Christine Jones and Comcare
[2013] AATA 334
[2013] AATA 334
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/5067
Re
Christine Jones
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms A F Cunningham, Senior Member
Date 24 May 2013 Place Hobart Decision Summary
The decision under review is affirmed.
........................................................................
Ms A F Cunningham, Senior Member
CATCHWORDS
Workers Compensation - adjustment disorder - application for partial invalidity pension to ComSuper - whether employment related - disease not contributed to, to a significant degree by employment with ATO- decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (the SRC Act)
New South Wales Workers Compensation Act
CASES
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Commonwealth Bank of Australia v Reeve (2012) FCAFC 21
CF Holland Group Proprietary Limtied v Robertson (2010) 185 FCR 566
Humphrey Earl Limited v Speechley (1951) 84 CLR
Meaney and Comcare (2012) AATA 352
Comcare v Sahu-Khan (2007) 156 FCR 536Comcare v Mooi (1996) 137 ALR 690
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
The applicant, Christine Jones joined the Australian Tax Office (ATO) in January 2003 as an APS4 where she worked as a technical adviser, supervising and assisting call centre staff who answered queries from members of the public on taxation issues. It was Ms Jones’s intention to work at the ATO until May 2012 at which time she would be entitled to a retirement bonus. Due to ill-health and on medical advice Ms Jones commenced working part-time in February 2008 and subsequently sought advice in relation to an invalidity pension from ComSuper. In May 2008 Ms Jones approached the ATO to commence an application process for Partial Invalidity Pension (PIP). She underwent a number of medical assessments between July 2008 and February 2010 when Dr Ruttenberg provided a report to the ATO stating that in his opinion Ms Jones was not suitable for partial invalidity. Ms Jones subsequently lodged a claim for "stress" which was rejected by Comcare in June 2010 on the basis that her stress was the result of "reasonable administrative action". Comcare's decision was affirmed on review and. Ms Jones now seeks a review of the decision by the AAT.
It was argued on behalf of Ms Jones that the assessment conducted as part of her application for PIP was unduly extended, incomplete, mishandled and ineffective. It is contended that before the assessment was completed, Ms Jones’s case was closed and then reopened. Ms Jones received Dr Ruttenberg's report on about 10 February 2010 in which he opined that she was not suitable for partial invalidity. It is alleged that it was a consequence of this state of affairs that Ms Jones suffered a chronic adjustment disorder and was thereby incapacitated for work.
The respondent opposes the claim on a number of bases. Firstly, it is contended that the evidence does not support a finding that the applicant's condition was contributed to by her employment with the ATO. Secondly, it is argued that the PIP process was conducted by ComSuper, an entirely independent Superannuation Fund administered by a separate legal entity to the employer, ATO. Thirdly, if the Tribunal found that the applicant’s condition was contributed to by her employment with the ATO, it is contended that many of the factors that contributed to the adjustment disorder were not employment related and it therefore cannot be said that the condition was contributed to, to a significant degree by the applicant's employment. Fourthly, if the Tribunal found that the applicant’s condition was contributed to, to a significant degree by her employment with the ATO, it is contended that the disease was suffered as a result of reasonable administration in that it was connected with her failure to obtain a benefit in the form of access to her superannuation and that it was undertaken in a reasonable manner.
THE LEGISLATION
The claim for compensation is made pursuant to the provisions of section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), subsection (1) of which states :
“Compensation for injuries
(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”.
An injury is defined in section 5A as:
“Definition of injury
(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 arouse 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 contains a definition of disease as follows:
“(1) In this Act: 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.
“Ailment” is defined in section 4A as "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Section 7 (4) of the SRC Act provides that the date of injury is taken to be the day on which an employee first sought medical treatment for the disease. Section 16 of the SRC Act provides for the payment of compensation in respect of reasonable medical expenses incurred in relation to an injury. Section 19 of the Act provides for the payment of compensation for incapacity for work resulting from an injury.
ISSUES
The issues are:
(1)What is the nature of the claimed injury?
(2)Was the condition contributed to, to a significant degree, by the applicant's employment with the ATO?
(3)If so, do the exclusionary provisions of section 5 (A) apply, i.e. did the actions of the employer amount to reasonable administrative action taken in a reasonable manner in respect of the applicant's employment?
CONSIDERATION
Injury
The injury nominated in Ms Jones’s application for compensation was "stress" which was the condition identified by her general practitioner, Dr Vaughan. At Comcare's request Dr Vaughan provided a subsequent Report dated 25 March 2010 in which she clarified that it was her opinion that Ms Jones was suffering anxiety/stress. The two psychiatrists who examined Ms Jones, Drs Radcliffe and Sale considered that Ms Jones suffered an adjustment disorder. Dr Radcliffe opined in his Report dated 8 March 2012 that Ms Jones was suffering from a chronic adjustment disorder which meet the DSM -IV criteria. He attributed the condition to a number of factors which he apportioned as being 45% pre-existing heart condition, 10% depression and 45% as a result of the prolonged invalidity process and receipt of Dr Ruttenberg's Report on 9 February 2010. This Report stated that Dr Ruttenberg did not consider that Ms Jones was incapacitated for full-time work and in his opinion, was not suitable for partial invalidity. Dr Sale opined in his Report of 6 April 2011 that Ms Jones’s original psychiatric condition is likely to be major depression but considered that the foundation for her worker’s compensation claim was an adjustment disorder with anxiety symptoms which arose out of the protracted and ultimately unsuccessful application for partial invalidity. It was his opinion that Ms Jones’s pre-existing depressive condition would cause her to be less resilient in dealing with stressors and was contributory rather than causal of her condition. Dr Sale did not consider that the adjustment disorder was an ongoing source of incapacity but suggested that her depressive condition was causal of partial incapacity for work.
On the basis of this expert evidence, the Tribunal is satisfied that as at the date of her claim for compensation Ms Jones was suffering a psychological condition, namely an adjustment disorder, constituting a "disease" within the meaning of section 5B of the SRC Act being a condition "outside the boundaries of normal mental functioning and behaviour" (Comcare v Mooi (1996) 137 ALR 690 at 696).
Date of Injury
The Act requires that a deemed date of injury be established. Subsection (4) of section 7 provides :
“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)The employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first”.
Ms Jones first sought medical treatment for her anxiety condition on 10 February 2010 and was subsequently issued with a medical certificate by Dr Vaughan. Up until that date she had been gradually increasing her hours of work from the initial three days per week up until four days per week as from September 2009. The Tribunal concludes that the date of injury was 10 February 2010 upon which date Ms Jones first sought medical treatment and became incapacitated for work.
Contribution of Employment
The first task is to identify the factors that contributed to the suffering of the adjustment disorder before evaluating whether the various contributing factors, namely employment related factors were significant in contribution.
In her written Statement of Evidence, Ms Jones stated that in early 2008 she sought medical attention for persistent tiredness and frequent angina brought about by cardiac arterial spasms. She had suffered ongoing and persistent health issues stemming from an acute myocardial infarct (heart attack) in 1994 and a second heart attack in 1998. Upon medical advice and to assess whether her health would improve, Ms Jones obtained permission from the ATO and commenced a reduction in her working hours in February 2008. A reduction in salary resulting from her part-time work resulted in financial pressures and after making enquiries from ComSuper, Ms Jones decided to apply for partial invalidity payments (PIP). On 14 May 2008 her general practitioner, Dr Vaughan sent a letter to Kerry Carroll, of the Health and People Management Division of the ATO, confirming Ms Jones ‘s intentions.
Ms Jones met with Andrew Hunter on 12 May 2008 when she claims that she completed and signed an application form for PIP. Ms Jones maintains that it was the prolonged process which involved many extended visits to various medical personnel, a variety of medical tests some at her own expense, ongoing mishandling of her PIP application and lack of expertise on behalf of the ATO, as well as a lack of care in relation to her ongoing health and well-being and lack of interest for her financial, emotional and physical disadvantage that caused her extreme distress. She states that she was extremely distressed upon receiving the advice contained in Dr Ruttenberg's report of 2 February 2010 that he considered her fit for full-time work. Ms Jones stated that she was distressed at the financial consequences and went home soon after receiving the advice. She states that that she "fell apart at the seams after this. On 10 February 2010 I saw my GP and was given a workers compensation certificate. I was very distressed for weeks and off work until Easter." Ms Jones went on to state that: “it was following the notification of the decision in February that she became emotionally overwrought, depressed and suicidal" and went on immediate stress leave. Ms Jones was unable to work between February 2010 and April 2010 and retired from work just after Easter 2010.
It was Dr Sale’s evidence that it was the notification of Dr Ruttenberg's unsupportive opinion that was the largest contributing factor to Ms Jones’s adjustment disorder and incapacity on 9 February 2010. Dr Sale considered that if Dr Ruttenberg's opinion had been supportive, Ms Jones would not have suffered the disease. He noted that up until the time when she received Dr Ruttenberg’s advice, Ms Jones appeared to be coping and continued to work part-time, and had been on a program to increase her working hours to 4 days per week.
Dr Radcliffe's evidence regarding the factors contributing to Ms Jones’s adjustment disorder has been referred to above. It was Dr Vaughan’s evidence that initially Ms Jones coped quite well with the PIP process but with the ongoing appointments and interventions, her anxiety levels increased which would settle periodically then gradually increase to the point when it all became too much for her, particularly after receipt of Dr Ruttenberg's opinion.
The Tribunal was referred to the High Court’s decision Federal Broom Co Pty Ltd vSemlitch (1964) 110 CLR 626 where Windeyer J said when considering the question whether employment contributed to an aggravation or deterioration of the disease with respect to the New South Wales Workers Compensation Act at 641:
"This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.…"
In considering the term "employment" as used in section 5A of the SRC Act, the Federal Court in Commonwealth Bank of Australia v Reeve (2012) FCAFC 21 at page 27, commented "thus, ‘employment’, as used in section 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Proprietary Limited v Robertson (2010) 185 FCR 566 at 586 per Dowsett J with whom Spender J agreed."
It was submitted by Ms Taglieri that it could not be said that Ms Jones’s application for PIP on the basis of her part-time work was related to her employment conditions or the terms of her engagement because she had already obtained approval from her employer for part-time work. She said that Ms Jones’s decision to seek PIP from ComSuper was entirely her own and was made independently of her conditions of employment. Ms Taglieri suggested that the need for PIP was due to her reduced salary as a consequence of reduced working hours, and that it was not a condition or a requirement of her part-time work agreement with the ATO that Ms Jones apply or be eligible to receive PIP. The PIP application and process had nothing to do with what she did in employment and could not be employment related.
It was submitted by Ms Taglieri that the PIP process was about the applicant’s membership in an entirely independent superannuation fund, namely ComSuper which was administered by a separate legal entity to the employer. Ms Taglieri argued that what the applicant did in seeking a PIP was not something she was required to reasonably do, expected or authorised to do in carrying out her duties with the ATO. She referred the Tribunal to the High Court decision in Humphrey Earl Limited v Speechley (1951) 84 CLR 126 at page 133 where Dixon J stated "When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorised to do in order to carry out his duties…"
Mr Browne contended that the concept of employment has been broadly interpreted and is not restricted to the duties undertaken by an employee in the course of employment or the requirements of employment.
The definition of “disease” requires that the ailment be contributed to, albeit to a significant degree, by the employee’s employment and not that it arise out of or be in the course of that employment as required by the section 5A definition of “injury”. Many of the cases referred to by counsel concern this latter definition rather than the concept of employment per se which appears in section 5B. Ms Jones’s entitlement or eligibility for PIP only arises because of her Commonwealth employment with the ATO. The requirement to be a member of a superannuation fund and the entitlements that thereby arise are a consequence of this employment.
Ms Jones’s ability to access PIP arises by virtue of her membership of the Public Sector Superannuation Scheme (PSS) which operates under the Superannuation Act 1990, the PSS Trust Deed which was made pursuant to section 4 of the Superannuation Act 1990 and the Rules which are a Schedule to the Trust Deed. Section 4 of the Superannuation Act1990 provides that the Deed is to provide for the funds to be invested with the Board and sets out the powers and functions of the Board.
The Deed provides for the establishment of the PSS Scheme and the PSS Fund for the benefit of persons employed by the Commonwealth and approved authorities. The functions of the Board are to administer the Scheme and manage and invest the PSS Fund in accordance with the provisions of the Act and the Deed which includes the payment of benefits to members. ComSuper is the Administrator of the PSS Scheme and is responsible for determining applications for invalidity retirement including PIP.
Lynne Margaret Modrak, an employee at ComSuper and Manager, APS Case Management since September 2005, gave evidence with respect to the administration and process involved in applying for PIP noting that the PIP process is set out in Part 10 Division 5 of the PSS Rules. It was Ms Modrak’s evidence that ComSuper, on behalf of CSC (Commonwealth Superannuation Corporation), is responsible for determining applications for PIP. The applications are dealt with by the APS Invalidity Assessment Unit within the APS Case Management Team and individual staff within the unit are delegates of CSC.
In her witness statement, Ms Modrak stated at paragraph 8 “employers play a major role in organising the assessment of a person's medical situation leading up to a possible application to ComSuper for a PIP. To assist employers with their obligations, ComSuper has issued to employers a document entitled "Invalidity Notes" that describes the invalidity retirement and PIP processes, and what the employers must do in the lead up to lodging an application for either an Invalidity Retirement Certificate or a PIP…"
Ms Modrak described the employer’s role leading up to a PIP application which includes the referral of the employee to a doctor for a medical assessment. The doctor is asked to assess what the employee can or cannot do, their capacity for work and whether the decreasing capacity causes a permanent decrease in salary. In the event that the decreasing capacity for work is not permanent or there is no permanent decrease in salary, the applicant will not have met the criteria for a PIP. Ms Modrak noted that it is always open to a member to lodge a PIP application. Where an application is received by ComSuper and if something is missing or out of order, Ms Modrak stated that ComSuper would let both the employer and the member know what is required. She went on to state "if the doctor notices another condition then they would also report on that condition. There is flexibility in who organises the reports from specialists. The doctor can suggest to the employer that they seek a further report. It would be usual that the doctor would recommend to the employer that they get the report rather than the doctor just going off an organising it themselves as it would be the responsibility of the employers to pay for the report. Employers have an obligation to the employee and should organise these assessments. However, there is also nothing to preclude the doctor from asking the member to obtain the reports. There is no hard or fast process to follow."
Tendered in evidence was a copy of the PSS and CSS Invalidity Notes issued pursuant to the Invalidity Retirement and Partial Invalidity Pension (PIP) Procedures - September 2004. The Notes provide that "ComSuper is the business name for Commonwealth Superannuation administration which is responsible for the administration of the superannuation schemes available to Commonwealth and military employees". Notes specific to partial invalidity benefits are contained in Part 15. At 15.1 it is stated "the partial invalidity benefit is a form of income maintenance. It is paid as a pension when a member of the CSS or PSS incurs a reduction in salary because a non-compensable permanent medical condition causes the member to be downgraded or to work reduced hours recall the nation of both. It is also payable in circumstances when the invalidity pensioner returns to work in a position that is a lower classification than the one held when the member was retired."
The Notes go on to specify which documents are required by ComSuper to support an application for PIP and state that a Health Assessment Report (HSA Report) must be completed and signed by an HSA occupational physician. If the examination was by an HSA approved country doctor, the report should be oversighted by a Senior Medical Adviser. Reports should detail medical conditions, symptoms, prognosis, how the condition affects the member’s work capacity and confirm that the condition is permanent. Where part-time hours are recommended, the number of hours and spread of hours must be specified. Treating doctors and specialists reports as well as rehabilitation reports should be provided. A departmental delegate must also provide a determination that the member has become permanent part-time or redeployed with date of effect, or statement of reduction in hours/status whichever is appropriate. A two year sick leave history is also to be provided.
The Notes provide separate advice with respect to CSS and PSS members including advice on how a member may apply for PIP and that the form is available from the ComSuper website. The member is required to sign the declaration on the form and the employer must provide all relevant personal and employment details. Specifically the Notes provide that an HSA occupational physician or independent specialist in the field must certify as far as it is possible to determine, that the medical condition is permanent and that the member's medical condition is causing the incapacity to work and include a recommendation for suitable modified duties/suitable reduced hours and spread of hours.
The PSS Partial Invalidity Pension Approval Application Form provides information for members as well as instructions for employers. The instructions read as follows "You should consider applying for partial invalidity pension on behalf of a PSS member if the member suffers a permanent decrease in pay because a physical or mental condition causes them to work shorter hours, work in a lesser paid or lower position, or because of a combination of both reduction in hours and redeployment. You may also apply for partial invalidity pensions for any former invalidity pensioners whom you employed at a lesser rate of pay than during their previous PSS membership. You should obtain comprehensive medical reports from the member’s treating practitioners. You should also obtain a work performance report from the member’s supervisor and copies of his/her sick leave records and duty statement. You should then arrange for an assessment and report from an occupational physician. Please then collate all the documents required for an application for partial invalidity pension into chronological order and attach to this completed and signed form SPP. You may then forward the complete submission to the APS Defined Benefit Scheme Invalidity Assessment Unit at ComSuper …"
Upon medical advice Ms Jones applied to her employer, the ATO for a reduction in her working hours with a view to ascertaining whether this would improve her health. With her employer’s agreement she reduced her hours of work to 3 days per week in February 2008. Ms Jones then sought advice from the Human Resources Division of the ATO regarding her ability to access part of her superannuation from ComSuper on the grounds of medical "partial invalidity".
Included at T37 between pages 135 and 147 described as "ATO case details" are log entries of conversations and interactions between Ms Jones and a number of ATO employees with respect to her PIP application. The entries commence on 13 May 2008 and conclude on 4 May 2010. They include the name of the analyst, date of activity, time spent, type, log comment and a summary of the interaction. They appear to be, and the evidence was, that the entries were made contemporaneously with the interactions.
The first entry made on 13 May 2008 at 15:25 is an e-mail forwarded by Mary-Anne Turner, Case Management, Health and People Management, ATO People – Waymouth, to Ms Jones which states in part:
"Hi Christine as discussed on Monday 12/5 - you asked about working part-time due to health reasons (3 days PW) and partial invalidity from ComSuper.
I explained the process would involve:
1. You asking your Dr’s/specialist for a report to indicate their support of this and outlining your medical condition(s) and requirement to work pt due to health reasons.
2. We would create a case and make an appt for you to be seen by an Occupational Physician at Health for Industry (HFI). ComSuper require the HFI Dr to either support/endorse any applications for partial/full invalidity.
I have asked Kerry Carroll from Area SA phone extension x81980 to be your case manager and she will be in contact with you with details of your medical appt with HFI.
Kerry will need to request a work report from your Manager, Grange Allcock for this purpose as well. Kerry will discuss this with Grange”
On 14 May 2008, Dr Vaughan sent a letter to Ms Kerry Carroll, Health and People Management thanking her for assessing Ms Jones for partial invalidity access to some of her superannuation and confirming her advice and that of Ms Jones’s cardiologist, Dr Luke Galligan that a reduction in her workload may improve her overall health.
The log records that on 11 June 2008 Kerry Carroll left a message for Ms Jones to contact her. On 17 June 2008 Ms Jones called Ms Carol regarding the letter from her specialist and was advised of the "fax number to send for inclusion on file. Will contact HFI to make an appointment for a partial invalidity for Christine." There is a further entry on the same day which records that a medical appointment had been arranged with HFI for 2 pm on Tuesday 8/7/08 at Hobart with Dr Tabart. The following entries which date from 26 June 2008 are between Andrew Hunter and Ms Jones. On 26/06/2008 it is recorded that Mr Hunter followed up "with Debbie regarding manager’s report required for assessment on 8/7 - Deb advised she would have that completed ASAP and would send it to me when completed."
Following Ms Jones’s meeting with Andrew Hunter, Health and Management Consultant, Health and People Management/Hobart ATO People, Mr Hunter forwarded a letter to Dr Tabart on 1 July 2008 “Subject : Request for Occupational Health Assessment – Christine Jones” in which he stated that Ms Jones had been referred to Dr Tabart for an occupational health assessment under the provisions of the Public Service Act 1999 and that the independent medical advice received as part of the assessment will give the Tax Office a greater understanding of the employee's capacity to perform current or other duties. The letter asks Dr Tabart to contact the employee’s treating doctor/specialist prior to finalising her report.
On the same date Mr Hunter forwarded a letter to Ms Jones advising of her appointment with Dr Tabart which had been made in accordance with regulation 3.2 (2) of the Public Service Regulations 1999 to assess her occupational fitness.
The Tribunal considers that there is an association between Ms Jones’s application for PIP and her employment. Ms Jones would not have been eligible to apply for PIP had it not been for her employment with the Commonwealth. Her entitlement to apply for PIP only arises through her employment with the Commonwealth and her being a member of the PSS fund. Refer to trust deed.
Ms Jones’s employer, the ATO through its Health and People Management Team and in particular Andrew Hunter, was very much involved in the PIP application process as the above discussion indicates. These officers provided advice, support and direction from the time the process was initiated until its conclusion in around May 2010. The log referred to above, details the contacts made with Ms Jones, HSI on behalf of ComSuper, medical practitioners, and managers as well as the requests and follow-ups on an ongoing basis throughout this period. The actions undertaken by the ATO were carried out in accordance with the "Instructions for Employers" in the PSS PIP Approval Application form. Ms Jones would not have been able to initiate a PIP process if she had not at that time been a Commonwealth employee. In this sense and on account of the involvement of ATO employees, the Tribunal concludes that there is a nexus between the PIP process and Ms Jones’s employment with the ATO.
Contribution to a Significant Degree
Whether employment made a significant contribution to Ms Jones’s condition is a question of fact and requires an evaluation of the factors which contributed to her condition and whether those were employment related.
Subsection 2 of section 5B states”
“(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;
(a)the nature of, and particular tasks involved in, the employment;
(b)any predisposition of the employee to the ailment or aggravation;
(c)any activities of the employee not related to the employment;
(d)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”.
When considering the phrase “contribution to a significant degree", Senior Member Creyke said in Meaney and Comcare (2012) AATA 352 at paragraph 103 "The Act requires that in the case of a ’disease’ such as a psychological illness, employment must have contributed to the development of the condition to a significant degree, that is, to a degree which is more than deminimus and is substantial or considerable. (Comcare v Sahu-Khan (2007) 156 FCR 536 at (15)).
It was submitted by Mr Browne that the concept of employment in section 5B of the SRC Act should extend to the actions of those engaged by ComSuper in the assessment of Ms Jones’s application for PIP. In particular, Dr Tabart who Mr Browne contended was not appropriately qualified as an occupational physician as required by the partial invalidity pension procedures set out in the Notes.
As the earlier discussion above indicates, the administration and determination of an application for PIP is undertaken by an entity namely ComSuper, that has no connection with the employees employment. ComSuper administers the PSS on behalf of the Commonwealth Superannuation Corporation which is the trustee of the Scheme. An employee is able to make an application for PIP independently of his or her employer. In the present case however, Ms Jones did consult with officers of the ATO who assisted her and helped manage the PIP process. It are the actions of these officers that need to be examined in considering the question whether Ms Jones’s employment made a significant contribution to her condition. It were the ATO officers, namely those from the Health and People Management Division of the ATO, who were in the course of their employment, performing functions in assisting Ms Jones with her PIP application and overseeing the process. Those engaged by ComSuper, either as administrators or independent assessors, have no nexus with Ms Jones’s employment with the ATO, nor were their actions under the control or administration of the ATO.
Ms Jones complained that her PIP process was prolonged largely due to the numerous medical assessments that she was required to undergo and the delay between assessments. These assessments were recommended by Dr Tabart who was engaged by ComSuper from its panel of independent medical assessors. For the reasons outlined above, the Tribunal does not consider that the actions of Dr Tabart or any other persons employed or engaged by ComSuper in relation to the assessment of Ms Jones’s PIP application, have any connection with her employment with the Commonwealth within the meaning of section 5B of the SRC Act.
In her written statement of evidence, Ms Jones complains that following her initial referral to Dr Tabart "there followed almost 2 years of ongoing referrals for assessment with no outcome or decision being made by the occupational physician or the ATO”. Ms Jones states that she underwent all medical examinations required of her and provided all information sought and signed several forms authorising Dr Tabart to obtain medical information. She claims to have had no objection to further tests and agreed to do anything that was necessary to progress her PIP application. Ms Jones stated that after her second assessment in September 2008, she waited for a response from the ATO and Dr Tabart. She waited until late February 2009 after believing that enough time had passed for the ATO and Dr Tabart to do a report. She then rang the HPM office to enquire as to progress and was told that her case had been closed. She said she received a call from an ATO employee whom she informed of her frustration with the delay and the fact that she had provided all documentation from Dr Galligan and Dr Vaughan. On 26 February 2009 she spoke with Andrew Hunter who informed her that he was going to follow up HFI about the reports that were required. Mr Hunter suggested that Ms Jones should have obtained the reports and Ms Jones pointed out that she had signed authorities for Dr Tabart to obtain information that she needed from her treating doctors. Ms Jones states that it was about this time that she learned that "her PIP application and associated paperwork had been lost".
Ms Jones goes on to state that on 3 March 2009 she called HPM and " was astonished to learn that my case had been closed, and even more astonished and distressed to be told that the reason my file was closed was Dr Tabart's comment that I had not visited my GP for the results of the last assessment", which was untrue. On 3 March 2009 Ms Jones said that she sent an e-mail to Mr Hunter advising that she had seen both the GP and Dr Galligan since September 2008, pointing out that Dr Tabart had authority to approach her doctors for information and that she had "spoken to Dr Galligan's practice and they had said that Dr Tabart was to approach Dr Galligan directly." Ms Jones contends that the ATO had suggested that she reapply for PIP however she refused and insisted that the original case be reopened which it was.
The relevant log entries for this period record that following Dr Tabart's initial assessment on 8 July 2008 she would not recommend partial invalidity and that other medical issues needed to be investigated by Ms Jones’s current medical ’treaters’. A further assessment was arranged by Mr Hunter for 17 September 2008 in accordance with Dr Tabart’s recommendation. Dr Tabart advised Mr Hunter on 23 September that she would not recommend partial invalidity as further tests were required to be undertaken by a cardiologist and psychiatrist. Dr Tabart advised Mr Hunter that Ms Jones was not keen to undertake further tests at that stage. Mr Hunter agreed to meet Ms Jones and discuss the feedback from HFI and provide her with advice if she wished to progress the invalidity process. Dr Tabart's report was received on 30 September and the log records that recommendations were sent to Ms Jones’s manager and a copy of the report was to be released to Ms Jones via her GP and Ms Jones was accordingly advised.
The log records that on 1 October 2008 Mr Hunter met with Ms Jones “and advised verbally about forwarding of the report to her GP for release. She advised that she has a meeting with her GP 2/10 and will cover the recommendations in the OHA report. Will meet with her after the GP visit and discuss the current case and the need to keep it open or if it can be closed should she not want to pursue the invalidity process." Mr Hunter next met with Ms Jones on 26 November 2008 when she advised that she had an appointment with her cardiologist and should have some further details to assist with her invalidity application. The log records that Mr Hunter would await advice from Ms Jones and progress the issue when the documentation was received. A subsequent log entry records that Mr Hunter was awaiting receipt of the medical cardiologist’s report from Ms Jones to submit to HFI for review.
On 18 February 2009 Mr Hunter recorded "Review of file and still no further info provided by employee to progress invalidity application as per HFI assessment which advised further investigation by employee’s GP and cardiologist. File to be closed while info is still to be received."
On 26 February 2009 Kerry Carroll entered the following log "Hello Andrew, I have had a message left by Christine Jones referring to her Invalidity Case C30848. She was calling from home and has asked that her case manager contact her regarding the progress of her case. I note that you were the last case manager. Could you please contact Christine on (03) 6249 7738 to discuss. She is expecting a call this morning. Many thanks Kerry Caroll".
The next log entry records that Mr Hunter was on leave and that Ms Carol called Christine to advise. Ms Carol records that Ms Jones was very frustrated that the process was taking so long, that she had provided documentation from her heart specialist and GP, been to see Dr Tabart and provided all details of her medical practitioners and has heard nothing. Ms Carol records that she had provided Ms Jones with Anne Richardson’s details and Christine was going to contact her to establish the current status of her case.
On 26 February 2009 Mr Hunter recorded that he had a discussion with Ms Jones and advised her that the report had stated that HFI required some further investigation to be undertaken and would decide whether to recommend PIP depending on the cardiologist’s investigations and feedback. Further that there would be a follow-up with HFI to seek direction as to what was required from the employee to progress the issue. Mr Hunter made contact with HFI on the same day and requested clarification so that he could advise Ms Jones as to what was required in order to progress the invalidity application as per the OHA report of September 2008.
Mr Hunter records that he contacted Ms Jones on 2 March on two occasions during which he advised her that he had a meeting with Dr Tabart the following day to obtain clarification about the OHA report and specifically who was to obtain information/reports from Ms Jones’s treaters in order to progress invalidity application process as it had not initially been supported by HFI. Dr Hunter recorded that he would advise Ms Jones following his discussion with Dr Tabart.
On 3 March 2009 Mr Hunter records that he had a further discussion with Ms Jones about the invalidity process and release of a medical report and that Dr Tabart had advised that Ms Jones needed to make an appointment with her GP to discuss and obtain a copy of the report. It was for the GP to discuss recommendations and follow-up any further assessments and obtain cardiology reports etc. The notes state that "until this is completed the invalidity process cannot proceed as we do not have supporting medical reports and HFI support to progress to ComSuper - e-mail attached as to advice to employee."
On 6 March 2009 the log records a further contact between Mr Hunter and Ms Jones and states "will await update after request from cardiologist is received and will progress invalidity at that time should approval be provided via a follow-up OHA."
On 16 March 2009 the log records that contact had been made with Ms Jones who advised that she had left Dr Tabart's report with her cardiologist and would await advice from the cardiologist and then progress the issue with HFI to ascertain if the medical issues had been addressed as per the report. Further contact was made on 17 March when Mr Hunter spoke with Ms Jones and advised that he would organise a further review as the earlier review had been completed in September 2008. A further review date was organised on 1 April 2009 for 16 April 2009. Mr Hunter records that he obtained up-to-date leave information from management and was awaiting the manager's report which was received on 9 April 2009 when the OHA paperwork was completed and distributed to all parties.
On 23 April 2009 Mr Hunter recorded that he had spoken with Dr Tabart who advised that the latest assessment "showed improvement in mental state." The log entry records that the doctor was to obtain recommendations from the cardiologist and then review the advice and provide a report on the invalidity process. A detailed request would be sent to the cardiologist and Ms Jones’s GP. Dr Tabart would prepare an interim report with a final report being provided when the update from the treating doctors was received.
On 19 May 2009 Mr Hunter recorded that the OHA had been received and reviewed and a copy had been sent to Ms Jones for information. He noted that the recommendation was that invalidity was not supported at that time and that a gradual return to work (GRTW) process would be commenced to assist with a return to full duties as “the medical condition is unlikely to cause issues in undertaking her role-new HMC to progress GRTW when case reallocated".
The notes which followed from July 2009 are recorded by Antoinette Tsabazis who took over management of Ms Jones’s case from Mr Hunter. Although there appears to have been some confusion regarding the location of Ms Jones’s application form for PIP, as she was advised, a formal application for PIP would not be forwarded to ComSuper until a medical recommendation for PIP is received. The notes record that Ms Jones was also advised that PIP payments can be backdated upon the recommendation of an independent doctor.
In July 2009 it is recorded that Ms Jones was working three days per week and had been directed to participate in a GRTWP. On 23 September 2009 it is noted that Ms Jones had worked her first four-day week the previous week. On 25 September 2009 it is recorded that Ms Jones had "not reported any issues with her four-day week".
A further appointment was made for Ms Jones to see Dr Tabart on 3 December 2009 following which Ms Jones telephoned Ms Tsabazis complaining that Dr Tabart has sent her for further tests that she considered were unrelated to the medical condition for which she had sought PIP.
Mr Tsabazis spoke with Dr Tabart on 9 December when Dr Tabart advised that she was unable to make a determination regarding PIP as she had discovered new medical issues that required investigation to establish whether they were affecting Ms Jones’s fatigue and ability to increase her hours. Dr Tabart advised that the matter was complicated by the differing medical opinions from the cardiologist who stated that Ms Jones’s physical condition was stable and that her problem might be psychological whereas a psychiatrist had stated that the problem is physical. Dr Tabart had written to Ms Jones’s GP outlining her findings and seeking her input. It is recorded "Dr Tabart stated that PIP is a last resort once all medical conditions have stabilised and the permanent impairment can be investigated."
Further entries indicate that a decision was made to arrange an independent doctor's report with MLCOA to seek a definitive answer on Ms Jones’s application for PIP and that the ATO would cover the cost of the report. An appointment was subsequently made with Dr David Ruttenberg on 21 January 2010 and Ms Jones was advised accordingly.
On 21 January 2010 Dr Ruttenberg telephoned Ms Tsabazis to provide feedback following his consultation with Ms Jones. The notes record "He advised that Christine does have a heart condition and is possibly suffering from some level of depression but sees no reason why she cannot work full-time, Report pending." The Report was received on 5 February 2010. Ms Jones was advised that the report had been forwarded to her treating doctor. Ms Jones requested a copy of the report on 9 February 2010 as she was unable to make an appointment with her GP. Upon receipt of the report Ms Jones left a message in a state of some distress to advise that she had gone home. It is recorded on 9 February that Ms Jones advised that she was going to take legal action. On 12th February 2010 it is recorded that an incident report for stress had been submitted on behalf of Ms Jones and that a hard copy of a compensation claim had been forwarded to her.
Dr Radcliffe opined that Ms Jones’s adjustment disorder was 45% attributable to the PIP process and the receipt of Dr Ruttenberg‘s opinion and that she was not a candidate for PIP. It was Dr Sale’s evidence that in his opinion notification of Dr Ruttenberg‘s unsupported opinion was by far the largest contributing factor to the adjustment disorder and incapacity on 9 February 2010. He considered that if the opinion had been supportive, Ms Jones would not have suffered the disease. Dr Sale apportioned contribution to the adjustment disorder as 60% for her pre-existing depressive disorder and 40% for uncertain health (being Ms Jones’s heart condition) and the PIP process which included the receipt of Dr Ruttenberg’s opinion.
Included in the considerations listed in section 5B (2) of the SRC Act are any predisposition of the employee to the ailment or aggravation and any other matters affecting the employee’s health. It is clear from the evidence that Ms Jones‘s pre-existing medical conditions which were not employment related, also contributed in the sense that they pre-disposed her to the adjustment disorder.
CONCLUSION
Ms Jones was understandably frustrated by the protracted nature of the PIP process. She was particularly distressed when she was required to undertake further assessments and tests for conditions that she considered were not related to her application for PIP. There was some confusion particularly in the latter part of 2008 and early 2009, as to who was to arrange for the cardiologist report. Ms Jones stated that she saw Dr Galligan in early 2008. Dr Galligan was however, not prepared to release his Report until he received a request from Dr Tabart which was not initiated until 8 May 2009. In her Report of 18 September 2009 Dr Tabart had recommended that an up-to-date report be obtained from Ms Jones’s treating cardiologist as well as a psychiatric evaluation. Whilst it was clear from Dr Tabart's Report that she expected Ms Jones's GP to investigate to exclude all physical causes of fatigue, it was not clear from the Report whether Dr Tabart expected Ms Jones’s GP to also arrange for the treating cardiologist's report and the psychiatric evaluation.
On 30 September 2008 Mr Hunter noted that a copy of the Report was to be released to Ms Jones via her GP, that Ms Jones had been advised of the process and that there was to be a discussion regarding ongoing case management as the “issue needs further investigation by employee and her treaters”. On 1 October 2008 Mr Hunter met with Ms Jones who advised that she had an appointment with her GP on 2 October and would be covering the recommendations in the OHA report. The log entry records that Ms Jones agreed to meet with Mr Hunter following the visit with her GP to discuss her case and whether or not the file should be kept open or closed if she did not wish to pursue the invalidity process.
It is clear from these entries that Mr Hunter considered that Ms Jones would make a decision as to whether or not to pursue her claim for PIP following her consultation with her GP. On 20th October 2008 Mr Hunter discussed the file with his regional manager and advised that he was awaiting feedback as to whether or not the file would be closed. Mr Hunter discussed the matter further with Ms Jones on 26 November 2008 when she advised that she was seeing her cardiologist soon and should have some further details. Mr Hunter noted that he would await advice from Ms Jones and progress the issue when documentation was received.
Ms Jones states in her witness statement that after the second assessment in September 2008 she waited for a response from the ATO and Dr Tabart in relation to her PIP application. She went on to state that by late February 2009 after considering that enough time had passed for a report, she contacted the H&PM office and was advised that her case had been closed.
The log entries as outlined above however, do not accord with Ms Jones’s evidence. The Tribunal prefers and accepts the evidence contained in the ATO log entries which appear to be contemporaneous records of the conversations and interactions. The log not only records the date and time of the entries but also the actual time spent on each interaction. On the other hand Ms Jones’s statement was prepared on 13 April 2012, several years after the events. There is no indication that her statement was prepared from any contemporaneous notes made by Ms Jones at the time of her interactions with her case managers. It was her evidence that she had not made notes of the conversations at the time and that Mr Hunter had done so from time to time.
In a statement written in support of her Comcare stress claim dated 17 February 2010, Ms Jones states in her concluding paragraph "the only ‘saving grace’ throughout this entire saga has been the support, assistance and compassion shown by my team leaders and case managers, who have done everything within their power to assist me to get this matter resolved." When this comment was put to Ms Jones in the course of her evidence to the Tribunal, she said that Mr Hunter was not included in the case managers to whom she referred. There was no other evidence however, that Ms Jones had previously criticised Mr Hunter’s actions in relation to the PIP process. Ms Jones was asked during cross-examination whether she agreed that the ATO's conduct had been entirely satisfactory and she replied "yes, they were very good". Ms Jones agreed that the ATO case managers had been very supportive and kept her informed.
Section 5B requires that a disease be contributed to,’ to a significant degree,’ by the employee’s employment which is defined in subsection (3) as meaning substantially more than material. Such a determination requires an objective assessment of the actions of the employer. For the reasons identified above, the Tribunal does not consider that the actions of ComSuper or any of its agents can be attributed to Ms Jones’s employment with the ATO. ComSuper managed the assessment of Ms Jones's application for PIP and engaged their own medical practitioners from an independent panel to assess and provide reports on her incapacity and qualification for the PIP. The PIP process was initiated by Ms Jones and managed independently by ComSuper. The ATO was merely a participant in the process providing guidance and advice to its employee. It was not the role of the ATO’s case managers to give direction to either the employee or ComSuper. It was not Mr Hunter's role to assess whether the medical practitioners engaged by ComSuper were appropriately qualified in accordance with the guidance notes. The actions of any of ComSuper's employees or medical practitioners independently engaged by ComSuper cannot be attributed to the ATO.
The Tribunal is not satisfied that there is any persuasive evidence that the actions of Mr Hunter or any of the ATO case managers who were assisting Ms Jones with her PIP application contributed to her disease in any material way. The evidence was that the process was complicated by the nature of Ms Jones’s medical conditions and the various reports received from her specialists who suggested different reasons for her incapacity.
Whilst there were some unfortunate delays in progressing the process and obtaining further medical reports, the Tribunal does not consider that Mr Hunter or the ATO was responsible. Ms Jones’s major complaint was with respect to the delays which followed receipt of Dr Tabart's report in September 2008 and the failures to obtain the further medical assessments recommended in her report. It was not clear from the contents of Dr Tabart's report whether she expected Ms Jones or her doctors to arrange these further assessments or whether she intended to do so. It appears that both Dr Tabart and Mr Hunter not unreasonably in the Tribunal s view, assumed that Ms Jones and Dr Vaughan would arrange for these further assessments.
Mr Hunter had been advised by Dr Tabart on 23 September 2008 that Ms Jones was not keen to undertake further tests. Mr Hunter subsequently met with Ms Jones on the 1 October 2008 when she advised Mr Hunter that she had an appointment with Dr Vaughan on 2 October and would discuss the recommendations contained in the OHA report. The subsequent log entries indicate that Mr Hunter was awaiting further advice and feedback. On 26 November 2008 he met with Ms Jones who advised that she had an appointment to see her cardiologist and would be providing further details to assist with her invalidity application. Mr Hunter noted that he would await advice from Ms Jones and progress the matter when documentation was received. The delays that were occasioned in receiving Dr Galligan's report were because he had not received a referral request from Dr Tabart. The Tribunal does not consider that in the circumstances Mr Hunter was responsible for this delay.
Some criticism was made of the ATO's attempts to close Ms Jones's file from time to time. In the Tribunal’s view little turns on this as the evidence was that even if the file was closed, it could be reopened and any PIP entitlements could be backdated. It was Mr Fox's evidence, health consultant with the ATO, that until there was a medical assessment supporting either total or partial invalidity, no formal application for an invalidity pension would be submitted to ComSuper.
As the log entries show, Mr Hunter's attempts to close the file from time to time, were pending receipt of further medical reports which supported an application for PIP on the basis of incapacity that is permanent (ie not temporary) and there being no prospect that further treatment would improve the applicant's capacity to work. There was evidence that that in September 2009 Ms Jones was engaged in a gradual return to work program and had increased her hours to 4 days per week. Ms Jones herself agreed in evidence to the Tribunal that during the process, her capacity to work and her overall health condition was not static. In the circumstances the Tribunal does not consider Mr Hunter's actions were unreasonable. The reports submitted at that time indicated that Ms Jones's condition was not considered stable by either Dr Vaughan, Dr Tabart or Dr Galligan which was ultimately the finding of Dr Ruttenberg.
A further claim was made that Dr Hunter had provided Ms Jones with the incorrect PIP application form. It was the evidence of Ms Modrak that in 2008 there was only one document which dealt with both invalidity retirement and PIP. The form completed by Ms Jones was the PSS Medical Examination Report Invalidity Retirement form which is not an application form for PIP. The evidence was that an application form is only formally completed once a medical assessment supporting PIP is received.
The evidence from the medical specialists which is referred to above, was that the PIP process which included receipt of Dr Ruttenberg’s report, made between a 40 to 45% contribution to Ms Jones's anxiety disorder. For the reasons outlined above, the Tribunal concludes that it were not the actions of Mr Hunter or any of the other ATO employees who were assisting Ms Jones with her application for PIP that contributed to her condition in any significant degree.
The applicant having failed to satisfy the Tribunal that her disease was contributed to, to a significant degree by her employment with the ATO within the meaning of section 5B of the SRC Act, the Tribunal accordingly dismisses the appeal and affirms the decision under review.
I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham, Senior Member ........................................................................
Administrative Assistant
Dated
Date(s) of hearing 20, 21, 22, 23, 24 August 2012, 31 October 2012, 14 February 2013 and 5 March 2013
Counsel for the Applicant Mr R Browne Counsel for the Respondent Ms S Taglieri Solicitors for the Respondent Ms N Richards
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