Carol Hunt and Comcare
[2013] AATA 931
[2013] AATA 931
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4516 and 2013/1644
Re
Carol Hunt
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 20 December 2013 Place Canberra The decision under review is affirmed
.....................[sgd]…................
RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – two claims - adjustment disorder, irritable bowel syndrome, migraines and herpes zoster – whether some conditions aggravated by employment – whether contributed to by employment to a significant degree – whether not compensable because due to reasonable administrative action conducted in a reasonable manner.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) section 4(1), 5A, 5B, 7(4) and 14
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Comcare v Mooi (1996) 23 AAR 160
Comcare v Sahu-Khan (2007) 156 FCR 536
Comcare v Martinez [2013] FCA 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461
Falconer v Pedersen [1974] VR 185 at 187
Hart v Comcare (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Re Findlay and Comcare [2013] AATA 324
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25
SECONDARY MATERIALS
American Medical Association Guides to the Evaluation of Disease and Injury Causation (2nd edn).
American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders[1] (4th edn, TR, 2000)
DC Pearce Statutory Interpretation in Australia (6th edn, 2006)
Department of Health and Ageing Enterprise Agreement 2011-2014
H Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010)
REASONS FOR DECISION
RM Creyke, Senior Member
20 December 2013
Ms Carol Hunt, born 1959, was employed by the Department of Health and Ageing (agency).
She sought review of her workers’ compensation claims in two matters she said arose out of her employment:
·The first related to ‘adjustment disorder, aggravation of irritable bowel syndrome and aggravation of migraines’ (Matter 2012/4516);
·The second related to ‘depressive disorder, aggravation of migraines, irritable bowel syndrome and herpes zoster’ (Matter 2013/1644).
The Tribunal was satisfied that it had jurisdiction.
The two matters were heard together in Canberra on 23-25 October 2013.
Background
Matters 2012/4516 and 2013/1644
The following background information applies to both claims. Ms Hunt has been in the Australian Public Service since 1980. During the period relevant to these proceedings she was an Assistant Director, or Executive Level 1 (EL1) officer. She had been at that level since 1990.
In June 2011, a new supervisor was appointed for Ms Hunt. He commenced a series of regular meetings with his team. On 11 July 2011, following one such meeting he emailed all his team attaching the relevant Absence Protocols. This action followed discussion at a previous team meeting of the process for notifying absences. This was in response to his concern about an issue of people arriving late and leaving early. Ms Hunt had apparently questioned his requirements for notification of absence at the team meeting as being inconsistent with the enterprise agreement.
On Friday 8 July 2011, Ms Hunt said she spoke to her supervisor to say she was leaving early that day. There was a difference of opinion between him and Ms Hunt as to whether she asked or announced that she was leaving early. Her supervisor had responded in what he intended was a partially humorous manner indicating he expected the leave application to be couched as a request.
During the middle of the day he had asked Ms Hunt to provide him with advice prior to her departure on a matter concerning the agency’s Perth property. Ms Hunt said the request for this information was provided at the last minute and this was an unrealistic time frame. At the hearing evidence was provided indicating that the telephoned request from the Perth office had come in at 11.03am, and her supervisor said he had then passed it to Ms Hunt. The Tribunal prefers to accept the supervisor’s view on timing. Ms Hunt completed the task and provided the information prior to her early departure.
The following Monday, 11 July 2011, Ms Hunt sent her supervisor an email 11.00am stating:
· When I mentioned on Friday afternoon that I was departing at 4.30pm your response was:
o that this be cleared with you first – which you then amended to being a joke; and
o provided me with new work to be completed prior to my departure for the day (searching WA leases for car parking reference).
· I do not mind receiving work to be done on short notice if it is emergency.
At 11.24am on the same day, the supervisor responded by email. He advised:
… my comment about needing to get agreement to an early departure is something which exists in our standard business practice and at the very least is appropriate in terms of communication with our managers. I apply the same arrangement for myself with John [the supervisor’s own supervisor] and expect that the same occurs within our team …
Separately, I don’t understand the issue you are raising about the WA parking license. … It is a fairly straight forward matter and one which you indicated you would be able to do, and did so, before leaving on Friday.
Ms Hunt listed other examples of the behaviour of her supervisor which she claimed contributed to the aggravation of her conditions. These included:
·He had tried on two consecutive days to have an appointment with Ms Hunt to discuss her issues. Ms Hunt had refused to meet with him on those occasions. On 8 August 2011 the supervisor notified Ms Hunt that he had scheduled a Performance Development Scheme (PDS) meeting at 3.00pm the following day, the 9 August 2011. Ms Hunt responded by email that day requesting the meeting be re-scheduled to 3.00pm on 11 August 2011. The supervisor said he did not receive the email concerning the alternative time and date. At a meeting with her supervisor on 9 August 2011, preceding his proposed PDS meeting with Ms Hunt, when two other team members were present, the supervisor referred to the PDS meeting with Ms Hunt following that meeting. Ms Hunt attended the PDS meeting but said she was embarrassed that the matter had been raised in front of others and claimed this was bullying on his part.
·At a meeting 9 August 2011, Ms Hunt said the supervisor became angry and called her condescending when she attempted to show him where work was located. He acknowledged he had used the word ‘condescending’. Ms Hunt said she had been upset and had to leave the room. However, she returned and completed the discussion.
·On 29 August 2011, Ms Hunt claimed to have received an email from her supervisor stating he had not been advised by her of two absences that month. Ms Hunt claimed this was incorrect and she had phoned him about the first and emailed him about the second.
·Ms Hunt claimed it was ‘offensive’ for her supervisor to have ‘demanded information on my personal affairs’ which he insisted she provide.
·In October 2011, Ms Hunt said her supervisor had reprimanded her in front of another staff member and with the office door open. She also claimed he had provided incorrect information on her work to third parties and this was unjustified.
·Another complaint concerned the refusal of her supervisor to complete a document on her performance which had been prepared but not finalised by a previous supervisor even though the previous supervisor had agreed to this action. Ms Hunt claimed this was contrary to departmental policy and meant she could not seek a formal review of action under the departmental guidelines. Her rating had been at the second lowest category.
On 13 March 2012, an employee in the same team as Ms Hunt, and at his request, had provided written advice to the supervisor of a conversation she had with Ms Hunt in which Ms Hunt had mentioned in passing having made a workers’ compensation claim due to a stressful situation at work. The employee recorded that she had advised the supervisor orally of this on 9 March 2012 and he had said he had known this was the case and was keeping it confidential.
Mr Hunt also complained of a comment by a staff member on 4 May 2012 that ‘you know your issues are just of your own making’. Ms Hunt took this to mean that the staff member was aware of her personal issues including one concerning the health of her husband and her Comcare claim both of which, she maintained, should have been confidential. Later that same person had suggested that Ms Hunt was in fact harassing her supervisor. Ms Hunt had apparently ruminated on the remark and was concerned that the information came from her supervisor.
Two days later, according to Dr Hodgson’s records, Ms Hunt had a flare up of her irritable bowel syndrome. She saw her general practitioner, Dr Ian Webber, later that week and he indicated she had a recurrence of her adjustment disorder. Her migraines which emerged in 2010 or 2011 occurred about six times a year. They were not sufficiently severe to take time off work and she had been free of them since taking an anti-depressant.
Medical evidence
Ms Hunt has had symptoms of irritable bowel syndrome since 2008. The condition was investigated by a gastroenterologist, Dr Narci Teoh, in 2010, who provided Ms Hunt with strategies to manage the bloating or cramping, symptoms of the condition.
Dr Webber
Ms Hunt consulted Dr Cameron Webber, her general practitioner, on 20 July 2011 for insomnia and abdominal discomfort due, she said, to conflict with her new supervisor and issues concerning leaving early from work. His opinion was that her irritable bowel syndrome had flared up. Dr Webber recommended she see her treating psychologist, Mr Tom Sutton. Further consultations with Dr Webber concerning similar complaints occurred on 15 August 2011, 16 September 2011, 25 October 2011, 24 January 2012, 14 and 23 February 2012, and 2 March 2012.
Dr Webber referred in reports dated 22 August 2011 and 1 Mary 2012 to a diagnosis of irritable bowel syndrome and migraines secondary to an adjustment disorder. He noted that she had previously suffered similar conditions in 2005, 2010 and 2011, and her current conditions were an aggravation of those earlier conditions. In his view the main precipitating factor was her conflict with her work supervisor and her perceived resulting harassment.
He expressed the opinion in his 1 May 2012 report that ‘irritable bowel syndrome is a propensity some individuals have and isn’t a condition that is “cured” but is controlled. It can be a chronic condition with good and bad periods’. He also noted that ‘irritable bowel syndrome is well known to be exacerbated by psychological stress.’
In relation to her migraines, he noted ‘they were increased by the psychological stress both in frequency and severity; probably temporarily; “stress” is well known as a trigger for migraines; and; when [Ms Hunt] isn’t psychologically stressed her migraines reduce in frequency and severity’.
Dr Webber had certified her unfit for work from 6 February 2012 to 2 March 2012. Ms Hunt returned to work in the same section on 5 March 2012. Dr Webber reported that Ms Hunt had told him that all her IBS symptoms had resolved by 2 March 2012. However, he again certified her unfit for work from 8 May 2012. Ms Hunt returned to work in November 2012 when she was located in a different section, with a different supervisor.
In a supplementary report dated 11 September 2012 Dr Webber stated Ms Hunt’s conditions of IBS ‘would not necessarily have been present if she had not been psychologically distressed by the conflict with her supervisor’. The report also noted that the IBS had not resolved and that ‘any current contact with her workplace does produce an exacerbation of her symptoms’. He said ‘her psychological stress triggers an increase in migraines and irritable bowel syndrome symptoms’ and that ‘stress is also recognised as a trigger for the occurrence of a shingles attack (herpes zoster).
The report stated that Ms Hunt’s IBS symptoms were variable and he could not supply a list of when she had experienced bad days for her IBS nor for her migraines. Dr Webber affirmed that Ms Hunt’s migraines ‘are an aggravation of an underlying propensity to experience migraines but that aggravation has not resolved’. He attributed her migraines to her psychological stress. His expectation was that resolution would occur ‘when her workplace psychological stress settles’.
Dr Webber noted that on 2 July 2012, Ms Hunt reported symptoms suggestive of depressive illness and he had prescribed an anti-depressant which had a positive effect confirming that at that stage she was suffering a depressive disorder. He attributed this condition to a ‘new event’ and said Ms Hunt ‘has a propensity to become psychologically stressed when she experiences “conflict”’. He attributed all her other medical conditions, including herpes zoster, to her psychological stress as a consequence of her work in the agency.
Mr Tom Sutton
Ms Hunt consulted a clinical psychologist, Mr Tom Sutton for her gastrointestinal symptoms. She saw him in 2006, on four occasions in 2010 and on 19 August 2011, 20 October 2011 and 22 February 2012. He referred to subsequent interpersonal issues with Ms Hunt’s new supervisor in 2011, his ‘developing rating’ for her in 2011, the resignation and non-replacement of an Australian Service Officer level 6 (ASO6) in her team as factors contributing to her symptoms.
In his view when stressed Mr Hunt’s gastrointestinal symptoms ‘immediately flare up’. His report noted:
There are no signs of psychopathology on psychometric assessments, no depression or anxiety mood disturbance, no trauma related anxiety and no personality disorder. She seems to quickly succumb to an Adjustment Disorder, which is (currently) defined as being in response to external stressors and should diminish with the absence of those stressors.
He did not identify any problems in her personal life which would trigger her conditions.
Dr Lark
Dr Andrew Lark, an occupational physician, reported to the agency on 14 October 2011, in relation to Ms Hunt’s assessment of fitness for duty. He noted that Ms Hunt ‘clearly feels that … aggravation of her [likely irritable bowel syndrome] was due to stress at work – from interpersonal difficulties with her Manager’. However, he noted that apart from periods when she has been away from work her symptoms did not completely settle from July 2011. Dr Lark accepted that she suffered from irritable bowel syndrome and insomnia and that she had had considerable periods of sick leave. He also said ‘”Stress” is to the best of my knowledge a recognised factor which can aggravate irritable bowel syndrome; and it can cause or aggravate insomnia’.
Dr Saboisky
In the summons documents, Dr John Saboisky, a consultant psychiatrist, also provided a fitness for duty report on 29 March 2012. He found Ms Hunt was not then suffering any psychiatric injury. Ms Hunt agreed that her insomnia was a normal human reaction to stress and did not meet the criteria for an adjustment disorder. He also reported that ‘she may from time to time suffer from migraines, insomnia or irritable bowel syndrome’ but that it was ‘impossible to predict when and if that might occur’. He found her fit for pre-injury duties.
Dr Hundertmark
Dr James Hundertmark, consultant psychiatrist, prepared a report on 18 April 2012 for Ms Hunt. At that time he concluded she had no psychiatric ailment. In his opinion her adjustment disorder resolved prior to her return to work in March 2012. He also noted that ‘It is theoretically possible that there is a link between psychological stress and irritable bowel syndrome. It is possible that the stressors affecting Ms Hunt’s life may feed through to an exacerbation of her IBS’, and that theoretically there could be a link between exacerbation of migraines and psychological stress.
Dr Stevenson
Dr Peter Stevenson, a consultant physician, in his report of 11 September 2012, noted that Ms Hunt’s herpes zoster which had appeared in about June 2012, and lasted about three weeks, had resolved. He said herpes zoster ‘has been loosely ascribed to decline of immunity and to stress. Stress is often invoked in conditions of obscure origin but in fact there is little evidence correlating herpes zoster with stress’. In his opinion her headaches were ‘not totally typical for migraines’ which if present ‘do not appear severe’.
He said her abdominal symptoms ‘would be compatible with … irritable bowel syndrome’ and that ‘irritable bowel syndrome has been loosely ascribed to stress-like many syndromes of unclear origin’. As he went on ‘That is not however the current evidence based view’, citing the American Medical Association Guides to the Evaluation of Disease and Injury Causation which found ‘no strong association’.[1] In his view, ‘it is difficult to justify causation unless there is a severely disabling independently confirmed event and psychiatric diagnosis’.
[1] American Medical Association Guides to the Evaluation of Disease and Injury Causation (2nd edn).
He said Ms Hunt had been suffering intermittent bouts of irritable bowel syndrome, roughly weekly, since 2006 when she appeared otherwise to be in good health. In his opinion, her anxiety may have heightened her awareness of symptoms of pain and he acknowledged that physical symptoms ‘are less well tolerated in anxiety and depression’. He accepted that ‘major life stressors may have psychological consequences’. On the other hand, he said personality factors or a psychiatric illness may colour one’s perception of the world and interpersonal relations. He was not in a position to assess whether Ms Hunt suffered a ‘major work stressor’ nor whether she had an idiosyncratic perception. As he said ‘It is not clear that the unkind remarks would engender an illness of disabling intensity in most persons’. He saw this as a psychiatric issue and noted ‘It is very difficult to see them as precipitating the physical symptoms claimed. The scientific evidence of a link between psychological stress and migraine, irritable bowel syndrome and herpes zoster is tenuous’.
Dr Hodgson
Dr Barbara Hodgson, consultant psychiatrist, prepared a report dated 24 September 2012. Dr Hodgson recorded Ms Hunt as saying her irritable bowel syndrome worsens with stress, but sometimes she does not feel stressed at the time but the flare up occurs several days later. Her symptoms have worsened since 2010. She recorded Ms Hunt as saying that her husband notices that her irritable bowel symptoms are worse when she worries about work. In the past month her symptoms might occur twice weekly.
Dr Hodgson found no psychiatric conditions at the time of the consultation and no obvious personality traits. She noted too that the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders[2] (4th edn, TR, 2000) (DSM IV) warned that ‘in a medico-legal context the clinical diagnosis of a DSM-IV psychiatric condition is generally not enough to prove the presence of a mental disorder or of significant psychiatric impairment’.
[2] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders[2] (4th edn, TR, 2000) (DSM IV)
Dr Hodgson noted Ms Hunt had suffered from an aggravation of her gastrointestinal symptoms but these had settled with treatment and time. Dr Hodgson said ‘It would appear that her medical condition relating to this claim [Matter 2013/1644] was an aggravation of her IBS and development of herpes zoster which she and her GP have attributed to her stress’. The most she would say was that ‘It is possible that she expresses her psychological distress by somatic means’.
Dr Hodgson’s report stated ‘There is a theoretical relationship between stress and IBS, as well as stress and migraines. I do not have any neurological opinion indicating a link of stress to her migraines with Ms Hunt’. She also noted ‘when an individual is physically or emotionally stressed there may theoretically also be a vulnerability to the development of shingles (herpes zoster). Physical conditions may also have a negative impact on an individual’s emotional state’.
Legislation
The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides for compensation ‘in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment’. Section 4(1) defines ‘ailment’, ‘aggravation’ and ‘impairment’. Section 5A defines an ‘injury’ for the purposes of the Act to include a ‘disease’ or an aggravation of a physical or mental injury. Section 5B defines a ‘disease’ for the purpose of the Act. Section 7(4) defines what is the date of injury.
Issues
The issues are:
·The appropriate diagnoses of the claimed conditions
·Whether any of the conditions claimed is an ailment?
·Whether there has been an aggravation of such an ailment?
·Whether Ms Hunt suffers from a disease either being an ailment or an aggravation of such an ailment that was contributed to, to a significant degree, by her employment and hence has an injury.
·Whether that injury resulted in incapacity for work, or impairment.
·Whether Comcare is liable to pay compensation under section 14 of the Act in respect of the claimed conditions.
Consideration
Matter 2012/4516
On 24 February 2012, Ms Hunt lodged a workers’ compensation claim for ‘adjustment disorder, irritable bowel syndrome and migraines’ which she claimed was due to ‘Unjustified criticism and setting of unrealistic tasks. Not abiding by Departmental procedures/policy’. In response to the question ‘What actually injured you, or made you ill?’ she listed ‘offensive and bullying behaviour of supervisor’.
Ms Hunt first sought medical treatment in relation to this condition on 20 July 2011. The Tribunal accepts that this was the date of injury.
Matter 2013/1644
On 2 July 2012, Ms Hunt made a claim in similar terms to Matter 2012/4516. The claim was for ‘irritable bowel syndrome, migraines, psychological stress and recent depression and herpes zoster’. The alleged cause was ‘Team members are privy to my Comcare claim against my supervisor resulting in malicious comments that my issues are of my own making and that I am harassing my supervisor and he had diminished my role and refused to approve leave’. She also alleged ‘bullying and harassing by supervisor’.
The date of injury for this claim is 6 May 2012 when Ms Hunt was certified unfit for work for a number of months.
The appropriate diagnoses of the claimed conditions
Both claims relate to adjustment disorder and irritable bowel syndrome. There were also claims for migraines and herpes zoster. The evidence of Dr Teoh, a gastroenterologist, was that Ms Hunt had irritable bowel syndrome. That diagnosis was accepted by Dr Webber, Mr Sutton, Dr Lark, Dr Hodgson and Dr Hundertmark. Dr Stevenson said her ‘abdominal symptoms would be compatible with irritable bowel syndrome’. In other words, the predominant view is that Ms Hunt has irritable bowel syndrome.
Dr Webber and Mr Sutton also diagnosed an adjustment disorder. The report of Dr Hundertmark indicated Ms Hunt had experienced an adjustment disorder but it had resolved at the time of his report in April 2012. Dr Hodgson also found no current psychiatric condition in September 2012. In her meeting with Dr Saboisky, Ms Hunt agreed that her symptoms did not meet the criteria for adjustment disorder.
The nature of an adjustment disorder is that, unless chronic, it resolves within 6 months of onset. The opinions of her treating doctor, her treating psychologist, and one of the psychiatrists, that Ms Hunt had experienced an adjustment disorder in 2011, which had resolved by early 2012, is sufficient to satisfy the Tribunal that this occurred.
Ms Hunt also claimed she experienced migraines. Dr Webber accepted this was the case; and the reports of Dr Hundertmark and Dr Hodgson, assumed this to be so. By contrast, Dr Stevenson’s view was that Ms Hunt’s description of her headaches was ‘not totally typical for migraines’. In any event, he said, if she has migraines they are not severe. That is consistent with the evidence of Ms Hunt that her migraines were not sufficient to prevent her working. There is no unequivocal denial that Ms Hunt experienced migraines and there is evidence from the medical experts listed, including Dr Stevenson, that she may have suffered from the condition. The evidence is sufficient for the Tribunal to be satisfied that Ms Hunt did experience migraines.
The evidence indicates that Ms Hunt also had shingles (herpes zoster) for between two to three weeks from 14 June 2012, when the condition resolved. The Tribunal so finds.
Are the conditions ‘ailments’ for the purposes of the Act?
The Act defines ‘ailment’ in section 4(1) as follows: ‘ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. Irritable bowel syndrome is a condition with symptoms of abdominal pain, bloating and altered bowel habits. However, it has no organic base. On that basis it would be classified as a mental disorder. Consequently the Tribunal finds that Ms Hunt’s irritable bowel syndrome is an ailment.
Ms Hunt’s adjustment disorder is a mental disorder, defect or morbid condition. The condition is recognised as a psychiatric disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000)[3], a reputable and widely used manual of such disorders. As such an adjustment disorder qualifies as an ailment.
[3] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000)[3],
Migraines are more severe headaches often characterised by ‘visual or gastrointestinal disturbances, or both’.[4] Ms Hunt gave evidence that she experienced visual blurring. The symptoms are physical in nature and hence the condition falls within the definition of ailment as a physical disorder, defect or morbid condition.
[4] Dr H Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010) 433.
Finally, herpes zoster (shingles) although due to a virus, typically involves skin eruptions, which are a physical disorder, defect or morbid condition, and hence an ailment.
Has there been an aggravation of any of the ailments?
The Act defines ‘aggravation’ to include ‘acceleration or recurrence’ of a pre-existing condition. For a condition to be aggravated it must be made worse, not simply become worse.[5] According to Ms Hunt and to the medical evidence, the claimed herpes zoster was a short-term condition. Accordingly it did not involve an aggravation of any pre-existing condition. The Tribunal is aware that herpes zoster is due to the same virus which produces chickenpox. However, it is an illness with very different symptoms to chickenpox.[6] The Tribunal finds that it is not an acceleration or recurrence of chickenpox since herpes zoster has different symptoms. Accordingly the claim for herpes zoster is not a claim for an aggravation.
[5] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537at 593 per Windeyer J.
[6] H Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010) 120, 312.
Ms Hunt’s evidence was that her migraines emerged initially in 2010 or 2011. The inference from her evidence is that she had not previously experienced the condition. Dr Webber, however, said in his report her migraines ‘are an aggravation of an underlying propensity to experience migraines’. Despite this view, given the doubts from Dr Stevenson, Dr Hodgson and Dr Saboisky about whether Ms Hunt suffered migraines, and the opinion of Dr Hundertmark that it is only ‘theoretically possible’ that there is a link between the exacerbation of migraines and psychological stress, the Tribunal finds that Ms Hunt’s migraines, assuming she suffers from them, were not aggravated in the terms of the Act.
The Tribunal accepts on the predominant medical opinions that Ms Hunt’s irritable bowel syndrome is intermittent and flares up, that is, gets worse or is aggravated.
Adjustment disorder is also a short-term condition and by its nature is, therefore, unlikely to be accelerated or made worse unless chronic. There is no evidence that Ms Hunt’s adjustment disorder was chronic. In relation to her adjustment disorder, Dr Hundertmark said only that ‘it is ‘theoretically possible’ to discern a link between Ms Hunt’s adjustment disorder and irritable bowel syndrome, Dr Hodgson said there is a theoretical relationship between stress and migraines, and Dr Stevenson’s view was that ‘major life stressors may have psychological consequences’ but he was not in a position to judge whether this applied to Ms Hunt. In light of these views, and given the nature of the condition in Ms Hunt’s case, the Tribunal finds that Ms Hunt’s adjustment disorder was not an aggravation of an underlying condition.
Whether Ms Hunt suffers from a disease either being an ailment or an aggravation of such an ailment that was contributed to, to a significant degree, by her employment and hence has an injury
Ms Hunt’s view is that her migraines, adjustment disorder, herpes zoster and irritable bowel syndrome were exacerbated by stress at work. Dr Hodgson also recorded Ms Hunt as saying that her husband notices that her irritable bowel symptoms are worse when she worries about work. The evidence is that Ms Hunt only suffered from herpes zoster for some two to three weeks from mid June 2012. Ms Hunt’s evidence was that her migraines had commenced in either 2010 or 2011 and she was only afflicted about six times a year. The migraines were not sufficiently severe to prevent her working.
Ms Hunt itemised the occasions on which she said she became stressed as a result of interactions with her supervisor. These were when her supervisor:
·Set an unrealistic task on 8 July 2011;
·Insisted that she attend a performance development meeting on 9 August 2011 for which she was unprepared;
·Made unjustified criticisms about her on 29 August 2011;
·Sought personal information from her;
·Called her condescending on 9 August 2011;
·Blocked email functions in emails that he had sent to her denying her right of reply;
·Was rude to her on 12 October 2011;
·Provided untrue information to others about her;
·Refused to provide performance development comments from a previous supervisor;
·Asked if she was interested in a voluntary redundancy;
·Would not recruit an APS6 position in February 2012 which had become vacant in November 2011;
·Diminished her role; and
·Refused to approve leave when she had provided satisfactory medical evidence.
Comcare’s view is that ‘The medical evidence does not support that the Applicant’s conditions of migraine, IBS and herpes zoster were significantly contributed to by stress’. Alternatively, Comcare maintains that the conditions arose ‘as a result of reasonable administrative action undertaken in a reasonable manner’.[7]
[7] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
Comcare does concede that Ms Hunt’s adjustment disorder was due to her employment. However, Comcare’s view is that liability is denied for that condition since the adjustment disorder developed ‘as a result of reasonable administrative action undertaken in a reasonable manner’.[8]
Irritable bowel syndrome, herpes zoster and migraines
[8] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
The claims are premised on the suggestion that Ms Hunt’s irritable bowel syndrome, migraines and herpes zoster were secondary to an adjustment disorder. For that reason the Tribunal will consider the three secondary conditions together.
In the opinion of Dr Webber each of Ms Hunt’s conditions was exacerbated or triggered by psychological stress, that stress arose from employment and as a consequence it was Ms Hunt’s workplace which had contributed to her conditions. Mr Sutton, having eliminated other possible causes, identified several matters in Ms Hunt’s workplace which had contributed to her gastrointestinal symptoms. His opinion was based on his finding that Ms Hunt’s gastrointestinal symptoms immediately flare up when she is stressed. Dr Lark’s view was that to the ‘best of my knowledge’ stress was ‘a recognised factor which can aggravate irritable bowel syndrome, and it can cause or aggravate insomnia’.
The Tribunal does not accept these opinions. Ms Hunt said in evidence that on occasions her gastrointestinal symptoms are unpredictable and can occur when she is not conscious that she is stressed. Dr Hodgson’s records are that Ms Hunt said she may not have an episode until several days after she has experienced stress. Dr Webber was unable to provide information of a correlation between flare-ups of Ms Hunt’s gastrointestinal symptoms or her migraines and any complaints she made to him about stress. Dr Stevenson noted that Ms Hunt had been suffering intermittent bouts of irritable bowel syndrome, roughly weekly, since 2006 when she appeared otherwise to be in good health, and Dr Saboisky said it was impossible to predict when Ms Hunt might suffer from migraines, insomnia or irritable bowel syndrome. Dr Lark said only that it was Ms Hunt’s view that here conditions were due to stress at work. He also noted that the symptoms of her irritable bowel syndrome did not fully settle even after an extended period of absence from work.
So although Ms Hunt is convinced that her conditions, particularly her irritable bowel syndrome, is related to stress, the Tribunal is not able to be satisfied of any temporal link between the occasions on which Ms Hunt experienced stress and the emergence or flare up of any of the claimed conditions.
In relation to the broader issue of whether stress is causal of any of the claimed conditions, Dr Stevenson said there was little evidence correlating herpes zoster with stress, and that the current evidence-based view did not link irritable bowel syndrome with stress. As he said ‘any connection between psychological stress and migraine, irritable bowel syndrome and herpes zoster is tenuous’. Dr Hundertmark was only prepared to posit a theoretical possibility of a causal link between psychological stress and irritable bowel syndrome or migraines, a view supported by Dr Hodgson. Dr Hodgson said it was possible that Ms Hunt ‘expresses her psychological distress by somatic means’ but she was not prepared to say that in Ms Hunt’s case, there was a link between stress and migraines, or stress and irritable bowel syndrome.
As both Dr Hundertmark and Dr Hodgson are specialists in psychiatric conditions and their symptomatology, and Dr Stevenson is a physician, the Tribunal prefers their views to that of Dr Webber, Mr Sutton and Dr Lark. The Tribunal notes that Dr Lark qualified his view - ‘to the best of my knowledge’, which is not unequivocal support for the any causal link. Finally, the Tribunal notes that when Ms Hunt’s herpes zoster emerged in mid-June 2012, Ms Hunt was still on extended leave suggesting that any contact with stress at her workplace at that time would have been minimal.
In summary in the current state of medical knowledge and in light of the views of the appropriately qualified medical specialists who provided evidence in this matter, the Tribunal is not able to be satisfied that there is either a connection between stress and any of irritable bowel syndrome, herpes zoster or migraines, nor was there a link in the case of Ms Hunt between her stressful experiences and her gastrointestinal symptoms, herpes zoster and migraines. In any event, the Tribunal has considered whether Ms Hunt’s employment contributed, to a significant degree, to these conditions.
The requirement that for liability to arise, employment must contribute to the injury to a significant degree means that the contribution must be ‘substantially more than material’.[9] ‘Material’ had been determined in prior case law to be more than de minimis, that is, ‘more than a mere contributing factor’,[10] and to be ‘an evaluative threshold below which a causal connection may be disregarded’.[11] The interpretation is best captured by the meaning in the Shorter Oxford English Dictionary as ‘in a material degree; substantially, considerably’.[12] That meaning was picked up in the amendments which led to section 5B(3), namely, that the contribution must be ‘substantially more than material’.[13] As the discussion indicates, and the Tribunal accepts, the contribution must be one of substance and must be considerably more than de minimis, or a ‘mere contributing factor’.
[9] Safety, Rehabilitation and Compensation Act 1988 (Cth) s5B(3).
[10] Comcare v Sahu-Khan (2007) 156 FCR 536.
[11] Id at 542.
[12] Id at [15]-[16].
[13] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).
The view of Ms Hunt, Dr Webber and Mr Sutton is that it was events relating to Ms Hunt’s employment that were a significant contributor to her conditions. Dr Lark did not address the causation issue, except to the extent that he noted her symptoms did not abate even when she was not at work. So although he accepted ‘to the best of his knowledge’ that stress could be causal of irritable bowel syndrome and insomnia, his findings about the symptoms not settling cast doubt on the strength of that opinion.
Dr Hundertmark’s view was that there was a possibility that the stressors affecting Ms Hunt ‘may feed through to an exacerbation of her IBS’. His view about the link is tentative at best and he did not specify what the stressors to which he referred were. Dr Stevenson’s view was that it was ‘very difficult to see’ personality factors or a psychiatric illness, and the unkind remarks of her supervisor or others in her workplace reported to him by Ms Hunt ‘as precipitating the physical symptoms claimed’. As he said the claimed causal link to the events in the workplace were ‘tenuous’. So he would not have seen a significant contribution being made to her conditions by events in Ms Hunt’s workplace. Dr Hodgson too was sceptical of any link to those events.
In the current claims, the medical evidence is that despite the opinions of her treating general practitioner and psychologist and the qualified view of Dr Lark, obtained not for a medico-legal but a fitness for duty purpose, the views of the other medical experts is that the events in Ms Hunt’s workplace either did not or were unlikely to have contributed to her claimed conditions. Dr Saboisky also noted that it was impossible to predict when her migraines, insomnia or irritable bowel syndrome may occur, casting doubt on any link with employment. Their evidence indicates either that they would not have found any connection to employment or at the least it would not have been to a ‘significant degree’.
The Tribunal prefers the evidence of Dr Hundertmark, Dr Stevenson, Dr Saboisky, Dr Lark and Dr Hodgson, given the nature of their respective specialties, to those of Dr Webber, and Mr Sutton, despite their being the treating practitioners. In addition, in support of this finding, the Tribunal notes the absence on occasions of any temporal connection between the events nominated by Ms Hunt as causal and the onset of the conditions or their aggravation, the short-term nature of her herpes zoster, and the infrequent occurrence and mildness of her migraines, indicating that these conditions made no or minimal impact on her capacity to work. In these circumstances the Tribunal finds that Ms Hunt’s irritable bowel syndrome, her herpes zoster, and her migraines were not contributed to, to a significant degree, by her employment.
Adjustment disorder
Dr Webber’s view was that the conditions of irritable bowel syndrome, migraines and herpes zoster were secondary to Ms Hunt’s adjustment disorder. Comcare has accepted that Ms Hunt’s adjustment disorder was contributed to by her employment. The Tribunal is not constrained by this finding. The condition may arise any time up to three months after the onset of the stressor(s),[14] and usually resolves within no more than six months of that initiator.[15]
[14] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, TR, 2000) at 679.
[15] Ibid.
In the case of Ms Hunt the period when she was experiencing an adjustment disorder is uncertain. Mr Sutton’s report of 27 March 2012 stated in a paragraph which referred to January 2011 noted ‘she had an Adjustment Disorder related to the pressures she experienced in her recent work with a particular supervisor’ (emphasis added). The next entry for August 2011, said she had been going well until the appointment of a new supervisor and ‘subsequent interpersonal issues’, referring to the appointment as Ms Hunt’s new supervisor from June 2011. Thereafter he sees her in October 2011 and February 2012, and notes ‘She seems to quickly succumb to an Adjustment Disorder’ which ‘should diminish with the absence of … stressors’. No precise dates are given but it may be assumed from his report that she may have suffered an adjustment disorder prior to August 2011, and possibly again in October 2011 and close to February 2012. In a report dated 1 May 2012, Dr Webber noted that Ms Hunt’s adjustment disorder had been aggravated when she saw him on 25 October 2011.
Dr Webber certified Ms Hunt as unfit to work from 6 February 2012 to 2 March 2012, citing an adjustment disorder as one condition. He also provided medical certificates for the period 8 May 2012 to 10 December 2012 for irritable bowel syndrome, migraines, psychological stress, recent depression, and herpes zoster citing adjustment disorder as one of the pre-existing conditions. It is not clear whether he was referring to an adjustment disorder throughout the period May to December 2012, as there is evidence that from mid-2012 he diagnosed Ms Hunt with depression and prescribed an anti-depressant which was effective, confirming the diagnosis. The Tribunal finds that Ms Hunt’s adjustment disorder had been replaced by a depressive condition in the latter half of 2012.
Dr Hundertmark simply noted that Ms Hunt said her adjustment disorder had resolved prior to her return to work on 5 March 2012. Dr Saboisky in March 2012 did not consider she had an adjustment disorder. Neither Dr Stevenson nor Dr Hodgson ventured a view about whether Ms Hunt had adjustment disorder or when it may have occurred.
Nonetheless, in the light of these reports the Tribunal is satisfied that Ms Hunt did suffer from an adjustment disorder in August 2011, in October/November 2011, February/March 2012, and at least initially from early May 2012.
Whether that injury resulted in incapacity for work, or impairment
Liability for compensation arises only if it can be established that the ‘injury results in … incapacity for work, or impairment’.[16] An employee suffers an ‘impairment’ only if the person has suffered ‘the loss, the loss of the use, or the damage or malfunction of any part of the body or of any bodily system or function or part of such system or function’.[17] Ms Hunt’s adjustment disorder is a malfunction of her emotional system or behaviour.[18]
[16] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14.
[17] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1) – definition of ‘impairment’.
[18] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, TR, 2000) at 679-680.
Dr Hodgson noted that ‘in a medico-legal context the clinical diagnosis of a DSM-IV [American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders – Text Revision (4th edition, 2000)] psychiatric condition is generally not enough to prove the presence of a mental disorder or of significant psychiatric impairment’. In other words, in a medico-legal context, and in the context of the legislation, mere diagnosis of a psychiatric condition is not sufficient to show ‘incapacity for work, or impairment’. So, for a psychiatric condition, the Tribunal accepts that for the reason given by Dr Hodgson, a further test is posed, namely, that the psychiatric condition must also be ‘outside the boundaries of normal mental behaviour and functioning’.[19]
[19] Comcare v Mooi (1996) 23 AAR 160
In the case of Ms Hunt, Dr Webber certified her unfit to work for certain periods, for her constellation of conditions including her adjustment disorder. The Tribunal infers from that certification that her adjustment disorder, along with her secondary conditions during those periods, enabled her psychiatric condition to be classified as being outside the boundaries of normal mental functioning and behaviour. In other words her conditions together led to incapacity for work.
That finding does not mean that Ms Hunt’s adjustment disorder alone was significantly contributed to, by her employment. That issue was not addressed specifically by any of the medical witnesses. Nor given the relatively short-term nature of her episodes of adjustment disorder, in August 2011, October 2011 and February 2012, was it chronic. The view of Dr Hodgson, which the Tribunal accepts, is that the condition should be ‘severely disabling’ before causation can be established. Dr Stevenson’s view is that it is only ‘major life stressors’ which have psychological consequences. Dr Hundertmark’s opinion was that any adjustment disorder had resolved before Ms Hunt’s return to work at the beginning of March 2012. These opinions support the finding of the short-term nature of the condition in 2011 and 2012.
Nonetheless, there is some, albeit limited, evidence from Dr Webber, Mr Sutton and Ms Hunt that at times she suffered from an adjustment disorder prior to her absences from work. This temporal connection suggests that employment made a significant contribution to Ms Hunt’s adjustment disorder. Accordingly, and in the absence on the evidence of any alternative contributory source, the Tribunal is prepared to find that Ms Hunt’s adjustment disorder episodes were contributed to, to a significant degree, by her employment.[20]
[20] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(1).
That would be sufficient for liability to pay compensation under the Act to arise, but for the exclusionary provisions relating to conditions classified as a ‘disease’, namely, that no compensation is payable if the circumstances which led to the condition amounted to ‘reasonable administrative action undertaken in a reasonable manner’.[21]
[21] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1), (2).
Gray J said in Commonwealth Bank of Australia v Reeve, administrative action is ‘action with respect to the employee as employee and his or her employment relationship with the employer’.[22] Rares and Tracey JJ in the majority judgment in Reeve said that ‘administrative action’ referred to ‘action…directed specifically to the employee’. [23]
[22] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at [30] per Gray J.
[23] Id at [57] per Rares and Tracey JJ.
By contrast a decision is ‘operational’, if it ‘relates to the activities or business of the institution or enterprise in which the employee is employed’,[24] or action ‘affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment’[25]. An operational decision includes ‘the way in which the employee was to perform the employment itself or what were [the] duties or tasks in doing so’,[26] or action that ’was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment’.[27]
[24] Id at [31] per Gray J.
[25] Id at [57] per Rares and Tracey JJ.
[26] Id at [74] per Rares and Tracey JJ.
[27] Id at [57] per Rares and Tracey JJ.
Ms Hunt has identified the circumstances which she said triggered her adjustment disorder, on which she relies for the claim under review. They are listed in paragraph [56] of these reasons. In all but two cases, the Tribunal finds these circumstances qualify as ‘administrative action’ being actions directed by the supervisor to a specific employee, Ms Hunt.
The first exception is the failure to recruit an APS 6 [Australian Public Service level 6] position in February 2012, that being an operational decision. The Tribunal infers that this decision would have been due to financial or other constraints affecting the relevant section or the department as a whole and it is, accordingly an operational, not an administrative decision. The second exception is the supervisor’s reallocation of roles within his team, during which Ms Hunt lost one of her existing responsibilities. This too would be an operational, not an administrative action. Both actions related to the activities or business of the institution in general, rather than being directed specifically to matters relating to Ms Hunt’s employment relationship with the agency.
Whether administrative action is reasonable must be tested objectively.[28] The meaning of ‘reasonable’ for statutory purposes is its ordinary, natural meaning,[29] which may involve recourse to a dictionary,[30] and must be considered in its context.[31] As the Victorian Supreme Court said in Falconer v Pedersen: ‘One must interpret the phrase [or word] as used in its context, assisted as it may be but not necessarily bound by one of a variety of dictionary definitions’.[32] However, the administrative action need not be faultless;[33] it is sufficient if it is reasonable in all the circumstances, albeit there are alternative ways it could have been done.[34]
[28] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 per French J at [78]-[79]. See also Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25.
[29] Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461.
[30] DC Pearce Statutory Interpretation in Australia (6th edn, 2006) [3.30]. As Pearce comments ‘the law reports contain thousands of examples of cases in which courts have referred to dictionaries for guidance’.
[31] Re Georges and Telstra Corporation Ltd [2009] AATA 731.
[32] Falconer v Pedersen [1974] VR 185 at 187.
[33] Re Findlay and Comcare [2013] AATA 324 at [34] – [35].
[34] Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82] per French J.
That context may require the consideration of many factors including, if the context is a public service agency, the seniority of officers, the terms of any contract or directions to which the officer is subject, general requirements within the public service, including any code of conduct or ethics, or any integrity statement, and the terms, if relevant, of the certified agreement.[35] The circumstances are not confined to the impact on the person involved.[36]
[35] Re Georges and Telstra Corporation Ltd [2009] AATA 731 at [23].
[36] Comcare v Martinez [2013] FCA 439 at [73].
As Lander J said in Keen v Workers Rehabilitation and Compensation Corporation[37]:
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.[38]
[37] Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42.
[38] Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 at 47 – 48. The extract was quoted with approval by Robertson J in Comcare v Martinez [2013] FCA 439 at [83].
The Tribunal takes as a starting point that in the context of administrative action in a workplace, it is frequently the cumulative effect of that action which ultimately leads to a claimed injury.
It is also necessary to consider the legal test for the causal link between the administrative action and the employee’s claimed injury. Section 5A(1) indicates that the test requires that the injury be suffered ‘as a result of’ the administrative action. As Gray J said in Reeve:
It is difficult to find in the words ‘suffered as a result of’ some limitation as to the proximity of the relationship between the condition and the action. Whether the necessary causal relationship exists will be a question of fact in each case, but the words chosen by the legislature to describe the causal relationship do not lend themselves readily to confinement to a direct result, or a result with any particular degree of proximity.[39]
[39] Reeve at [29] per Gray J.
As Rares and Tracey JJ, for the majority in Reeve, said:
The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1), involves the formation of a judgment as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, common sense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee’s employment.[40] (Emphasis added).
In other words, the administrative action need only make a contribution which as a matter of common sense links the claimed condition to employment for the claim to be excluded on the basis that it is not an ‘injury’ in terms of the Act.[41] There does not have to be a contribution which is material or significant.
[40] Id at [65] per Rares and Tracey JJ.
[41] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A.
The Tribunal is also aware that if any one of the claimed administrative actions has a causative relationship with Ms Hunt’s adjustment disorder in the terms discussed in the previous paragraph, and any one of the administrative actions is found to be reasonable or conducted in a reasonable manner, the claim cannot succeed.[42]
[42] Hart v Comcare (2005) 145 FCR 29.
Matter 2012/4516
The Tribunal accepted that Ms Hunt sought the assistance of Mr Sutton when she was psychologically distressed and that these occasions are most likely, in the general absence of medical evidence relating to causal impact, to be the occasions when Ms Hunt was suffering her adjustment disorder. Accordingly the Tribunal has chosen several of those occasions for consideration, rather than considering all the administrative actions claimed by Ms Hunt.
Those occasions were in Ms Hunt’s words:
·Her supervisor setting an unrealistic deadline on 8 July 2011, which was the subject of a consultation with Dr Webber on 20 July 2011, and further conflicts with her supervisor concerning Ms Hunt’s performance development which was followed by a consultation with Dr Webber on 15 August 2011 and an appointment with Mr Sutton on 19 August 2011;
·Accused improperly by supervisor in front of others and said supervisor was rude to her in front of another staff member on 12 October 2011, which was followed by a consultation with Dr Webber on 25 October 2011 and a visit to Mr Sutton on 20 October 2011.
In any event, while the visits to Dr Webber on 23 February 2012 and to Mr Sutton on 22 February 2012 were said to be due to getting texts and phone calls from work while on leave, there is no reference to these actions in Ms Hunt’s list of interactions, nor was evidence of such interactions provided to the Tribunal. In those circumstances, these events will not be considered. The Tribunal notes that the medical evidence indicates that Ms Hunt’s adjustment disorder at that time was resolved within a month and she returned to work on 2 March 2012.
Unrealistic deadline
The first action was that Ms Hunt’s supervisor was taken to have set an unrealistic deadline for Ms Hunt to provide him with information prior to her leaving early on 8 July 2011, following her request that morning. Ms Hunt complained by email the following Monday about being asked to do the task, as she claimed at the last minute. She believed this was an unreasonable request given she was leaving early. The supervisor’s evidence was that the question was a routine one, that it had been received from the Perth office at about 11.00am, and was conveyed to Ms Hunt shortly thereafter so it had not been at the last minute. He also submitted that as Ms Hunt had not objected at the time, had completed the task before she left, which was phoned through at about 4.30pm, the request was not unreasonable.
According to the agency enterprise agreement[43] the business hours of the agency for the public are between 8.30am and 5.00pm, but an employee may work within the bandwidth of 7.00am to 7.00pm provided they work an average of 7 hours 30 minutes for each working day in the week.[44] The pattern of hours under which the person meets these obligations is to be agreed between an employee and their manager.[45]
[43] Department of Health and Ageing Enterprise Agreement 2011-2014 (Enterprise Agreement).
[44] Enterprise Agreement clauses 41.2, 41.9.
[45] Id clause 41.5.
The Tribunal accepts that if permission is given by the supervisor for an employee to leave early, this is an agreement between the employee and the manager to vary the hours worked. The supervisor had agreed to Ms Hunt’s request that she leave early and this was not unreasonable. If tasks are to be completed and they are allocated in a reasonable time, and there is nothing particularly difficult or time-consuming about the tasks so that they can be completed even if the employee is working a short day, absent any other information about competing demands, the request is not unreasonable.
On 8 July 2011, the supervisor needed to take account of his permission that Ms Hunt depart early. Ms Hunt’s view was that the request was conveyed later in the afternoon, that the task was not urgent so it could have been completed by her the following week, or since it was routine, completed that day by someone other than her, and her supervisor did not ask her about any other more urgent tasks in which she was engaged. The supervisor’s evidence is that the request came in at 11.00am and was made to Ms Hunt in the middle of the day.
The Tribunal accepts that the request was not made at the last minute and that her supervisor did give her sufficient time to complete the request and still leave early. Ms Hunt had not told her supervisor that she had other more pressing tasks, nor that she thought this was an unfair request. Given her evidence to Dr Saboisky that she is not inhibited about expressing her views to others in the workplace, the Tribunal infers that if she had other more pressing tasks, Ms Hunt would have told her supervisor. The absence of any evidence from her that she did so suggests she did not have other pressing tasks that day. In these circumstances, and given there was nothing untoward about the request, it was within her capabilities, she did complete it in time, and it is the role of supervisors to give tasks to team members, there is nothing to suggest that the request was not reasonable.
This conclusion, in light of the principle in Hart v Comcare, is sufficient to dispose of the matter. However, as the administrative actions were argued fulsomely at the hearing, the Tribunal will consider another of the administrative actions raised by Ms Hunt.
Performance development meeting
Another administrative action referred to by Ms Hunt related to a performance development meeting on 9 August 2011 at 3.00pm. Ms Hunt claimed that she had felt ambushed about the request that she meet with her supervisor immediately after another meeting, as it was made in front of two other staff, and she was unprepared for the PDS meeting. The supervisor’s evidence, supported by his electronic diary for that week, was that he had scheduled this meeting in advance on 8 August 2011. Although Ms Hunt provided an email indicating she had replied on 8 August asking that the meeting be rescheduled to 11 August, as the supervisor said he had not received this email, and there is no reason to doubt his evidence on this issue, her subsequent request cannot be taken into account.
The Tribunal finds that Ms Hunt had prior notice of the need for the meeting, a regular event in an employee’s calendar and so was aware that she needed to prepare herself for the meeting. The supervisor’s request therefore was neither a surprise, nor was it unreasonable administratively. So although Ms Hunt is correct that the employee, in accordance with the enterprise agreement, is expected to have time for preparation for the meeting, it can be assumed in the absence of any evidence as to Ms Hunt being particularly busy at that time, that she had sufficient notice and time to do her preparation for the meeting. She was already on notice from normal practice that such a meeting was imminent, she had received the request for the meeting on 8 August 2011, and the meeting was not till 3.00pm. The 9 August 2011 was a Tuesday. That means that subject to other urgent tasks as to which the Tribunal had no evidence, Ms Hun had at least the previous working day and the morning of 9 August 2011 in which to prepare. So, scheduling the meeting at 3.00pm on that day was not unreasonable.
Ms Hunt requested that the proposed meeting be rescheduled. She did not have confirmation her request had been accepted. In those circumstances, she should have assumed that the meeting at the original time would go ahead and used the time available to her to complete her preparation.
As the supervisor said he did not receive her email requesting the revised time, it was not surprising that he raised the impending meeting with Ms Hunt at the meeting preceding the originally scheduled meeting. Ms Hunt said this embarrassed her since it was discussed in front of other staff. However, development meetings are routine, and all staff have to go through the process. The supervisor had scheduled such meetings with three of his staff on 9-10 August 2011. So it was not unreasonable for him to remind Ms Hunt of the meeting time in front of others.
According to an email from one of those staff members, Ms Hunt had then explained to her supervisor her need for further time for preparation. In those circumstances, it may have been preferable for her supervisor to concede that the meeting should occur later. However, the Tribunal notes that the request was made in the context of Ms Hunt refusing on two occasions in the previous weeks to meet with him for discussions about work issues. In those circumstances, although taking the latter option may have been the optimal course, since he said he had not received Ms Hunt’s advance rescheduling of the meeting, to insist on the meeting being held at the original time was not unreasonable.
Called her condescending
Ms Hunt complained that at a meeting on 15 August 2011, her supervisor had called her condescending. Ms Hunt had broken down at that point and left the room. However, she returned after a short while and the discussion was concluded. On 16 August 2011, Ms Hunt had emailed her supervisor to apologise for breaking down and to confirm that the information she had given him was correct. Then followed an exchange of emails couched in professional terms. The matter appeared to be resolved and the Tribunal does not find that overall the conduct was unreasonable or conducted in an unreasonable manner.
In summary, given that the Tribunal has found that the administrative actions discussed which may have contributed to a significant degree to Ms Hunt’s adjustment disorder were not unreasonable, nor conducted in an unreasonable manner, it follows that Ms Hunt’s adjustment disorder is not a ‘disease’ and hence an ‘injury’ for the purposes of the Act. That means the decision under Matter 2012/4516 under review is affirmed.
Matter 2013/1644
The date of injury in this matter was 6 May 2012. Despite reference to the condition in Dr Webber’s medical certificates, there is doubt on the medical evidence that Ms Hunt was suffering from an adjustment disorder at that time. Neither Dr Saboisky nor Dr Hundertmark found she was suffering from adjustment disorder when they saw Ms Hunt in March and April 2012. During March and April 2012, Ms Hunt’s evidence was that she was more settled at work. At the same time, Mr Sutton’s view was that Ms Hunt quickly succumbs to an adjustment disorder. There is no evidence that Mr Sutton saw her, however, after February 2012. So his view is not conclusive as to whether Ms Hunt was suffering an adjustment disorder on 6 May 2012.
Dr Webber reported on 2 July 2012 that her symptoms were suggestive of depressive illness and were treatable by an anti-depressant, casting doubt on whether she also had an adjustment disorder at that time. In addition, she did not return to work after 6 May 2012 until November 2012, a longer period off work than her previous absences for adjustment disorder, suggesting that the condition she was then suffering was more serious in nature, and could have been a depressive disorder. The Tribunal, accordingly, is not satisfied that Ms Hunt was suffering from an adjustment disorder in May 2012.
That conclusion is supported by the evidence of Dr Webber. Although he provided medical certificates for the period 8 May 2012 to 10 December 2012 for among other things, ‘psychological stress’. His certificates also referred to depression and he had prescribed an anti-depressant for the condition which was effective.
In these circumstances, and given the opinions of Dr Hundertmark in April 2012, Dr Saboisky at the end of March 2012, and Dr Hodgson in September 2012, that at these times Ms Hunt was not suffering any psychiatric disorder, coupled with Dr Webber’s findings that Ms Hunt was suffering depression rather than an adjustment disorder from May to December, the Tribunal is not satisfied that Ms Hunt’s condition in May 2012 time was an adjustment disorder. So her claim that her employment contributed to an adjustment disorder is unsuccessful.
Even if depression is substituted for adjustment disorder, the opinions of the psychiatrists that at the end of March, in April and in September 2012, Ms Hunt was not suffering any psychiatric disorder cast doubt on whether any such condition was of sufficient severity to be outside the boundaries of normal mental behaviour and functioning. In those circumstances, the Tribunal is not satisfied that Ms Hunt was suffering from any adjustment disorder or from depression in May 2012 which alone had resulted in incapacity for work. For that reason, the Tribunal affirms the decision under review.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. ...................[sgd]..................
Associate
20 December 2013
Date(s) of hearing 23 and 25 October 2013 Date final submissions received 25 October 2013 Applicant In person Counsel for the Respondent Kristy Katavic Advocate for the Respondent Stuart Marris Solicitors for the Respondent Sparke Helmore
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