Byrnes v RMIT
[2010] VMC 50
•12 MARCH 2010
| IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE |
Case No. Y02765923
| TRUDY BYRNES | Plaintiff |
| v | |
| ROYAL MELBOURNE INSTITUTE OF TECHNOLOGY | Defendant |
---
MAGISTRATE: | MR B. WRIGHT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | |
DATE OF DECISION: | 12 MARCH 2010 |
CASE MAY BE CITED AS: | BYRNES v RMIT |
REASONS FOR DECISION
---
Catchwords:
Accident Compensation – Rejection Of Claim – Stress And Anxiety Injury – Facts – Whether Injury Arose Wholly Or Predominantly Out Of Reasonable Action/Manner Or Decision On Reasonable Grounds – Incapacity For Work – “Current Work Capacity” - Relevance Of Inability To Return To Same Workplace – Accident Compensation Act ss. 5, 82(2A), 93
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. P. Rosenberg | Ryan Carlisle Thomas |
| For the Defendant | Mr. J. O’Brien | Minter Ellison |
D E C I S I O N
HIS HONOUR: The plaintiff claims weekly payments and reasonable medical and like expenses for anxiety and depression, which she said was due to workplace harassment in her capacity as a careers counsellor at the RMIT University (Bundoora campus).
She had been so employed since April 2001 and particularly complained about two managers whom she alleged "harassed, bullied, ostracized and discarded her". She said they ignored and unjustifiably refused her applications for such matters as leave, supply of electronic equipment, study aids, conferences and a duress alarm. She said that she was unjustly treated.
She first suffered stress in 2003 when a receptionist was taken from her area. She saw her doctor but did not make any worker's compensation claim.
In early 2009 she was not picked to go to an educational symposium and the nature of a website project in which she was interested was altered without her input. Shortly after this latter event she ceased work and has not returned to RMIT since.
The notice of rejection disputed the allegations of harassment and unjust treatment and stated that s.82(2A) of the Accident Compensation Act (“the Act”) was relevant to her psychiatric conditions in that she was reasonably denied a request for a reduction in hours. Of course, the same defence could have been raised as to the other refusals of claims for leave and attendance at conferences, etc
After hearing the plaintiff's evidence and considering the two medical reports it appears that the real cause of the deterioration in her psychiatric state was the breakdown in interpersonal relationships between her and her superiors. This is referred to by the two consultant psychiatrists, Dr Nathar and Dr Entwhisle, who have examined her for both sides.
It was not the decisions in themselves that were relevant. It was the process and the inter-reactions involved.
The defendant did not make any submission and did not call any evidence as to the liability issue. While not conceding liability it seemed sensible to me that it did not actively dispute liability, for the reasons I have expressed. Whether or not there was real harassment or mistreatment is not to the point. She suffered an injury arising out of her employment. Section 82(2A) was not a real defence in the circumstances of her case.
Further, the recent decisions of the State of Victoria v. Leck [2009] VSC 92 is relevant, noting that some of the matters referred to by the plaintiff relate separately to benefits, transfer and leave. Other aspects such as equipment or aids would appear to fall outside s.82(2A) in any event. I do not see any non-work factors as being relevant in this case.
Since ceasing work the plaintiff's treatment has been limited mainly to regular attendances at her psychologist for relaxation and biofeedback training. She had a very limited period of taking Endep, which produced side effects. Of course, consequential upon the finding of the liability issue in her favour she is entitled to reasonable medical and like expenses. I shall discuss the period of entitlement to such treatment later in this decision.
The real issue in this case is the period of entitlement and the degree or rate of weekly payments payable to her.
On her own admission she has improved over the period since she ceased work for the defendant and has been able to return to some employment. She was certified by her GP as being unfit to work until 9 August 2009, when certified as to being fit for “alternative” duties and from 11 February 2010 for “modified” duties. The work restriction certified by her GP was, "not to work at RMIT".
She resumed some limited work on her own behalf in October 2009 mentoring two clients for 20 hours over two months. She was unsuccessful in applying for a casual careers counsellor position at La Trobe University, but has obtained a two day per week position as a careers coordinator at the Templestowe College. She is currently working in that job on probation.
She has applied for and believes that she is capable of working longer hours at present, and was in the past. Simply, she has not been able to obtain longer hours of work.
Of course the simple unavailability of, or inability to obtain, work is irrelevant for considerations of suitable employment (see the definition of “suitable employment” in s.5 of the Act). She does not feel able at present to return to full-time employment, or the nine days per fortnight that she was doing prior to ceasing work, either at RMIT or another employer.
Under cross-examination, her GP Dr Rixon believed that she was fit for full time work with the only restriction not to work at RMIT from as far back as 9 August 2009, though he believed that she could have worked part-time as far back as possibly May 2009.
Her psychologist Ms Batchelor, under cross‑examination, did not believe she was capable of returning to full-time work at present because of her variable mood. She believed that she needed a graduated return to full-time work. Of course a graduated return to full-time work is really dependent on such work being available, and with such a graduated option being open.
She was examined by two medico-legal psychiatrists as I have stated, Dr Entwhistle and Dr Nathar, in November 2009 and December 2009 respectively. Both believe she was capable of full-time work in the same, or similar capacity, to her pre-injury employment, but preferably not at RMIT in Bundoora.
As to her undoubtedly inability to return to work at RMIT at Bundoora, the recent County Court decision of Kerridge v. Monsfelt [2009] VCC 154 (per Judge Bowman) is relevant. With respect, I agree with His Honour's analysis that such an inability to return to a pre‑injury place of employment does not amount to an incapacity for work in itself.
Both counsel did not seek to argue the merits of the Kerridge decision, though counsel for the plaintiff stated that it was not relevant to the present case based on the evidence of the treating psychologist.
In the early stages after ceasing work she had “no current work capacity” as a result of her work injury. I find that this continued up to 9 August 2009, when her GP first certified her as being fit for “alternative” duties. Although with the benefit of hindsight he thought that she may have been fit for part time work beforehand, I do not find this to have been the case at the time.
Under cross-examination, again with the benefit of hindsight, he said that by “alternative” duties he meant her normal pre-injury duties at any other workplace than that of the defendant. However, that appears not to have been the advice he proffered to her at the time. In addition she was still having active treatment with Ms Batchelor.
As at 9 August 2009 I find that she had a “current work capacity” in that she was not fit to go back to full-time (or four and a half days per week) pre‑injury employment even at another workplace.
Dr Rixon continued to certify her as fit for “alternative” duties and did not discuss a return to work to full-time pre-injury duties on the evidence before me. As I referred to above, he was not really treating her and deferred to Ms Batchelor in that regard. He was really only giving her certificates. Ms Batchelor still only believed that she had a “current work capacity” then.
When she saw the two psychiatrists, Dr Nathar on 28 November 2009 and Dr Entwhisle on 8 December 2009, they thought she was fit to return to work in pre-injury duties, but not at RMIT in Bundoora, and offered corresponding opinions at that time. I accept that evidence, and make a consequential finding, on the balance of probabilities.
Thus, I find that she had a “current work capacity” until 28 November 2009, when she saw Dr Nathar. Beyond that date I find that she did not have any incapacity for work, as defined by the Act.
Ms Batchelor believes that she should not "get back on the horse" and commence full-time employment straightaway. That may well be an appropriate view for a psychologist. However, I do not believe it gives rise to an incapacity for work in itself.
Obviously, until she is able to obtain such employment on a graduated basis, she would be unable to work full time on that view. However, this is not in accordance with the provisions of the Act, in that the availability of such work should not be taken into account. One must look at her suitability for work at the relevant time rather than its availability.
The plaintiff was frank in admitting that she wished to work for greater hours. It is hard to avoid the conclusion that if she had obtained suitable full-time employment on a graduated basis in late 2009, she probably would be working such at present.
She has been an obvious and probably understandable lack of self confidence, which is why she needs a graduated return to full-time duties. That does not mean that she has a “current work capacity” within the meaning of the Act until she obtains such employment.
Her entitlement to weekly payments should cease as at 28 November 2009.
As to her entitlement to reasonable medical and like expenses, I find that she has a continuing entitlement at least to some continuing psychological treatment and very occasional visits to her GP. The only real evidence against this is from Dr Entwhistle, who states that she has no continuing symptomology. That is not to say that she does not need some limited continuing treatment at the moment, as I have expressed above.
I now seek counsel's assistance as to appropriate orders.
0
2
0