dr Berman dated 29 March 1982 in which he expressed the opinion that her hypertension had been aggravated by tension and pressures at work, and a report dated 18 January 1983 by a medical referee, Dr J. E. Cahill, who is a consultant physician and who stated that there was no firm evidence to support a claim that the applicant's hypertension had been accelerated or aggravated by the tensions associated with her work. Reports of examinations of the applicant by medical practitioners after the date of the determination were also tendered. They included reports by two psychiatrists, Dr N. E. Parker and Dr P. Grainger-Smith, dated respectively 13 May 1984 and 13 April 1984 and reports by Dr P. J. Nestel, the head of the Cardiovascular Metabolism and Nutrition Research Unit at the Baker Medical Research Institute, and by Dr Cahill, dated respectively 20 June 1984 and 16 May 1984. Also tendered in evidence were records of readings of the applicant's blood pressure at various times from 1967 to April 1984 and certificates given by Dr Berman and his locum tenens, Dr Rosenblum, in January 1970 relating to a short period during which the applicant's hypertension was such that she was regarded by them as unfit for work. Oral evidence was given by the applicant, Dr Nestel and Dr Cahill.

3. The applicant began her working life in about 1940 and throughout it worked as a stenographer and typist. She entered the service of the Commonwealth in 1942 and worked in the Taxation Department until 1954. She was then transferred on promotion to the Department of Health, where she remained until 1958. In 1958 she resigned from the Public Service and, after taking long service leave, worked for various private employers until 1965. In that year she rejoined the Public Service and worked in the Repatriation Department from then until her retirement in March 1978.

4. She gave evidence, which was not challenged, that when she started work in the Repatriation Department she worked for about six months for the First Assistant Commissioner, Treatment Services. After that she went on promotion to become Typist-in-Charge of the Department's typing pool. After two years in that post she returned, but at a higher level than before, to work for the First Assistant Commissioner. In December 1969 the Head Office of the Department moved from Melbourne to Canberra. She remained in Melbourne and transferred into the Department's Appeals Division, where she worked as secretary for one First Assistant Commissioner and two Assistant Commissioners doing the secretarial work required by whichever one of them happened to be in Melbourne at any particular time. In 1975 the appeals system was altered so that reasoned decisions had to be given. As the Assistant Commissioners were required to deal with eight or more cases a day, the change greatly increased the amount of work which the applicant had to do. She gave evidence that she worked under considerable pressure during the period of two years when she was in charge of the typing pool and also from 1975 onwards. When the certificate was given by Dr Berman in September 1967, she was in charge of the typing pool.

5. She said that the constant pressure of her work from 1975 to March 1978 produced in her a number of symptoms. She became aware of feeling constantly tired and so exhausted that sometimes she would spend most of a weekend in bed recovering in order to be able to resume work on Monday. As a week progressed the tiredness accumulated. She lived on her own and cooked her own meals; on occasions she was too tired to cook a proper meal in the evening after returning home from work. She also suffered, she said, from severe headaches which started at the top of the head and radiated down the right side of her head and face with pains behind the eyes and the ears. She said that those pains came on in the mid to latter part of the afternoon. They were associated by her with pressure at work and intensified as the week progressed. Sometimes they carried on into the evening after she had stopped work for the day but they did not start until the afternoon. At weekends when she was relaxed she had no headaches.

6. The pattern of symptoms remained the same over the three years from 1975 to March 1978 but became more intense as time went on. She said that as a result she became irritable and nervy; she was "snappy" to her friends. She said that since she had ceased work her irritability was "not so pronounced", that she felt better without the stress but that, if she was upset about anything, she still got headaches and she still needed a lot of rest. She had not attempted to obtain other employment since being retired in March 1978 as she believed that she was not permitted to do so. She said that she would not be able to return to the work which she had been doing, that she would find the pressures difficult to withstand and she doubted whether she would be fit to do typing work because she had had tenosynovitis in her wrists "years ago". That would prevent her doing anything quick or repetitive. She said also that she no longer had the power to concentrate. She had never done clerical work. She agreed, however, that her health was now fair and that there were no medical conditions which affected it adversely at present. Questioned about her assertion that she had had tenosynovitis some years ago, she said that in 1955 she had submitted a claim for workers' compensation for aggravation of a ganglion at the base of the middle finger of her left hand. She had not had to stop work because of it but had to receive medical treatment. Her claim for reimbursement of the medical expenses had been accepted. She had claimed in respect of a ganglion in the other hand in about 1968 or 1969 but that claim had been rejected.

7. There is no doubt that emotional stress can cause elevation of blood pressure in a person who is hypertensive. Both Dr Nestel and Dr Cahill agreed that that was so. They both agreed also that the applicant's blood pressure readings recorded in the documents tendered in evidence indicated that, at least since the age of about 40, she had been suffering from mild essential hypertension. It appears that, when she was examined for the purpose of admission to the Government's superannuation scheme during the 1940's, she was found initially to have an elevated level of blood pressure but after she lay down for some time it was at an acceptable level. Neither Dr Nestel nor Dr Cahill regarded that as significant, as it is not unusual for persons undergoing medical examinations for such purposes to have a higher level of blood pressure than normal because of the stress of the situation. Neither of them regarded it as at all likely that her hypertension was the result of kidney disease, even though she had suffered from pyelitis in her youth. They said that, if that had been the cause, the hypertension would have developed and become considerably more serious. In his written report Dr Nestel stated that the applicant "does not have any obvious complications of long standing hypertension" and noted that her hypertension was controlled with mild therapy, that is to say only a diuretic. I find as fact that she has suffered since the mid 1960's from essential mild hypertension and is still suffering from it. I have no doubt that the stress of her work elevated her blood pressure early in 1978 to a level which, if it had been sustained, would have appreciably increased the risk of a cardiac or cerebral catastrophe. However, there is no evidence that it has had any continuing effect on her hypertension in the longer term. She suffers now, I am satisfied, only from essential mild hypertension which has not been caused, and is not contributed to, by her employment.

8. Dr Parker, who examined the applicant at the request of her solicitor for the purpose of these proceedings, expressed an opinion that she "has had anxiety symptoms" but "is not suffering from any psychiatric disturbance at the present time". He considered that, if she were returned to a stressful job, her symptoms would redevelop. Dr Grainger-Smith's opinion was similar. He said that it appeared that she "suffered an acute stress reaction at the time that she was superannuated". However, she had recovered from that and "is now only minimally incapacitated by complaints of stress and tension". He said that "she is now left with symptoms of tension, episodic nerviness etc. which are of such mild intensity as to be unworthy of medical consideration". He said that no treatment was necessary. Dr Parker expressed the opinion that "provided all goes smoothly for her in the future, I cannot picture her ever needing psychiatric treatment".

9. There is no evidence before the Tribunal from which it can properly reach the conclusion that the applicant's essential hypertension was caused or contributed to by her employment; it was aggravated from time to time by the stress of her work but only temporarily. However, the weight of the evidence regarding her mental condition is that the acute stress reaction which she suffered as the result of the pressures put upon her by her work has left her with some symptoms and with a pre-disposition to react to stress more quickly and to a greater extent than if she had not suffered that reaction. I am satisfied, therefore, that her employment was a factor contributing to her present mental condition. If she were now to suffer stress reaction, it would almost certainly result in an elevation in the level of her blood pressure; that would substantially increase the risk of a cardiac or cerebral catastrophe. Consequently, she is incapacitated for work which might cause her to suffer such a stress reaction; that incapacity is the result of the contraction of the mental condition, which was contributed to by her employment.

10. Her counsel, Mr Spittle, submitted that she was now totally incapacitated for work. He pointed out that in March 1978 she was not transferred to a less stressful job but was retired, and that the Commonwealth Medical Officer expressed the opinion that she was not fit to do any other job in the Public Service. The opinion of the Commonwealth Medical Officer, however, is only part of the evidence which the Tribunal has before it. I am satisfied that in fact his opinion that she was not fit for any other work in the Public Service was wrong. The applicant has not sought any other work in the Public Service and, as the Commonwealth's knowledge of her medical condition up to the time she submitted her claim for compensation would have been based solely on the opinions of the Commonwealth Medical Officer and Dr Berman, I am unable to draw from its failure to re-employ her in any other job a conclusion that she does not have capacity to do less stressful work in the Public Service.

11. I do not accept her assertion that she is unable to do typing work because of tenosynovitis. She continued to do such work for 22 years after her first claim in respect of aggravation of a ganglion and for 9 years after her second claim. The medical records maintained by Dr Berman, which were before the Tribunal, do not contain a record of any complaint by her to him of problems with her wrists or arms, nor was there any reference to such problems in the report of the Commonwealth Medical Officer. During the last three years before her retirement she was required, she stated in her evidence, to do a very large amount of typing work very quickly. If she had been suffering from tenosynovitis, it could have been expected that she would, at the very least, have complained of it at that time. She displayed no lack of concentration when giving evidence. I find, therefore, that there is no physical reason why she should not be able to do typing work now. She would not be able to do any job which subjected her to pressure such as she worked under during her last three years before retirement; but there are many typing jobs both in the Public Service and outside it where such pressure does not exist. I am satisfied that she has the capacity now to do such work.

12. Both Dr Nestel and Dr Cahill agreed that there would have been a period of 3-6 months immediately following the applicant's retirement when she needed a complete break from work to recover from the acute stress reaction which had developed because of the pressure of her work. I am satisfied that during that time she was totally incapacitated for work. Thereafter, however, she ceased to be totally incapacitated and was only partially incapacitated. Giving her the benefit of the doubt which exists as to the length of the period for which she remained totally incapacitated, I find that she is entitled to receive compensation under section 45(2A) for the period of six months from 19 March 1978 to 18 September 1978. I find also that she has been, and is, entitled to receive compensation under section 46 of the Act for partial incapacity for work from 19 September 1978 to date. I find also that throughout the whole of that period she has been, and she is now, able to earn the wages of a Typist Grade 1 in the Commonwealth Public Service. I consider that there is a risk which it would be unreasonable to require her to take that employment at any higher grade might expose her to stresses which might adversely affect her hypertension.

13. In view of the circumstances of the applicant's retirement it appears that she is probably in receipt of a pension under a superannuation or provident fund established or maintained by the Commonwealth. No evidence of that was given in these proceedings. However, if that is the case, the provisions of sections 45(7) and 46(3) will be required to be taken into account in calculating the amounts which she has been, and is, entitled to receive under the provisions of sections 45 and 46 for her incapacity for work.

14. As the Tribunal does not have details of the salary scales of Typists Grade 1 in the Public Service and is uncertain whether or not the provisions of sections 45(7) and 46(3) are to be applied, it is necessary that the matter be remitted to the Commissioner for him to ascertain those facts and calculate the amounts of the compensation in accordance with what he ascertains. That being so, the Tribunal is required by section 64(3) of the Act to order that the costs of the proceedings before it incurred by the applicant shall be paid by the Commonwealth. However, at Mr Spittle's request I directed at the end of the hearing that questions relating to the quantum of costs should be decided only after the decision on the merits of the application had been given and counsel for both parties had had the opportunity of addressing the Tribunal on those questions. Accordingly I make no order at this stage in respect of the quantum of the costs.