Carney and Comcare (Compensation)
[2016] AATA 36
•29 January 2016
Carney and Comcare (Compensation) [2016] AATA 36 (29 January 2016)
Division
GENERAL DIVISION
File Number(s)
2015/0991
Re
Sandra Carney
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries
Date 29 January 2016 Place Canberra The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.
....................................[sgd]....................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employees – injury caused by work – date of injury –whether reasonable administrative action – whether action in respect of employment – whether carried out in a reasonable manner – decision set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
Cases
Abrahams v Comcare (2006) 93 ALD 147
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
Deputy President Gary Humphries
29 January 2016
Background
Ms Sandra Carney, the applicant, comes before the Tribunal seeking compensation for a condition she says she suffered as a result of certain workplace incidents in 2014. These occurred during her employment as an unsworn member of the Australian Federal Police (AFP). The resolution of her present claim turns on the nature of those incidents involving work colleagues and the extent, if any, to which she was psychologically injured by those incidents.
On 24 September 2014, she made a claim for workers’ compensation against her present employer under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). On 20 February 2015, Comcare affirmed an earlier decision to deny liability for the claim and on 3 March 2015, Ms Carney sought a review of this decision in the Tribunal.
Issues
The issues which fall to the Tribunal to determine under the Act are:
(a)What is the appropriate diagnosis of Ms Carney’s condition?
(b)Was this condition a disease as defined in s 5B of the Act?
(c)If so, was the disease the result of reasonable administrative action pursuant to s 5A of the Act, such that the disease is excluded from the definition of injury in the Act? In this question, determining the date on which she suffered her injury assumes some importance.
It was conceded at the outset by the respondent, Comcare, that if Ms Carney suffered a disease (which it denied) then the disease was contributed to, to a significant degree, by her employment with the AFP. Comcare asserted that the condition did not amount to a disease, but that if it did it was caught by the reasonable administrative action provisions in s 5A, preventing it from giving rise to compensation.
Ms Carney’s original workers’ compensation claim in these proceedings was for Aggravated back problem due to work-related stress. However, this element of her claim was not pursued at the hearing; the claim became one, in essence, simply of work-related stress. Abrahams v Comcare (2006) 93 ALD 147 is authority for the proposition that the Tribunal on review may consider a claim in reformulated terms, provided that the same symptoms, disability and timeframe are still being asserted. That is the case here. In addition, Comcare initially pleaded that Ms Carney’s claim was excluded by operation of s 7(7) of the Act, in that she had not disclosed a prior workers’ compensation claim for work related stress. This contention was not pursued at the hearing.
Relevant facts
Ms Carney has been employed as an unsworn member of the AFP since August 2012, but has held a number of positions in both the public and private sectors in the decade and a half before her present employment. She rose to the level of team leader in a number of those positions, including at the AFP. However, she has been caught up in workplace conflict over much of that period, and her health has been affected by it, leading to extensive periods of leave related to stress and similar conditions.
She lodged a claim for a stress-related disorder against a previous employer, Telstra, in 1998. She also attended the Kambah Medical Centre at least twice during 2013, while employed by the AFP, to report “stress at work”. In 2014, there was a series of incidents or events at her workplace (the AFP Headquarters in Barton) which it was variously asserted by the parties contributed to the condition or conditions which formed the basis of her present claim. I now set out briefly those incidents/events.
The 16 January 2014 incident
On 16 January 2014, Ms Carney was the team leader, Procurement and Vendor Relations in the Business Alignment and Innovation Branch at the AFP. Her superior was Mr John Hahn, Coordinator of the Branch. That day she was advised of a meeting to be held with Ms Virginia Savle, team leader of the ICT Assets Team, who was then acting in Mr Hahn’s position, as he was on leave. The meeting was called to discuss workflow diagrams that had recently been prepared for the Branch. There were three workflow diagrams to be discussed at the meeting; whilst there had been prior discussion in relation to two of those diagrams, the third had only been produced very shortly before the meeting and Ms Carney believed that her team had not had sufficient time to review the third diagram.
Ms Carney attended the meeting with two members of her Procurement and Vendor Relations Team. Her version of events was that she advised Ms Savle at the commencement of the meeting that her team was not in a position to discuss the third diagram, but would discuss the other two. Ms Savle then declared that the meeting would not go ahead, and left the room. Ms Savle sent an email later that day to Ms Carney expressing disappointment that you refused to have this discussion with me (in front of 2 of your team members) given that I am acting in John’s role.[1] Ms Carney’s evidence was that she was extremely upset by this email, asserting that it stated that she had refused a meeting concerning workflow diagrams. She told the Tribunal she felt nauseous and experienced back pain that afternoon. That day she contacted Ms Alison Mogg, Acting Contract Manager, to explain that Ms Savle’s email was incorrect.
[1] T18E.
That evening, she felt very, very unwell. Ms Carney experienced disturbed sleep that night, and awoke with stomach pains, diarrhoea and general anxiety. She took sick leave on 17 and 20 January (either side of a weekend), seeing her GP, Dr Goel on 20 January to obtain a certificate for that purpose. Ms Carney’s evidence to the Tribunal was that she described stress at work to Dr Goel as the cause of her need for sick leave; however, the records from Dr Goel’s practice indicate that the consultation had been about lump in the abdomen and gastro. Ms Carney was reasonably certain that, though she had concerns about a lump in her abdomen at about that time, she had discussed workplace stress with her doctor at that consultation. I accept Ms Carney’s recollection.
The 21 January 2014 incident
On his return from leave Mr Hahn called a meeting with Ms Carney and Ms Savle for the morning of 21 January 2014. He had seen Ms Savle’s email of 16 January and wanted to have a meeting to find out what had occurred. The meeting was set down for 10am, though Ms Carney initially sent a message to Mr Hahn declining the meeting. At the appointed time, there was some confusion about the meeting venue; Mr Hahn gave evidence that the room designated for the meeting was double booked, and he had to wander through the business area – in sight of other workers and with Ms Carney and Ms Savle following him – to find a suitable office. A fairly detailed record of this meeting, made by Mr Hahn, was tendered. It records that both Ms Carney and Ms Savle gave accounts of what had occurred at the meeting the previous week. It records that Ms Carney stated that she was upset and that she is really not well and shouldn’t have come to work.[2] Later in the meeting, according to Mr Hahn’s record:
Sandy then said that she is visibly shaking and that she is not well and that she cannot express it to me any further. She then stated that I was putting her under pressure and that I shouldn’t be doing it to her.[3]
The record shows that Ms Carney left the meeting soon afterwards.
[2] T14B, 172.
[3] T14B, 173.
Ms Carney gave evidence that she felt she had been paraded around the business area prior to the meeting as Mr Hahn looked for an office. She felt upset and humiliated at the meeting, her hands were trembling, and she was embarrassed and traumatised by the allegations that Virginia had made against me. She confirmed she left the meeting, and the building, and cried all the way home. She also alleged that Mr Hahn and Ms Savle had shouted at her during the meeting, an allegation that was supported by a witness, Ms Caruso.
In her tendered statement, Ms Carney reported that, in the days subsequent to this meeting, she was very anxious… could not sleep… had an extremely upset stomach…had diarrhoea again… She took about a fortnight’s leave from her work. On several occasions in February she attended the AFP’s EAP provider.
The February 2014 performance assessment
On 28 February 2014, Mr Hahn conducted a Performance Development Assessment of Ms Carney, finding that her results against critical objectives fell well short of self-assessment in a number of areas.[4] He also commented Sandy’s performance … is bordering on underperformance from a Team Leader work-level perspective.[5]
[4] T14B, 180.
[5] T14B, 181.
The July 2014 restructure
There was a restructure of her branch in July 2014. On 28 July, she was removed from her position as a team leader. On that day, she noticed she was suffering from back pain. She took approximately 3 weeks leave thereafter.
The September 2014 performance assessment
Mr Hahn conducted a further performance review of Ms Carney on 3 September 2014. He rated her as underperforming. She attended Dr Goel that day, and again on 10 September 2014, reporting ongoing issues at work – this is affecting her health and stress at work.
The applicable law
Section 14 of the Act provides as follows:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In turn, injury is defined in s 5A, as follows:
(1) In this Act:
"injury" means:
(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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B defines “disease”:
"disease" means:
(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.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, 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 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 subsection does not limit the matters that may be taken into account.
(3) In this Act:
"significant degree" means a degree that is substantially more than material.
The general formulation of what constitutes a psychological disease is found in Comcare v Mooi (1996) 69 FCR 439, where it was held that it was not necessary to assign an employee’s condition with a recognised medical label, but that the employee be shown to suffer a condition that is outside the boundaries of normal mental functioning and behaviour (at 444).
The effect of these provisions and the case law is that, for her claim to succeed under s 14, Ms Carney must show that she suffered a condition outside the boundaries of normal mental functioning and behaviour, that the condition was significantly contributed to by her employment, and that it was not suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. In the circumstances of this application, Ms Carney’s condition, if it met this test, would be a disease or ailment.
The medical evidence
Two medical experts were called at the hearing: Associate Professor Michael Robertson for Ms Carney and Dr Catherine Oelrichs for Comcare. In each case it strikes the Tribunal that their evidence seemed somewhat tentative, even guarded. This may be a reflection of what both acknowledged to be some predisposition on Ms Carney’s part to injury arising from workplace conflict. With this glass jaw (as Prof Robertson described it) leading to emotional reactions to a succession of workplace incidents, the difficulty in attributing a particular mental condition to incidents on particular dates is obvious.
Prof Robertson said in his tendered report of 2 April 2015 that Ms Carney has a vulnerable personality and a propensity to workplace difficulties. He said she had suffered at least two instances of likely adjustment disorder with depressed or anxious mood, occurring against the background of an obsessional personality style. He diagnosed her as suffering, at the time of his examination on 30 March 2015, a resolving adjustment disorder with depressed mood. In her evidence Dr Oelrichs agreed with Prof Robertson’s comments about Ms Carney presenting with vulnerabilities and propensity to workplace difficulties. In a report dated 6 July 2015, she stood by her view, based on an interview on 24 October 2014, that Ms Carney was not suffering from a diagnosable psychiatric condition at that time. However, with respect to the difference between her and Prof Robertson’s diagnoses, she noted that this would be consistent with the variation of emotional symptoms which appear to have become more apparent in late 2014-early 2015.
Prof Robertson told the Tribunal that Ms Carney dips in and out of clinically significant distress, with external stressors playing a significant role in this pattern. He was asked specifically whether the incident of 16 January 2014 had an impact on her; he responded that she appears to have clinically significant distress following that incident leading to considerable impairment of functioning. He said that her response to that event was psycho-pathological, rather than normative distress.
Her GP, Dr Goel, diagnosed Ms Carney on 15 October 2014 as suffering from adjustment disorder with anxiety and depression. It is also worth noting Comcare’s acknowledgement that in July 1998 her former employer, Telstra, accepted liability to pay her compensation in respect of an adjustment disorder with depressed mood with a date of injury of 20 November 1996, and that this claim arose in a workplace context.
Consideration
The first – and most critical – question for the Tribunal to determine is whether Ms Carney suffered an ailment during her employment with the AFP, and if so when the ailment arose. It was conceded by Comcare that, if she did suffer a condition that fell outside the bounds of normal mental functioning and behaviour, her employment should be considered a significant contributor to it.
Superficially, there was divergent expert medical evidence on her diagnosis. Prof Robertson found that she suffered an adjustment disorder with depressed mood (though resolving) as of 30 March 2015. Dr Oelrichs, by contrast, could not diagnose a psychiatric disorder as of 24 October 2014. However, each seemed to accept the fluctuating state of Ms Carney’s mental health, with Dr Oelrichs not contradicting Prof Robertson’s view that Ms Carney did suffer clinically significant distress at other times.
The evidence strongly suggests that Ms Carney responded emotionally, even viscerally, to incidents of workplace stress. Both experts acknowledged that she was prone to such reactions when she perceived she was subjected to bullying or unfair treatment. Prof Robertson commented that her experience of such treatment was tantamount to a narcissistic injury. She clearly has a particular susceptibility to adverse reactions in these settings – an eggshell skull, as her counsel described it – but this fact does not diminish the reality of the psychological impact this has occasioned during her working life, nor does it make those reactions any less compensable if the legal test of an ailment is satisfied.
In determining whether an employee’s condition has been contributed to, to a significant degree, by his or her employment, s 5B(2)(c) invites the decision maker to take into account any predisposition of the employee to the ailment or aggravation. This provision might be thought to suggest that a condition to which an employee was already predisposed is not one which can be contributed to by his or her employment. That reading of the section is too broad; the better interpretation is that an existing predisposition is an evidentiary matter, to be weighed up on a case-by-case basis, with the possibility in some instances that a condition might be due entirely by the pre-existing condition and not at all to the employee’s employment. In the present case, s 5B(2)(c) does not greatly assist the Tribunal, in that both doctors made reference to the exacerbating influence work stress had on her underlying vulnerability.
Prof Robertson gave evidence to the Tribunal that Ms Carney appears to have clinically significant distress following the incident of 16 January 2014, a view that seems consistent with her evidence and her having taken time off work and consulting her GP soon afterwards. Moreover, I discern nothing in the evidence of Dr Oelrichs to contradict this conclusion. Ms Carney’s condition at that time appears to meet the test in Mooi, that is, it was outside the boundaries of normal mental functioning and behaviour.
I find that as of 16 January 2014 Ms Carney suffered an adjustment disorder with depressed mood. I further find that this ailment was contributed to, to a significant degree, by her employment with the AFP.
The final question to determine is whether this ailment was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment, so that it is excluded from the definition of a compensable injury under s 5A. The evidence before the Tribunal suggests that at least some of the incidents in 2014, referred to above, could be caught by the provisions of this section. However, having determined that she suffered her ailment as of 16 January 2014, it is unnecessary to consider the contribution any of the later incidents in 2014 may have made to the sustainment or aggravation of the ailment. Hart v Comcare (2005) 145 FCR 29 is authority for the proposition that if an injury under the Act is the result, even partially, of an excluded cause, it is irrelevant that other employment-related causes may also have contributed to the injury. However, to fall within the s 5A exclusion, reasonable administrative action in respect of an employee’s employment must occur prior to the point where the employee is injured. There must be a causal connection between the administrative action and the injury: Zdziarski v Telstra Corporation Limited (2015) 146 ALD 354. If, as I have found, Ms Carney sustained her injury as of 16 January 2014, reasonable administrative action undertaken by her employer on 21 January 2014 – or at some later date – cannot exclude her condition from being considered an injury.
As a matter of record, I consider that what occurred on 16 January was entirely reasonable, in terms of the employer’s actions. I see nothing inappropriate in the approach taken by Ms Savle in calling together the meeting to discuss workflow diagrams, or in her calling off the meeting when it appeared Ms Carney was not prepared to discuss certain elements of the meeting agenda. Ms Savle’s subsequent email seems to have been a reasonable response to what had occurred in the cancelled meeting; indeed, Ms Carney’s upset at the email seems to have been based on a misreading of what Ms Savle actually said in it. Nonetheless, this reasonable conduct by the AFP does not fall within s 5A. To be encompassed by that section, the employer’s administrative action must be undertaken in respect of the employee’s employment. The necessary connection with employment was defined in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 to mean action with respect to the employee as employee and his or her employment relationship with the employer (at [30]). What occurred on 16 January was not addressed to her status or performance as an AFP employee (though it subsequently gave rise to questions of this kind), but rather is best described as action forming part of the everyday duties or tasks that the employee performed in his or her employment or job (Reeve at [60]). Counsel for Comcare conceded at the outset of the hearing that the events of 16 January were not administrative action within the meaning of the section.
Had I been required to determine whether the incident of 21 January 2014 fell under the terms of s 5A – that is, was reasonable administrative action taken in a reasonable manner in respect of her employment – I would have found that it did, though this assessment is much more marginal than in the case of the earlier incident. However I am not required to make this determination since I have found that Ms Carney had already sustained her injury the previous week.
Since Ms Carney has suffered an ailment that was significantly contributed to by her employment, and which was not suffered as a result of reasonable administrative action, it follows that she should succeed under s 14 of the Act. Accordingly, I set aside Comcare’s decision of 20 February 2015, and instead substitute that Comcare is liable to pay compensation to Ms Carney under s 14 of the Act for an adjustment disorder with depressed mood.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries ..............................[sgd]..........................................
Associate
Dated 29 January 2016
Date(s) of hearing 25-26 November 2015 Counsel for the Applicant Karl Pattenden Solicitors for the Applicant Slater & Gordon Lawyers Counsel for the Respondent Andrew Dillon Solicitors for the Respondent Sparke Helmore
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