Colleen Leon and TNT Australia Pty Ltd
[2014] AATA 712
•30 September 2014
[2014] AATA 712
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3155
Re
Colleen Leon
APPLICANT
And
TNT Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 30 September 2014 Place Brisbane The decision under review is set aside.
The Tribunal decides in substitution that the respondent is liable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the applicant’s psychiatric condition.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
COMPENSATION – Claim that psychiatric condition arose out of applicant’s employment – Contributing factors outside of workplace – Finding that workplace stressors made significant contribution – Reviewable decision set aside – Respondent liable.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B; 14
REASONS FOR DECISION
Senior Member Bernard J McCabe
30 September 2014
Mrs Colleen Leon had an accident at work on 15 November 2011. She injured her elbow. She suffered a further accident at work on 18 January 2012. She injured her shoulder on that occasion. TNT Australia Pty Ltd (TNT), her employer, accepted liability in respect of both conditions under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). Mrs Leon subsequently developed a psychiatric condition that is best described as major depression. She was diagnosed in October 2012. She says that condition also arises out of her employment and wants TNT to accept liability under s 14 of the Act. TNT says the workplace did not contribute to the onset of the condition.
It says the condition is the product of other, unrelated health problems and it has denied liability. It points in particular to the stress the applicant experienced in September 2012 when she may have suffered a transient ischaemic attack. Mrs Leon asked the Tribunal to revisit the reviewable decision to that effect dated 29 April 2013.
I am satisfied Mrs Leon’s psychiatric illness is multi-factorial in origin. Those factors include:
·pain she experienced as a consequence of her accepted injuries;
·difficulties she experienced in adjusting to her functional limitations and her changed responsibilities in the work place;
·a hostile work environment;
·the transient ischaemic attack (TIA); and
·dissatisfaction over the handling of her various claims.
As I will explain below, I accept the workplace stressors made a significant contribution to the onset of her psychiatric illness, even if the TIA also contributed to the onset or aggravation of her condition. In those circumstances, I set aside the decision under review and decide in substitution that the respondent is liable under s 14 of the Act with respect to the psychiatric illness.
THE HISTORY OF MRS LEON’S WORKPLACE INJURIES
Mrs Leon was employed as a courier by Ansett Airfreight in 1993. She came to be employed by TNT in 1996 when that company took over Ansett Airfreight:
exhibit 1, p 132. She was working as a courier at the respondent’s Mackay depot in November 2011 when she fractured her right elbow. (That injury was properly described as “a widely displaced fracture of the olecranon process of the ulna” with “associated elbow joint effusion”: exhibit 1 at p 11.) She was off work for nearly two months.
Her elbow was immobilised in a cast for much of that time. She saw a rehabilitation consultant and commenced a return to work program. On the first day she returned to work in January 2012, she found herself working on the loading dock. One of her colleagues had asked her to help with scanning parcels. She said in her oral evidence that the loading dock was in a messy state. She said she stepped backwards at one point to get out of the way and fell over something. She injured her right shoulder. She said she was attempting to protect her elbow when she fell. The shoulder injury was described as “rotator cuff tendonitis/bursitis of the right shoulder”: exhibit 1 at p 118.Mrs Leon made a number of entries in her diaries recording her distress at pain from her elbow in particular over a long period. She experienced acute pain whenever she bumped the elbow. Some of those instances are noted in diary entries (reproduced in 23exhibit 2.2) on 20 January 2012 (p 675), 30 January 2012 (p 679), 16 February 2012 (p 687),
10 March 2012 (where the pain took 30 minutes to subside after taking two Codeine)
(p 697) and 22 March 2012 (where she almost passed out with the pain) (p 702). She also said she often had difficulty sleeping: exhibit 1, p 135. Dr Maree, her treating general practitioner, confirmed in his oral evidence that the applicant regularly presented with complaints of pain that were consistent with the physical injuries she had sustained.
He did note she was pain-free on at least one occasion but that appears to have been as a consequence of a recent cortisone injection: exhibit 2.1 at p 400. I also note the applicant’s evidence to the effect that she was taking regular doses of Panadeine Forte
(a prescription painkiller) even though she was not being provided with prescriptions. She did not disclose her regular usage of painkillers to Dr Caniato, the consultant psychiatrist who examined her on behalf of the respondent. That reticence might have something to do with the disclosure in her oral evidence that she was in fact obtaining a regular supply of Panadeine Forte from relatives.I accept the evidence establishes Mrs Leon was experiencing reasonably constant and occasionally acute pain throughout the months that followed her injuries and up until at least the time she was formally diagnosed with a psychiatric illness in October 2012.
The applicant was not only coping with ongoing pain. There were also issues in her workplace that emerged after the second injury. She sorted parcels and dealt with customers and eventually began to do the occasional delivery run, albeit that she was usually accompanied by a runner. However, she spent most of her time working in the small office in the Mackay depot. She shared the space with Ms C[1], amongst others.
I was told a number of staff came and went during the months that followed, but Ms C was a more or less constant feature until Mrs Leon took leave for medical treatment.Ms Plum Ashton, the local manager, worked upstairs.[1]This witness is known by a pseudonym
Mrs Leon said she had a difficult time discharging her duties in the office. She was not familiar with the operation of a computer and had real trouble learning how to operate the TNT system. She explained in cross-examination that many of the tasks she was expected to perform in the office required her to use a computer, so her poor computer skills were a significant issue. She also testified that she felt useless. She believed she was a burden and feared getting in the way of her co-workers. She reported this fact to her rehabilitation consultant on 19 March 2012: exhibit 6 at p 171. She also made an entry in her diary to that effect on 22 March 2012: exhibit 2.2 at p 702. In a further entry on 24 April 2012, she recorded that she was “now getting sick of being sick & also getting depressed”: exhibit 2.2 at p 716. She said in her oral evidence she spoke with
Ms Ashton about training opportunities and claimed she discussed the possibility of doing some work on a computer located in a vacant office upstairs. (Ms Ashton did not recollect this request.) She also spoke of being unhappy about the possibility of driving a delivery van again: while she was sent out on some runs, she had difficulty getting in and out of the work van and required a runner.The applicant’s claim about the effect of her loss of function on her sense of self-worth following the accidents must be seen in conjunction with her treatment at the hands of Ms C.
Ms C was a clerk who had worked in the office for some time before Mrs Leon returned to work in January 2012. She was not senior to Mrs Leon, it seems, but she was more familiar with the operations of the office and assumed a dominant role. Mrs Leon said in her evidence that after about a week, Ms C began to criticise her performance. Mrs Leon claimed Ms C was particularly unrelenting in her comments about Mrs Leon’s poor computer skills, but did not stop there. Mrs Leon said she was regularly on the receiving end of Ms C’s negative remarks. Mrs Leon was not singularly privileged in this regard, she explained in evidence: she said Ms C was rude to everyone, including customers.
I note Ms C was formally cautioned about her treatment of another employee following a complaint in February 2012: exhibit 2.2 at p 833ff. She was also warned following a complaint about her behaviour towards a customer: exhibit 2.2 at p 835ff.Mrs Leon referred to difficulties with Ms C in her diaries that were tendered in evidence. There are a number of entries that offer a contemporaneous record of her ongoing difficulties with Ms C throughout the period Mrs Leon worked in the office. I note there are a number of entries in August and September 2012 in particular in which the applicant details unpleasant interactions with Ms C: see, for example, exhibit 2.2
at p 771. There are also entries in the notes of doctors who saw Mrs Leon during this time recording her complaints about a hostile workplace: see, for example, the notes of Dr Toby on 28 September 2012 at exhibit 2.1 at p 236.Other witnesses gave evidence that confirmed Ms C was difficult to work with.
Ms Martin worked in the same office alongside Mrs Leon and Ms C for several months. She provided a statement and gave evidence at the hearing. In her statement,
she observed (exhibit 13 at [8]-[9]):From my observations it appeared to me that [Ms C] had some sort of a grudge against Coleen Leon and enjoyed picking on her. Her attitude towards Coleen Leon was nasty. She was nasty to everyone but she was particularly nasty to Coleen Leon.
It was clear from [Ms C’s] attitude towards Coleen Leon that she found Coleen to be a pain having to work with her in the office because she was injured. [Ms C] had no sympathy for Coleen Leon whatsoever.
Ms Duncan worked in the office alongside Ms C for several months after the applicant had left TNT. She also recalled Ms C being difficult and rude. She claimed in her oral evidence that she went home early on a number of occasions after she was harassed by Ms C.
The evidence of Ms Martin in particular is potentially valuable as she observed Ms C’s behaviour towards the applicant. Her evidence corroborates Mrs Leon’s claims of a hostile work environment. Ms Ashton, the manager, did not agree: she said Ms C was usually polite in her presence. That may be so, but Ms Ashton also agreed in
cross-examination that she was not physically present in the office all the time. I also note the respondent did not call Ms C to give evidence at the hearing, although I understand she still works for TNT. Her evidence would have been relevant. I think I am entitled to infer she was not called because her evidence would not have assisted the respondent’s case.
In the circumstances, I am satisfied I should prefer the evidence of the applicant – supported, as it is, by the evidence of Ms Martin and Ms Duncan – in preference to the limited evidence on the topic led by TNT. I accept Mrs Leon’s workplace was hostile and unpleasant and a source of real stress.
There were a number of other sources of stress in Mrs Leon’s life in the period following her accident. She was asked about a friend who had been diagnosed with cancer.
Mrs Leon denied the news of her friend’s poor health was a serious source of stress. After hearing her explanations in cross-examination, I have no particular reason to dispute her assessment of the impact of the news. I also note the applicant has expressed unhappiness at the way in which the respondent’s insurer dealt with her claims. I accept that was a source of stress to her.
The respondent says the most important source of stress was the TIA Mrs Leon is thought to have experienced in September 2012. She did not suffer serious symptoms in association with the event: she suffered some general symptoms, and did not pass out or experience severe impairment. She acknowledged her father had died from what she understood was a stroke (in fact it was a blood clot in his heart – but she did not know that when she was diagnosed). She insisted in her oral evidence that she was not especially troubled by the news she may have had a TIA because she was relieved it was not something serious like a brain tumour – although she also ventured in
cross-examination that the TIA might have been a product of stress from her workplace. (I note Dr Toby, one of her general practitioners, observed in her notes some of the symptoms subsequently attributed to the TIA were originally thought to be the product of stress caused by a co-worker: exhibit 2.1 at p 236.)
I think it is unlikely Mrs Leon was completely untroubled by news of a possible TIA. The fact she appears to have experienced some sort of panic attack in connection with an examination prompted by the TIA tends to suggest she was troubled by the development (see Transcript, pp 32-33). While I accept she is not an especially sophisticated individual, she must have had some appreciation of the significance of this sort of event. Even so, I note the contemporaneous entries in her diaries do not reflect a high level of concern at what had occurred. She was not seriously inconvenienced by the experience:
it is not as if she took a long time off work or was required to visit lots of doctors and have many tests. I am satisfied the news was a source of stress, although not especially significant.
THE MEDICAL EVIDENCE
The applicant led expert medical evidence from Dr Maree, her general practitioner, and Dr Lockwood, her treating psychiatrist. (A number of other reports and records provided by other doctors were also tendered in support of the applicant, but the two named individuals gave evidence at the hearing.)
Dr Lockwood said in her first report of 25 March 2013 that the applicant experienced a major depressive episode which had not yet resolved: exhibit 1 at p 173; see also exhibit 10, where the condition is described as ‘Major Depressive Disorder” (at p 2).
Dr Lockwood opined in that report that the condition was the result of events occurring in the workplace, and that the date of onset was around May to June 2012. According to the report, the applicant was experiencing difficulty in trying to return to work in delivery vehicles and began to contemplate the possibility of being confined to an office in the future: exhibit 1 at pp 167; 172-173. Dr Lockwood acknowledged in her reports that the applicant had experienced several bouts of mild post-partum depression following the birth of her children over 30 years ago, but did not think they were significant: exhibit 1, pp 163 and 173; exhibit 10, pp 3-4. Dr Lockwood concluded Mrs Leon appeared to be in good health without psychiatric symptoms before she suffered the accident in late 2011: exhibit one at p 173; see also exhibit 10 at p 2. She acknowledged in her oral evidence that a DASS (Depression and Anxiety Stress Scale) test administered to the applicant in mid-2012 by a psychologist, Dr Ritchie, did not show up significant symptoms of depression. Dr Lockwood suggested the DASS test should be treated with caution; she said a stoic individual like Mrs Leon might be expected to under-report symptoms.
In her second report dated 11 November 2013, Dr Lockwood suggested the main causes of Mrs Leon’s psychiatric problems “arose and developed very directly in response to the effects of chronic pain, unemployment, problems with employment, and difficulties with treatment”: exhibit 10 at p 4. Interestingly, Dr Lockwood gave less prominence to the existence of a hostile workplace, although she clearly regarded it as a contributing factor that flowed from the original injury.
In her oral evidence, Dr Lockwood explained the difficulties Mrs Leon experienced in adjusting to her changed circumstances in the workplace were particularly acute because so much of her self-esteem was tied up in her ability to be good at her job.
Dr Maree saw the applicant regularly in 2012. He was extensively involved with the development of her return to work and management plans. He prepared a number of reports and gave evidence at the hearing. He was an impressive witness who has developed an expertise in dealing with patients requiring rehabilitation. He was able to clearly explain the nature of Mrs Leon’s physical injuries. He said Mrs Leon frequently complained of pain and those complaints of pain were to be expected in someone with the kind of physical injuries in question. He was invited to comment during
cross-examination on whether the applicant was prone to visiting the doctor unnecessarily given some of the complaints that were noted in his medical records, but he denied that was so: Dr Maree said Mrs Leon had the sort of health problems ordinarily expected in a woman of her age and did not exhibit any unusual sickness behaviour.
Mr Lenczner, for the applicant, cross-examined Dr Maree at some length about
Mrs Leon’s psychiatric symptoms. Mr Lenczner noted Dr Maree did not prescribe any medication or refer Mrs Leon to a psychiatrist or make a diagnosis until October 2012 after the applicant experienced the TIA. Dr Maree agreed the TIA was a contributing factor to the onset of the condition but insisted he had observed symptoms of depression emerging and worsening over a long period. He said Mrs Leon was struggling to cope with events in her workplace and pain amongst other things, and she was only barely managing; he said he was confident Mrs Leon’s mental health would have deteriorated to the point where a diagnosis could have been made at some point even if she had not experienced the TIA. As it was, he agreed the discovery of the TIA was the “straw that broke the camel’s back” (see Transcript, p 137). He said in his oral evidence that the applicant asked a lot of questions about the TIA when he saw her in October – but he noted the applicant was still referring to “guilt, anxiety, depression, workplace issues” when he saw her on 19 October 2012 and decided to refer her to a psychiatrist
(see exhibit 2.1 at p 399). He said he had resisted making a psychiatric referral before October 2012 because, in his experience, a patient might regard a psychiatric referral as confronting, or perhaps an affront, and things would get worse. He also dismissed questions about his decision not to prescribe anti-depressive medication prior to
October 2012. He pointed out that medication was not always the answer.
Dr Maree’s evidence that he noticed a steady deterioration in Mrs Leon’s mental health over a number of months must be contrasted with Mr Pegoraro, who thought the decline was more precipitous in October 2012. I accept Mr Pegoraro saw the applicant reasonably frequently throughout the months that followed her injury – as did Dr Maree, who worked with Mr Pegoraro on the suitable duties plan. Given Mrs Leon’s stoic nature, it is not altogether surprising that any decline was not obvious to Mr Pegoraro.
I accept Dr Maree had the training and experience to form a clearer view of her state, and I prefer his evidence.
Interestingly, Dr Maree said Mrs Leon did not have a problem with the “suitable duties” plan that was developed and adjusted to suit her needs, although he said the applicant was unhappy with the way the plan was being implemented by TNT.
Dr Maree’s evidence – especially his oral evidence, where he was able to respond directly to the concerns put by Mr Lenczner – confirmed the principal sources of distress for the applicant throughout 2012 were (a) the more or less consistent complaints of pain (although he agreed there were some periods where the applicant may have been
pain-free following cortisone injections) and (b) a sense of dislocation, alienation and hopelessness that was a consequence of the physical impairment. In his oral evidence,
Dr Maree did not emphasise the hostile workplace, although his records noted the applicant’s complaints about her co-worker, and he said he did not think the health problems of Mrs Leon’s friends were especially important. He did think the TIA was a factor, however. It follows his evidence is essentially consistent with that of
Dr Lockwood, and broadly consistent with the evidence of Mrs Leon (although Mrs Leon placed rather more emphasis on the hostile workplace in her case as a source of distress, and tended to play down the TIA).
The respondent called several expert medical witnesses. Dr Ritchie, a clinical psychologist, gave oral evidence at the hearing. Letters written by her to Dr Maree were reproduced in exhibit 1 at pp 44-45 and 109-110. She had seen Mrs Leon in mid-2012 to assist with post-injury counselling. Dr Richie said in her oral evidence that she did not observe significant symptoms of anxiety at that point, and noted she had administered a DASS test which did not disclose serious symptoms of depression. She agreed with
Ms Blattman, counsel for Mrs Leon, that the DASS test was not an appropriate basis for making a diagnosis which would ordinarily require a structured interview. Dr Ritchie confirmed Mrs Leon was a stoic individual who was not given to complaining or talking about issues. She preferred to self-manage rather than persist with counselling in July 2012. Even so, Mrs Leon had developed obvious symptoms of anxiety when Dr Ritchie saw her again in late 2012. Interestingly, Dr Ritchie confirmed she did not think
Mrs Leon was especially anxious about the TIA: it was just one of a number of factors that contributed to her stress.
Dr Caniato was the respondent’s principal medical witness. He is a consultant psychiatrist. In his report dated 21 March 2014, he noted the applicant was experiencing ill-health and obsessive personality traits: exhibit 2.2 at p 642. He suggested the applicant may have been experiencing pain symptoms that were in excess of what was expected in connection with the injuries she sustained, and that heightened sensitivity to pain was a product of depression and dissatisfaction that emerged after her second accident in January 2012. He reported: “[l]iterature suggests that depression tends to predict pain symptoms, suggesting that it is the depressive symptoms and psychological factors causing or exacerbating the pain”: exhibit 2.2 at 649. He also said the “stroke” was final confirmation that she could not return to work and do a job that was an important part of her self-worth: exhibit 2.2 at p 643. He suggested the applicant might have a predisposition to depression in light of her history of post-partum depression: exhibit 2.2 at p 642.
In cross-examination, Dr Caniato accepted that if a person with Mrs Leon’s injuries did experience significant levels of pain as a consequence of injury, that level of pain would be a risk factor in the development of depression. He also agreed the applicant’s struggle to adjust to her new environment in the office in light of her work-related functional problems was a risk factor, as was workplace conflict. He said bullying and harassment could certainly be a problem for someone who was already in a delicate state.
I note Dr Maree had observed Mrs Leon’s complaints of pain were consistent with her injuries, and that she was not in poor health relative to women of her age. I am satisfied Dr Maree, as the treating general practitioner, was in a better position to comment upon the applicant’s general state of health and I prefer his evidence. I have also already made findings of fact to the effect that the applicant was working in a hostile environment where she was being bullied by a co-worker.
Dr Caniato also referred in his report of 21 March 2014 to the applicant’s
cerebro-vascular health and other general medical conditions that might be factors in depression. Dr Lockwood agreed in her oral evidence that these factors might contribute to the applicant’s depression, but neither doctor expressed a strong view on this point.
Dr Caniato also agreed that serious fractures could be especially distressing for older patients: exhibit 2.2 at p 649, and in cross-examination.
I am satisfied Dr Caniato’s opinion should be given less weight given his conclusions turn on the history he took and the factual assumptions he made. I refer in particular to his observations about Mrs Leon’s complaints of pain not being a product of the physical injury. Dr Maree’s evidence makes it clear those complaints were a product of the injuries sustained. Having said that, I note Dr Caniato accepts the applicant was experiencing depressive symptoms from at least January 2012, even if the TIA – which was not a stroke, as Dr Caniato assumed – was the final event that precipitated the diagnosis. He accepts the depressive disorder was multi-factorial, even if he was more inclined to rely on the distant history of post-partum depression and the consequences of the TIA and her cerebro-vascular health.
WHAT FACTORS CONTRIBUTED TO THE ONSET OF THE CONDITION?
I am satisfied the evidence establishes the applicant’s psychiatric condition of major depression is multi-factorial in origin. The evidence of Dr Lockwood and Dr Maree in particular (whom I prefer for the reasons I have indicated) suggests:
·Mrs Leon’s sense of dislocation and hopelessness at work that resulted from physical limitations created by her injury;
·her sense of hopelessness as a consequence of working in an environment she did not understand, and the loss of her previous role;
·chronic pain from her accepted injuries; and
·a workplace characterised by harassment and bullying
all contributed to the onset of her psychiatric condition, which may have occurred as early as mid-2012 but which was formally diagnosed in October 2012. They were not the only contributors: the TIA may have played a significant role, assuming that the condition did not in fact become established prior to October, as did a sense of unhappiness about the way in which her claim was handled. But I am satisfied from the medical evidence and the evidence of the various witnesses (including the applicant) that her ongoing pain from work-related injuries and the sense of dislocation and hopelessness made a significant and substantial contribution to the onset of her conditions for the purposes of s 5B of the Act. I would add it seems likely the contribution of these factors was almost certainly magnified by the bullying and harassment: the evidence from the applicant and her co-workers suggests she felt more hopeless and dislocated as a consequence of the bullying and harassment at the hands of Ms C.
CONCLUSION
The decision under review is set aside. The Tribunal decides in substitution that the respondent is liable pursuant to s 14 of the Act for Mrs Leon’s psychiatric condition.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 30 September 2014
Dates of hearing
Date last submission received
28-30 May 2014
14 July 2014
Counsel for the Applicant Ms H Blattman Solicitors for the Applicant Macrossan and Amiet Solicitors Counsel for the Respondent Mr J Lenczner Solicitors for the Respondent Moray & Agnew Lawyers
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