Bailey and Comcare (Compensation) [2020] AATA 1244 (8 May 2020)
Division:GENERAL DIVISION
2017/3023File Number:
Re:Jacqueline Bailey
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:8 May 2020
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution decides that Comcare is liable to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the aggravation of her Adjustment Disorder with Anxiety.
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Deputy President J Sosso
CATCHWORDS
COMPENSATION – liability under Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14 – aggravation of psychological ailment – pre-existing vulnerability – whether contributed to, to a significant degree, by employment – whether reasonable administrative action – whether undertaken reasonably – decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
Dean v Australian Postal Corporation (2010) 52 AAR 52; [2010] FCA 680
Georges and Telstra Corporation Ltd [2009] AATA 731
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42; [1998] SASC 6519
Martin v Comcare (2015) 238 FCR 373; [2015] FCAFC 169
Telstra Corporation Limited v Hunter (2016) 68 AAR 372; [2016] FCA 318Wiegand v Comcare (2002) 72 ALD 795; [2002] FCA 1464
REASONS FOR DECISION
Deputy President J Sosso
8 May 2020
INTRODUCTION
Ms Jacqueline Bailey (the Applicant) commenced employment with the Department of Human Services (the Department) on 9 July 2007 – Exhibit 1 T3 p. 13.
On 14 November 2016 the Applicant signed a Claim for Compensation form and stated that the claimed condition was “Anxiety Stress Depression” resulting from attending a meeting at 9:30 am on 27 October 2016 – Exhibit 1 T3 p. 10.
At the time of lodging the Claim, the Applicant’s job title was “Part 6A objections” and her main job duties comprised reviewing “decisions made regarding child support payments” Exhibit 1 T3 p. 13.
This matter is marked by contradictory accounts of events that occurred whilst the Applicant was employed by the Department in the period 2011 until 2016. In the Introductory section of this decision, reference is mostly made to the Applicant’s perception of those events. The other versions of the events are set out further below when findings are made as to the preferable account of what actually occurred and the perceptions of the parties involved.
The Applicant was born, and attended school, in Sydney. She is one of two children and has no family history of psychiatric illnesses although there was a history of earlier bullying by her younger brother and his friends which she described as being relentless for years – Exhibit 2 ST35 pp. 372, 374.
In addition, the Applicant recounted traumatic events when she was in Year 6 at primary school, when her teacher was physically violent to his students. On one occasion the teacher picked up a small boy sitting next to the Applicant by his throat, and the Applicant intervened to assist the small boy. The Applicant developed severe anxiety after this incident and experienced nausea and vomiting while preparing to go to school – Exhibit 2 ST36 p. 385.
From the time the Applicant completed high school she has been in steady employment. The Applicant’s first job was as a sales assistant with a department store and she was then promoted to become a loss prevention officer, and she performed those duties for approximately eight years – Transcript (Tr.) 4.11.2019 p. 19. Subsequently, the Applicant worked in a car dealership for seven years, initially selling cars but ultimately being appointed manager in the performance vehicle department – Exhibit 1 T6.1 p. 53, Tr. 4.11.2019 p. 19. In 2002 the Applicant moved to Queensland to join her parents and was employed by Austar for five years as a manager for the field operation team – Exhibit 1 T6.1 p. 53.
The Applicant testified that she had never been involuntarily terminated from any of her former jobs, had never experienced any workplace issues that caused her stress, had never sought psychiatric assistance and had never claimed workers compensation – Tr. 4.11.2019 pp. 19 – 20.
When the Applicant commenced employment with the Department she underwent five weeks of training, and she testified that she was “further buoyed that I’d made the right decision because it was confirming what I expected the employment was going to be…there are rules, there are regulations, everybody does the right thing…” Tr. 4.11.2019 p. 20.
The Applicant was then appointed as team leader of the Mail Section which comprised about 15 members. The EL2 at the time told the Applicant that there were “a few issues” with the Mail Section, which was predominantly male, and many of the staff had medical conditions – Exhibit 1 T7.11 p. 116.
The following account was given by the Applicant of the problems she experienced in the two and half years she was the team leader of the Mail Section – Tr. 4.11.2019 pp. 21 – 22:
“But I wasn’t told that there were people who are hearing impaired, there were people who were sight impaired, and there were people with mental health issues. And so I just went up there to start work, as I was told, without, as I said, introduction and started to speak to one lady, and I didn’t know, but she was deaf. Nobody had warned me ahead of time that she was – that there were deaf people in the team, so instantly all – all the hearing impaired people got quite angry with me because they thought I was making fun of her or something, I’m not sure. But I had no idea. I would never in a million years, you know, offend somebody….
…But the hearing impaired people would write things that I had – like, they would leave little pieces of paper, ‘Jacquie said all deaf people are liars’, and they would leave it on my team – on my manager’s desk anonymously. I never said that. Why would I say that? But they – from the initial start they weren’t happy with me. But that’s fine, I persevered.
There was a lady with mental health issues who actually wanted to, essentially, fight with me at every chance she got…She hit me and said, ‘And take these fucking things with you’, like, boomed it through the thing…All that sort of behaviour went on for about two and a half years and I kept trying to ask my team – my manager for assistance in performance managing this because that was the only way to really deal with it….And the performance management process specifically required someone of my manager’s level to be involved, I couldn’t just do that myself because of the rules in place.
So I would repeatedly go to him and say ‘This is what’s happened’, ‘This is what she did today’, or ‘This is what he did today’ or ‘This is where – these are my documents on it’, and he would just say, ‘Oh, they’ve been like that for a long time. You’re not going to change them. Just keep writing it down.’ And so no action was taken. And in the end that constant, I guess, you know, false statements against me, the swearing at me, the , you know, trying to humiliate me in front of everybody, after two and a half years that got to be too much.”
As the Applicant testified, after serving as team leader in the Mail Unit she was appointed as team leader of one of the two co-located Change of Assessment (COA) teams – Tr. 4.11.2019 p. 22.
The team leader of the other COA team was described by the Applicant as a “bully” who tried to bully her, provided her with misinformation and began spreading rumours about her performance – Tr. 4.11.2019 p. 23.
After approximately 18 months the Applicant testified that she was “just teetering” and “really really struggling”. She then went to her manager and explained the situation and he said “’Oh, she’s been moved around from other places because she does this all the time. Just ignore her.’” – Tr. 14.11.2019 p. 23.
Having received, according to the Applicant, no support from her manager she “was struggling not to feel anxious” and “frightened of going to work to be in the same space” of the other team leader – Tr. 14.11.2019 p. 23. A member of the Applicant’s COA team approached her one day and claimed that she had also be the subject of bullying, but in her case for only a month. It was at this point that the Applicant realised that she had been the subject of bullying for two and a half years and “it just became too much for me, I was a shaking mess, crying my eyes out because I was just so fearful of being at work” – Tr. 4.11.2019 p. 24.
In August 2011 the Applicant began being treated by Mr Nic Marcon, Psychologist. Mr Marcon diagnosed the Applicant with Major Depressive Disorder: Recurrent Episode and Generalised Anxiety Disorder. The Applicant was treated fortnightly by Mr Marcon until July 2015, and treatment recommenced in September 2016 – Exhibit 2 ST37 p. 397. Reference will be made to Mr Marcon’s assessment of the Applicant later.
Dr Aleksandra Isailovic, Consultant Psychiatrist, in a report dated 18 December 2012, opined that the Applicant “suffered an emotional breakdown. She became totally incapacitated to work on a temporary basis” – Exhibit 1 T6.1 p. 53. Dr Isailovic also noted the following – Exhibit 1 T6.1 p. 54:
“After she had taken some time off work her avoidance became even more serious. She started withdrawing from all the previously enjoyed activities. She socially isolated herself. She experienced frequent heart palpitations and sweating.”
On 4 October 2011 the Applicant made a claim for workers compensation on the basis that she was suffering from work related stress and anxiety which was caused by constant, repetitive, cumulative bullying and harassment. The claimed date of the injury was 23 August 2011. The claim was accepted by Comcare on 18 November 2011 – Exhibit 6 p. 105.
The Applicant participated in a graduated return to work program which commenced at two hours, three days a week, to four days a week (28 hours), and finally returned to pre-injury hours and duties by mid-2014. At the time the Applicant lodged her clam she was working 5 hours per day on Monday, Wednesday and Friday and 7.5 hours on Tuesday and Thursday. – Exhibit 1 T6.1 p. 55, T6.2 pp. 61 – 64, T6.3 pp. 65 – 67 and T7.11 p. 116.
During the periods December 2014 to July 2015 and from January 2016 until the Applicant lodged her workers compensation claim she was managed by Ms Lynda Williams, the Service Support Manager of Decision Makers in Brisbane – Exhibit 1 T6.7 p. 78.
The evidence discloses that while there were issues about the Applicant’s required throughput of work, nonetheless she was a skilled decision-maker. Ms Williams stated the Applicant’s work is “of a high standard” that “her documentation and written skills are of high quality” and “she produces great work, is very thorough, and writes very well” – Exhibit 2 ST34 p. 351.
Ms Williams also testified (Tr. 6.11.2019 p. 167) that the Applicant’s workplace performance was satisfactory as was her behaviour at work.
On 21 July 2015 Comcare denied paying for any further psychological counselling in respect of the accepted anxiety condition. This determination was affirmed on review on 3 September 2015 – Exhibit 6.
The Applicant claimed that she was advised by her Service Manager, Mr Chris Nunan, that an alternative position could not be found and that she would have to remain in the same work location. According to the Applicant she was given two alternatives. Either return the COA environment, the same place where her work-related injury occurred and with the same people, or be appointed a Part 6A Objections Officer. The Applicant was concerned that two areas would shortly be combined – Exhibit 1 T4 p. 14.
The Applicant provided the following account of what was agreed in terms of work arrangements – Exhibit 1 T4 p. 14:
“When I expressed fear, anxiety and emotion that the only option available in a large organization such as the Australian Public Service was having to go back where Dr Isailovic had told me I wouldn’t have to, Mr Nunan told me I would go wherever they told me to, however they were willing to make some concessions for my situation.
These included, going to Part 6A and when the anticipated amalgamation of the two areas occurred, I would be situated remotely from the teams, on a different floor. I would not be required to participate in meetings, training or video conferences with the teams as those had proved prohibitively stressful for me despite a significant period of managed exposure to them.
There would be no requirement for me to be in the same environment as those teams, I would operate remotely. As time progressed I agreed to attend team meetings by phone hook up, but not to be called on during. Hearing the voices of ‘trigger’ people was not, and still isn’t, easy.”
In July 2014 the Applicant had been approved a work start time of 7:00 am – Exhibit 1 T6 p. 50. The importance to the Applicant of commencing work at 7:00 am was explained in the following terms – Tr. 4.11.2019 p. 27:
“…my doctors wrote specifically saying that I needed to start at 7 because of the cognitive thing, I’m better in the morning but also I’d already previously been starting at 7 anyway without question because the anxiety of coming into work, the longer it takes me to get there, the more work it is to make myself attend. So if I come early in the morning there’s less time – like it doesn’t take as long to get there which means it’s less work for me each day convincing myself to go. So it was a double use for starting at 7 and I had been starting at 7 and nobody battered [sic] an eyelid…”
In September 2014, the Applicant was diagnosed with, and began treatment for, cancer – Exhibit 1 T4 p. 15. This entailed thyroidectomy surgery. Unfortunately, the Applicant experienced deleterious side effects following this operation. Ms Jayne Crawley, Senior Consultant/Psychologist in a DHS Initial Needs Assessment Report of 12 August 2016 provided the following account of what the Applicant informed her – Exhibit 1 T7.11 p. 117:
“Ms Bailey related that following her surgery, she experienced a number of symptoms that were not evident pre-surgery. Ms Bailey further related that she experienced difficulty with her cognitive processing, a decrease in her memory recall, feelings of confusion, decreased appetite, inappropriate behaviours and a random stutter. Ms Bailey attributes these difficulties too the possibility of a mini stoke [sic] or the long term effects of general anaesthesia.”
The Applicant testified about the impact of her cognitive impairment in the following terms – Tr. 4.11.2019 pp. 26 – 27:
“MS BAILEY: Well, I used to be – I was known as memory woman, I used to have absolute crack memory, I could remember everything, phone numbers from a hundred years ago, everything. My memory’s affected inasmuch as like short term things, like if you ask me what the weather was like yesterday I can’t tell you, I cannot tell you what the weather was like, I don’t know what – why that is but I can’t. I have sensations that I – there was earthquakes under my feet, it’s a very strange thing and also my thinking was slowed down. I admit my thinking was probably above average in speed, I was quite a quick thinker but it certainly slowed down and when I am having trouble comprehending something and I try and concentrate I literally – my brain just fills with smoke and I – I just can’t concentrate on it and the harder I try the worse it is.
DEPUTY PRESIDENT: Is it better or worse at any particular time of the day?
MS BAILEY: It’s less of an impact in the morning because I guess I’m fresh from sleep and my brain’s not worn out or tired, I guess. So I’m much sharper in the morning….”
In addition to the problems the Applicant experienced following the thyroidectomy surgery, she also suffers from sleep apnoea. Ms Crawley reported that the Applicant informed her that this condition was “life threatening due to the number of episodes that she stops breathing”. The Applicant used a CPAP machine, however this did not appreciably help her sleeping – Exhibit 1 T7.11 p. 117.
Amongst the other medical ailments afflicting the Applicant, is type 2 diabetes, which was diagnosed on 26 February 2015 – Exhibit 2 ST35 p. 374, Exhibit 4 p. 11.
Ms Williams provided the Applicant with one-on-one training when she first became her manager, and in March 2015 the Applicant agreed to increase her workload to 1.5 outcomes per week which was achieved by June 2015 – Exhibit 1 T6.7 pp. 78 – 79.
When Ms Williams resumed managing the Applicant in January 2016, she ascertained that she was still limited to 1.5 outcomes per week and was not conducting the same phone shifts (2.5 hours per fortnight) as other officers. In May 2016 Ms Williams and the Applicant met and agreed that she would increase her output incrementally, with the aim of 2 outcomes per week from 13 June 2016 – Exhibit 1 T6.7 p. 80.
It was also at this meeting that Ms Williams sought clarification of the Applicant’s car parking arrangements – Exhibit 1 T6.7 p. 80.
In an email of 20 June 2016, Ms Williams informed the Applicant that her Regular Hours Agreement was overdue and that if she wished to continue with the then current arrangements a request had to be submitted by close of business 27 June 2016. The Applicant was also informed that she would revert to standard hours after 27 June 2016 unless there was “something under negotiation” - Exhibit 1 T7.1 p. 101.
The Applicant responded in an email dated 21 June 2016, and made the following submission – Exhibit 1 T7.2 pp. 102:
“As discussed I don’t have a regular hours agreement, I am working as specified by the medical direction set out in the medical certificates I have provided and will continue to provide where appropriate.
Attached is a letter from my overseeing Dr to advise re early start.
As discussed with you many, many times, treatment and the operation I have had to treat cancer has caused several health issues which affect my cognitive abilities and has caused multiple chronic health issues to develop.
I am under the care of several specialist physicians to cover these issues and unfortunately for me it has turned out to be a long process.
In this case, I have provided evidence and documentation for every single thing, my attendance is impeccable and all that is required is Reasonable Adjustment to allow me to seek the treatment I need to be able to regain my health.”
The Applicant attached a letter from her treating doctor, Dr Maha Hanna, which is dated 20 June 2016 – Exhibit 1 T10.1 p. 219:
“Jacqueline is currently undergoing a lot of investigations and seeing specialists due to her ongoing health issues. She currently has reduced work capacity and cognitive problems. She is undergoing therapy which will take some time to be effective. Currently she will have to do reduced work allocation due to her health condition and to start work at 7 am due to her better cognitive abilities early in the morning.”
It was at this time that Ms Williams sought assistance from Mr Craig Stephens, a departmental Rehabilitation Officer and Ms Jayne Crawley, an External Consultant and Psychologist. Mr Stephens was appointed as the Rehabilitation Case Manager for the Applicant whose role was to coordinate the support required to facilitate return to work outcomes and identify appropriate workplace adjustments – Exhibit 2 ST43 p. 514. Ms Crawley was engaged to assist in understanding the medical issues and being the conduit between the Applicant’s treating medical practitioners and the Department – Tr. 6.11.2019 p. 135, Exhibit 2 ST43 p. 515.
It is not disputed that the Applicant found stressful the numerous meetings she attended and she was often emotional. The following account of Mr Stephens is of relevance in this regard – Exhibit 2 ST43 p. 515:
“6. During the meetings that I attended with the applicant, she was often upset and teary and she would always ask why we were asking particular questions or why we were discussing certain issues so much so that I would feel some trepidation about asking her any questions at all. If the applicant was asked a question that she had previously been asked, she would become frustrated and say that she had told us this before.”
There were ongoing discussions between the Applicant and Ms Williams, and on 4 July 2016 Ms Williams forwarded to the Applicant an email of 29 June 2016 prepared by Mr Patrick Geary, Assistant Director, People Support Team Queensland. Mr Geary outlined in some details points that he thought should be raised by Ms Williams in her discussions with the Applicant – Exhibit 1 T4.2 pp. 30 – 31. Mr Geary made the following observations – Exhibit 1 T4.1 pp. 30 – 31:
“We also discussed this as an opportunity to ask who are the people on level 23 or in George St across all floors that trigger anxiety as we may be exposing her to them at other times and not be aware of it. Therefore creating risk for the department of exacerbating her illness. It would be useful to understand what will or won’t trigger a reaction for Jackie. This also links to the issue of whether we can provide assurance of that she won’t be in contact with these people to the level where they impact on her.”
The Applicant provided the following account of the meetings she had with Ms Williams and the impact of the 4 July 2016 email – Exhibit 1 T4 p. 17:
“Several meetings occurred to discuss this issue, and in each one I referenced my medical evidence and Ms Williams advised that it didn’t matter, I was to conform to their decision regarding my Regular Hours Agreement or would be forced onto a basic day of 8:30 am to 5:00 pm.
These meetings became very stressful for me as there was never a resolution and I was repeatedly told my medical conditions would not be taken into account. I eventually began utilising a support person during these meetings who took notes and made summaries for me of the meetings she attended…
On 5 July 2016 I received…an email from Ms Williams outlining points to discuss with me. I note that this email originally came from Patrick Geary who was featured in my previous injury claim.
I was alarmed and absolutely terrified to see that there was an intention to make me recount the details of the previous work related injury and a concern, perhaps too late, that being in the building and being exposed to the place and the people may be ‘causing my illness to be exacerbated.’
Upon reading this email I immediately felt unsafe in the world and felt panicked and emotional. I had been made, for the preceding months, to constantly explain my position to Ms Williams and now here was the threat of having to go over an absolutely terrifying time in my life again and identify people involved.
The receipt of this email caused me to recommence treatment with my psychologist after a year of coping on my own, and seek the support of a psychiatrist in order to deal with the increasing stressors accumulating in the work place.”
The Applicant met with Ms Williams on 12 and 25 July 2016. The Applicant was accompanied on both occasions by Ms Tracy Wistrom. Ms Wistrom’s account of these meetings is discussed later. At the latter meeting, the Applicant was informed that her request for a 7:00 am start had been rejected – Exhibit 1 T4 p. 18. In an email of the same date, Ms Williams outlined her reasons for rejecting the Applicant’s request – Exhibit 1 T7.7 p. 111:
“This is to confirm our discussions this morning.
Your application for regular hours is not accepted with a 7am start. The earliest the department will agree to is an 8.00 start. Your options are to move your hours back to allow the 8am start, or to enter a part time arrangement with an 8.00 start. A negotiation period will now commence. If an agreement has not been reached by end of SP 3 (03/09/2016) then your hours will default to the standard which is 8.30am to 5:00pm with an hours lunch break commencing from 04/09/2016.
You stated that you have further specialist appointments set for 17 August and you hope to be able to have some clarity after that point, and will further discuss when you have more information. As this is within the negotiation period, this is acceptable.
We also discussed an increase to your work load. I accept the previous plan was made before you provided a med cert stating that work load should be reduced. You indicated today that you are not comfortable to increase workload at this point…”
On the following day at 6:41 am the Applicant left a voice message for Ms Williams. Ms Williams provided the following account of this message – Exhibit 1 T7.8 p. 112:
“In the message she said she has been overwhelmed by stress and anxiety and hasn’t eaten or slept well over the last week. She said she just can’t keep pushing herself – she needs a break from the anxiety so needs to stay away from work.
She said she was going to go back to bed, and that she will have her phone on silent. She indicated that she would be going to the DR and would be contactable later throughout the day.”
The reason given for the later start time was contained in an email from Mr Stephens to the Applicant of 1 September 2016 – Exhibit 1 T7.14 p. 126:
“The change to the start time is uniform across the branch and provides greater accessibility for Child Support customers. The change is largely driven by customer demand and the department’s capacity to provide a timely service.”
The Applicant gave the following account of her mental state when she was informed that her request for a 7:00 am start of work had been rejected – Exhibit 1 T4 p. 18:
“After this meeting I became incredibly stressed. I again felt humiliated, disregarded, vulnerable and fearful. I could not attend work the next day as I had not recovered sufficiently to deal with going into that place. I saw my Dr who advised I was unfit for work for the rest of the week due to the stress caused.
I called Ms Williams to advise that I was overwhelmed as a result of the stress with how the process was being handled, that I was anxious, fearful and exhausted and I would not be attending work as I needed a break from it. Later the same day, Ms Williams called and texted me several times and a Departmental RCM, Craig Stephens, telephone me to discuss my rehab case.”
The Applicant returned to work on 1 August 2016. From that time a series of meetings were convened with the Applicant, Ms Williams, Mr Stephens and Ms Crawley present. The Applicant provided her version of these meetings – Exhibit 1 T4 p. 19:
“I was asked on every occasion to repeat my symptoms, history and reasons for requiring reasonable adjustment in relation to work allocation and hours. Ms Crawley would, without fail, then give me her diagnosis of my condition, which was that I suffer exclusively from anxiety…
Eventually it was agreed by these three that since their repeated questioning was stressful for me, they would all acknowledge here in this meeting that they have the required information and would not ask me to repeat details again.
In the next meeting, they asked all the same questions again, completely ignoring the agreement made at the previous meeting. My perception of their repeated use of exactly the same questions was that I was making it up or exaggerating and they were attempting to ‘catch me out’”.
Both Ms Williams (Exhibit 1 T6.7 pp. 78 – 82) and Ms Crawley (Exhibit 1 T6.8 pp. 83 – 85) prepared detailed statements setting out their version of the meetings. Suffice it to say, they both paint a somewhat different picture of what transpired. For example, Ms Crawley noted that at the meeting of 23 September 2016 the Applicant said “she was grateful for the rehabilitation support” – Exhibit 1 T6.8 p. 84. Nonetheless, Ms Crawley did state that at her first meeting on 5 August 2016, the Applicant expressed a level of stress and frustration regarding the change of her business hours, that she did not feel supported and would take her case to Fair Work Australia – Exhibit 1 T6.8 p. 83.
The Applicant was referred by Dr Hanna to Dr Gary Larder, Consultant Psychiatrist, who assessed her on 3 August 2016. In a Medical Statement of the same date, Dr Larder made the following observations – Exhibit 1 T7.10 p. 114:
“I have diagnosed her with a medical condition.
This condition is causing a degree of partial impairment for work.
Following my assessment today I advise that at present she is fit to work 7am to 1200 Monday, Wednesday, Friday, and 7am to 3pm Tuesday and Thursday, with a workload of 4 objections per fortnight.
I will treat the medical condition assertively and review her progress at regular intervals.
The prognosis will be re-evaluated at the six week mark of the treatment plan.”
On 30 August 2016 a case conference was convened at Dr Larder’s request in his rooms with the Applicant, Dr Larder, Ms Crawley and Mr Craig Stephens (Rehabilitation Case Manager) present – Exhibit 1 T4 p. 19. The following notes were made of the meeting – Exhibit 1 T7.12 p. 124:
“Dr Larder stated it was the 3rd time he had seen Jacqui and explained the nature of the original complaint was stress relating to the workplace.
Jacquie explained there were a number of issues that caused stress: - frequency of meetings, usefulness, agenda, purpose and a sense of meetings for meetings sake.
Currently Jacqui is continuing to:
A.Struggle with Cancer and treatment including reviews each 3 months
B.Understand and manage the brain damage that’s been caused by anaesthetic
C.Try and manage energy levels reducing to around a 5 to 6/10
D.Manage stressors relating to previous workplace history
Jacquie is being treated by an Oncologist and is undergoing medication review and adjustment.
Jayne Crawley gave an overview of the adjustments the workplace have implemented – a move to a different floor, reduced work allocation and commented on training and team meetings being problematic in the context of maintaining skill and missing information. A work/performance capacity has been identified as around 50% as a result of the condition/s and treatment and a Neuropsych assessment was discussed to understand any cognitive difficulties.
Craig Stephens gave an overview of his role as the DHS Case Manager and provided an explanation of the dept’s rehabilitation process and his role as coordinator.
Due to the lack of trust Jacquie now has in workplace rehabilitation attempts a level of accountability is necessary to regain some faith in process. Meetings to be held need a purpose and no level of surprise to reduce Jacquie’s anxiety.
A role elsewhere was discussed. How to facilitate? Is there a process? Etc. The opportunities will need to be identified by all and Jacquie will need to contact units that may have a similar skillset for potential job shadowing or placement. Regarding placement outside the department, this would come in the form of applying and being selected on merit.
Jayne commented that she could assist with resume and application writing and felt that further reducing Jacquie’s caseload to 3 would assist in the short term.
Exhibit 1 somewhat confusingly, contains two versions of the notes of the meeting. The version quoted above does not contain any Action items, whereas the first version does. The action items from the first version are as follows – Exhibit 1 T4.4 p. 36:
“Actions
· Jayne to draft a 6 week suitable duties plan
· Craig to provide a summary to DHS management
· All to review at Dr Larder’s rooms in 5-6 weeks
· Jacquie to participate in weekly reviews with Jayne.”
In conformity with the agreement to convene a further meeting, on 18 October 2016 Dr Larder’s Reception emailed the participants informing them that the first available time for Dr Larder to attend a medical case conference was 4 November 2016. Ms Crawley responded on 20 October 2016 in the following terms – Exhibit 1 T4.5 p. 37:
“after discussion with the case manager and Ms Bailey’s progress it was determined that a medical case conference is probably not required at this time.”
On 2 September 2016 Ms Williams emailed the Applicant informing her that it was the last day of the negotiation period relating to her working hours submission. Ms Williams then stated that she did not agree to start time of 7:00 am and the Applicant’s work hours would revert to standard hours of 8:30 am to 5:30 pm with an hour break commencing on 5 September 2016. However, the Applicant was invited to submit another application for regular hours, provided that any application requesting a start time before 8:00 am would not be approved – Exhibit 1 7.15 p. 127.
On the same day the Applicant replied and stated that she had accepted an 8:00am start time “although under duress”, that “everything will have to be pushed back an hour” and that she was “currently unable to change my finish times due to restrictions arising from my medical conditions” – Exhibit 1 T7.16 p. 129.
The Applicant subsequently requested written reasons from Ms Williams as to why the Department had not accepted her application for regular hours. In an email of 14 September 2016, Ms Williams provided the following reasons – Exhibit 1 T7.17 pp. 132 – 133:
“The reasons the department are unable to accommodate a start time of 7:00 am include:
·There are frequent occasions where there is no management support available to support you at this time. This support cannot be guaranteed prior to 8.00am. This is a Work Health and Safety issues covered in the ‘Working Alone’ policy…
·Core Customer Contact hours are from 8.30am to 5.00pm. Child Support balances this with staff needs in continuing to support 8.00am starts.
·The expectation is that Child Support Smart Centre employees are available for core customer contact hours. There is no business need or operational requirement for staff to be commencing duty at 7.00am. To look after your Occupational Health and Safety we need reasonable supervision available and this cannot be guaranteed at 7.00am.”
On 25 October 2016 Ms Crawley sent a meeting request to the Applicant as well as Ms Williams and Mr Stephens for 27 October 2016 to discuss the Applicant’s progress – Exhibit 1 T4 p. 20. The Applicant agreed on the following terms – Exhibit 1 T4.6 p. 38:
“I have a training with a large group (and I don’t know who is going to be in it) straight after this, so as long as there is no unnecessary stress or emotional torture that’s ok, but I can’t do something stressful then go to a stressful group training session where I don’t know who is going to be there and try and retain facts.”
Ms Crawley responded stating that she didn’t “envisage this to be stressful” – Exhibit 1 T4.6 p. 38.
A case review meeting was then convened on 27 October 2016. From the perspective of the Applicant, the meeting was counter-productive and deleterious to her health. The Applicant’s version of the meeting is set out below – Exhibit 1 T4 pp. 20 – 21:
“Instead of reviewing the plan, I was immediately faced with the same questions over and over again. ‘Tell me again what your symptoms are?’ ‘Why can’t you do more?’ ‘We need to get you normal and with no restrictions.’
Ms Williams invariably says again that this has gone on ‘too long’, inferring I am somehow able to control my conditions or I am faking, or doing it on purpose.
Whilst I have found it extremely stressful to be repeatedly questioned like this every other time they did it, this particular time caused me to be inconsolable.
This time it made me feel that, regardless of the assurances I was given by Ms Crawley and Mr Stephens regarding duty of care, regardless of the agreements reached about how to progress and regardless of Dr Larder’s intervention, this was never going to be treated fairly or responsibly, no matter how much I tried to comply, and that I was going to be forced to undertake duties and work with people in locations that would put me right back into the middle of the harassment and bullying of my previous injury.
I was terrified.
I replied as always that I have supplied excessive documentation from registered medical health practitioners AND I have discussed these details with you ALL numerous times and you have spoken to my Dr and yet you just keep asking the same thing over and over. It has been agreed on at least two previous occasions that you would not ask me to repeat myself going forward and yet here I am again.
Ms Crawley again expressed her opinion and diagnosed me as suffering exclusively from anxiety, even though she is not a doctor and even though the Department has medical evidence advising of my conditions.
Ms Crawley and Mr Williams question, doubt and pass judgment on my health, mentally and physically, every time I meet with them. Their ill formed personal opinions influence how they deal with me and what they perceive is appropriate for me, however it is wholly outside of their jurisdiction to do so.
I feel humiliated, isolated, disregarded and unsafe when they do this. Neither Ms Crawley nor Ms Williams is qualified to interpret or make judgments about the voracity [sic] of medical diagnoses and direction from specialist physicians.
I again became very emotional during this meeting, feeling helpless, harassed, isolated and wholly unsupported. When the meeting ended, because the time was up, I was crying at a rather high level, visibly upset and fearful….
After the previous meetings, where the formula and outcome was the same on every occasion, I had been able to recover after a few days, although my mood would remain low for about a week and concentration would be difficult.
After this meeting I have not been able to recover.”
The Applicant had telephone conversations with Ms Crawley on 4 and 11 November 2016 – Exhibit 1 T4 pp. 22 – 23.
During the telephone conversation of 4 November 2016, the Applicant claims she told Ms Crawley that the case review meeting of 27 October 2016 caused her a great deal of stress and that she had been unable to recover from it. The Applicant stated that she was emotional and crying during this conversation – Exhibit 1 T4 p. 22.
The telephone conversation of 11 November 2016 was also a stressful one for the Applicant, and she states that she was crying, feeling no better and thought that everything was insurmountable. The sudden death of a co-worker during that week also caused her distress – Exhibit 1 T4 pp. 22 – 23.
As previously noted, the Applicant signed a Workers’ Compensation Claim Form on 14 November 2016. Attached to the Form was an 11 page statement which has been extensively quoted above – Exhibit 1 T4 pp. 14 – 24.
The Applicant did not attend work at the Department from 15 November 2016 until 15 May 2017 – Exhibit 2 ST35 p. 370. Subsequent to her return to work, the Applicant suffered a cerebrovascular accident and also contracted influenza resulting in two hospitalisations for pericarditis and possible myocarditis – Exhibit 2 ST35 p. 370.
The Applicant was examined and assessed on 15 December 2016 by Dr Jonathan Mann, Consultant Psychiatrist. Dr Mann prepared an extensive report which is dated 28 December 2016 – Exhibit 1 T8 pp. 168 – 175.
Dr Mann opined that the Applicant was “suffering from an adjustment reaction with regards to her experiences at work.” However, Dr Mann did not believe “her current symptomatology fulfils the full diagnostic criteria for any mental illness.” Rather, Dr Mann was of the opinion that the Applicant’s adjustment reaction to her stressors were “within the normal limits of human experience.” Dr Mann did not believe that the Applicant was suffering from any pervasive mood disorder nor did he believe she was suffering from a generalised anxiety disorder. Rather, Dr Mann opined that her symptoms were related to the Applicant’s perceived work experiences and if she was not exposed to the same stressful experiences her adjustment symptoms would gradually improve – Exhibit 1 T8 p. 172.
Dr Mann opined that the Applicant’s adjustment reaction did not fulfil “the full diagnostic criteria for any DSM-IV or DSM-5 disorder…I believe her symptoms are within the range of normal human experience and not mental illness” – Exhibit 1 T8 p. 174.
As to the workplace contribution to the Applicant’s adjustment reaction, Dr Mann opined as follows – Exhibit 1 T8 p. 172:
“It is my opinion that Ms Bailey’s perception of events that occurred during the course of her employment contributed significantly to her current clinical presentation. I believe her experiences in the workplace led her to suffer an adjustment reaction and her symptoms of anxiety and distress.”
Dr Mann was also of the opinion that the Applicant was not suffering from a personality disorder, nor did she exhibit abnormal illness behaviour or exhibit any evidence of malingering. Instead, Dr Mann opined that the Applicant remained motivated to return to work in alternative employment – Exhibit 1 T8 p. 173.
Liability to pay compensation under s 14 of the Act was denied in a decision dated 17 January 2017 – Exhibit 1 T9.2 pp. 178 – 190.
Reference was made to the opinions of Dr Mann and the following reasons were given for denying liability – Exhibit 1 T9.2 p. 180:
“Based on the medical evidence, there is insufficient evidence to suggest that Ms Bailey suffers from an injury within the requirements of the legislation. Specifically, the longstanding judgement in the case of Comcare v Mooi [1996] FCA 1587 set the benchmark which must be met for a condition to qualify as a ‘mental injury’ or ‘disease’ within the meaning of the SRC Act. The judgement requires that an employee’s condition must have been ‘outside the boundaries of normal mental functioning and behaviour’. Dr Mann’s opinion does not support this was the case, indicating that Ms Bailey had a reaction within the range of normal.
The medical evidence therefore does not support that the employee suffers from an ailment or aggravation of an ailment as defined in the SRC Act. At most, Ms Bailey suffered an adjustment reaction but without the diagnostic criteria needed for a diagnosable psychological condition. As there is no injury, there cannot be any entitlement to compensation.”
Although this finding rendered consideration of any other matter unnecessary, the decision-maker went on to review the employment relationship and any exclusory provisions that applied.
First, the decision-maker, after a detailed consideration of the material before her, found that the Applicant’s psychological symptoms were contributed to by her employment with the Department – Exhibit 1 T9.2 pp. 188 – 189.
Second, the decision-maker found that the claim had arisen as a result of reasonable administrative action taken in a reasonable manner – Exhibit 1 T9.2 p. 189.
With respect to the meetings conducted with Ms Williams, Mr Stephens and Ms Crawley the decision maker made the following finding – Exhibit 1 T9.2 p. 190:
“I consider the ongoing meetings and discussions at those meetings regarding Ms Bailey’s capacity and restrictions can reasonably be categorized as reasonable administrative actions taken in respect of Ms Bailey’s employment. I accept the employer’s view that these meeting [sic] were conducted ‘with a view to providing support and adjustment to Ms Bailey’s work duties or to explain changes that are occurring’. Further, I am satisfied that the bulk of the evidence (with the exception of Ms Bailey’s statement) shows that the meetings were undertaken in a reasonable manner.”
On 16 February 2017 the Applicant requested reconsideration of this decision – Exhibit 1 T10 pp. 191 – 218. The Applicant also attached (Exhibit 1 T12.1 p. 232) the following documents to be considered as part of her reconsideration request:
(a)report of Dr Mann, 20 June 2018;
(b)statement of Ms Debbie Sukhvinder Hayer, 7 February 2017;
(c)statements of Ms Carolyn Ryan, 7 February 2017 and 20 September 2016;
(d)statement of Ms Kylie Hunt of 7 February 2016;
(e)report of Mr Nic Macron of 7 February 2017; and
(f)report of Dr Larder of 25 January 2017.
The determination of 18 January 2017 was affirmed in the reviewable decision of 20 March 2017 – Exhibit 1 T12.1 T12 pp. 228 – 246. The decision-maker in the reviewable decision reached the same conclusions, and for the same reasons, as the decision-maker in the initial determination.
Subsequent to the reviewable decision, Comcare referred the Applicant to Dr Derek Lovell, Consultant Psychiatrist, for psychiatric assessment and report. Dr Lovell examined the Applicant on 15 March 2018 and provided a comprehensive report dated 28 March 2018 – Exhibit 2 ST35 pp. 366 - 381.
Dr Lovell set out in great detail the Applicant’s personal and work history, and also dealt with the various medical reports he had been briefed with. He made the following observations about the findings of Dr Mann – Exhibit 2 ST35 p. 373:
“He however stated that he did not believe that her current symptomatology fulfilled the full diagnostic criteria for a mental illness. He stated that it was her perception of events which occurred during the course of her employment that contributed significantly to her clinical presentation. Surprisingly he did not comment on the cognitive difficulties she described to me related to her total thyroidectomy on 24 September 2014.”
In the summary and assessment part of his report (Exhibit 2 ST35 p. 375), Dr Lovell expanded on his earlier observation (Exhibit 2 ST35 p. 374) that the Applicant’s early history of family bullying “would indicate interpersonal sensitivity and distorted perceptions”:
“The background history would suggest significant heightened interpersonal sensitivity as a result of physical abuse and bullying during her developmental years.
Currently there are very significant personal stressors with her elderly parents’ illnesses and concerns about her cognitive state. A neuropsychological assessment would be helpful to establish cognitive difficulties.
I am not of the view that she suffers from a major depressive illness. She is clearly stressed and anxious but I share Dr Mann’s view that other than some adjustment difficulties which are heightened because of interpersonal sensitivity.”
Dr Lovell made the following diagnosis of the Applicant – Exhibit 2 ST35 p. 376:
“Ms Bailey would best be described as suffering from an adjustment disorder with anxiety. There have been multiple determinants to this condition. Her anxiety symptoms were first evident during her previous Comcare claim. The current contributors include concerns about her cognitive capacity, the matters related to an AAT appeal, parental illness and a serious heart condition following influenza during 2017. On Axis II there is heightened interpersonal sensitivity. On Axis III there is an untreated sleep apnoea. On Axis IV difficulties associated with her father’s health and her mother’s frailty.”
Further, Dr Lovell did not think that the Applicant’s psychological state was within the normal limits of human experience – Exhibit 2 ST35 p. 377:
“On the history she provided of suicidal thoughts and social withdrawal, it is difficult to state that her adjustment difficulties were within the normal limits of human experience. She had a heightened response brought about by her perceptions. Whilst there were cognitive difficulties she did not fulfil the criteria for a major mood disorder. She does not describe generalised anxiety.
I think Dr Larder’s statement that there are complex range of psychiatric issues is perhaps the most appropriate statement. Whilst there are symptoms of anxiety and she has had one panic attack I am not of the view that she fulfils the criteria for a generalised anxiety disorder or panic disorder.”
Comcare also referred the Applicant to Dr Ashwani Garg, Consultant Psychiatrist, for examination and assessment. Dr Garg examined the Applicant on 16 March 2018 and prepared a detailed report dated 9 April 2018 – Exhibit 2 ST36 pp. 382 – 396.
Dr Garg’s summary and conclusions are as follows – Exhibit 2 T36 p. 390:
“Ms Bailey does not have any known genetic predisposition towards mental illness; however, she suffered a severe emotional trauma that led to symptoms of considerable anxiety when she was 11 years old. This trauma could have affected her early emotional development and also predisposed her to developing anxiety and mood disorders when feeling stressed.
Ms Bailey felt that she was intimidated, harassed, and bullied by others since beginning her Team Leader role after joining the department in 2007, but she was a good performer when working as a member of the team before becoming a team leader. Her clinical history suggests that she had struggled with roles and responsibilities of team leaders that require trusting others and working with people with challenging behaviours. It is likely that the emotional trauma at early age has affected her sensitivity to an intimidating behaviour and her capacity to trust others which is essential to work in a team.
Ms Bailey currently appears to have clinical features of severe anxiety and depression that is affecting her capacity to work in a team environment and carry out all the duties of a Team Leader. She is very fearful of people plotting against her or making false complaints against her. This fear is causing her stress and anxiety and maintaining her psychiatric symptoms. She may also have an undiagnosed trauma related psychiatric condition such as Posttraumatic Stress Disorder which needs further assessment and treatment. Her psychologist has started working on her childhood emotional trauma and sometimes psychological treatment itself can exacerbate anxiety symptoms.
Ms Bailey also reported some impairment in her memory since she had undergone general anaesthesia. She may have mild cognitive impairment even though the cognitive testing with simple bedside tests did not reveal nay [sic] abnormalities.
Ms Bailey’s physical health problems specially sleep apnoea and thyroid disease can also contribute to perpetuation of her anxiety and depressive symptoms and cause cognitive impairment.”
Dr Garg diagnosed the Applicant on Axis I of DSM V with adjustment disorder with mixed anxiety and depressive symptoms and on Axis IV with work-related stress – Exhibit 2 ST36 pp. 390 – 391.
Finally, Dr Garg gave a somewhat pessimistic prognosis of the Applicant’s psychiatric condition – Exhibit 2 ST36 p. 391:
“Ms Bailey’s current psychiatric symptoms are perpetuated by her fear of others harming her behind her back and her limited coping skills resulting from vulnerabilities in her personality. Her psychiatric symptoms have not changed much in the last five years despite psychiatric treatment from a senior consultant psychiatrist, psychotherapy from a trained clinical psychologist, and restrictions in relation to facing her team. Therefore, it is unlikely that these symptoms will be fully resolved in the near future. She has also started exploring her childhood trauma in psychotherapy and this can exacerbate her anxiety further. The prognosis for her psychiatric condition appears to be poor.”
In addition, the Tribunal has a short Medical Statement dated 24 September 2018 from Dr Larder. Dr Larder opined as follows – Exhibit 2 ST38 p. 400:
“I have diagnosed Ms Bailey with a chronic syndrome of anxiety and depressive symptoms with onset in 2011/2012.
This condition has waxed and waned in response to life stressors, some of which concern personal life issues and some of which have occurred in the course of her work and in response to varied biopsychosocial treatment.
There is no doubt that in my experience I have witnessed and therefore diagnosed a serious aggravation of her psychiatric difficulties brought on by certain work related stressors [as given in the history obtained from her at interview, and evidenced by certain documents she has shown me].
She has reported work related stressors to me concerning management actions, about which I understand there is a dispute, about whether management actions were ‘reasonable or not’.
I strongly opine that this patient presents a persistent and powerful desire to resolve the work related issues of concern in her history, seeks the prevention of their recurrence in the future, and to continue to work, such is her devotion to the work ethic.”
THE HEARING
A Hearing was convened in Brisbane between 4 - 6 November 2019. The Applicant was self-represented and Comcare was represented by Mr Charles Clark of Counsel.
The Applicant gave evidence on 4 November 2019 and was cross-examined by Mr Clark.
Ms Wistrom gave evidence for the Applicant on 4 November 2019, and Dr Larder and Mr Marcon gave evidence on 5 November 2019.
Mr Stephens, Ms Williams and Dr Lovell gave evidence for Comcare on 6 November 2019.
ISSUES
Comcare submitted (Comcare’s Statement of Issues, Facts and Contentions (CSIFC) para 5), and the Tribunal agrees, that the issues that fall to be decided are as follows:
(a)does the Applicant suffer a psychological ailment?;
(b)if yes, is that ailment a disease for the purposes of s 5B of the Act, namely was the ailment contributed to, to a significant degree, by her employment with the Department?;
(c)if yes, is the Applicant’s disease not an injury pursuant to s 5A of the Act, due to the operation of an exclusionary provision?; and
(d)is the Applicant entitled to compensation in accordance with s 14 of the Act?
In the Outline of Submission on behalf of the Respondent (OSR), Mr Clark made the following submission – OSR paras 17 – 19:
“17. The Applicant then proceeds to set out a history of her dealing with Ms Williams and Ms Crawley in which she makes a number of allegations against them both of inappropriate behaviour. A meeting on 27th October 2016 is highlighted in the Claim Form and is noted as an occasion when more of this inappropriate behaviour is alleged to have occurred. The statement concludes by noting the Applicant ceased work on Friday 11th November 2016. It would appear that the death of a work colleague at that time was having some effect on her.
18. It can be fairly concluded that from a factual perspective, the Applicant’s claim seeks to cover workplace events from June 2016 when it was first mooted that she would have to change her starting time. The tenor of her complaints also seem to be the alleged inappropriate behaviour from Ms Williams, Ms Crawley and perhaps Mr Stevens [sic] in their interactions with her in the period thereafter.
19. It is submitted that her present claim then necessarily falls to be decided upon an assessment of the workplace events in that discrete period from June to November 2016.”
The Tribunal agrees that much of the focus of the Applicant’s evidence related to events in the June to November 2016 period. However, there were events and incidents from 2014 onwards that impacted on the Applicant. Reference can made to the following submission of the Applicant – Outline of Submission by the Applicant (OSA) p. 4:
“I draw the Respondent’s attention to my initial statement, attached to the claim form dated 14 November 2016, and my subsequent reconsideration request dated 16 February 2017, which lists a significant history of unsupportive, unreasonable and adversarial behavior from Ms Williams commencing 2014 when she became my Team Leader. T4 pages 14 – 24 T10 pages 191 – 218.”
THE LEGISLATION
Subsection 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined by s 5A(1) as follows:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
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.”
The term “reasonable administrative action” is defined in s 5A(2) 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 o 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.”
“Disease” is defined by s 5B(1) 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.”
“Significant degree” is defined by s 5B(3) to mean “a degree that is substantially more than material.”
“Aggravation” is defined in s 4(1) to include “acceleration or recurrence.”
Finally, “ailment” is defined in s 4(1) to mean:
“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
CONFLICTING ACCOUNTS OF MEETINGS
Mr Clark, correctly, invites the Tribunal (OSR para 8) to make a number of findings regarding the conflicting accounts of the meetings involving the Applicant. In particular, Mr Clark submits that the Tribunal should reject the Applicant’s various allegations of misconduct and inappropriate behaviour against Ms Williams, Mr Stephens and Ms Crawley.
It is also appropriate that the Tribunal deal with the credibility of the Applicant’s testimony.
Evidence of Ms Wistrom and Ms Williams
Ms Williams testified on 6 November 2019. The Tribunal also had the benefit of receiving a “Statement in Response to Jackie Bailey” dated 2 December 2016 (Exhibit 1 T6.7 pp. 78 – 82), a Witness Statement dated 13 March 2018 (Exhibit 2 ST34 pp. 349 – 357) and a Supplementary Witness Statement of 16 April 2019 (Exhibit 2 ST44 pp. 517 – 523).
The Tribunal accepts that the change in the Applicant’s 7:00 am start arrangements flowed from a Departmental nationwide review of all staff on Regular Hours Agreements. Further, the Tribunal accepts that there was a Departmental Directive that all Regular Hours Agreements should have a start time not earlier than 8:00 am – Exhibit 2 ST34 pp. 353 - 354. In short, there is no credible evidence that Ms Williams was motivated in her discussions with the Applicant about her start time by any ill-will and that those discussions were driven by wider Departmental policies and Directives.
Ms Williams met the Applicant, inter alia, on 12 and 25 July 2016. On both occasions the Applicant was accompanied by her support person, Ms Wistrom.
Ms Wistrom is a Departmental employee who was approached by the Applicant on the morning of 12 July 2016 and asked if she would be a support person for a forthcoming meeting. Ms Wistrom testified that the Applicant was a work colleague but they did not work directly with each other. She also testified that she did not see the Applicant socially, had never been to her home and had only seen her socially during an occasional work organised morning tea – Tr. 4.11.2019 p. 69. In short the Applicant and Ms Wistrom were not friends and apart from the fact that they both work on the some floor, had little to do with each other.
Ms Wistrom also testified that she managed a team and had experience in organising and conducting meetings with staff – Tr. 4.11.2019 p. 73.
In her Statement of 19 March 2019, Ms Wistrom gave the following account of the 12 July 2016 meeting – Exhibit 2 ST40 p. 425:
“4. I attended the Eucalyptus Room at 9am, Ms Bailey also attended. Ms Bailey’s Team Leader, who I now know to be Lynda Williams, arrived not long after…I recall the meeting was to discuss a Regular Hours Agreement. I recall that Ms Bailey asked Ms Williams to explain how she came to be on a Regular Hours Agreement when there had not been any prior discussion, negotiation or relevant form signed. I recall Ms Bailey asked Ms Williams about a number of policies and aspects of the Enterprise Agreement (EA) and why they did not relate to her situation.
5. I recall Ms Williams did not provide answers to these questions. I recall that Ms Williams did not take notes at all during the meeting. I recall Ms Bailey becoming emotional as Ms Williams’ lack of response continued. I recall Ms Williams did not appear to be engaged with Ms Bailey, or the subject matter. Ms Williams stated she would seek further information and schedule a follow up meeting with Ms Bailey to discuss. Ms Bailey became quite emotional. Ms Williams left the room.”
Ms Wistrom stated that the meeting of 25 July 2016 was very similar to the 12 July 2016 meeting – Exhibit 2 ST40 p. 426.
When Ms Wistrom testified on 4 November 2019 she re-iterated her recollection of the 12 July 2016 meeting – Tr. 4.11.2019 pp. 72 – 73:
“MS BAILEY: Yes, okay. So, to the best of your recollection, can you explain how the meeting progressed, the things that you heard and saw?---What I can recall is that you had a series of questions that you asked your team leader, and you weren’t provided answers to your questions.
Do you remember some of those questions?---About how you came upon a regular hours’ agreement, and then some options around start times for your work.
I asked about that?---Correct, you asked your team leader. And your team leader didn’t’ have the answers for you and you became upset at that point.
Okay. Did you notice during the meeting if Ms Williams had any writing implements available to her at the time?---I recall she had a notepad with her, but I recall she didn’t take any notes.
What I guess your perception of her, or your description of her interaction with me, what was her behaviour, what was her manner, as you saw it?---I don’t know if it’s behaviour. I thought that she was unprepared for the meeting because she didn’t have the answers to the questions. She didn’t look at you, I guess, when she was talking to you, she was more looking down. My perception was that she was cold and not willing to really engage with you. She didn’t – didn’t appear to be communicative with you, she didn’t provide you with information or conversation, it was more you asking questions, which she didn’t have answers to.
You stated before that I was emotional when I asked you to help me, support me in the meeting. Did you see me get emotional during the meeting?---You were emotional during the meeting, yes…
And overall how would you describe the interaction in that first meeting, based on your experience as a team leader?---I thought your team leader was cold. She lacked emotion. She wasn’t prepared, a little bit dismissive of you.
I believe when we left the room you made a statement that I believe – is it in your statement, that you didn’t believed she was engaged in the process, or you were shocked, or---?---Look, I – I was shocked by the process, and the interaction, I guess – or the lack of interaction, I was shocked.
Okay, the meeting came to an end and – how did the meeting end, what happened?---From what I recall your team leader left the room and you were still upset, and I stayed with you.
The Applicant also asked Ms Wistrom about the second meeting, and she gave the following testimony – Tr. 4.11.2019 p. 74:
“And so in nutshell I guess, what was your description of that second meeting once we started asking – I started asking again for the answers to my questions?---Well, it was similar. I mean there was no point she didn’t have the answers to your questions and she needed to get back after consulting with somebody…
I mean it’s a big – it’s a big ask really, for someone to come and do this, I think. So for me – would you say that that speaks to your level of shock regarding her behaviour in those meetings?---Look, as a leader I guess I was – I would’ve handled things differently, and that’s therefore why I was shocked, and I would hope that this doesn’t happen to other people in the same situation.”
Ms Williams responded to Ms Wistrom’s statement as follows – Exhibit 2 ST44 p. 523:
“In response to the statement of Tracy Wistrom, I state the following:
a)I agree that the applicant had a support person with her at the meeting with myself on 12 July 2019 [sic]. The purpose of the meeting was to discuss the applicant’s regular hours agreement. I also advised the applicant that I would be seeking further support for her by the appointment of a Rehabilitation Case Manager (RCM). I advised that I was seeking the assistance of an independent specialist, who could liaise with her treating Doctors to ensure her medical issues were considered appropriately.
b)I confirm that I was not able to provide answers to some of the applicant’s questions during that meeting. This was because I wanted to ensure I was providing appropriate support for the applicant moving forward.
c)I confirm that the matter was not resolved during that meeting and that follow up meeting were required. I agree that the applicant appeared to be upset during this meeting. As she had requested Ms Wistrom as her support person, I considered it appropriate to allow the support person to provide the support.
d)I agree that another meeting occurred on 25 July 2016. It was in this meeting that I advised the applicant that the negotiation period about her Regular Hours Agreement would commence and that we had until the end of SP 3 (03/09/2016) to negotiate an agreement. I also advised the applicant that a RCM (Craig Stephens) had been appointed, and that an external provider would be appointed to assist us to work out a reasonable adjustment to the applicant workload in light of her medical condition.
e)In response to point 8, I agree that I indicated that I would agree to a start time of 8am. I also said that I would agree to a part time arrangement.
f)I do not recall the details of Ms Winstrom’s [sic] exit from the meeting, and/or whether or not the applicant’s IPA discussion occurred directly after this meeting.”
Ms Williams testified (Tr. 6.11.2019 p. 164) that she had not exhibited disrespectful behaviour towards the Applicant by either “head-turning or rolling of eyes or comments along the lines of, ‘You know, this has gone on for too long, you know, what’s the matter with you?’”.
Mr Clark, on behalf of Comcare, made the following submissions – ORS para 38:
“As part of her case, the Applicant called Ms Tracy Wistrom, who had sat in on two meetings between the Applicant and Ms Williams. Ms Wistrom was highly critical of Ms Williams account of what she perceived to be Ms Williams’ failure to provide answers to the questions raised by the Applicant in those meetings. It is submitted that the Tribunal would not be troubled by Ms Wistrom’s evidence. Firstly, Ms Williams took the view that the issues raised by the Applicant were not susceptible to a ready answer and it was for that reason that she then took steps to engage Mr Stevens [sic] and Ms Crawley. The further point can be made that Ms Wistrom, by her own admission, simply had no background knowledge of the issues that were then prevailing in respect of the Applicant’s work.”
The Applicant made the following submissions –OSA p. 11:
“There is no requirement for a support person to know the background issues when they attend a meeting as a witness and to take notes. Further I ask what background issues existed with my work since, by her own evidence, Ms Williams has consistently stated that my work is fine. Lastly I then ask what possible background issues could justify the behaviour described by both Ms Wistrom and myself from an EL1 Team Leader in a garden variety meeting to finalise a Regular Hours Agreement.
Does the Respondent take the position that there is something I had done or could have done that would justify my Team Leader not engaging in a discussion regarding my work arrangements, not taking any notes, despite me asking several questions to which she advised she would report back on, but didn’t take any details of? Leaving the room when I was teary without checking I was going to be ok? Holding a subsequent meeting on the same subject without providing the answers requested or a resolution?
Contrary to the Respondents suggestion that the Tribunal not be troubled by Ms Wistrom’s evidence, I suggest Ms Wistrom’s earnest evidence and her commitment to attend the hearing in person some 3 years after the fact because she was ‘shocked’ by Ms Williams’ behaviour speaks to her integrity and I reiterate the evidence given at the hearing that Ms Wistrom and I have no relationship other than having been colleagues for a brief time in 2016-17.”
The Tribunal had the benefit of observing both Ms Wistrom and Ms Williams give evidence. The Tribunal found Ms Wistrom to be a forthright person who gave direct answers to questions and did not at any time prevaricate or veer into irrelevancy or overt emotion. In short, the Tribunal found Ms Wistrom to be a witness of credit and her testimony was compelling.
The Tribunal did not form a negative view of the evidence of Ms Williams, but it was less direct, somewhat vague at times and, overall, less compelling than the testimony of Ms Wistrom.
As the Applicant correctly points out, the fact that Ms Wistrom had no background knowledge of the Applicant’s issue was no impediment to her acting as a support person, and being able to observe the conduct of the meetings.
Ms Wistrom was not a friend of the Applicant, and had no obvious reason for being critical of Ms Williams’ behaviour. Indeed, as a Team Leader herself, Ms Wistrom was in an extremely good position to form a view as to whether Ms Williams’ behaviour was appropriate or not.
The Tribunal, then, had the advantage or receiving evidence from another person who was present at the meetings, and who had no reason to give anything other than an honest and objective account of what transpired. It is, then, of concern that Ms Wistrom testified that she was “shocked” by what she observed and hoped “that this doesn’t happen to other people in the same situation” – Tr. 4.11.2019 p. 74.
For the reasons outlined above, the Tribunal prefers the evidence of Ms Wistrom to that of Ms Williams as to what transpired at meetings of 12 and 25 July 2016.
Evidence of Dr Larder and Ms Crawley and Mr Stephens
There are sharply divergent accounts of what transpired at the case conference of 30 August 2016 which involved the Applicant, her treating psychiatrist Dr Larder, Ms Crawley and Mr Stephens.
Unfortunately Ms Crawley was not called to give evidence and the Tribunal was unable to observe her giving testimony. Nonetheless, the Tribunal did have the benefit of observing the testimony of the Applicant, Dr Larder and Mr Stephens.
Mr Clark, on behalf of Comcare, made the following submissions - OSR paras 22 – 24:
“22. The T-documents contain a number of reports from Dr Larder which established the Applicant first consulted him on 3rd August 2016. His initial report was only designed to provide support for the Applicant’s case regarding the preservation of her 7:00am start time and the level of her workload. His evidence-in-chief was largely taken up by an attack on Ms Crawley’s behaviour in the meeting of 30 August and a failure to arrange any follow-up meetings thereafter.
23. The Respondent called Mr Stevens [sic], DHS Case Manager, to give evidence. He quite specifically refuted Dr Larder’s allegations against Ms Crawley. At the same time, he insisted that the meeting was a positive experience that had sought to map out a forward path for the Applicant’s rehabilitation. Mr Stevens’ [sic] contemporaneous noted [sic] what took place in that meeting and appears in the R-documents at T.6.9, pp. 86-87. The contents of this contemporaneous note amply reflect his oral testimony. Further, that contemporaneous note does not seek to gloss over the Applicant’s ‘lack of trust’ in the rehabilitation process.
24. In all of the circumstances, the Tribunal would prefer the evidence of Mr Stevens [sic] to that of Dr Larder on this issue. It is simply inherently improbable that Ms Crawley would behave as badly as Dr Larder alleges in such an important meeting with the Applicant’s treating psychiatrist.”
In response, the Applicant made the following submissions – OSA pp. 8 – 9:
“The Respondent states that Dr Larder’s evidence at hearing constituted ‘an attack’ on Ms Crawley’s behavior in the meeting of August 30 2016. Again I note that the Respondent’s language is misleading, perhaps in order to ascribe a level of gravity to their statement that does not exist. Dr Larder described in a calm manner, and in reasonable terms, his observations of Ms Crawley’s behavior, based on his experience and qualifications…
The Respondent states Mr Stephens specifically refuted Dr Larder’s account of events, however Mr Stephen’s evidence was vague and unspecific, stating he didn’t really remember and erroneously stating I had given an account at the meeting when I had not.
I further note Mr Stephen’s apparent ‘specific’ memory of that meeting, in August 2016, contrasts with his distinct lack of memory when questioned, regarding the phone call he made to me in January 2017 which prompted him to dispatch the Police for a welfare check on me, after stating he didn’t recall me talking about suicide at all.
The Respondent prefers the account of a witness who stated regularly he ‘didn’t recall’ to an expert witness with 26 years experience of these matters. The claim that Ms Crawley’s behavior as described is ‘inherently improbable’ is baseless and not supported by the whole of the evidence in this matter.”
In the course of his evidence-in-chief, Mr Stephens was asked the following questions by Mr Clark – Tr. 6.11.2019 p. 136:
“It’s been alleged that Ms Crawley, in the course of this meeting, was – to use the word, I think, was used yesterday – was antagonistic towards Ms Bailey?---Right.
What do you say to that?---Well, absolutely not. That would totally unprofessional, and it’s certainly not what I observed.”
This testimony is totally at odds with the account of the meeting given by Dr Larder during his testimony.
The Tribunal prefers, on balance, the testimony of Dr Larder.
Dr Larder has practised as a psychiatrist at Wickham Terrace on a continuous basis since April 1993 and likewise has been lecturing since 1993, on a continuous basis, psychiatry at the University of Queensland. Furthermore, Dr Larder has taken a particular interest in work-related psychiatric problems and has treated numerous persons who have developed psychiatric ailments whilst working in the public service of Commonwealth and Queensland – Tr. 5.11.2019 pp. 89 – 90.
A search of discloses that Dr Larder has appeared and given evidence on numerous occasions not only in Tribunal proceedings, but also in the Supreme and District Courts of Queensland and other Queensland tribunal proceedings. A perusal of those many cases also discloses that Dr Larder’s professional opinion and credit as a witness has been widely accepted and observed.
The Tribunal formed a favourable view of Dr Larder’s evidence. It is inconceivable that a man of his professional stature and broad experience would either concoct or wilfully exaggerate his observations of the behaviour of Ms Crawley.
In comparison, and with due respect, Mr Stephens’ testimony was less compelling.
As Ms Bailey submitted, Mr Stephens had difficulty recollecting some of the events of 2016. In particular, the Applicant asked Mr Stephens if he recalled a conversation where she said that she had “been looking into ways to die.” Mr Stephens testified that he recalled “a conversation, and parts of it” - Tr. 6.11.2019 p.150.
In response to a Question whether he recalled the Applicant saying that she was having suicidal ideations, Mr Stephens testified – Tr. 6.11.2019 p. 150:
“There was certainly – it didn’t feature in all our conversations, but it crept into some.”
Subsequently the following exchange occurred – Tr. 6.11.2019 p. 151:
“[DEPUTY PRESIDENT:] I’m just saying to you…can you recall why she said she was having suicidal thoughts? If she didn’t say why, or you can’t recollect, that’s fine. I’m just asking a simple question. Did she say she was suicidal because she couldn’t stand going back in that building? You said that wasn’t the precipitator. If that wasn’t, what was – from your recollection? So if you’re able to discount that one, what was it?---Look, I can’t recall it and that’s not the message, I suppose, of the phone call I remember.”
The Applicant then asked the following Question – Tr. 6.11.2019 p. 151:
“Okay, following on – and I’ll make this my last question – do you recall that, as a result of that conversation, you alerted the police to come to my house and do a welfare check because I’d spoken about suicide?---If that was that conversation – yes. I – after reviewing with the senior manager, we thought it appropriate to conduct a police welfare check.”
I subsequently asked Mr Stephens the following Questions – Tr. 6.11.2019 pp. 151 – 152:
“How many times have you initiated – either directly or through your manager – police welfare checks on employees?---Probably half a dozen, if that.
Over what period of time would that be?--- Over 10 years.
Okay. So you don’t do it every day?---No---
You only do it when you think there’s a substantial risk?---For sure.”
It seemed incongruous to the Tribunal that Mr Stephens was adamant about his recollections of the conference convened by Dr Larder in August 2016, yet was vague about many other meetings and conversations around the same time. It was particularly the case when Mr Stephens gave vague testimony about a telephone conversation with the Applicant which resulted in making contact with the Police to do a welfare check. Even though, as he testified, he had requested only six or fewer over a period of 10 years and only did so if he perceived that there was a substantial risk of self-harm.
For the reasons outlined above, the Tribunal prefers the testimony of Dr Larder to that of Mr Stephens with respect to the behaviour of Ms Crawley at the case conference of 30 August 2016.
The evidence of the Applicant
A key matter in these proceedings is the view the Tribunal formed of the truthfulness of the Applicant’s testimony and whether the Tribunal formed the view that she was a witness of credit.
The Applicant gave evidence for most of the first day of the Hearing. She was subject to a lengthy and vigorous cross-examination by Mr Clark. It was very clear during the three days of the Hearing that the Applicant was anxious and was at times emotional. Clearly she found the proceedings to be stressful and she struggled at times to articulate her thoughts. Despite this, the Applicant impressed the Tribunal with her candour, her grasp of the issues and her ability to present her case despite the stress she was under.
The Applicant gave measured and relevant testimony both during evidence in chief and during her cross-examination by Mr Clark. The Tribunal, therefore, formed a positive view of the evidence given by the Applicant and also formed the view that she was a witness of credit.
CONSIDERATION
Does the Applicant suffer from a psychiatric ailment?
Comcare accepted (CSIFC paras 16 - 17), based on the diagnosis of Dr Lovell in his report of 28 March 2018, that the Applicant suffered from an Adjustment Disorder with Anxiety. Consequently, Comcare accepted that the Applicant suffered from a mental ailment, as defined in s 4 of the Act.
Having considered both the written and oral evidence of Dr Lovell, as well as the other medical practitioners, the Tribunal agrees that the preponderance of evidence supports the proposition that the Applicant suffers from a mental ailment, irrespective of the particular label that may be ascribed.
The only contrary point of view is that expressed by Dr Mann in his report of 28 December 2016 – Exhibit 1 T8 pp. 168 – 175 and, in this respect, he is an outlier.
The evidence also supports the proposition that the Applicant has had ongoing psychological problems since at least 2011. The preponderance of medical evidence suggests that her underlying adjustment disorder with anxiety waxes and wanes, but has never entirely resolved itself. The Tribunal accepts that the preferable diagnosis is that the Applicant suffered an aggravation of her underlying condition during the course of 2016 when she was negotiating her Regular Hours Agreement.
Significant contribution
Comcare contends (CSIFC para 18) that the Applicant’s psychological ailment was not contributed to, to a significant degree, by her employment with the Department. In particular, Comcare relies on the diagnosis of Dr Lovell that the Applicant’s mental ailment is a result of an amalgam of non-work-related issues and her heightened sense of interpersonal sensitivity and obsessional personality traits – OSR para 7.
The “significant degree” test applies in relation to an ailment, or an aggravation of that ailment, that an employee suffers on or after 12 April 2007. Subsection 7(4) provides, for the purposes of the Act, an employee is taken to have sustained an injury, being a disease or an aggravation thereof, on the earlier of:
(a)the employee first seeking medical treatment; or
(b)when the disease first resulted in incapacity or impairment.
Reference can be made to the very helpful discussion of the history of the 2007 amendments to the Act in Comcare v Power (2015) 238 FCR 187 at 201, 205/[78], [93]-[94] per Katzmann J. In particular, the following guidance was given:
“78. A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial….
93. There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of ‘significant’ as ‘substantially more than material’ makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be ‘more than trivial’; it had to be substantially more than trivial….
94. Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention…While the chapeau to the subsection states that those matters ‘may’ (not ‘shall’) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words ‘may’ means ‘shall’…”
(emphasis in original)
As highlighted by Katzmann J, in determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment s5B(2) provides that the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee not related to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”
Comcare’s submissions on the question of substantial contribution are heavily reliant on the assessment of Dr Lovell.
First, and before dealing in detail with Dr Lovell’s assessment, it should be noted that he opined that the Applicant suffers from a pre-existing heightened interpersonal sensitivity brought about by physical abuse and bullying behaviour in her developmental years – Exhibit 2 ST 35 pp. 374 – 376.
Dr Lovell was of the opinion that the Applicant’s pre-existing heightened personal sensitivity influenced her perceptions and interactions in the workplace – Exhibit 2 ST35 p. 376.
The Tribunal accepts, based on the evidence presented, that the Applicant has, a heightened interpersonal sensitivity and this would, no doubt, influence her perceptions and interactions in the workplace. However, Dr Lovell goes further and opined that the workplace meetings the Applicant complained of were “conducted with sensitivity, support and an outcome focus” – Exhibit 2 ST35 p. 374. He also opined that the “although work was attempting to assist her, her perception was they were persecuting her” (Exhibit 2 ST35 p. 378), and he went on to suggest that this perception was due to her interpersonal sensitivity.
It will be noted that the Tribunal has accepted the evidence of Ms Wistrom and Dr Larder about the conduct of various meetings. The views of the Applicant about those meetings were not those of person with psychological issues who misunderstood and misrepresented what occurred. Certainly the Applicant does have a psychological ailment, and this, no doubt, colours her perception about her interaction with certain people. However, key elements of her case have been corroborated by independent third persons and the assumptions underpinning some aspects of Dr Lovell’s report and evidence are at odds with the accepted evidence of Ms Wistrom and Dr Larder.
Insofar as key elements of Dr Lovell’s report are predicated on factual assumptions which are contrary to the findings the Tribunal has made above, some of the conclusions he reaches are necessarily given less weight.
Second, Mr Clark submits (OSR para 31) that Dr Lovell’s opinion about the impact of non-work issues on the Applicant’s mental condition is predicated on three factors:
(a)the impact of non-work-related physical health issues, including thyroid cancer and surgery, sleep apnoea and diabetes;
(b)pre-existing heightened inter-personal sensitivity; and
(c)obsessional personality traits which can result in some sense of persecution.
The Tribunal agrees that the evidence presented supports the proposition that the Applicant suffers from a range of non-work-related illnesses and also has underlying personality and mood issues.
There is conflicting medical evidence about the impact of bullying and possible physical abuse during the Applicant’s early years. Insofar as there is a difference of opinion on this matter between Dr Lovell and Mr Marcon, the Tribunal prefers the diagnosis of Dr Lovell. Whilst Mr Marcon is at liberty to make a diagnosis, and his professional opinions are given due weight, the Tribunal prefers the diagnosis of an experienced and well-respected psychiatrist of the stature of Dr Lovell in this regard.
Third, the key issue to be determined is whether the work-related issues have contributed to a significant degree to her mental ailment at the time she made her claim.
It is tolerably clear from the contemporaneous surgery consultation notes taken by the Applicant’s treating General Practitioner, Dr Hanna, that the Applicant was regularly reporting work-related problems as a cause of ongoing anxiety in the period 2014 - 2016.
On 3 June 2014 Dr Hanna reports the Applicant as complaining of (Exhibit 4, Health Summary Sheet p. 6):
“work issues, on comcare, getting a new job soon, stressing about it
comcare will stop her psych sessions, needs to continue esp with her new job and long standing anxiety disorder.
discussed if happens we can do mental health plan.”
On 24 June 2016 Dr Hanna reported as follows – Exhibit 4 p. 6:
“needs 1 hr fortnightly from work for psych sessions, to support her in her new coming job.”
During this period the Applicant’s focus was directed towards her thyroid cancer surgery and the aftermath of that surgery. However, on 22 December 2014 Dr Hanna reported – Exhibit 2 p. 9:
“doing well at work, enjoying her temporary job, away from the team that bullied her in the past.”
This positive state of affairs did not last for long. On 26 February 2015, Dr Hanna reported – Exhibit 2 p. 11:
“ongoing issues at work, still struggling to learn about her new job
still working with the same people who caused her anxiety at the beginning of her problems
struggling to cope, see psychologist every 2-4 weeks.”
There are regular references in the attendance notes of Dr Hanna of the Applicant complaining of anxiety. On 20 July 2016, Dr Hanna made the following notes – Exhibit 4 p. 16:
“ongoing problems at work
very stressed, tearful and upset, bringing up the past problems of bullying and anxiety
started to see her psychologist again
wants a referral to industrial psychiatrist”.
Dr Hanna next assessed the Applicant on 26 July 2016, and made the following notes – Exhibit 4 p. 17:
“ongoing harassment at work, tearful, upset, shaking
asked to attend meetings to discuss working hours, allocations done at work
having to take support person with her to meetings due to anxiety and reliving memories from past bullying
not coping, had a meeting yesterday
felt anxious, had a panic attack going to work this morning
couldn’t go…”
After this time, the Applicant was being treated by Dr Larder. Dr Hanna noted on 24 August 2016 – Exhibit 4 p. 17:
“seeing the psychiatrist helped her a lot”.
Dr Hanna next assessed the Applicant on 31 October 2016 and made the following notes – Exhibit 4 p. 18:
“ongoing problems and harassment at workplace
sees psychologist and psychiatrist
applying for other jobs.”
The contemporaneous surgery consultation notes of Dr Hanna confirm that the Applicant was complaining that her perception of workplace issues was having a deleterious impact on her health from 2014, and, in particular, during 2016. The surgery notes also disclose that the Applicant was being treated for a range of other ailments, in particular thyroid cancer, but also for, inter alia, diabetes.
In addition to the contemporaneous surgery consultation notes of Dr Hanna, the Tribunal has the benefit of a number of detailed medical reports, including a number of reports from experienced psychiatrists.
Attention should first be given to the psychiatric assessment of Dr Mann which has previously been outlined.
Dr Mann observed that the Applicant had not had contact with psychiatric services prior to 2011 and was not regularly being treated by a psychiatrist prior to August 2016 – Exhibit 1 T8 p. 171.
Dr Mann dealt with, at length, the Applicant’s sleep apnoea and the impact of her thyroid operation in September 2014 – Exhibit 1 T8 pp. 169 – 171.
Whilst Dr Mann opined that he did not believe the Applicant’s then symptomatology fulfilled the full diagnostic criteria for any mental illness, he concluded that she was “suffering from an adjustment reaction with regards to her experiences at work” – Exhibit 1 T8 p. 172.
Dr Mann then dealt with the impact of the Applicant’s thyroid operation, and opined – Exhibit 1 T8 p. 173:
“It is unclear if she suffered from any lasting problems as a result of a general anaesthetic or the thyroid operation. It appears that any consequence of this thyroid operation would not prevent her from working full-time. I do not believe her current symptoms of stress and anxiety are related to the thyroid operation. I do not believe there are any other relevant conditions.”
Next, Dr Mann dealt with the impact of any underlying personality traits on her adjustment “reaction” and opined – Exhibit 1 T8 p. 173:
“I do not believe that Ms Bailey’s current psychological symptoms including anxiety and stress are related to personality traits. She denied suffering from any psychological difficulties prior to 2011. She remained determined to return to work at a different location and I do not believe her current symptomatology would prevent her from doing this.”
Finally, Dr Mann dealt with the employment contribution to her then clinical presentation – Exhibit 1 T8 p. 172:
“It is my opinion that Ms Bailey’s perception of events that occurred during the course of her employment contributed significantly to her current clinical presentation. I believe her experiences in the workplace led to her suffer an adjustment reaction and her symptoms of anxiety and distress.”
Of interest is the report of Dr Marcus Navin, Occupational Medicine Physician, who conducted a fitness for duty assessment of the Applicant on 6 February 2018. Dr Navin made the following observation – Exhibit 2 ST32 p. 334:
“Though I am not a psychologist or psychiatrist, I bring more than 45 years of experience to the assessment of Ms Bailey. I have read the materials supplied, I have made contact with her treating psychiatrist, Dr Larder.”
Dr Navin went on to make the following diagnosis – Exhibit 2 ST32 p. 334:
“From a physical perspective, Ms Bailey has no impediment from returning to work. There is no evidence of any ongoing disorder. Her viral pericarditis has been treated appropriately. There is no material provided to indicate the nature of her exact disorder and affirm that she was affected by pericarditis. The lack of follow-up would indicate that she had a self-limiting viral pericarditis. It has resolved without any requirement for follow-up.
I acknowledge there are psychological and psychiatric diagnoses which may be applicable to Ms Bailey. These are, in my estimation. Predominant in her situation rather than any physical aspect. In my opinion, these are reflected in her pattern of behaviour and her own response to her situation in attendance at the Department’s offices. The considerations of my colleague, Dr Garg are pertinent.”
As Dr Navin noted, the Tribunal also has the benefit of the report of Dr Garg, which has been noted earlier.
Dr Garg opined that, although the Applicant did not have any known genetic predisposition towards mental illness, she suffered childhood trauma which could have affected her early emotional development and predisposed her to developing anxiety and mood disorders when feeling stressed – Exhibit 2 ST36 p. 390.
Dr Garg specifically dealt the workplace contribution to her mental condition and made the following observations – Exhibit 2 ST36 pp. 391 – 392:
“Ms Bailey’s current psychiatric symptoms are perpetuated by her fear of others harming her behind her back and her limited coping skills resulting from vulnerabilities in her personality…
She may also benefit with time off work as her psychiatric symptoms are perpetuated by her fear of facing her team members at her work place…
Ms Bailey has developed a specific fear of being harmed by her work colleagues. She develops symptoms of severe anxiety when she thinks that she may be exposed to these people. These anxiety symptoms affect her ability to work with her team members…”
Mr Marcon, the Applicant’s treating psychologist, entirely discounted childhood experiences as impacting on her current mental condition – Exhibit 2 ST37 p. 398:
“It is my professional opinion that this was a short lived period which is not significant in Ms Bailey’s emotional development and is a relationship dynamic most siblings experience during these years. I find it has little or no relevance to the difficulties Ms Bailey has encountered at DHS, some 35 years later.”
As previously noted, the Tribunal prefers the opinion of Dr Lovell in this regard, and Dr Lovell’s findings are also in accord with the opinions expressed by Dr Garg – Exhibit 2 ST36 p. 390.
However, whilst the Tribunal does not agree with Mr Marcon that developmental issues are not relevant, it does note the view of Mr Marcon that workplace issues have played a major role in the Applicant’s current mental condition – Exhibit 2 ST37 pp. 398 - 399:
“Ms Bailey has often expressed feeling isolated, ignored and harassed by her employer during this time, that she was made to attend meetings with no resolution and her specific requests for the reasons why the relevant policies and procedures were being withheld from her were never provided. I further note that in order to apply this change to Ms Bailey’s schedule, her employer reduced her existing working hours by 5 hours a week. This had an emotional and financial impact on Ms Bailey that she found difficult to reconcile, given that the explanations she had been asking for were never given.
Based on my observations, I do not believe the change in start time itself impacted Ms Bailey beyond the loss of 5 working hours a week, however the continuation of meetings without resolution, the disregard of the medical evidence Ms Bailey provided and the absence of information she requested regarding her rights as an employee of the Australian Public Service, reinforced the feelings of isolation, harassment and bullying, thereby exacerbating her anxiety and depression.”
The Applicant’s treating psychiatrist, Dr Larder, diagnosed the Applicant with a chronic syndrome of anxiety and depressive symptoms with an onset of 2011/2012. Dr Larder opined that this condition has waxed and waned over the years in response to life stressors some of which were personal and some were work-related. Dr Larder was firmly of the opinion that work-related stressors played a key role in her current mental state – Exhibit 2 ST38 p. 400:
“There is no doubt that in my experience I have witnessed and therefore diagnosed a serious aggravation of her psychiatric difficulties brought on by certain work related stressors…
She has reported work related stressors to me concerning management actions…”
The Tribunal had the advantage of listening to Dr Larder give evidence. The Tribunal was, as previously noted, impressed by his testimony and his professional judgment. He presented as an experienced and learned professional who gave measured and objective evidence, and did not present as a person who had slipped into the role as a prosecutor of the Applicant’s cause.
The only professional who had discounted an employment contribution to the Applicant’s mental condition is Dr Lovell. As previously noted, he concluded that there was “no evidence that work was a significant contributor” to the Applicant’s diagnosed condition of adjustment disorder with anxiety – Exhibit 2 ST35 p. 378.
As previously discussed, this finding was based on his acceptance of a state of affairs at work which the Tribunal has found to be incorrect.
Further, and with due respect to Dr Lovell, the preponderance of medical evidence and the sheer weight of non-medical evidence, supports the proposition that the Applicant’s perception of work-related issues, contributed to, to a significant degree, to her mental condition.
Fourth, it is necessary to deal with a further issue, namely the Applicant’s perception of events in the workplace. This is important because one of the factors that a decision-maker is required to take into account when determining if the significant contribution test is satisfied is the predisposition of the employee to the ailment or aggravation.
Attention must first be given to the leading authority in this area, Wiegand v Comcare (2002) 72 ALD 795; [2002] FCA 1464. In that case von Doussa J held that an employee’s perception of workplace victimisation would satisfy the requisite employment causal link if the employee’s perception of an incident or state of affairs matched the reality that an incident or state of affairs existed, even if the perception was unreasonable because of the employee’s constitutional vulnerabilities.
Von Doussa J first observed (at [14]):
“The psychiatrists appear to be in substantial agreement that all of Mr Wiegand’s difficulties cannot be attributed to his employment, and that the predominant factor in his depressive disorder relates to his basic personality. However, that conclusion does not answer the question whether, within the meaning of the definition of disease in the SRC Act, Mr Wiegand was in January 1998 incapacitated by an aggravation of that ailment that was contributed to in a material degree by his employment with the ATO.” (emphasis in original)
His Honour then made the following observation (at [21]):
“…It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors. It is not the vulnerability that constitutes or may constitute an aggravation. The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.”
Finally, his Honour made the following observations:
“24. It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to ‘employment’ which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a ‘reality’ test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened….
31. In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed to a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed to a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”
This decision has been followed subsequently in numerous cases, and reference can be made in that regard to the decision of Collier J in Telstra Corporation Limited v Hunter (2016) 68 AAR 372; [2016] FCA 318.
The principle underpinning the above cases is that an employer takes an employee as she or he is. If the employee has underlying constitutional issues that predispose her or him to the contraction or aggravation of an ailment, then that does not absolve the employer from responsibility. As von Doussa J held, the question of workplace contribution is not answered by drawing attention to an employee’s vulnerabilities, but rather, to ascertain if the employee’s employment has contributed to a significant degree to the contraction of an ailment or the aggravation of an existing ailment. Further, if an employee’s perception of events is grounded in the reality of an event or a state of affairs, even though the employee’s perception may be clouded by their vulnerabilities, liability is founded. Of course, this principle is predicated on the supposition that the employee’s perception is genuine and the workplace event or state of affairs has contributed to the contraction or aggravation of the ailment. In contradistinction, where the condition already existed and the workplace was the environment for an increase in the symptomology, then the workplace contribution test is not met – Dean v Australian Postal Corporation (2010) 52 AAR 52; [2010] FCA 680.
In this matter the preponderance of events supports the proposition that the Applicant has underlying vulnerabilities. Those vulnerabilities preceded her employment with the Department. It may be, as some of the psychiatrists opined, that childhood experiences have predisposed the Applicant to perceptions of bullying and victimisation.
Nonetheless, the great weight of evidence, also supports the proposition that the Applicant has a genuine belief that she was working in an unsafe workplace, that she was treated unfairly, that she was not given answers to reasonable questions and that she was worn down by unnecessary meetings that were stressful.
A finding such as this would alone satisfy the Wiegand test of workplace contribution. However, the evidence before the Tribunal goes further than that. In this instance the Applicant’s perceptions were not only genuinely held, but in large part actually matched the reality of what occurred. The evidence supports the proposition that the Applicant’s account of various meetings and events was largely accurate, and was not merely the genuinely held belief of a person with underlying mental problems who misinterpreted the state of affairs that existed in the workplace.
For all of the above reasons, the Tribunal is satisfied that the Applicant satisfies the significant contribution test as set out in s 5B.
Reasonable Administrative Action
Comcare contends (CSIFC para 22) that the process of negotiating the Applicant’s Regular Hours Agreement was reasonable administrative action taken by the Department in a reasonable manner.
This action, it submitted, falls within s 5A(2)(f), namely:
“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.”
The Tribunal accepts that the negotiation of the reasonable hours agreement in 2016 fell within s 5A(2)(f).
First, it is necessary to deal with the issue of whether the aggravation of the Applicant’s underlying ailment was as a result of reason the administrative action identified above.
The Tribunal is required to be satisfied that the Applicant would not have suffered the aggravation of her ailment if the Regular Hours Agreement meetings had not taken place – Martin v Comcare (2015) 238 FCR 373 at [70].
The Tribunal accepts the conclusion reached by Mr Marcon in this regard – Exhibit 2 ST37 p. 399:
“Based on my observations, I do not believe the change in start time itself impacted Ms Bailey beyond the loss of 5 working hours a week, however the continuation of meetings without resolution, the disregard for the medical evidence Ms Bailey provided and the absence of information she requested regarding her rights as an employee of the Australian Public Service, reinforced the feelings of isolation, harassment and bullying, thereby exacerbating her anxiety and depression.”
Comcare did not dispute this diagnosis in its Statement of Issues, Facts and Contentions (at para 25) and the Tribunal proceeds on this basis.
The key issue in this matter is whether the administrative action was taken in a reasonable manner. What constitutes action taken in a reasonable manner was addressed by Dr Campbell in Georges and Telstra Corporation Ltd [2009] AATA 731 [ 22 - 23] as follows:
“I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound…judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.
[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that flow as the consequence of such administrative action being taken. In such circumstances where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered…”
Comcare drew the Tribunal’s attention (CSIFC para 29) to the following observations of Lander J in Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42; [1998] SASC 6519 pp. 47 – 48:
“Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.”
The first issue to be resolved is whether the aggravation of the Applicant’s underlying psychological condition was suffered as a result of reasonable administrative action.
The Tribunal is satisfied that the process of negotiating the Applicant’s Regular Hours Agreement and her work duties was reasonable administrative action.
There is some confusion and disagreement about whether the Applicant was actually on a Regular Hours Agreement. For the purposes of this matter the Tribunal has proceeded on the basis that the Applicant was on a Regular Hours Agreement for the reasons outlined in the Witness Statement of Ms Williams of 13 March 2018 – Exhibit 2 ST34 p. 353 paras 28 – 29. In any event, the evidence discloses that there was a Directive issued by the Department that all new Regular Hours Agreements should have a start time not earlier than 8:00am – Exhibit 1 T6.7 p. 80. In these circumstances, Ms Williams had no option other than to start a process of negotiation with the Applicant. Further, it was also appropriate for Ms Williams to negotiate any other work-related matter that was germane to the process.
The Applicant herself recognised the legitimacy of the convening of meetings to discuss her work time. In the statement attached to her claim form she said – Exhibit 1 T4 p. 24:
“I want to be clear, I do not take issue with the fact that these discussions need to be held….”
The issue in dispute is whether the process initiated by Ms Williams was undertaken in a reasonable manner.
In this matter, the Tribunal has found that the meetings conducted by Ms Williams were less than ideal, and has preferred the account of what transpired, on at least two occasions, of Ms Wistrom.
During her testimony of the first meeting she attended, Ms Wistrom (Tr. 4.11.2019 p. 73) that she “thought your team leader [Ms Williams] was cold. She lacked emotion. She wasn’t prepared, a little bit dismissive of you.” Ms Wistrom went on to testify (Tr. 4.11.2019 p. 73) that she “was shocked by the process, and the interaction…or lack of interaction.”
In addition Ms Wistrom testified that the Applicant was “tearful”, “crying” and not “ready to go back out onto the work floor.” Despite this, the meeting was ended and Ms Williams left.
Moreover, Ms Wistrom testified (Tr. 4.11.2019 p. 74) the second meeting she attended was “similar”, and that there was “no point” because Ms Williams “didn’t have the answers to your questions”.
Ms Wistrom also testified (Tr. 4.11.2019 p. 74) that as a Team Leader herself she “would’ve handled things differently” and tellingly said she hoped “this doesn’t happen to other people in the same situation.”
It is clear that the relevant officers in the Department were aware of the Applicant’s fragile health. Of significance is the email of Mr Geary to Ms Williams of 29 June 2019 – Exhibit 1 T7.3 pp. 104 – 105. Mr Geary as the Assistant Director of People Support Team Queensland had discussions with Ms Williams about the negotiation of a Regular Hours Agreement with the Applicant. In his email to Ms Williams he made the following observations – Exhibit 1 T7.3 pp. 104 – 105:
“We also discussed this as an opportunity to ask who are the people on level 23 or in George St across all floors that trigger anxiety as we may be exposing her to them at other times and not be aware of it. Therefore creating a risk for the department of exacerbating her illness. It would be useful to understand what will or won’t trigger a reaction for Jackie. This also links to the issue of whether we can provide assurance of that she won’t be in contact with these people to the level where they impact on her.
There is some risk attached to this approach which should be considered. She may react negatively and it could:
· Re trigger her anxiety based compensation claim from 2012 by linking this matter with the anxiety claim.
· She takes further leave and it puts back your plan to return her to full duties further rather than progress it.”
In short Ms Williams received advice of the need to approach the Regular Hours Agreement negotiations with the Applicant in a manner that would not result in triggering an exacerbation of her underlying fragile mental health. The fact that the meetings convened by Ms Williams, which were attended by Ms Wistrom, were conducted in the manner described, is clearly contrary to the tenor of advice given by Mr Geary.
The Tribunal does not wish to be overly critical of Ms Williams. She was obviously dealing with a very difficult situation, and was trying, it would appear, to re-integrate the Applicant into full-time work. Unfortunately, the way that the meetings were conducted was less than ideal and resulted in the Applicant experiencing an exacerbation of her underlying adjustment disorder with anxiety.
Further, the Tribunal has found that the account given of the medical case conference of 30 August 2016 by Dr Larder preferable to the account provided by Mr Stephens.
The Tribunal has also found that the Applicant was a witness of credit, and found her testimony to be honest and reliable.
In these circumstances, the Tribunal is not satisfied that the administrative action taken in negotiating the Applicant’s regular hours agreement was taken in a reasonable manner. It was not reasonable because the parties involved knew the particular psychological vulnerabilities of the Applicant, yet conducted confronting and sometimes unnecessary meetings and failed to provide the Applicant with the support and, at times, the courtesy she required and was entitled to receive.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that Comcare is liable to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the aggravation of her Adjustment Disorder with Anxiety.
I certify that the preceding 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
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Associate
Date: 8 May 2020
Dates of hearing: 4 – 6 November 2019 Final closing submission filed: 5 February 2020 Applicant: In person Counsel for the Respondent: Mr Charles Clark Solicitor for the Respondent: Mr James Pratt, Comcare
- AGLC
- Bailey and Comcare (Compensation) [2020] AATA 1244
- Case
- [2020] AATA 1244
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were whether the Applicant suffered from a mental ailment as defined by the Act, and if so, whether her employment contributed to the aggravation of that ailment to a "significant degree." This required the Tribunal to consider the meaning of "significant degree" as interpreted in light of amendments to the Act, which stipulated that a contribution must be "substantially more than material." Furthermore, the Tribunal had to determine if the administrative actions taken by the employer concerning the Applicant's Regular Hours Agreement were conducted reasonably, particularly in light of the Applicant's known psychological vulnerabilities.
The Tribunal found that the Applicant did suffer from a mental ailment, specifically an Adjustment Disorder with Anxiety, which had been aggravated during the period she was negotiating her Regular Hours Agreement. While acknowledging the Applicant's pre-existing psychological vulnerabilities and personality traits, the Tribunal concluded that the administrative actions taken by the employer were not reasonable. This unreasonableness stemmed from the manner in which meetings were conducted, the lack of adequate support and courtesy provided to the Applicant, and the failure to adequately address her concerns, despite her known psychological sensitivities. The Tribunal applied the principles established in *Comcare v Power*, emphasising that the "significant degree" test requires a contribution substantially greater than merely material, and involves an evaluative exercise.
Consequently, the Tribunal set aside the decision under review and substituted its own decision, finding Comcare liable to pay compensation to the Applicant under section 14 of the Act for the aggravation of her Adjustment Disorder with Anxiety.
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
The Applicant gave measured and relevant testimony both during evidence in chief and during her cross-examination by Mr Clark. The Tribunal, therefore, formed a positive view of the evidence given by the Applicant and also formed the view that she was a witness of credit.CONSIDERATIONDoes the Applicant suffer from a psychiatric ailment? Comcare accepted (CSIFC paras 16 - 17), based on the diagnosis of Dr Lovell in his report of 28 March 2018, that the Applicant suffered from an Adjustment Disorder with Anxiety. Consequently, Comcare accepted that the Applicant suffered from a mental ailment, as defined in s 4 of the Act. Having considered both the written and oral evidence of Dr Lovell, as well as the other medical practitioners, the Tribunal agrees that the preponderance of evidence supports the proposition that the Applicant suffers from a mental ailment, irrespective of the particular label that may be ascribed. The only contrary point of view is that expressed by Dr Mann in his report of 28 December 2016 – Exhibit 1 T8 pp. 168 – 175 and, in this respect, he is an outlier. The evidence also supports the proposition that the Applicant has had ongoing psychological problems since at least 2011. The preponderance of medical evidence suggests that her underlying adjustment disorder with anxiety waxes and wanes, but has never entirely resolved itself. The Tribunal accepts that the preferable diagnosis is that the Applicant suffered an aggravation of her underlying condition during the course of 2016 when she was negotiating her Regular Hours Agreement.Significant contribution Comcare contends (CSIFC para 18) that the Applicant’s psychological ailment was not contributed to, to a significant degree, by her employment with the Department. In particular, Comcare relies on the diagnosis of Dr Lovell that the Applicant’s mental ailment is a result of an amalgam of non-work-related issues and her heightened sense of interpersonal sensitivity and obsessional personality traits – OSR para 7. The “significant degree” test applies in relation to an ailment, or an aggravation of that ailment, that an employee suffers on or after 12 April 2007. Subsection 7(4) provides, for the purposes of the Act, an employee is taken to have sustained an injury, being a disease or an aggravation thereof, on the earlier of:(a)the employee first seeking medical treatment; or(b)when the disease first resulted in incapacity or impairment. Reference can be made to the very helpful discussion of the history of the 2007 amendments to the Act in Comcare v Power (2015) 238 FCR 187 at 201, 205/[78], [93]-[94] per Katzmann J. In particular, the following guidance was given:“78. A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial….93. There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of ‘significant’ as ‘substantially more than material’ makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be ‘more than trivial’; it had to be substantially more than trivial….94. Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention…While the chapeau to the subsection states that those matters ‘may’ (not ‘shall’) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words ‘may’ means ‘shall’…”(emphasis in original)