Coburn and Comcare

[2010] AATA 412

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 412

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2089

GENERAL ADMINISTRATIVE  DIVISION		)
Re		ANTHONY COBURN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Dr G J Maynard, Member

Date23 April 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.........................[Sgd].....................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - benefits and entitlements - liability - psychiatric condition - adjustment disorder - whether condition caused or aggravated by the applicant's employment  - material contribution - failure to obtain promotion - decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Hart v Comcare [2005] FCAFC 16

Macarthur and Comcare [2003] AATA 1139

Comcare v Sahu-Kahn [2007] FCA 15

REASONS FOR DECISION

4 June 2010   Senior Member Bernard J McCabe       

1.Mr Coburn is seeking relief under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). He says he has developed a psychiatric condition as a result of experiences in his workplace, the Australian Taxation Office (“the ATO”). In particular, he reacted to correspondence from his managers in April 2006 raising concerns about his work performance and referring to allegations of misconduct. Mr Coburn took extensive sick leave and he has incurred medical expenses. He wants Comcare to accept liability for what occurred.

2.We say at once that we are satisfied on the medical evidence that Mr Coburn is experiencing psychiatric symptoms. Dr Apel diagnosed an adjustment disorder. The other diagnoses on file are consistent with that view. We accept that is most likely the proper diagnosis. At any rate, we are satisfied the medical evidence establishes the existence of an anxiety disorder of some kind.

3.The question is whether events in Mr Coburn’s workplace caused, contributed to or aggravated his condition.

4.Dr Apel acknowledged that workplace events may have made some contribution to what occurred, although it is unclear whether he thought it was a material contribution in the sense intended in the Act. Dr Apel’s evidence is important because it was roughly contemporaneous. We also note Ms Boulter was doubtful as to whether workplace matters made any contribution to the condition. Only Dr Slack of the expert medical witnesses was prepared to attribute the condition to workplace stressors. Mr Clark, for Comcare, noted Dr Slack’s opinion was given somewhat later in the context of compensation proceedings and relied on the applicant’s self-reporting. We have had the advantage of seeing the applicant, his managers and a number of the experts give evidence, which puts us in a good position to choose between the medical experts.

5.The respondent doubts that events in the workplace have anything to do with Mr Coburn’s current condition. Mr Clark argued the applicant’s condition is attributable to events in his personal life. We note the evidence that the applicant was separated from his wife in 2005, and that he had a difficult relationship with at least one of his children at the time. (That may have worsened over time, especially since his ex-wife has died, although her death occurred after the events which were said to give rise to the current condition.)

6.Mr Clark added that if the applicant’s workplace played any role in the development or aggravation of his current condition, the events Mr Coburn referred to in April 2006 cannot give rise to liability because they fall within the exception in the Act applicable to management behaviour that is connected with reasonable disciplinary action or a failure to obtain a promotion or other benefit.

7.Mr Clark points out the applicant was seeking a transfer to the serious non-compliance unit of the ATO and that application was refused, perhaps because of the comments made in the course of the transfer application process by his manager, Ms Thomson. Comcare relies in particular on the evidence of Ms Thomson and her superior, Mr Smith, who gave evidence at the hearing.

8.Allegations of harassment, bullying or other misconduct leading to psychiatric symptoms must always be scrutinised with particular care. The applicant with a psychiatric condition may not be a good witness in his or her own case because of that condition. In contrast, successful bullies – especially where they enjoy institutional support – are often adept at covering up their misbehaviour, or they may be adept at presenting themselves and their behaviour in a benign light: see Macarthur and Comcare [2003] AATA 1139. One must also remember that stressful jobs which require high levels of specialised skill and intelligence often attract individuals with qualities that make them good at those jobs, but which also make them difficult to manage, or at least more vulnerable to the consequences of insensitive management.

9.That caution has informed our approach in this case.

10.The reviewable decision accepted the applicant’s condition arose, or was aggravated by, stress in the workplace, but it concluded the respondent was not liable because that stress arose out of a failure to obtain a promotion or benefit. We have reached a different view. We have had the advantage of hearing from the applicant and those two managers who were directly involved in the despatch of the emails to him on 11 April that lie at the heart of the case.

11.In our view, the evidence of Mr Smith and Ms Thomson in particular clearly establishes the applicant was already experiencing serious dysfunctional behaviour as a result of an anxiety condition that arose in or about October 2005. We are satisfied this is the point at which the impairment arose: there is ample evidence supplied by Ms Thomson, in particular, that the applicant had ceased to function normally at that point. While the medical experts were prepared to concede that at least some of the blame for this condition should be sheeted home to workplace events, the evidence from managers in the workplace who dealt with Mr Coburn makes it clear the applicant’s condition was manifesting itself in seriously dysfunctional behaviour before the emails of 11 April. Although he has fixated subsequently on the emails of 11 April, the evidence of the two managers establishes that Mr Coburn was already in a spiral. That spiral was evidenced by examples of poor quality work, low productivity, anti-social behaviour in the office, including aggressive and abusive language directed at his manager, and a refusal to meet with his manager on many other occasions.

12.We are not satisfied it is possible to attach particular significance to what occurred on 11 April. We do not accept that workplace issues made a material contribution to the onset or aggravation of the condition. We use the expression “material contribution” in this context in the sense it was used in the Federal Court’s decision in Comcare v Sahu-Kahn [2007] FCA 15: the contribution, if any, was not of sufficient magnitude to trigger liability under the Act. We accept that the applicant’s condition is attributable to issues in his personal life, such as his separation, that were referred to throughout the evidence, including most obviously in the minutes of the meeting with Mr Smith.

13.We do not accept the managers who appeared at the hearing were engaged in some sort of vendetta against the applicant. They struck us as honest and competent individuals who acted as sensitively as they could towards Mr Coburn for as long as they could. They obtained assistance from human resource and health professionals within the ATO. They avoided making more of an issue out of objectionable conduct than they could have done. They accommodated the applicant’s relationship with a co-worker because they were aware of his reliance upon her as he was labouring under the weight of issues in his personal life. If anything, they were too tolerant of his increasingly unsatisfactory behaviour.

14.Even if we are wrong about the workplace issues contributing to the onset or aggravation of the applicant’s condition, one of the issues that must be taken into account is the failure to obtain the transfer. Mr Coburn said at several points in the course of his evidence and in his submissions that one of the reasons why he regarded the email containing the allegations of misconduct as being significant was because of what that email revealed about the chances of obtaining a transfer to the Serious Non-Compliance Unit. Even if there were other issues that had an impact, that issue alone suggests his condition is not compensable for the reasons identified in Hart v Comcare [2005] FCAFC 16.

15.The Tribunal affirms the decision under review.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: .........................[Sgd]..................................................
  Patrick MacDonald, Associate

Date of Hearing  23 April 2010 
Date of Decision  23 April 2010
Date of Written Reasons               4 June 2010
Applicant  Self-represented

Counsel for the Respondent          Mr C Clark
Solicitor for the Respondent          Mr P Crethary