Carol Hunt and Comcare

Case [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

  1. Ms Carol Hunt, born 1959, was employed by the Department of Health and Ageing (agency).

  2. 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). 

  3. The Tribunal was satisfied that it had jurisdiction.

  4. The two matters were heard together in Canberra on 23-25 October 2013.

    Background

    Matters 2012/4516 and 2013/1644

  5. 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.

  6. 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…

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AGLC
Carol Hunt and Comcare [2013] AATA 931
Case
[2013] AATA 931
Decision Date

CaseChat Overview and Summary

The case of Carol Hunt and Comcare involved two matters heard together by the Australian Public Service Tribunal in Canberra. The disputes related to Ms Hunt’s claims for workers' compensation against Comcare, stemming from her employment in the Australian Public Service since 1980. Specifically, Ms Hunt alleged that her irritable bowel syndrome, migraines, psychological stress, and other conditions were exacerbated by the actions of her supervisor, which she considered to be bullying and harassment. The legal issues before the court were whether the claimed conditions were ailments or diseases under the Workers' Compensation Act, whether these conditions were aggravated by her employment, and if Comcare was liable to pay compensation.

The court examined the diagnoses and the evidence provided by various medical professionals, including gastroenterologists, psychologists, and psychiatrists. The predominant view was that Ms Hunt suffered from irritable bowel syndrome, which was exacerbated by psychological stress. The evidence also suggested that Ms Hunt had experienced an adjustment disorder in 2011, which had resolved by early 2012. The court considered the medical evidence and testimony, including the statements from Ms Hunt’s general practitioner, Dr Ian Webber, who noted that her irritable bowel syndrome and migraines were influenced by psychological stress, particularly the conflict with her supervisor. The court concluded that the claims of an adjustment disorder and irritable bowel syndrome were substantiated, and that these conditions were aggravated by her employment circumstances.

As a result, the Tribunal found that Ms Hunt suffered from ailments that were contributed to by her employment, and thus, Comcare was liable to pay compensation under section 14 of the Workers' Compensation Act. The final orders of the court were that Comcare should compensate Ms Hunt for her injuries, reflecting the Tribunal's determination that her employment conditions significantly contributed to her health issues.

Orders

Orders of the court

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Background

Background to the litigation

The two matters were heard together in Canberra on 23-25 October 2013. BackgroundMatters 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; ando 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.

Evidence

Evidence Before The Court

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).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.ConsiderationMatter 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.