Confidential and Comcare
[2014] AATA 134
[2014] AATA 134
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4437
Re
Confidential
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date 12 March 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS – COMPENSATION – psychological condition – complaint of bullying, harassment and victimisation – diagnosis of condition – whether applicant’s employment contributed to a material degree – whether employment contributed to a significant degree – classification of applicant’s position – reasonable administrative action – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 14, 66
Administrative Appeals Tribunal Act 1975 ss 35(2), 37, 40(1)(b)
REASONS FOR DECISION
Senior Member J Toohey
Background
This matter concerns whether Comcare is liable under s 14 of the Safety Rehabilitation and Compensation Act 1988 (SRC Act) to compensate the applicant for a psychological injury which she says she suffered as a result of her employment with a Commonwealth government agency.
The applicant represented herself in these proceedings. She did not appear at a hearing scheduled to commence on 24 February 2014. Before considering the substance of her claim, I will set out some of the background to the hearing and my reasons for deciding to proceed in her absence.
At the applicant’s request, on 20 November 2013 I made an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act) prohibiting the publication of her name or any details that might identify her. I will refer to her employer as “the agency” and to individuals by their initials.
The decision to proceed in the applicant’s absence
On 3 October 2012, the applicant sought review by the Tribunal of a decision by Comcare denying liability to compensate her for an injury which, if accepted, was deemed to have occurred on 13 March 2008.
On 27 February 2013, a Conference Registrar directed the applicant and Comcare to file any further evidence on which they intended to rely by 3 May 2013 and 28 July 2013 respectively. The applicant sought, and was granted, an extension of time to 23 May 2013 to comply with the direction. On 28 May 2013 she was granted a further extension to 10 June 2013. When Comcare also sought an extension of time, the applicant was given until 31 October 2013 to file any further documents.
On 18 September 2013, the matter was listed for hearing on 24, 25 and 26 February 2014, and for pre-hearing directions on 20 November 2013.
By letter dated 13 November 2013, the applicant sought an order under s 35(2) of the AAT Act in relation to information in reports of three psychiatrists.
At the directions hearing on 20 November 2013, I made the order prohibiting the publication of the applicant’s name or any details that might identify her, and extended the time for her to file and serve any further evidence until 20 December 2013.
By email on 18 December 2013, the applicant asked for a further extension until “27 or 24 January 2014 (28 days before the hearing)”. She was granted an extension to 10 January 2014 and was advised that the Tribunal would hold a further directions hearing on 14 January 2014 to ensure her matter was ready to proceed on 24 February 2014.
By email dated 8 January 2014, the applicant requested a further extension of time “until late January 2014”. She maintained that she was entitled by s 66 of the SRC Act to file documents up until 28 days prior to the hearing.
At the directions hearing on 14 January 2014, the applicant was granted an extension until 24 January 2014 in which to file any further documents. I explained to her that s 66 of the SRC Act did not entitle her to file documents as late as 28 days before the hearing; rather, that she could not file documents after that date without leave. At her request, the third day of the hearing was relisted to later in the week to give her a break during the proceedings.
On 24 January 2014, the applicant filed her documents. She did not suggest she needed further time to lodge further documents.
On Friday 21 February 2014, the Tribunal received a letter from the applicant addressed to the President. It complained about “the unlawful actions [of] Tribunal officials”. In particular, she complained she was intimidated by my refusal to make a confidentiality order or to grant her additional time in which to file her documents. She asked the President to investigate her complaint and, meanwhile to “stop the process of [her] application”. She said “for these reasons” she would not be attending the hearing on 24 February 2014.
On the same day, Ms Krochmal responded in writing on behalf of the President. After dealing with the applicant’s complaints, Ms Krochmal concluded by advising the applicant that the matter remained listed for hearing on Monday, 24 February 2014 and she should attend at that time; if she did not appear, the Tribunal might dismiss her application or proceed to hear the matter in her absence.
On the morning of 24 February 2014, the Tribunal received an email from the applicant stating that responding to her “complaint” as “correspondence” was unlawful. She complained about my “unfair”, “unjust” and “intimidating” behaviour towards her and asked that the President treat her complaint “as a complaint”. She again advised she would not be attending the hearing.
As it happened, counsel for Comcare was unable to proceed on 24 February 2014. I decided that, unless the President determined I should be removed from the matter, the applicant should be advised that:
(a)the hearing on 24 and 25 February would be vacated;
(b)the matter would proceed on 27 February for oral submissions from the respondent on the basis of the written material before the Tribunal;
(c)the applicant could attend on 27 February and make oral submissions in the same way as the respondent;
(d)arrangements could be made for the respondent’s witnesses to be available for cross-examination on 27 February if the applicant wished but, if so, she should advise the Tribunal by close of business on 25 February so that arrangements could be made for their attendance;
(e)if she wished to cross-examine the respondent’s witnesses, the respondent reserved the right to cross-examine her;
(f)alternatively, the applicant could consent to the application being determined without a hearing on the documents or other material before the Tribunal; if she wished to proceed this way, she should advise the Tribunal by 25 February and should provide any further written submissions she wished to make by 10am on 27 February.
On 24 February 2014, the President wrote to the applicant advising he had considered her complaint and her advice that she would not be attending the hearing, but he saw no reason to allocate the matter to another member, and Ms Krochmal would be writing to her shortly about how the hearing would proceed.
Ms Krochmal wrote to the applicant later the same day advising that the matter would proceed as outlined above. Further that, if she did not advise how she wished to proceed, the matter would proceed at 10 am on 27 February when the respondent would make oral submissions, after which a decision would be made.
The applicant did not contact the Tribunal again and did not appear on 27 February 2014. I was satisfied that she had reasonable notice of the hearing and that I should exercise the discretion in s 40(1)(b) of the AAT Act to proceed in her absence.
Ms Henderson made oral submissions for Comcare.
Documents before the Tribunal
The documents before the Tribunal comprise:
(i)four volumes of documents provided by the respondent in accordance with s 37 of the AAT Act (“T-documents”) and two volumes of supplementary T-documents;
(ii)written submissions from the applicant dated 11 June 2013, 31 October 2013 and 24 January 2014 with various correspondence, workplace and medical reports attached;
(iii)statement of FP dated 14 August 2013;
(iv)report of Dr John Champion, psychiatrist, dated 5 June 2013.
The attachments to the applicant’s submissions include the following medical reports:
(i)reports of Dr Joyce Voon, general practitioner, dated 6 August 2007, 10 December 2007, 7 August 2003 and 10 July 2007;
(ii)letter from Dr Mary Chung, general practitioner, dated 21 March 2013;
(iii)report of Dr Selwyn Smith, psychiatrist, dated 27 February 2012;
(iv)report of Dr Anthony Dinnen, psychiatrist, dated 3 October 2013;
(v)report of Mr David Rouen, clinical psychologist, dated 16 November 2011;
(vi)medical certificate from Dr Brian Nguy, general practitioner, dated 11 November 2011.
The applicant’s claim for compensation
The applicant commenced work for the agency in 1999. On 4 July 2011, she claimed compensation for “adjustment disorder with depression and anxiety stress, sleeping problems, back pain, stomach pain, chest pain etc”. She stated she first noticed her condition on 31 July 2002 and first sought treatment on 21 February 2003.
The applicant claimed she was bullied, harassed and victimised at work from around 2002 and was refused reclassification to a level appropriate to the work she was given.
The respondent’s contentions
Comcare denies the applicant has suffered an injury within the meaning of the SRC Act and says she has “a constitutional psychotic disorder” which caused her problems at work. Comcare contends her employment did not contribute to a significant degree to her condition (or to a material degree before 13 April 2007).
Alternatively, Comcare says, the applicant’s condition is not a compensable injury because it was the result of reasonable administrative action taken in a reasonable manner in respect of her employment (or the result of her failure to obtain a promotion, transfer or benefit, or of reasonable disciplinary action before 13 April 2007).
Claims and evidence
The applicant joined the agency in 1999 as a graduate employee at APS 4 level. Clearly, she impressed her employer. In November 2002, her manager, AM, provided a written reference supporting her successful application for promotion to an APS level 5 position. In it he said the team had a high regard for her, and the work she had done within the team was already of the standard required of an APS level 5.
The respondent says, and subsequent events tend to bear this out, that the applicant seems to have taken from this reference that she was being given work at a level above her classification and that she became fixated on this idea.
It appears that, around mid-2003, the applicant was “experiencing a reasonably high level of stress” and thought she was being given more complex and demanding work than suitable for APS level 5. It was agreed that her team leader, FP, would take on the role of mentoring her, and that she would be given “tasks of a less complex nature”.[1]
[1] T-documents folio 394; see also Staff in Confidence note dated 25 June 2003 File Note re [the applicant] – stress leave.
Despite this apparent attempt to accommodate the applicant’s concerns, she continued to complain that she was being given tasks above her level. In July 2005, EC was appointed section manager. The applicant complained to him about the complexity of the work she was being given. He discussed the matter with AM and FP and they concluded that factors including the applicant’s recent failure to obtain a promotion to APS level 6 were the cause of her problems, and not the difficulty of her work. They agreed to talk with the applicant after seeking guidance from the “People Management Unit”.[2]
[2] T-documents folio 501: File note 17 August 2005 by FP
File notes indicate that, around this time, the applicant’s behaviour towards other staff was of some concern,[3] although she apparently continued to perform her work satisfactorily. She continued to complain of work above her level. On at least one occasion, there was apparently some substance to her complaint because FP agreed that primary responsibility for a particular task should be given to a more senior officer. Notwithstanding, the applicant continued to complain that the task was above her level and found it “increasingly overwhelming and consequently stressful”.[4]
[3] T-documents folio 502-505
[4] T-documents folio 504
A file note by FP[5]shows that the applicant understood, from something AM had said to her, that she might have an opportunity of getting an “acting APS6” position. Whatever led the applicant to think this, apparently nothing came of it and she remained at APS level 5.
[5] T-documents folio 504
In November 2006, when the applicant continued to complain about the level of work she was being given, EC undertook a detailed analysis of her duties. He concluded they were appropriately classified at APS level 5. His 36-page report[6]was given to the applicant for comment. She disagreed with his conclusion and, in May 2007, took up her complaint directly with the newly appointed head of the agency.[7]
[6] T-documents folio 435
[7] T-documents folio 711
By letter dated 30 May 2007 on behalf of the agency head, the applicant was advised her complaint was being treated as “a request for Review of Employment Action as per the Public Service Regulations”. The letter advised that part of her complaint was about action that was not reviewable but that her allegation of harassment was treated “very seriously”. It asked the applicant to document her concerns and provide them with any evidence for “appropriate action to be taken”. The applicant does not appear to have taken the matter any further at that point.
In August 2007, the applicant was promoted to an APS level 6 position within the agency. Despite this, she apparently took issue with a favourable reference provided by AM and FP which, I presume, helped her gain the promotion.[8]
[8] T-documents folio 505
A lengthy response by FP in August 2011 to the applicant’s numerous complaints shows the applicant complained on her second day in the new position that she was given work without any training. In January 2008, she “nominated to do jobs that were closer to [her] previous position”[9]because of “the stress and sleeping issues” she was having. FM’s response documents various attempts to accommodate the applicant.
[9] T-documents folio 519-520
It appears that, in March and April 2008, the applicant saw a psychologist on two occasions to help her sleep and to manage her depression.[10] Progress notes show she described problems at work since 2003.
[10] T-documents folio 389
In September 2008, the applicant’s team moved to an area in the office where the floor vibrated when walked on. The vibration “shocked” her and she reported it immediately. According to FM, the floor had a tendency to vibrate but it was a “relatively minor annoyance which [was] quite tolerable”[11]but she arranged for the applicant to sit where the vibrations were less.
[11] T-documents folio 520
The applicant complained that “three weeks later, [she] was overwhelmed by the vibration even at home and as [she] was falling asleep”.[12] In February 2009, her general practitioner referred her to a psychiatrist who reported she had been “caught up in significant … conflict with her juniors who appeared not to respect her opinions and in many ways have undermined her”.[13] (This appears at odds with the applicant’s repeated complaints about her managers’ inaction). He diagnosed her as suffering Adjustment Disorder with Depressed and Anxious Mood, although in a letter to her employer on the same day he described her condition as “a Major Depressive Episode with Anxiety”.[14]
[12] T-documents folio 520
[13] T-documents folio 265
[14] T-documents folio 267
The applicant worked intermittently until August 2010 when her condition apparently improved and she returned to work two days a week. She was unable to sustain this and was retired on the ground of invalidity in September 2012.
Medical evidence
Reports from several psychiatrists show differences of opinion about the applicant’s diagnosis.
Dr Smith
The applicant was referred to Dr Selwyn Smith, psychiatrist, by her general practitioner, Dr Mary Chung in February 2009. Dr Smith noted the applicant’s “work related conflicts” and that her particular problem at the time was sleep impairment. He reported that she presented with an “Adjustment Disorder with Depressed and Anxious Mood” and that her “symptomologies … have been substantially contributed to by her adverse working circumstances”.[15] Dr Smith provided the applicant with a letter to her employer recommending she remain on leave for two to three months.
[15] T-documents folio 266
Dr Smith examined the applicant again in August 2010. He noted in his report dated 12 July 2011 that she reported “significant occupational conflict with junior staff” and she was experiencing “heightened levels of anxiety and associated depression”.[16] She also reported that she had to undertake difficult tasks, that she was treated differently, and was “harassed, bullied and victimised”. She said her work difficulties made her sleep worse and the bullying made her symptoms worse, that she was forced to undergo medical assessment and she was placed on medication that she was reluctant to use. Dr Smith reported that her previously diagnosed Adjustment Disorder with Depressed and Anxious Mood caused her to be totally unfit for work from 28 October 2009 to 6 September 2010 and that her symptoms were caused by her employment with the agency.
[16] T-documents folio 363
In his report dated 27 February 2012, Dr Smith disputed the diagnosis of chronic schizophrenia by another psychiatrist (whose report has not been tendered). He thought at that time that the applicant had the “mental capacity to undertake appropriate work, consistent with her training, education and experience”.
Dr Anderson
Dr Peter Anderson, psychiatrist, first assessed the applicant in September 2009 at the request of the agency, and again in February 2010 and August 2010 (when he assessed her as fit to return to work). In September 2009, she complained of feeling hot and experiencing vibrations in the workplace and “severe insomnia for a 10-month period prior to the onset of the vibrations”. Dr Anderson’s clinical findings were that the applicant’s level of insight was negligible and there was an “externalisation of blame for all of the workplace difficulties, and negligible insight as to health problems”. He thought her condition “an acute medical problem (psychosis), the effect of which is to make it very difficult for the worker to concentrate, to work with others, to communicate, and to have the insight and judgment to address these problems medically.[17]
[17] T-documents folio 276
In February 2010, Dr Anderson reported the applicant presented better than previously although agitation and distress were present. She did not complain of heat or vibrations but complained of sleep disturbance which she attributed to her employment.[18] He described the applicant’s condition as an “acute psychosis, [which] should be seen as against the background of a less acute and rather chronic condition”.[19] He reiterated his clinical findings of September 2009; he recommended antipsychotic drug therapy and noted that if her condition remained untreated it was likely to continue. He deemed the applicant unfit for any work.
[18] T-documents folio 297
[19] T-documents folio 299
In August 2010, Dr Anderson assessed the applicant again and provided a report. She reported her sleep was good, apparently due to healthy exercise and diet, and relaxation and stress management. He found her to be without symptoms of psychosis other than a compromised level of insight and judgment. He adhered to the view that she suffered a low grade psychotic condition which had become more acute and thought it possible for her to relapse if she encountered stress. He thought she was fit to return to work on a trial basis but he was guarded in his opinion as to her ability cope.[20]
Mr Rouen
[20] T-documents folio 310
In November 2011, Mr David Rouen, clinical psychologist and clinic manager at Bankstown Hospital, reported that the applicant had referred herself to the service in July 2010. At assessment, she did not meet diagnostic criteria for an Anxiety Disorder; a provisional diagnosis was made of Adjustment Disorder with Mixed Anxiety and Depression. She did not report or display any symptoms consistent with a psychotic illness at this time or at any time during her contact with the service (which was apparently on five occasions).[21]
Dr Champion
[21] Mr David Rouen, report 16 November 2011
Dr John Champion, psychiatrist, examined the applicant in May 2013. He noted that her mental health had “improved considerably” following her retirement but he thought her presentation was “consistent with significant emotional distress and thought disorder”. He did not think it suggested current significant depression or anxiety but “significant emotional distress” based upon a belief that she had been made sick by work and was now better.
Dr Champion reported that the applicant still showed evidence of “thought processes involving tangential thought and loosening of association typical of the psychotic illness such as Chronic Schizophrenia”. He diagnosed her as suffering “chronic low-grade psychosis best diagnosed as Chronic Schizophrenia” that likely had an “insidious onset and most likely commenced around 2002/3 which is the time at which [she] first complained of problems in her functioning”.[22]
[22] Dr Champion, 5 June 2013, p11.
Dr Champion said “schizophrenia is not caused by or exacerbated by stress but the poor mental function and fear generated by the illness can make normal work tasks and the workplace seem very stressful”.[23] He did not consider that the applicant’s employment had contributed to her psychiatric condition at any stage.
Dr Dinnen
[23] Dr Champion, 5 June 2013, p.11
In a very brief report dated 3 October 2013, Dr Anthony Dinnen, consultant psychiatrist, wrote that he had seen the applicant that day and found “no evidence of psychosis or thought disorder “. He noted that the applicant had provided him with one report from Dr Smith and two from Dr Anderson (but no one else). He agreed with Dr Smith. He thought the applicant was “well at present without significant symptoms of anxiety or depression”.
Consideration
I agree with the respondent’s submission that Dr Champion’s detailed report is compelling. He had the benefit of both seeing the applicant and reading the extensive written material provided to him.
In addition to the medical reports, Dr Champion had available to him the T-documents which give a comprehensive history of the applicant’s employment history including extensive correspondence between the applicant and her employer. They also include a 15-page document dated 17 August 2011 in which the “HR Advisor” details the employer’s response to the applicant’s claim for compensation[24]. Attached to the response are nearly 200 pages of documents including EC’s 35-page analysis in November 2006 of the applicant’s classification[25] and FP’s 39-page response to the applicant’s complaints of bullying, harassment and victimisation.[26]
[24] T-documents folio393-409
[25] T-documents folio435-471
[26] T-documents folio 472-511
Dr Champion considered the applicant’s distress at events in the workplace in the context of what he thought was “a significant episode of mental illness over many years leading to termination of her employment”. Although there is a difference of opinion as to diagnosis, the doctors generally agree that the applicant has shown signs of mental illness over some years.
I prefer the opinions of Dr Champion and the other doctors to the effect that the applicant suffers from a psychological or psychiatric condition to that of Dr Dinnen who found no significant signs of anxiety or depression (let alone psychosis). Dr Dinnen had limited information available to him. He appears before the Tribunal frequently and is familiar with compensation matters. His report is very brief by comparison with his usual detailed reports. It tells me only that he found no indications that the applicant was unwell on the day he saw her.
I prefer Dr Champion’s opinion that there is no causal connection between the applicant’s employment and her psychological condition to the opinion of Dr Smith who substantially attributes her symptoms to the adverse working conditions she complained of. Dr Champion has explained his opinion carefully in terms of the symptoms of the applicant’s illness and why in his view it bears no relationship to her employment. His opinion is broadly in line with that of Dr Anderson, that the applicant’s symptoms prevented her from working rather than were attributable to her work.
The information before me leads me to conclude that the applicant’s employment did not contribute, to a material degree before 13 April 2007, or to a significant degree after that date, to her psychological condition.
Even if I had come to the view that the applicant’s employment did contribute to the requisite degree to her condition, I would find that she did not suffer a compensable injury within the meaning of the SRC Act.
Prior to 13 April 2007, compensation was excluded for a condition that arose in part or at all as a result of an applicant’s failure to obtain a promotion, transfer or benefit or as a result of reasonable disciplinary action: s 4 of the SRC Act as it then was. From that date, compensation was excluded for a condition that arose in part or at all as a result of reasonable administrative action taken in a reasonable manner in respect of an applicant’s employment: s 5A(1).
It is evident that the source of the applicant’s disagreement with her employer, and her perception that she was being bullied and harassed, leading to her psychological condition, arose because in her view, she was being given work that was too complex for her level and her failure to obtain reclassification. I am satisfied that, up until 13 April 2007, the applicant’s failure to obtain a promotion or benefit caused or contributed to her illness.
I am satisfied that, after 13 April 2007, the applicant’s employer took reasonable administrative action in a reasonable manner in dealing with her complaints and attempting to resolve them. The material before me shows that every effort was made to accommodate the applicant, and her repeated complaints about her classification were dealt with in a careful and considered manner.
Conclusion
I find, on the information before me, and having heard the respondent’s submissions, that the applicant has not suffered an injury within the meaning of the SRC Act. It follows that her claim must fail.
I affirm the decision under review.
64. I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 12 March 2014
Date of hearing 27 February 2014 Counsel for the Respondent Ms R Henderson
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