Cooke and Comcare
[2011] AATA 194
•24 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 194
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2005/1423
GENERAL ADMINISTRATIVE DIVISION ) Re Marion Cooke Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Dr John CampbellDate24 March 2011
PlaceSydney
Decision
The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate Ms Cooke for the injury she suffered.
...................[sgd]...........................
Senior Member
CATCHWORDS
COMPENSATION – claim of harassment by other employees – whether applicant had a psychological or psychiatric condition – whether condition was an injury or disease – whether incidents complained of were employment – whether employment aggravated condition – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988, s 14
Dunstan v Comcare (2006) 93 LD 390
Federal Broom Co Pty Ltd v Semitch (1964) 110 CLR 626 at 632-633
Westgate v Australian Telecommunications Commission (1998) 17 FCR 235
Comcare v Etheridge (2006) 90 ALD 31
Zickar v MGH Plastics (1996) 187 CLR 310
Kennedy Cleaning v Petkoska 200 CLR 286
Comcare v Sahu-Khan (2007) 156 FCR 536
Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232
REASONS FOR DECISION
24 March 2011 Senior Member Jill Toohey
Dr John CampbellBackground
1. Marion Cooke has worked for the Australian Customs Service as a customs officer at Sydney airport since July 2001. She is 45 years old. She claims she was harassed by fellow workers in December 2004 and January 2005. She seeks review of a decision denying liability to compensate her for injury resulting from that conduct.
2. On 22 February 2005, Ms Cooke lodged a claim for compensation for “adjustment disorder with depressed and anxious mood”. Comcare rejected her claim. Ms Cooke sought review of that decision and the matter was heard in this tribunal over several days in 2007 and 2008. On 8 October 2008, the Tribunal, differently constituted, affirmed Comcare’s decision.
3. Ms Cooke lodged an appeal against the Tribunal’s decision in Federal Court. The matter comes before the Tribunal again by way of a consent remittal from the Federal Court.
The issues
4. We have to determine whether Ms Cooke is entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). In the circumstances of her case, that requires us to determine:
(i)whether Ms Cooke suffered a psychological or psychiatric condition prior to December 2004, or after;
(ii)if so, whether that condition was a mental injury or a disease;
(iii)whether the incidents complained of occurred and, if so, whether they were employment for the purposes of the Act;
(iv)if Ms Cooke had a mental injury, whether it arose out of or in the course of, or was aggravated by, her employment;
(v)if she had a disease, whether her employment contributed to, or aggravated, it to a material degree.
5. The Act was amended on 12 April 2007. As Ms Cooke lodged her claim for compensation before that date, the Act as it was prior to amendment applies.
6. We have before us documents filed by Comcare (“T-documents”), exhibits and the transcript of evidence from the earlier proceedings, and further documents filed in the current proceedings. We heard oral evidence from Ms Cooke and a number of witnesses.
The incidents complained of
7. In the time leading up to the incidents complained of, Ms Cooke experienced a number of distressing events. In May 2003, she started a relationship with a man whom she had known for about 18 months. In mid-2003, they decided to open a coffee shop together. This venture proved stressful and they had several arguments about it; at least twice they called the whole thing off but then continued with their plans.
8. In September 2003, Ms Cooke’s father had a heart attack. The following month, she found a lump in her breast (which turned out to be benign).
9. In January 2004, Ms Cooke’s partner was killed in a motor vehicle accident. Even before the funeral, she became involved in an acrimonious dispute with his family who denied she had been in a de facto relationship with him, and locked her out of his house, where she had been living. The ensuing legal proceedings over his estate continued until August 2007 when they were finalised in the Supreme Court.
10. Ms Cooke was off work for several weeks after her partner died. She was admitted to Campbelltown Hospital on 2 February 2004 and returned to work in March or April 2004. In October 2004, she saw a psychologist, Kate Glancey, who noted that she had suffered a kind of breakdown. Then, in November 2004, her brother became very ill following dental surgery and she had to care for him.
11. Ms Cooke says she had no problems at work up until the incidents complained of. Reports and clinical notes from her general practitioner and a psychologist indicate that she had been under stress for much of that year and felt she was not coping at work. However, evidence from her supervisor and others at work, indicates she was performing well.
12. Ms Cooke worked in “E Shift” at Mascot airport. She had four friends at work to whom she was especially close. They were Kim Kohlmann, Dimitra (Dimi) Shinas, Susan (Lee) Purcell and John Hills. For convenience, we will refer to these four as “the group”. Ms Cooke claims that, after her partner died, the group as a whole, and Ms Kohlmann and Ms Shinas in particular, became increasingly overbearing, offering advice and telling her what to do; as a result she felt powerless and as if she were losing control of her life.
2 December 2004
13. On 2 December 2004, Ms Cooke went to a work Christmas party at Fox studios. She drove Ms Kohlmann, Ms Purcell and Ms Shinas to the party (although Ms Shinas disputes this) and had arranged to drive them home afterwards. Ms Kohlmann claims Ms Cooke had arranged to stay the night at her house rather than drive home. Ms Cooke denies this and says she had always planned to go home to care for her brother. In the end, nothing turns on this.
14. Around 10.30pm, Ms Cooke left the Christmas party. She claims the group were making comments about her during dinner, and she felt overwhelmed and had to get away.
15. There is some dispute about the circumstances of Ms Cooke’s leaving the party. Ms Kohlmann says the first she knew was a text message from Ms Cooke at about 11.00pm to the effect that she had had enough and could not deal with any of them any more, and had decided to leave. Ms Cooke disputes this. She says she went to Ms Kohlmann and Mr Hills at the party and told them she was leaving. She does not dispute sending text messages to them from the car park after leaving the party.
16. Against this background, we think it probable that Ms Cooke left without saying anything to Ms Kohlmann and Mr Hills. Had she told them she was leaving, there would be little point in later sending text messages as well. We prefer Ms Kohlmann’s evidence on this point but, in the end, little turns on it.
17. Ms Cooke claims she received numerous voice messages and text messages from the group throughout that night, the next day, and in the days after the party. Ms Kohlmann and Ms Shinas agree they left her a number of voice messages and sent her text messages although they dispute the volume of messages Ms Cooke claims. They say they were concerned about her because she had left the party abruptly without saying anything; they had become more worried about her behaviour over time because she had become erratic and they knew she was on anti-depressant medication.
18. We accept Ms Kohlmann’s and Ms Shinas’ evidence on this point. We also accept that Ms Cooke felt further overwhelmed by their calls and messages.
9 December 2004
19. Ms Cooke claims that, on 9 December 2004, Ms Purcell confronted her at work and asked how dare she leave her stranded at the party. Ms Cooke says she was upset after this conversation and went to her supervisor, Mr Graeme Campbell.
20. We have not had the benefit of Ms Purcell’s oral evidence. However, we have a statement made by her on 13 April 2006, and counsel for Ms Cooke and Comcare agree that the transcript of her evidence from the earlier proceedings should stand as her evidence in these.
21. In her statement, and according to the transcript, Ms Purcell did not deny that a conversation occurred along these lines on 9 December 2004. She claimed she asked Ms Cooke if she would like to have a coffee and talk. She did not deny saying words to the effect how dare you leave us stranded, and she did not deny that she was upset when speaking to Ms Cooke. She agreed that Ms Cooke became angry and upset over this conversation.
10 December 2004
22. On the morning of 10 December 2004, there was an exchange between Ms Cooke and Ms Shinas in the locker room at work. According to Ms Cooke, Ms Shinas raised her voice and pointed her finger in her face, saying she should have more respect for Ms Kohlmann and, if Ms Kohlmann wanted to have coffee with her, she should go. Ms Cooke claims Ms Shinas continued in this manner, yelling and belittling her.
23. Ms Shinas maintains they began a conversation “which was heated at first” then settled down. She says Ms Cooke was upset and she said she did not want anything to do with them (the group) and asked to be left alone, and at one stage she was sobbing. She denies yelling at or belittling Ms Cooke.
24. For reasons we give below, we prefer Ms Cooke’s account of this incident.
25. Following the confrontation with Ms Shinas, Ms Cooke became extremely upset and was taken to an emergency health room by another officer. Ms Cooke’s supervisor, Mr Graeme Campbell, became concerned about her and asked Ms Kohlmann, who he knew to be a good friend of hers, to sit with her until a counsellor arrived. Ms Kohlmann says she told him this would not be a good idea but he said there was no one else.
26. Ms Cooke and Ms Kohlmann disagree about what happened while they were waiting for the counsellor. Ms Cooke says Ms Kohlmann swore at her and kept asking for answers, saying how much her friends had done for her and they were always there for her. She says Ms Kohlmann did not understand, and would not accept, that she just needed to be away from them.
27. Ms Kohlmann denies swearing at Ms Cooke. She says Ms Cooke yelled obscenities at her and told her to leave but eventually agreed she might as well stay. She says she tried to talk to Ms Cooke but they lapsed into silence when it was clear Ms Cooke did not want to talk further.
28. It is difficult to determine what was said on this occasion. The truth probably lies somewhere in the middle of Ms Cooke’s and Ms Kohlmann’s conflicting accounts.
29. Dr Wojciech Pryba, the counsellor who was called to attend on Ms Cooke, provided a written report on 21 December 2004. She stated that she was called after Ms Cooke suffered “an acute stress reaction following a verbal altercation with another staff member”. She stated that Ms Cooke reported to her that she was tired of “staff” having unrealistic expectations of her; they were not considerate of her views; she only wanted to be left alone so she could do her work; she felt their behaviour “bordered on harassment” and her anxiety increased because they expected her to comply with their requests without considering her feelings.
30. Dr Pryba reported that she provided telephone counselling three times in the days following this incident and that Ms Cooke felt able to return to work and to report any concerns she had to Mr Campbell.
15 December 2004
31. Ms Cooke says that, on 15 December 2004, Mr Hills confronted her about they way she was treating the group. According to notes made by Ms Cooke at the end of January 2005, she told him they hadn’t done anything wrong; she just did not want them in her life; she needed to know who she was and needed them to back off.
17 December 2004
32. On 17 December, Ms Cooke sent a letter to “Kim, Lee, Dimi”. The following extracts are a fair sample of the tone and content of the letter:
Firstly, none of you have done anything wrong. It’s just that I feel I’m living my life to please everyone else and have no control anymore.
When I’m with you it feels like I’m on a tight rope waiting for it to break.
I feel unworthy of your friendship and tired of trying to comply with your expectations.
…
You all give advise [sic] and have answers but no-one asks what I want and understands why I make the decisions I do.
…
I just need you to stop caring and being overprotective of me. I need air to breath and time to be me. Please stop using Gary’s death as a tool. Nothing of this has to do with his death. I just need to be me right now and if that’s selfish then I’m sorry.
24 December 2004
33. On 24 December, Ms Kohlmann approached Ms Cooke and asked her to return a work shirt she had borrowed some time earlier. Again, there is some dispute about this conversation.
34. Ms Cooke claims Ms Kohlmann was aggressive and threatening, and stood close to her, pointing her finger and saying words to the effect “I hope you have the most miserable Christmas you ever had”.
35. In evidence, Ms Kohlmann denied being aggressive or threatening, but agreed that she was annoyed with Ms Cooke. She denied pointing her finger at her but agreed she said words to that effect about Christmas. Under cross-examination, she conceded that she was probably angry and, possibly, wanted to have a go at Ms Cooke, and that the shirt gave her an excuse to do so. She denied being hostile but conceded she may have been confrontational. We note that the transcript of the earlier hearing shows that Ms Kohlmann conceded being hostile on this occasion, but denied being confrontational.
4 January 2005
36. On 4 January 2005, Ms Shinas was acting in a superior position to Ms Cooke. Ms Cooke claims Ms Shinas yelled at her from behind a wall and insisted, in an abrupt and direct manner, that she go to breakfast.
37. In oral evidence, Ms Shinas denied any memory of this incident. According to her statement written in April 2006, Ms Cooke’s response to her direction was to say “f---“. Ms Shinas says Ms Cooke was very angry, loud and aggressive.
23 January 2005
38. On 23 January 2005, there was a further exchange between Ms Cook and Ms Kohlmann about the shirt. Ms Cooke had returned it by this time but Ms Kohlmann claimed there was a stain on it. Ms Cooke says Ms Kohlmann confronted her, saying if she did not get a new shirt, she would take the matter to Mr Campbell. Ms Cooke says she told her to take the matter further and walked off, then went to her immediate supervisor, Mr Maurice Cohen, in tears because she was “tired of being harassed”.
39. In oral evidence Ms Kohlmann denied being upset on this occasion, and denied confronting Ms Cooke. However, under cross-examination, she conceded she was hurt and upset and that her behaviour was inappropriate. She conceded she “wanted to have the last say” with Ms Cooke.
40. Ms Cooke claims that, later the same day, she and the others were on the airport bus on their way home when they made comments and laughed at her. Ms Kohlmann and Ms Shinas deny this incident occurred. Given what had happened in the preceding weeks, it is probable there was some tension between Ms Cooke and the others and that she felt uncomfortable in their presence. However, there is insufficient evidence to satisfy us that any conduct was directed in particular at Ms Cooke on this occasion.
41. On 31 January 2005, Ms Cooke went on leave. She returned to part time work in October 2005 and to full time work in February 2006.
Ms Cooke’s evidence
42. We accept, and Comcare concedes, that the events complained of happened many years ago and that witnesses cannot be expected to clearly recall all details. However, Ms Cooke’s memory tended to be selective, depending on whether or not it was favourable to her case. She showed a tendency to exaggerate some matters and to offer implausible explanations for others, and occasionally she fabricated her evidence.
43. By way of example, before us, Ms Cooke denied that she had ever described Ms Kohlmann as her “best friend” or even that they had been close. However, this is contrary to a reference in her own notes describing Ms Kohlmann as “her best friend”, and notes made by Ms Glancey that show clearly that they were close.
44. Whereas before us Ms Cooke denied being unwell prior to December 2004, evidence from Dr McCroary, Dr Nguyen and Ms Glancey, shows clearly that she was experiencing symptoms of anxiety and depression well before December 2004.
45. Ms Cooke claimed in these proceedings that the group had subjected her to harassment since September or October 2004, in particular by “constant sniggering, comments, attitudes and aggressive attitude when handing them documents or passengers”. She had not raised this claim previously, despite ample opportunity to do so, and we do not accept it.
46. There are further examples but it is not necessary to detail them here because, despite the reservations we have about some of Ms Cooke’s evidence, we accept that the incidents she complains of happened more or less as she describes.
Ms Shinas’ evidence
47. Ms Shinas was not an impressive witness. Even allowing that she was asked to recall events many years ago, she was unhelpful and defensive. She denied any recollection of most events, or relied on the written statement she gave in the earlier proceedings.
48. Although Ms Shinas denied ever conducting herself in the manner claimed by Ms Cooke, her demeanour in the witness box only served to support Ms Cooke’s claims about her conduct. As set out below, the evidence of Mr Cohen, her team leader at the time, also lent weight to Ms Cooke’s claims about Ms Shinas’ conduct.
49. In our view, Ms Shinas’ was not a reliable witness and we place no weight on her evidence.
Mr Campbell’s evidence
50. Mr Campbell was Ms Cooke’s supervisor from April 2004. He described her “breakdown” on 10 December 2004 as dramatic, and said she was extremely distraught; when she was able to communicate rationally, she told him she was suffering from stress and depression to do with a range of family matters including her partner’s death and the litigation with his family; she did not say that her work or her friends at work were contributing to her condition.
51. Mr Campbell gave evidence that Dr Pryba spoke to him after she saw Ms Cooke and conveyed Ms Cooke’s request that Ms Kohlmann, Ms Shinas and Ms Purcell not associate with her at, or outside, work. He was surprised, because he was not aware of any problems among them, but he spoke to them, and to Mr Hills, and directed them not to approach Ms Cooke except when operations required it, and not to talk to her about any issues not related to work. He says they agreed not to.
52. Mr Campbell says he met with Ms Kohlmann, Ms Shinas and Ms Purcell individually later that week. Ms Kohlmann and Ms Shinas were “very upset and angry” but they agreed to comply.
53. Mr Campbell was off work for some of December 2004 and January 2005 but he gave evidence that he knew there had been a number of incidents involving Ms Shinas and Ms Kohlmann in that time. He did not think there was a pattern to their conduct but he agreed that he did not check with Ms Cooke how things were going and he did nothing to check that the others were abiding by his direction. He agreed that, if they deliberately spoke to Ms Cooke as she claimed (for instance about the shirt), or tried to make her feel uncomfortable, they would have been breaching his direction.
Mr Cohen’s evidence
54. Mr Cohen was Ms Cooke’s team leader at the time. He was also Ms Shinas’, Ms Kohlmann’s and Ms Purcell’s team leader.He gave oral evidence that he had often had cause to counsel Ms Shinas because she would lose her temper; she could be abrupt and had been involved in earlier incidents with other people; she had given indications that she “had a short fuse”. Mr Cohen did not think her conduct on the morning of 4 January 2005 was directed at Ms Cooke in particular because she could have been like that with anyone.
55. Mr Cohen could not specifically recall reporting incidents/any concerns to Mr Campbell but he agreed that, if he did, as per Mr Campbell’s evidence, it would have been because he considered them to be serious.
Ms Kohlmann’s evidence
56. Ms Kohlmann was more forthcoming than Ms Shinas. She denied recollection of some events but was willing to concede that she was upset and hurt at Ms Cooke’s treatment of her at the Christmas party and after.
57. Ms Kohlmann gave evidence that she and Ms Cooke had been close friends and she had supported Ms Cooke, including taking her to stay at her house for two nights in October 2004 when she became very upset and was talking about throwing herself from a train. (Before us, Ms Cooke denied this and said she was talking about how easily someone could open the doors and fall out. We find her explanation improbable and prefer Ms Kohlmann’s evidence about this incident).
58. Ms Kohlmann conceded that by the time she approached Ms Cooke about her shirt on 23 January 2005, she had become “a bit reactionary to the situation” and wanted to have the last say. She agreed that she contrived the shirt incidents because was hurt. She could not recall Mr Campbell giving a direction to keep away from Ms Cooke but she agreed that, if he did so, her behaviour in talking to Ms Cooke was in contravention of that direction; it was also inappropriate because of Ms Cooke’s letter asking to be left alone and because of the incident on 10 December 2004.
59. Ms Kohlmann claims the real reason she and Ms Cooke fell out was because, in November 2004, she refused to sign a statement confirming that Ms Cooke had been in a de facto relationship with her partner. She says Ms Cooke asked for the statement to support her claim in the proceedings over his estate. Ms Kohlmann gave evidence that she declined to provide the statement because she knew that Ms Cooke and her partner had broken up at least twice, and Ms Cooke had twice sent her text messages to the effect that the relationship and the coffee shop was over in July 2003 and January 2004.
60. Ms Cooke denies asking Ms Kohlmann for such a statement. She agrees she asked her for a statement in November 2004 but claims it was in connection with a drug seizure at the airport in January 2004. Asked more about this statement in cross-examination, she claimed the Australian Federal Police had asked her to obtain a statement from Ms Kohlmann.
61. We do not accept Ms Cooke’s evidence on this point. She had already told us she had asked family members and other friends to provide support of her claim to have been in a de facto relationship. The group had gone out for dinner at least once with their partners, and she and Ms Kohlmann were good friends. It is entirely plausible that she would ask her for such a statement. It is implausible that the AFP would ask an officer at her level to obtain a statement from another officer about a drug seizure.
62. We are satisfied that Ms Cooke asked Ms Kohlmann for a statement in about November 2004, that Ms Kohlmann refused for the reasons she has given, and that this led to the breakdown of their friendship.
Did Ms Cooke have a psychological or psychiatric condition
63. Clinical notes of Dr Lucy Nguyen and Dr Kenneth McCroary, Ms Cooke’s general practitioners, show that she had reported being under stress since July 2003. In September 2003, Dr Nguyen diagnosed stress environment adjustment disorder. In April 2004, Dr Nguyen diagnosed her as suffering from adjustment disorder with anxious mood, and prescribed cipramil, an anti-depressant.
64. In October 2004, Dr Nguyen referred Ms Cooke to Kate Glancey, treating psychologist. She saw Ms Glancey on 15 and 21 October 2004. Ms Glancey diagnosed adjustment disorder with mixed anxiety and depressed mood to do with the death of her partner and the subsequent legal proceedings.
65. After seeing Ms Cooke again on 28 January 2005, Ms Glancey reported that she spoke of difficulties in the workplace with a group of people whom she described as “strong personalities”; they could be “intimidating and overbearing”, and “she had always felt pressured to conform to their expectations”.
66. Dr Jonathon Phillips and Dr Robert Lewin, psychiatrists, examined Ms Cooke for these proceedings. They have provided a number of written reports and gave evidence concurrently before us.
67. Dr Phillips and Dr Lewin agree that Ms Cooke has a vulnerable personality that would have predisposed her to react to further stressors of any type. Her partner’s death and his family reaction were two highly significant stressors.
68. Although in their written reports Dr Phillips and Dr Lewin had differing views about whether Ms Cooke’s symptoms prior to December 2004 warranted a diagnosis of adjustment disorder, in oral evidence their differences were minimal.
69. Dr Lewin thought the objective data about Ms Cooke’s mental state before December 2004 was limited but her doctors’ notes, the referral to Ms Glancey and the prescription of anti-depressant medication indicated she was “significantly unwell” in that period. He thought her clinical presentation in that period supported a diagnosis of Adjustment Disorder.
70. Dr Phillips was not sure that Ms Cooke’s symptoms had reached a level prior to December 2004 that warranted a diagnosis of Adjustment Disorder. He thought she may have hit that threshold at times but, if so, the effects were short-lived. However, he was quite satisfied that she reached that level following the events complained of.
71. Ms Cooke’s general practitioners are not experts in diagnosing psychological or psychiatric disorders but they saw her over a long period and their initial diagnoses are supported by Ms Glancey’s diagnosis and, importantly, by Dr Lewin. In oral evidence, Dr Lewin said that he “felt on clinical grounds it was completely likely that she was unwell beforehand: that there was such an adjustment disorder prior to December 2004”.
72. We are satisfied that the weight of the evidence favours the conclusion that Ms Cooke suffered an Adjustment Disorder with anxiety and depressed mood prior to December 2004.
Was Ms Cooke’s condition made worse by her employment
73. Ms Glancey’s evidence about the effects of the workplace incidents on Ms Cooke was a little hard to follow. She gave evidence that Ms Cooke suffered a further Adjustment Disorder as a result of the incidents at work; her mental activity became focussed on the workplace, she was having intrusive thoughts, and she experienced panic attacks almost exclusively to do with contact with the group.
74. When pressed, Ms Glancey told us she could not be sure whether Ms Cooke suffered two Adjustment Disorders or an aggravation of an earlier disorder. However, she was satisfied that Ms Cooke suffered further anxiety and panic attacks and that her condition was aggravated by the workplace stressors.
75. Dr Phillips gave evidence that, at a minimum, the incidents at work made a “significant contribution” to Ms Cooke’s ongoing psychological problems which “may well continue into the future”. He thought her vulnerable personality meant that the events of December 2004 and January 2005 affected her much more than the average person; she perceived them as highly significant and she grossly over-reacted and suffered anxiety and depression as a result.
76. In Dr Phillips’ view, the workplace incidents were an entirely new – and severe – stressor, and Ms Cooke’s condition worsened and her symptoms became broader and more persistent as a direct result.
77. Dr Lewin did not entirely agree with Dr Phillips on this point but it became clear from their concurrent oral evidence that their differences were less than they appeared at first.
78. In a report dated 18 May 2010 Dr Lewin said when he saw Ms Cooke in May 2006, that her condition had resolved. He also thought that the stressors she suffered before December 2004 were much greater than what happened at work and that the workplace incidents did not aggravate her condition.
79. In oral evidence, Dr Lewin agreed that Ms Cooke experienced a new pattern of anxiety symptoms specifically related to the workplace after December 2004. While on the surface they were not “catastrophic”, they could have been a stressor, given her vulnerable personality, and provoked an emotional response. He agreed with Dr Phillips that Ms Cooke developed new symptoms of anxiety and phobic avoidance but did not agree that she experienced a categorical change in symptoms.
80. In our view, the weight of the medical evidence supports the conclusion that Ms Cooke’s condition worsened after December 2004 as a direct result of the events that occurred in the workplace.
Were the incidents complained of employment
81. Comcare concedes that the incident on 4 January 2005, when Ms Shinas directed Ms Cooke to go to breakfast, was “employment” for the purposes of the Act but otherwise contends that none of incidents complained of was employment. We do not agree.
82. Merely because events occur at work, and an employee suffers an ailment such as depression as a result, does mean that the condition is work-related in the relevant sense: Dunstan v Comcare (2006) 93 LD 390.
83. In Federal Broom Co Pty Ltd v Semitch (1964) 110 CLR 626 at 632-633, Windeyer J said:
When the Act speaks of “employment” as a contributing actor it refers not to the fact of being employed but of 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 employment or some characteristic of the work performed or the conditions in which it was performed.
84. It is sufficient that Ms Cooke’s employment positively contributed to the aggravation of her condition, that is that it “provided external stimulus to aggravate or accelerate [her] disease”: Westgate v Australian Telecommunications Commission (1998) 17 FCR 235 per Davies J at 240.
85. We have accepted Ms Kohlmann’s evidence that the reason she and Ms Cooke first fell out was her refusal to sign a statement supporting her claim to his estate. Had the matter gone no further, there may have been no real connection to the workplace. Ms Cooke’s employment may have been “merely the scene” in which her condition became worse (see: Westgate above).
86. However, what happened after the Christmas party took the matter into the workplace through a series of incidents. Ms Kohlmann used the work shirt twice as a means to “have a go” at Ms Cooke and on the second occasion threatened to take the matter to her supervisor. It is clear that the group’s team leader, supervisor and others [Ms Papandrea and Mr Hewitt] were aware of what was happening and that it was being discussed at work. Mr Campbell had cause to direct the others to leave Ms Cooke alone and Ms Kohlmann and Ms Shinas contravened that direction. The fact that a group of people at work were involved in the incidents tends to support the finding that work was more than merely “the scene”.
87. Comcare concedes that the incident involving Ms Shinas on 4 January 2005 was employment. Once that concession is made, it is difficult to draw a line between that incident and the others.
88. We find that the incidents complained of constituted employment for the purpose of the Act.
Injury or disease
89. Ms Cooke contends that her Adjustment Disorder is an injury within the meaning of the Act; alternatively, that it is a disease. Comcare contends that it is more appropriately characterised as a disease.
90. By s 4 of the Act (prior to the April 2007 amendments), 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 arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
91. By s 4, disease means:
(a) any ailment suffered by an employee; or
(b) an aggravation of any such ailment;being an ailment that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
92. Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development): s 4.
93. The difficulty in determining whether a particular condition is an injury or a disease for the purposes of the Act is well-known. The terms are not mutually exclusive. As the Act itself makes clear, a mental condition may be an injury or a disease.
94. The question is one of fact and will depend on the evidence: Comcare v Etheridge (2006) 90 ALD 31 and whether a psychological condition such as depression is a disease rather than a mental injury may depend on how an applicant puts his or her case: Dunstan v Comcare (2006) 93 ALD 390.
95. The concept of “injury” has been held to involve a sudden or identifiable physiological change: Zickar v MGH Plastics (1996) 187 CLR 310; Kennedy Cleaning v Petkoska 200 CLR 286. There is evidence that Ms Cooke did undergo identifiable physiological changes in that she experienced symptoms including nausea, loss of energy, altered sleeping patterns, difficulties with breathing, gastro oesophageal reflux disorder and facial flushing (Dr Phillips’ report 18 March 2010). However these tended to occur at different times and in different combinations which weighs against a finding they were a “sudden” change.
96. Dr Phillips and Dr Lewin were not able to help with this matter. Apart from the fact that it is a question of statutory interpretation rather than medical opinion, both doctors said that, even from a medical point of view, the question can prove difficult and neither was willing to venture an opinion. However, Dr Phillips did indicate that an “adjustment disorder really can become a disease in its own right because it can be ongoing and she [Ms Cooke] had a chronic disorder”.
97. We agree with Comcare that Ms Cooke’s Adjustment Disorder is more appropriately characterised as a disease. Although it resulted from a number of identifiable stressors, they occurred over many months and affected her already vulnerable personality. It had the character of an ailment that developed gradually.
Was Ms Cooke’s disease aggravated in a material degree
98. In Comcare v Sahu-Khan (2007) 156 FCR 536, Justice Finn discussed the approaches of the courts to the evolving definition of disease in Commonwealth workers compensation legislation and, in particular, the meaning of “material” degree of contribution to the cause or aggravation of a condition. He concluded that the correct test of its meaning was probably best captured by the meaning in the Shorter Oxford English Dictionary: ‘4. In a material degree; substantially, considerably’.
99. Finn J agreed with the Full Federal Court in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 that “material contribution” was “intended to require that the contribution be ’more than a mere contributing factor’”; the inclusion of the word “material” imposes “an evaluative threshold below which a causal connection may be disregarded”.
100. As Finn J noted, the difficulty comes in identifying where that threshold lies. He concluded (at 543):
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)"in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii)whether this will be so in a given case will be a matter of fact and degree.
101. Comcare submits that a multitude of events could have had some impact on Ms Cooke’s adjustment disorder as at December 2004 and January 2005 including the continuing litigation over her partner’s estate, problems with her son, her father’s and brother’s illnesses, the anniversary of her partner’s death, and the problems at work.
102. It is true that a range of factors added to Ms Cooke’s vulnerability but we do not think the incidents complained of can be dismissed as a mere contributing factor. The weight of the medical evidence satisfies us the incidents that occurred at work in December 2004 and January 2005 had a direct causal connection to the significant worsening of Ms Cooke’s adjustment disorder including development of new symptoms. We find they aggravated her disease in a material degree.
Conclusion
103. We are satisfied that Ms Cooke suffered a disease, being an adjustment disorder, before December 2004. We find that incidents that occurred at work in December 2004 and January 2005, which constituted employment for the purposes of the Act, contributed in a material degree to the aggravation of her disease.
104. The Tribunal sets aside the decision under review and substitutes for it the decision that Comcare is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 to compensate Ms Cooke for the injury she suffered.
I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey and Dr John Campbell
Signed: ......................[sgd]..........................................................
Diana Weston, AssociateDate/s of Hearing 21, 22, 23 and 24 February 2011
Date of Decision 24 March 2011
Counsel for the Applicant Mr M Minehan
Solicitor for the Applicant Mr J Bonura, Marsdens Law Group
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Ms P Singh and Ms A Bortone, Sparke Helmore
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