Attalla and Comcare (Compensation)

[2015] AATA 611

Attalla and Comcare (Compensation) [2015] AATA 611 (19 August 2015)

Division	General Division
File Number(s)	2014/2321
Re	Moetaz Attalla
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	19 August 2015
Place	Sydney

IT IS DECIDED that:

1.    the reviewable decision, being the decision of Comcare made 16 April 2014 denying Dr Attalla’s claim for compensation for a depressive disorder, is set aside;

2. in substitution for the decision set aside, it is decided that Comcare is liable to pay to Dr Attalla compensation in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a chronic adjustment disorder with depressed and anxious mood, suffered in February 2012 and continuing to the date of this decision;

3.    within 14 days of the date of this determination, each party may apply to the Tribunal for orders in relation to costs;

4.    should neither party apply in accordance with the preceding direction, the costs of the proceedings incurred by Dr Attalla are to be paid by Comcare.

..............................[sgd]..........................................

Deputy President J W Constance

Catchwords

COMPENSATION – injury – disease – ailment – reasonable administrative action - whether condition a result of reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5A(2), 5B, 14

Cases

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. Dr Attalla was employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) as a scientist for more than 28 years. 

2. In November 2013, Dr Attalla made a claim for compensation alleging that he suffered a mental injury arising from his employment.  This claim was refused by Comcare.

3. In May 2014, Dr Attalla applied to this Tribunal to review Comcare’s decision.  For the reasons which follow, the decision under review will be set aside and in substitution it will be decided that Comcare is liable to compensate Dr Attalla in respect of the injury.

   BACKGROUND

4. Dr Attalla is 55 years old. He holds a Bachelor of Science (Chemistry) degree awarded with Honours and is a Doctor of Philosophy.

5. Dr Attalla commenced employment with CSIRO as a university graduate in 1985. During his employment he worked in several different research areas and was promoted to the position of Principal Research Scientist. He worked continuously for the Organisation until October 2013, when he was made redundant. The redundancy was involuntary.

6. Between 2005 and 2010, Dr Attalla worked in the area of Post-Combustion Carbon Capture.  In the role of Research Project Leader, he set up projects, appointed research staff and supervised research activities. He also acted as a Research Team Leader, mentoring staff and reporting to management on personnel matters. From the time of his initial employment until mid-2007, Dr Attalla did not experience any significant problems in his relationships with his co-workers or the management of the Organisation.

7. From 2007 onwards, CSIRO operated under a matrix management structure.  The Input/Capability section of the Organisation managed the development of the capability to support projects with appropriately skilled staff, equipment and facilities. The Output, or Scientific Outcomes, section managed the budgets, objectives and delivery of particular projects.  The role of Research Team Leader was part of the Input/Capability side; the role of Research Project Leader was part of the Output (Scientific Outcomes) side.

8. In June 2007, Dr Feron was recruited by the Organisation to head its post-combustion capture research. When first appointed, Dr Feron held a management role equivalent to that of Dr Attalla. From soon after Dr Feron’s appointment, the working relationship between he and Dr Attalla was poor, with each man blaming the other for the difficult situation which arose between them.

9. In October 2007, Dr Feron was appointed Stream Leader Post-combustion CO2-capture in the Output section of the management matrix. As such, he became the immediate supervisor of Dr Attalla.

10. Despite the efforts of other managers within the Organisation, the relationship between Dr Attalla and Dr Feron deteriorated from the time Dr Feron was appointed to the Stream Leader position. Following an incident in February 2012 between Dr Attalla and Dr Feron, Dr Attalla had difficulty coping with his work environment and his performance deteriorated markedly.   Dr Attalla gave evidence at the hearing that in early 2012 he was appointed to a steering committee. In February of that year, Dr Attalla sought out Dr Feron to inform him of his appointment.  Throughout the entire conversation, Dr Feron was “very tense, very aggressive”. He rebuked Dr Attalla for not informing him of the appointment earlier. When Dr Attalla asked Dr Feron why he had been refused a trip to a conference in Abu Dhabi, Dr Feron replied “You go and have your heart attack at another conference”.[1] Following the incident, Dr Attalla felt that he was “finished”.[2] He described the situation as follows:

    I would come to work late, at around 10 – 11 am, and spend a few hours reading emails and surfing the Internet. I would then go to lunch with some of my colleagues and leave work at around 2 – 3 pm. After this, I would often go somewhere to take photographs to escape from my work situation. I was in a bad state both physically and mentally and this routine became my working day for the remainder of the year.[3]

    [1] Transcript 07/04/15, p.44-45.

    [2] Exhibit A1 para. 32.

    [3] Exhibit A1 para.33.

11. From the time of the employment of Dr Feron in June 2007 until Dr Attalla ceased to work for the Organisation in October 2013 there were several incidents (some, but not all, of which involved Dr Feron), which Dr Attalla perceived to be instances of unfair treatment of himself by his employer. Detailed evidence was given of many of these incidents during the hearing of this matter. It is unnecessary that I make findings as to what actually happened during these incidents or whether any particular person or persons were at fault. I am satisfied that Dr Attalla was an honest witness who gave his evidence to the best of his recollection and that he genuinely felt aggrieved by reason of events which occurred in his workplace.

12. On the basis of evidence to which I will refer in detail later in these reasons, I am satisfied that in about February 2012 Dr Attalla fell ill and was later diagnosed as suffering chronic adjustment disorder with depressed and anxious mood. He has continued to suffer a psychological ailment, however described, since that time.

    DR ATTALLA’S CLAIM FOR COMPENSATION

13. On 4 November 2013, Dr Attalla lodged a claim for workers compensation.[4]  In that claim he stated that the illness for which he was claiming compensation was “clinical depression secondary to work related stress.” He described the event which caused his illness as follows:

    Over several years I have sustained/endured a brutal campaign of Bullying [sic] and harassment by CSIRO management.

    [4] Exhibit R1 p.9.

    THE RELEVANT LEGISLATION

14. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:

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

15. Injury is defined in subsection 5A(1) of the Act.  The relevant part of the definition reads:

    injury means:

    (a)       a disease suffered by an employee …

    …

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s  employment.

16. Subsection 5A(2) provides:

    (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

    (a) a reasonable appraisal of the employee's performance;

    (b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;

    (c) a reasonable suspension action in respect of the employee's employment;

    (d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;

    (e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);

    (f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

17. Disease is defined in section 5B to mean:

    (a)an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

18. In subsection 4(1) ailment  is defined:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

COMCARE’S POSITION

1. Counsel for Comcare stated succinctly his client’s position in the Respondent’s Outline of Submissions dated 1 May 2015:[5]

   In short, the Respondent [accepts] that the Applicant suffered an ailment to the cause or aggravation of which his employment with CSIRO relevantly contributed. The ailment therefore met the definition of “disease” under the Safety, Rehabilitation and Compensation Act 1988 … However, in order for the disease to be an “injury” and thus compensable under s 14 of the ….Act, his disease could not have been suffered “as a result of” (in part or whole) “reasonable administrative action taken in a reasonable manner in respect of [his] employment” … The Respondent contends that the condition for from which the Applicant suffered was as a result of (among other causative elements) four materially contributing [reasonable administrative action] events…

   If the Applicant’s condition be found to have resulted from one or more of the materially contributing events it is the Respondent’s submission that [he] would be excluded from entitlement to compensation under s 14 of the ….Act…

   [5] Respondent’s  Outline of Submissions p.1-2.

2. The events which Comcare relies on as being “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” within the definition of “injury” in section 5A are:

   (a)the decision in June 2010 that the Applicant would report directly to Dr Paul Feron as his Group Leader;

   (b)the decision rejecting the Applicant’s application to travel to a conference in Abu Dhabi in April 2011;

   (c)the decision conveyed to the Applicant on 8 November 2012 that as part of a re-structure he would no longer occupy a role as a Team Leader in PCC; and

   (d)the decision rejecting the Applicant’s application in December 2012 to travel to a conference in the US.[6]

   [6] Respondent’s  Outline of Submissions p.2.

   ISSUES FOR DETERMINATION

3. As Comcare has conceded that Dr Attalla has suffered, and continues to suffer, a disease (being a mental disorder) the issues which remain to be determined are set out below.

   (1)What is the correct diagnosis of the disease suffered by Dr Attalla?

   (2)When did he suffer the disease?

   (3)Was the disease suffered partly or wholly “as a result of reasonable administrative action taken in a reasonable manner in respect of Dr Attalla’s employment by CSIRO?

   REASONING

   Issue 1: What is the correct diagnosis of the disease suffered by Dr Attalla?

4. Evidence as to Dr Attalla's mental state was given by Dr Allnutt and Dr Synott.  At the hearing they gave their evidence concurrently.

   Evidence of Dr Allnutt, Senior Consultant Forensic Psychiatrist

5. Dr Attalla was assessed by Dr Allnutt in June 2014 at the request of Dr Attalla's Solicitors.  He provided reports dated 9 July 2014[7] and 13 September 2014[8] and gave evidence.

   [7] Exhibit A3.

   [8] Exhibit A4.

6. In the opinion of Dr Allnutt, Dr Attalla was manifesting symptoms consistent with a major depressive episode at the time of his assessment.

7. When he gave evidence, Dr Allnutt said that in his opinion Dr Attalla suffered a chronic adjustment disorder with depressed and anxious mood by February 2012.  By the time Dr Allnutt assessed Dr Attalla in June 2014 his symptoms had worsened giving rise to the diagnosis of a major depressive episode.  The two conditions lie in the one spectrum of severity.[9]

   [9] Transcript 08/04/15 p.164.

   Evidence of Dr Synott, Consultant Psychiatrist

8. Dr Synott assessed Dr Attalla in September 2014 at the request of the solicitors for Comcare.  He provided a report dated 1 October 2014[10] and gave evidence.

   [10]  Exhibit R2.

9. In his report Dr Synott expressed the opinion that Dr Attalla suffered from a major depressive disorder with prominent anxiety when he was assessed in September 2014.  It was unclear when he first developed this condition. However Dr Synott did not agree with Dr Allnutt as to the diagnosis of Dr Attalla's condition in February 2012.  In Dr Synott’s view, Dr Attalla did not suffer from a psychiatric condition at that time, although he did suffer from common distress.  The psychiatric condition developed much later.[11]

   [11] Transcript 08/04/15 p.166-167.

   Clinical notes of Dr Zhuang, General Practitioner

10. Dr Attalla consulted his general practitioner, Dr Zhuang, on 16 February 2012, eight days after the meeting between Dr Attalla and Dr Feron.  Dr Zhuang’s notes record, in part:

    now under a lot stress due to harissment [sic] from work again, affecting his health, talked to previous GP Dr Ali, told just playing game with them, but affect him badly, requesting stress leave

    also feeling due to his obesity, has been [discriminated] etc

    Examination:

    Mental status examination, very talkative, anxious++, no obvious depression, no suicidal

    K10 score 18[12]

    [12] Exhibit R1 p.27.

11. Dr Attalla again consulted Dr Zhuang on 28 February 2012. At that time Dr Zhuang noted:

    Pt [Patient] is very stressed and anxious, perfused diaphrasis [sic], and not able to relax, continuing blame workplace/manager made him stressed, even he has been on leave for nearly 2 weeks now[13]

    [13] Exhibit R1 p.28.

    Report of Dr Connor, General Practitioner

12. Dr Connor was initially consulted by Dr Attalla in May 2013. Dr Connor is in the same medical practice as Dr Zhuang.  In a report dated 4 December 2013[14] Dr Connor said:

    Looking back through the notes, unfortunately, his old Dr passed away, so the notes were hard to decipher and obtain. But my understanding is that his condition started 7 – 8 years ago, and formally was diagnosed with depression in February 2012 this time round through Dr Zhuang.

    Diagnosis was formulated on the basis of patient losing interest and [sic] enjoyable activities, early morning wakenings, loss of libido, lack of self care, tiredness and lack of motivation and energy.

    From my understanding throughout reading through Dr Zhuang’s notes and my own consultation with Dr Attalla, the history started approximately 7 years ago with work related stress. But this climaxed around the time when he saw Dr Zhuang in February 2012.[15]

    [14] Exhibit R1 p.25

    [15] Exhibit R1 p.25.

    Consideration

13. On the basis of the evidence of Dr Allnutt, I am satisfied that in February 2012 Dr Attalla suffered an adjustment order with depressed and anxious mood. In this regard I prefer his evidence to that of Dr Synott who was of the view that at that time, and for a considerable time thereafter, Dr Attalla only suffered from stress.

14. I have preferred Dr Allnutt’s view as it is consistent with the marked deterioration in Dr Attalla's health and conduct from February 2012 onwards. It is also consistent with Dr Attalla having consulted his general practitioner shortly after the meeting with Dr Feron at which Dr Feron told him to “go and have your heart attack at another conference”. I am satisfied that Dr Attalla found this discussion extremely distressing.  Dr Zhuang made specific note of the high level of anxiety suffered by Dr Attalla at that time.

15. Taking into consideration the evidence of both Dr Allnutt and Dr Synott, and the deterioration in Dr Attalla’s attitude to his work, as well as his conduct in the workplace, after February 2012, I am satisfied that his condition was a mental disorder and therefore an “ailment” within the meaning of section 4 of the Act.

16. Dr Synott acknowledged that “Dr Allnutt has given a perfectly valid legitimate reason to make the diagnosis of adjustment disorder at the time when he made that decision, which is February 2012. I think it is a legitimate genuine reason to say that, and you could defend that.”[16]  Dr Synott went on to say that his own view was equally defensible.

    [16] Transcript 08/04/15 at p.166.

17. Both Dr Synott and Dr Allnutt agreed that Dr Attalla's:

    ... current psychological symptoms appear to have first become significant around February of 2012, and that they have continued since then to the present day, or until when [ they] saw him last. There may have been some degree of fluctuations in the sense that there might have been some modest to mild improvement when he went off work for a while.[17]

    I accept this evidence and find accordingly.

    [17] Transcript 08/04/15 at p.163.

    Issue 2:  When did Dr Attalla suffer the adjustment disorder?

18. On the basis of the evidence of Dr Allnutt and for the reasons set out in the preceding five paragraphs, I am satisfied that Dr Attalla suffered the adjustment disorder in February 2012 and that he has continued to suffer this condition.

    Issue 3.1:  Was the adjustment disorder suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [Dr Attalla's] employment ” by CSIRO, in particular by the decision in June 2012 that Dr Attalla was to report to Dr Feron?

19. In Commonwealth Bank of Australia v Reeve[18] the Full Court of the Federal Court considered what was meant by “administrative action” in the context of section 5A of the Act.  In delivering the majority decision, Rares and Tracey JJ said:

    The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as in s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment.[19]

    [18] [2012] FCAFC 21.

    [19] [2012] FCAFC 21, [60].

    3.1.1    The CSIRO management structure

20. The management structure known as the CSIRO Matrix was implemented in 2007 and was the structure in place at all times relevant to these proceedings.

21. The CSIRO Matrix is characterised by two parallel hierarchies. On the one side is the Input/Capability structure, and on the other the Output structure. The “INPUT/CAPABILITY – [People and Resources]” structure manages the development of appropriate capability (staff, equipment and facilities) to support projects. It is also referred to as “Line Management”. The hierarchy of management is:

    ·Division – Chiefs

    ·Program – Research Program Leader

    ·Groups – Research Group Leader

    ·Teams – Research Team Leader.

1. The other side of the structure is “OUTPUT – [Scientific Outcomes]”, which manages project outcomes (budgets, objects and delivery).  The hierarchy of management is:

   ·Flagships (Directors)/Portfolios (Chiefs);

   ·Themes – Theme Leader;

   ·Streams – Stream Leader;

   ·Projects – Research Project Leader.

   3.1.2    The evidence of Dr Feron

2. Dr Feron was appointed to the position of Stream Leader Post-combustion CO2-capture in the Energy Transformed Flagship in October 2007. At the time, Dr Attalla was a Research Project Leader within the Stream.

3. In November 2009, Dr Feron was appointed as Research Group Leader in the Input/Capability section of the matrix. Dr Attalla was one of the four Research Team Leaders in the group. This made Dr Feron Dr Attalla's Capability Leader and direct supervisor. At the same time he was appointed a Stream Leader in the Output section of the matrix.  This was a continuation of his previous Stream Leader role. Dr Attalla continued in his Research Project Leader in the Output section.

   3.1.3    The evidence of Dr Attalla

4. Dr Attalla said that in 2010 Dr Feron was given the positions of his Stream Leader, Capability Leader and his Line Manager. He protested to management at the time the appointment was made that it was unreasonable given their openly dysfunctional relationship. So far as Dr Attalla was aware, no action was taken to review the situation. He complained to his general practitioner about his stressful work situation at the time but he did not take any time off work.

   3.1.4    The evidence of Dr Smitham, Deputy Director CSIRO Energy Flagship

5. At the time Dr Feron was recruited there was a lot of interest in post-combustion carbon capture.  Dr Feron brought to the Organisation his international reputation and his years of experience in this field in Europe.  It was always the intention of management to appoint him to roles on both sides of the management matrix.

6. During the first two years following Dr Feron’s appointment in 2007, he was not Dr Attalla’s direct line manager in the Capability section.  During this time, Dr Smitham became aware of the conflict between Dr Attalla and Dr Feron.  In his role as a Deputy Director on the Output side of the matrix, Dr Smitham spoke to both Dr Attalla and Dr Feron on several occasions in an endeavour to resolve the differences between them.  He was aware that others within the Organisation were attempting to achieve the same result. 

7. Dr Smitham agreed that it was probable that he recommended that Dr Feron be appointed to be Dr Attalla’s line manager on both sides of the matrix.  It was the intention of management to give Dr Feron the power to impose his views on some issues.  Dr Smitham accepted that it was a strategy that was likely to cause further conflict.  At some stage Dr Smitham took on part of the role of Dr Attalla’s line manager in place of Dr Feron in order to reduce the possibility of conflict. This was an unusual arrangement implemented to deal with the particular situation.

   3.1.5    Consideration of Issue 3.1

   Was the appointment of Dr Feron as Dr Attalla’s supervisor “reasonable administrative action”?

8. Taking into account all of the evidence to which I have referred, I am satisfied that CSIRO’s action was reasonable administrative action. 

9. The action was administrative in that it was the appointment of Dr Feron to positions within the matrix structure. 

10. The administrative action must be reasonable.  It does not need to be shown to be the best action which could be taken or that it was the action most likely to succeed in bringing about a harmonious relationship between those involved.

11. In my view the action was reasonable in that it was taken after management had tried for two years to establish a proper working relationship between two senior members of its staff without success.  It was reasonable then to act to put one of those men, in this case Dr Feron, in a position to be able to exercise management authority over the other as a means of ensuring the efficient operation of the Organisation’s business. The fact that Dr Attalla strongly disagreed with this course, and the fact that Dr Smitham was of the view that it was likely to cause further conflict, does not make the action unreasonable.  I am satisfied that management acted in good faith and took the action it did in what was perceived to be the best interests of the Organisation.

    Was the action “taken in a reasonable manner”?

12. Based on the evidence, I infer that the appointment process was carried out in accordance with the Organisation’s normal practices.  Dr Smitham probably recommended the appointment of Dr Feron to the roles.  There is no suggestion that he was not a person with the authority to do this.  He had the experience of working with both Dr Attalla and Dr Feron.  On this basis, I am satisfied that the appointment of Dr Feron was action taken in a reasonable manner.

    Was the action taken “in respect of the employee’s employment”?

13. Guided by the principles stated in Reeve v Commonwealth Bank of Australia, I am satisfied that the administrative action was taken in respect of Dr Attalla’s employment.

14. The appointment of Dr Feron as Dr Attalla’s Line Manager and Stream Leader put Dr Feron in a position to directly manage the work Dr Attalla was employed to undertake.  I am satisfied therefore that the action was “directed to the person’s employment itself”.[20]  It was not action which could be described as part of Dr Attalla’s everyday duties or tasks.

    [20] Commonwealth Bank of Australia v Reeves, supra.

    Was the condition suffered by Dr Attalla “suffered as a result of” the administrative action?

15. In Commonwealth Bank of Australia v Reeve, Rares and Tracey JJ. said:

    The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1), involves the formation of a judgement as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee’s employment.[21]

    [21] Supra, at para 65.

    Dr Attalla’s evidence

16. In a statement made in December 2013, shortly after he lodged his claim for compensation, Dr Attalla  stated:

    With his reported continued complaining to management regarding wanting to “control me”, 3 years ago Dr Feron was given the position of being my Stream Leader, Capability Leader and my Line Manager. I protested at the time that this was unreasonable action against me given our openly conflicted relationship. I stated to management at the time that this was inappropriate action given Dr Feron’s personal and professional attitude towards me. Management took no action at the time to review or change the situation.

    As a result of this divisional arrangement I had lost my position as Capability Leader. This move had a detrimental impact on my health.[22]

    [22] Exhibit R1 p.46.

17. When he gave evidence, Dr Attalla resiled somewhat from the position that the appointment of Dr Feron had affected his health.

18. The following exchanges took place between Dr Attalla and his Counsel:

    Counsel:So when he became your line manager – let’s use that term for a moment – did that change anything? Did anything get better or worse?

    Dr Attalla:not – not really. It didn’t – it didn’t change anything but I tried – I tried to work within – within that new structure. But nothing changed, he could – he could now chop and change projects. Anything I did could be removed. Anything I did and he wasn’t happy with it could be removed from me.[23]

    ……

    Counsel:what I’m asking you is, by the time you get to the end of 2010, how are you feeling?

    Dr Attalla:just things were moving forward. Things were working. I was doing what I could to try to keep my career moving forward. You know, there were some setbacks.

    Counsel:how did the setbacks make you feel generally?

    Dr Attalla:I mean, there was some level of stress to them.

    Counsel:What did you do at that stage about that?

    Dr Attalla:I don’t know. I just had some discussions, I guess, with my GP but nothing – there was nothing – you know, it was disappointing. I felt stressed. I was hoping that things would change.[24]

    [23] Transcript 07/04/15 at p.24.

    [24] Transcript 07/04/15 at pp 24 and 36.

19. In the statement made by Dr Attalla on 13 August 2014 for the purpose of these proceedings, he said:

    ... in about 2010, Dr Feron was given the position of being my Stream Leader, Capability Leader and Line Manager. I protested to management at the time that this was unreasonable action against me given our openly dysfunctional relationship but no action was taken to review the situation. I also made complaints to my general practitioner, Dr Ali, about my stressful work situation around this time. However, I did not require any time off work and was not certified as such.[25]

    [25] Exhibit A1 para.8.

    The evidence of Dr Allnutt and Dr Synott

20. As to causation, Dr Allnutt and Dr Synott agreed that it was Dr Attalla’s:

    ...perception that it was the workplace situation that caused it.  … The dominant feature was his relationship with his direct line supervisor … but there were other factors as well, and they are alluded to in his statements. But in essence the broad sense is the workplace issue, difficulties in the workplace and what he felt was unfair treatment in the workplace visited upon him on numerous occasions, but particularly driven by his direct line supervisor.[26]

    [26] Transcript 08/04/15 p.163.

21. When asked about particular incidents which may have contributed to his mental disorder, Dr Synott said that Dr Attalla identified the behaviour of his senior line manager as a major problem. Dr Allnutt said that he did not take any particular significant history, but rather he took a summary of the kind of things that Dr Attalla perceived were happening between him and his line manager.  On 1 October 2014, Dr Synott reported that Dr Attalla nominated “his interpersonal relationship with his direct line manager” as the cause of his workplace problems.[27]

    [27] Exhibit R2 p.2.

22. In the opinion of Dr Allnutt, it was the incident in February 2012 that “tipped him over the edge … he is fixated with that date, and he is fixated on that issue, based on the information he gave me, as the starting point. He was grumbling beforehand but the starting point of his decline, the devastation and then the persistence after that.”[28] 

    [28] Transcript 08/04/15 p.175.

23. When questioned further as to incidents which contributed to Dr Attalla’s psychological condition, Dr Allnutt agreed with the proposition put to him that “a further matter which weighed upon him heavily, in terms of his psychological condition, was the fact that there had been appointed to his line manager position a person with whom he had by then experienced some years of an unhappy relationship.” [29]  However, later Dr Allnutt said that:

    ... having a person made your direct line supervisor is not a stressor that could cause you to become depressed. The context of it might, and the quality of your relationship with that supervisor afterwards might. ... . So the being made a supervisor, I wouldn’t see as a significant stressor enough to make you become depressed. But now a supervisor, and engaging in a negative way and if it is bringing an arrestment that is the conclusion, then yes, that could cause depression. And that experience of that would then be made worse by the fact that you had this prior relationship. But it’s the quality of the relationship rather than the factor of being made supervisor. [30]

    [29] Transcript 08/04/15 p.177.

    [30] Transcript 08/04/15 at p.185-186.

    The reports of Ms Roberts, Consultant Psychologist

24. Ms Roberts commenced treating Dr Attalla in October 2013 on referral from Dr Connor. In a letter to Dr Connor dated 19 November 2013, Ms Roberts noted that Dr Attalla reported that the bullying and harassment isolated him and “dismantled” his work.[31]

    [31] Exhibit R1 p.23.

25. In a report dated 16 December 2013,[32] Ms Roberts responded to a question from Comcare as to specific incidents and/or factors that may have caused, contributed to, or aggravated Dr Attalla’s condition. She replied:

    Dr Attalla reports work related incidents of threatening conversations, excessive levels of supervision of his work, management taking research projects away from him and a variety of other workplace interactions which he indicates left him feeling worried for his job, the valued, and marginalised within his work community. These are the factors which Dr Attalla reports contributed to his feelings of depression and low mood.[33]

    [32] Exhibit R1 p.57.

    [33] Exhibit R1 p.60.

    Consideration

26. It was argued for Comcare that the administrative action was “an undeniable factor in the development of the Applicant’s condition”.[34]  Reference was made to Dr Attalla’s “incessant” complaining about the appointment of Dr Feron as his supervisor.

    [34] Respondent’s Outline of Submissions  1 May 2015.

27. I have reached the conclusion that the evidence does not support this proposition.

28. Dr Attalla did refer to the appointment of Dr Feron as having a detrimental effect on his health.  However, it is clear that at the time of the appointment, Dr Attalla was suffering considerable stress arising from his work environment and this statement is consistent with his experiencing this stress, rather than his suffering a diagnosable psychiatric condition.

29. On the evidence of Dr Allnutt and Dr Synott, the earliest onset of the condition was February 2012, 20 months after the appointment of Dr Feron as Dr Attalla’s supervisor in the Capability section.  On the case put by Comcare, the onset of the diagnosable condition was considerably later than the event which is said to have been a causative factor.  In addition, neither Dr Allnutt nor Dr Synott had taken a history of Dr Attalla complaining about the appointment in and of itself.

30. Neither the clinical notes kept at the Lake Macquarie Medical Centre[35] (where Dr Attalla sought treatment from Dr Connor and others) nor the reports of Ms Roberts indicate that he complained of the appointment of Dr Feron as distinct from the manner in which he was treated by him.

    [35] Exhibit R1 pp.25-39.

31. Comcare was specific in its contention that the condition from which Dr Attalla suffers was suffered as a result of the decision in June 2010 that he was to report to Dr Feron.  Whilst there is considerable evidence that the conduct of Dr Feron towards Dr Attalla caused, at least in part, the illness suffered by Dr Attalla, it was not argued by Comcare that this conduct was reasonable administrative action which amounted to an exclusory factor in accordance with section 5A of the Act.

32. I am not satisfied that the condition suffered by Dr Attalla  was suffered as a result of the decision made by CSIRO in June 2010 that he was to report to Dr Feron.

    Issue 3.2:       Was the adjustment disorder suffered “as a result of reasonable administrative action taken in a reasonable manner  in respect of [Dr Attalla’s] employment”  by CSIRO, in particular the rejection of Dr Attalla’s application to travel to the Abu Dhabi conference in April 2011?

33. Some time prior to April 2011, Dr Attalla submitted a request through the usual channels to attend a conference in Abu Dhabi.  The conference was relevant to the research he was undertaking.  His application was refused in April 2011.  Some in the management team expressed concern that Dr Attalla’s health may be adversely affected by the travel involved.

34. Dr Attalla gave evidence that he informed Dr Smitham that he was well enough to travel but chose not to pursue the issue further.  He was aware that four other members of staff were attending the conference and to him his non-attendance was not a problem.  He acknowledged that the Organisation had every right to run its business as it saw fit.[36]

    [36] Transcript 07/04/15 p.41.

35. I am satisfied that the administrative action involved in refusing Dr Attalla’s request to attend a conference was action in  respect of the everyday duties he was required to perform  and not action directed to his employment itself.  Attendance at international conferences was part of the process by which scientists employed by CSIRO established their international profiles.  This was part of the everyday aspect of their work.

36. The refusal of permission for Dr Attalla in April 2011 to attend the conference in Abu Dhabi was not administrative action in respect of his employment.  For this reason it is not an exclusory action in accordance with section 5A of the Act.

37. Even if I had been satisfied that the action was in respect of Dr Attalla’s employment, I would not have been satisfied that the condition suffered by Dr Attalla was suffered as a result of this administrative action.

38. I accept the evidence of Dr Attalla that he was not affected by the refusal.  The evidence of the health professionals does not indicate that it was a factor which contributed to his illness. 

    Issues 3.3 and 3.4:    Was the adjustment disorder suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [Dr Attalla’s] employment” by CSIRO, in particular:

    (1)  the decision relayed to Dr Attalla on 8 November 2012 in respect of changes to his employment resulting from the restructure; and/or

    (2) the decision in December 2012 to not approve Dr Attalla’s to travel to a conference in the united States of America.

39. I have found that Dr Attalla suffered an adjustment disorder in February 2012 and that he has continued to suffer from this condition. Although the condition has fluctuated, at times causing him to suffer a depressive episode, it was entrenched by February 2012. In this regard, I accept the evidence of Dr Synott and Dr Allnutt that Dr Attalla’s current psychological symptoms became significant by February 2012 and have persisted. This is consistent with the change in Dr Attalla’s conduct in February 2012 which continued for the remainder of that year.

40. Neither Dr Allnutt nor Dr Synott could identify from their assessments any incidents that were particularly significant for Dr Attalla other than the incident in February 2012. At its highest, Dr Allnutt accepted, and Dr Synott agreed, that the restructure in November 2012 would have made him feel worse. The Doctors, however, could not say with any confidence that there was a change in Dr Attalla’s condition that caused him to visit his General Practitioner at that time.[37] Dr Attalla stated in evidence that the restructure “didn’t send me into a depressive state or anything like that”. [38] Furthermore, the denial of travel to the United States in December of that year made him feel upset, but had no noticeable impact in the context of his treatment at work over the months prior.[39]

    [37] Transcript, 08/04/15, p.180.

    [38] Transcript, 07/04/15, p.59.

    [39] Transcript, 07/04/15, p.63.

41. Having taken the view that the condition became entrenched in February 2012, I cannot be satisfied that that condition was a result of either of the actions relied upon by Comcare. Similarly, and on the evidence before me, I cannot be satisfied that there was an aggravation of Dr Attalla’s condition after February 2012 which was a result of the relevant actions. Consequently, neither is an exclusory action under the Act.

    CONCLUSION

42. For these reasons, the reviewable decision, being the decision of Comcare made 16 April 2014 denying Dr Attalla’s claim for compensation for a depressive disorder, will be set aside.

43. In substitution for the decision set aside, it will be decided that Comcare is liable to pay to Dr Attalla compensation in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being a chronic adjustment disorder with depressed and anxious mood, suffered in February 2012 and continuing to the date of this decision.

44. It will be directed that within 14 days of the date of this determination, each party may apply to the Tribunal for orders in relation to costs. Should neither party apply, the costs of the proceedings incurred by Dr Attalla are to be paid by Comcare.

I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of

...........................[sgd].............................................

Associate

Dated 19 August 2015

Date(s) of hearing	7-10 April 2015; 29 April 2015; 1 May 2015
Date final submissions received	1 May 2015
Counsel for the Applicant	L Grey
Solicitors for the Applicant	Carroll & O'Dea Lawyers
Counsel for the Respondent	M Snell
Solicitors for the Respondent	Lehmann Snell Lawyers