Cooke and Comcare
[2008] AATA 895
•8 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 895
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2005/1423
GENERAL ADMINISTRATIVE DIVISION ) Re MARION COOKE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate8 October 2008
PlaceSydney
Decision The Tribunal affirms the decision under review.
Pursuant to section 67(8) of the Safety, Rehabilitation and Compensation Act 1988, costs may not be awarded.
...........[sgd]........................
Ms G Ettinger Senior Member
CATCHWORDS
Compensation – claim for psychological injury – liability not accepted – no jurisdiction to consider claim for permanent impairment, not reviewed by the Respondent – decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988 ss 4 & 14
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626
Comcare v Sahu-Khan (2007) 156 FCR 536
Wiegand v Comcare Australia [2002] FCA 1464
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Canute (2005) 148 FCR 232
Dunstan v Comcare (2006) 93 ALD 390
REASONS FOR DECISION
8 October 2008 Ms G Ettinger, Senior Member
Dr I Alexander, MemberBACKGROUND
1. Ms Marion Cooke who is 42 years old, and who completed her schooling to HSC level, joined the Australian Customs Service (“the Customs Service”) as a Customs Officer in July 2001, and undertook the training provided. She has worked in the Customs Service ever since.
2. Ms Cooke has endured a series of difficult events in her personal life which have caused her to consult her doctor and a psychologist for anxiety and depression. She was diagnosed with Adjustment Disorder with Mixed Anxiety and Depression by her general practitioner in September 2003 and April 2004. The events leading up to her initial difficulties included a not entirely successful business venture in opening a coffee shop with her then partner in September 2003, her father suffering a heart attack in September 2003, the illness of her brother, and the tragic death of her partner in a car accident on 28 January 2004. She has subsequently been involved in litigation with her deceased partner’s family regarding his estate, her house, and the business, which she has found distressing. Ms Cooke also describes events at work between 2 December 2004 and January 2005 which caused her distress, and which she claims have aggravated her condition.
3. The events upon which Ms Cooke relies to bring a claim for workers’ compensation for “environment adjustment disorder with depressed and anxious mood” took place, she says, between 2 December 2004, (the date of her 2004 work Christmas party), and 23 January 2005. Ms Cooke first claimed that her condition arose due to the interactions with her work colleagues, some of whom were also her friends, and as we are satisfied, more likely than not, very close friends, in particular Ms KK. Ms Cooke told us that the first event which caused her condition, or aggravated it, took place on 2 December 2004 in conjunction with the Customs Service Christmas party held at Fox Studios. We had before us various statements of her colleagues and also those of former friends, “The Group”, that is Ms KK, Ms DS, Ms LP and Mr JH, some of whom gave oral evidence. Not surprisingly, their version of the various events claimed by Ms Cooke as stressors differed somewhat from the Applicant’s.
4. Ms Cooke’s claim which the Respondent characterised as “adjustment reaction with anxious mood” was refused by Comcare on 9 May 2005, and on reconsideration, was affirmed on 20 September 2005.
5. We are sympathetic to Ms Cooke’s personal situation, and find from the evidence before us, that she suffered, or indeed may continue to suffer Adjustment Disorder as a result of the serious life events mentioned above which she has had to confront. We are not satisfied to the requisite standard that Ms Cooke has suffered an injury or aggravation of injury or disease pursuant to the Safety Rehabilitation and Compensation Act 1988 (“the Act”), which has arisen out of, or been materially contributed to by her employment. Accordingly there is no compensable injury or aggravation, and the claim must be dismissed.
6. Our reasons follow.
ISSUES BEFORE THE TRIBUNAL
7. We had to decide:
· whether Ms Cooke has suffered or suffers a psychiatric condition; if so
· whether Ms Cooke has suffered an injury, disease or aggravation pursuant to section 4 of the Act, and whether her claimed condition of “Environment Adjustment Disorder with Depressed and Anxious Mood” has been materially contributed to by her employment with the Customs Service; and whether the Respondent is must accept liability, and pay compensation to her.
LEGISLATIVE FRAMEWORK
8. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (“the Act”), in particular sections 4 and 14.
9. The Act was amended by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), which received Royal Assent on 12 April 2007. As the Applicant claims her work related injury or aggravation occurred before that date, it is the Act as it stood before the recent Amendment which applies in this case.
10. There is of course well established authority both State and Federal, which deals with injury and disease, with causation, and with aggravation or acceleration of injury, and contribution of the workplace in workers’ compensation cases. Casarotto v Australian Postal Commission (1989) 17 ALD 321 deals with aggravation and acceleration. In Zickar v MGH Plastic Industries Pty Limited (1996) 187 CLR 310 it was held to be irrelevant that injury or disease acted upon an existing vulnerability. The concept of “employment” was considered in Federal Broom Company Pty Limited vSemlitch (1964) 110 CLR 626. In Comcare v Sahu-Kahn (2007) 156 FCR 536, the test for material contribution of the workplace was explored, and the current principles established.
11. We are satisfied that Ms Cooke’s representative, Mr Minehan of counsel, recognised that notwithstanding the mention of a claim for permanent impairment in the Applicant’s Statement of Facts and Contentions, this Tribunal has no jurisdiction to decide a claim for permanent impairment because liability has not been accepted, and there has been no determination made by Comcare about any claim for permanent impairment.
MEDICAL EVIDENCE
12. We had before us clinical notes and reports of the Applicant’s treating doctors, Drs Nguyen and McCroary (T30 and Exhibits R2, A3, A5, A7, A11), and of Ms Cooke’s treating psychologist Ms K Glancey at T27, and Exhibits A8, A13, R6 and R8. Ms Glancey and psychiatrists Drs Lewin (Exhibits R3, R4) and Phillips (Exhibit A9), gave oral evidence before the Tribunal.
WHETHER MS COOKE SUFFERS OR HAS SUFFERED A PSYCHIATRIC CONDITION
13. The evidence before this Tribunal is that Ms Cooke has suffered a series of difficult events in her personal life which have caused her to consult her general practitioners Drs McCroary and Nguyen who worked in the same practice, and a psychologist, Ms Glancey for anxiety and depression. Dr Nguyen first diagnosed her as suffering Environment Adjustment Disorder on 26 September 2003, (Exhibit R2), and Adjustment Disorder with Anxious Mood on 2 April 2004, and prescribed relevant medication. Dr McCroary noted the diagnosis of Environment Change Stress Disorder in his notes of 31 January 2005.
14. On 29 January 2004 and 17 February 2004, Dr Nguyen recorded Ms Cooke’s stress and distress at her partner’s death which occurred as a result of a motor vehicle accident on 28 January 2004. Events and hostility emanating from the partner’s family followed which caused conflict, distress and anxiety to Ms Cooke. On 17 February 2004, Dr Nguyen referred Ms Cooke to Ms Glancey whom she however did not see until October 2004.
15. Dr McCroary wrote a report to Ms Cooke’s solicitors on 28 July 2005 (T30) in which he stated that he first saw Ms Cooke on 31 January 2005. However medical notes of his practice indicate he first saw her on 14 July 2004. We noted that in his report at T30, Dr McCroary confirmed Ms Cooke had been seeing Dr Nguyen and stated:
"Ms Cooke was seen by my colleague Dr Lucy Nguyen in July 2003 and was complaining of stresses at work. She was also seen by my colleague in September 2003 following a family crisis and her father having a myocardial infarct 2 weeks ago. She was also seen by Dr Nguyen for trauma counselling in January 2004 following the death of her partner. There was ongoing grief when seen by Dr Nguyen in February and March 2004 with some anxiety symptoms. She was diagnosed formally with adjustment disorder with anxious mood and was started on antidepressants in April 2004. Dr Nguyen also referred her to a Psychologist in October 2004 for depression. The depression was related to grief from her partner dying and ongoing stresses about legal battles with his family.”
16. We noted that the medical notes of the McCroary/Nguyen medical practice recorded Ms Cooke’s problems with her deceased partner’s family and the coffee shop business throughout 2004 and into 2005. On 31 January 2005, Dr McCroary recorded a report from Ms Glancey, and a diagnosis of Environment Change Stress Disorder. He noted that Ms Glancey had prescribed medication, and that Ms Cooke had ongoing consultations with her. Dr McCroary also recorded on 31 January 2005 that Ms Cooke was dealing with her son who was depressed, her brother’s illness, and for the first time, “not dealing with things especially work, feels the people at work have taken over her decisions and tell her what to do, feels intimidated, crying at work, getting yelled at.”
17. At Exhibit A7, dated 21 May 2007, Dr McCroary indicated to Ms Cooke’s solicitors that the Applicant continues to suffer reactive depression. He opined: She is also suffering chronically with adjustment disorder with anxious moods. She is suffering panic disturbance. … She also continues to struggle with anxiety related disturbances in relation to her original psychological injury at her work place. She currently experiences fear and panic disturbance when she is in contact or about to be in contact with people involved in her ongoing work related injury.”
18. Given that in 2005, Dr McCroary wrote in his report at T30 that Ms Cooke was referred by Dr Nguyen to Ms Glancey in October 2004 for depression related to grief from her partner dying, and ongoing stresses about legal battles with his family, we found it curious that in 2007, he was able to refer to Ms Cooke’s anxiety related disturbances in relation to her original psychological injury at her work place (the Tribunal’s emphasis). We found his opinion in that regard inconsistent and without a basis, and referred to the contemporaneous clinical notes of the practice. We preferred the earlier view he expressed regarding the aetiology of Ms Cooke’s condition.
19. We are satisfied that the events leading up to Ms Cooke’s initial psychiatric difficulties included a not entirely successful business venture in opening a coffee shop with her then partner in September 2003, her father suffering a heart attack in September 2003, the illness of her brother, and the tragic death of her partner in a motor vehicle accident on 28 January 2004. As a result of the bereavement, she was off work until March/April 2004. She has subsequently been involved in litigation with her deceased partner’s family regarding his estate, her house, and the business, and a court case which was listed as recently as March 2007, which she has found distressing.
20. We do not discount the impact of the friendship of The Group, Ms KK, Ms DS, Ms LP and Mr JH at work, and the presence of the incidents at work. We are cognisant of the undisputed fact that Ms Cooke left the 2004 work Christmas party early, having previously been designated the person to drive the friends home.
21. We are satisfied from the medical evidence of Drs McCroary and Nguyen that Ms Cooke was diagnosed with Adjustment Disorder in September 2003, and 2 April 2004, and prescribed relevant medication by Dr Nguyen, who also referred her to Ms Glancey.
22. We have noted Ms Glancey’s evidence. Her earliest report was to Ms Cooke’s solicitors dated 27 June 2005 (T27). In it she detailed Ms Cooke’s loving relationship with G, the effect of his death upon her, and the litigation with his family. She opined: “Following consultation with Ms Cooke I formed the opinion that she was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Although issues of grief associated with G’s death were apparent, the conflict with his family appeared significant in her disturbance.” In a later report dated 27 July 2007, at Exhibit A13, Ms Glancey contradicted herself by stating that “Ms Cooke did not report symptoms of depression that would attract a diagnosis other than Bereavement following her partner’s death.”
23. Ms Glancey also recorded that after the anniversary of G’s death, Ms Cooke spoke of difficulties in the workplace, being friendly with a group of people in the workplace, and saying they could however be intimidating and overbearing. Ms Glancey also recorded the issues which Ms Cooke discussed in connection with the 2004 Christmas party, being verbally abused by a colleague at work for having left the party early, reporting that she felt The Group had become smothering and controlling, and that they had taken advantage of her vulnerability. Ms Glancey also recorded that Ms Cooke developed “symptoms of disturbance in response to the workplace difficulties. She reported ongoing anxiety with work attendance.” Ms Glancey concluded (T27):
“The reports of Ms Cooke support the view that symptoms of anxiety and depressed mood were directly attributable to workplace stress as reported. She was psychologically vulnerable at the time when work relationships deteriorated, due to the loss of her partner in a motor vehicle accident and the hostile response of her deceased partner’s family as reported.”
24. At Exhibit A8, a report dated 21 May 2007, Ms Glancey stated:
“As documented in my report of 27 June, 2005 Ms Cooke was suffering an Adjustment Disorder associated with her experience of harassment in the workplace. Harassment by work colleagues appeared to be the significant stressor underlying mental disturbance.
…
I anticipate that symptoms of disturbance will improve following the resolution of her compensation claim. Although she is currently functioning well in her employment, she continues to suffer anxiety associated with the antagonists.”
25. We were not satisfied that the above statements accorded with what Ms Glancey had put in her handwritten clinical notes (Exhibit R6), which commenced from the first consultation on 15 October 2004. Entries in the clinical notes on 15 October 2004 included accounts of Ms Cooke’s reaction to the death of her partner: “his family are horrendous. Never dealt with these sort of people before…. The business, house, ex now a nightmare…. Tight knit group at Wk. Very close. WK have been supportive.” The references to the “tight knit work group” and the fact they were recorded as supportive, are relevant in the light of Ms Cooke’s claims.
26. On 28 January 2005, the anniversary of G’s death, Ms Cooke consulted Ms Glancey who recorded amongst other things, the incidents related to the 2004 work Christmas party, including that The Group was pressing her to drink which she did not want to do, and the fact she left the party (early), without her friends, at 10:30 pm. Ms Glancey also recorded that on Ms Cooke’s return to work a few days after the party, she was confronted by one of The Group with: “how dare you walk out (of the Christmas party) and leave us”… “she was frightened one would hit her … One of them K – she was used to be very close… K was very close to her when G died. It’s as if K feels she’d betrayed her … she can’t understand. She expected them to be supportive.”
27. We noted that Ms Glancey produced no medical notes in relation to Ms Cooke for the period 21 October 2004 to 28 January 2005, indicating there had been no attendance in the very period Ms Cooke claims her illness deteriorated. We did note however that there was an invoice issued on 4 November 2004 (Exhibit R20). Ms Glancey was asked when she was giving her oral evidence, and could not recall whether there had been an attendance by Ms Cooke on that date, but in any case there were no clinical notes to verify an attendance, and we are satisfied it is unlikely that Ms Cooke attended during that period.
28. A further report by Ms Glancey dated 27 July 2007 was at Exhibit A13. Ms Glancey observed that notwithstanding Ms Cooke’s apparent adjustment to the loss of her partner, she reported symptoms of depression which Ms Glancey commented upon as follows: “It was my opinion that the hostility of her deceased partner’s family towards her was the primary stressor associated with depression.” In Exhibit A13, Ms Glancey summarised the observations she had made about Ms Cooke at the various consultations over 2004/5, including workplace stress in January 2005. She then opined that:
“Ms Cooke demonstrated exacerbation of mental disturbance which appeared to be directly related to her experience of harassment and intimidation by co-workers as reported. She developed an Anxiety Disorder with situationally bound Panic Attacks. She suffered Panic Attacks as a direct consequence of proximity or contact with the antagonists …The diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood stands despite the change in stressors maintaining the disturbance.”
29. In her oral evidence Ms Glancey restated that her diagnosis of Ms Cooke was Adjustment Disorder with Mixed Anxiety and Depressed Mood arising out of the family dispute rather than the death of her partner. We noted that the first mention of workplace stresses was in a consultation on 28 January 2005, the anniversary of G’s death (T27). Ms Glancey recorded that Ms Cooke had said that it was the anniversary, but that: “‘I know I can’t change it. I’ve got other things I have to worry about.’ Work problems currently. Work with a small group of people. A few people intimidate her. Remembers talking to G about it. – saying that she didn’t how to cope (sic) them. They very much – you should do this and you should do it this way…”.
30. When asked in cross examination about her diagnosis, Ms Glancey said that technically Ms Cooke could be suffering two adjustment disorders, one related to G’s family litigation, and the other arising out of workplace problems. Ms Glancey said that Ms Cooke had not yet recovered fully from the effects of the family litigation when the workplace stressors arose. She explained that Ms Cooke had experienced severe stressors in relation to the death of her partner, that is grieving, then the Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the family litigation, and then the workplace stressors. Ms Glancey diagnosed Panic Attacks as situationally bound, in relation to contact with The Group. Ms Glancey told us that the family conflict had continued at March 2007, but that an alternative stressor can cut in, and had done so. She indicated Ms Cooke suffered anxiety, depressed mood, sleep disturbances, mood disturbance, intrusive memories and occupational disturbance. Ms Glancey agreed that she had first diagnosed Anxiety Disorder with Panic Disorder (the Tribunal’s emphasis), in her report of 27 July 2007 (Exhibit A13).
31. We were mindful that Ms Glancey did not indicate that Ms Cooke’s condition had deteriorated by the end of 2004. Her notes indicate that Ms Cooke’s symptomatology was very similar throughout 2004, leading to early 2005.
32. We also had before us oral and written evidence of Drs Lewin and Phillips, both psychiatrists. Dr Lewin’s reports were Exhibit R3, dated 29 May 2006 and Exhibit R4, dated 14 September 2006.
33. Dr Lewin described Ms Cooke’s account of the difficulties she experienced with G’s family after his death, being locked out of her home, the family acting towards her with violence, and the ongoing litigation regarding the coffee shop. Dr Lewin described Ms Cooke’s friendship with The Group, how they had discussed personal things with each other, and how the relationship had “soured” after G’s death. Dr Lewin recorded Ms Cooke telling him that The Group had tried to control her, tell her what to do, and tried to influence her excessively. Dr Lewin also recorded Ms Cooke telling him that matters had come to a head in December 2004, and that she had been physically and psychologically abused by The Group at that time.
34. In his first report (Exhibit R3, May 2006), Dr Lewin concluded that when he saw her, Ms Cooke was not suffering from any psychiatric condition. He also opined that:
“I think it is likely that she would have developed psychiatric symptoms in response to the death of her partner, the family disruptions and the prolonged legal disturbances which ensued. She was receiving treatment both from her general practitioner and a psychologist at the time the difficulties at work emerged.
When comparing the gravity of the stressors which emerged in the immediate aftermath of the death of her partner with the stressors described in the workplace, it appears that the former stressors were of far greater severity. When all the factors are considered, I think it likely that Ms Cooke was suffering from a mild reactive psychiatric condition in the period before the problems in the workplace emerged. Those symptoms of anxiety in particular could be characterized as an Adjustment Disorder.”
35. In his oral evidence, Dr Lewin was referred to his description of anxiety attacks on page four of Exhibit R3. He said that he had asked Ms Cooke about those, and what she had described to him, was anxiety, but not panic attacks. When questioned about Ms Cooke’s described reaction on encountering members of The Group or the anticipation of such encounters, Dr Lewin said that the anxiety was brought on by Ms Cooke’s fight or flight response, and was a perceived threat, and not necessarily a disorder. He emphasised that the reactions were those of a person who was not only vulnerable, but already unwell.
36. Dr Lewin did not examine Ms Cooke again before producing his second report (Exhibit R4, September 2006), in which he commented on the report of Dr Phillips (Exhibit A9). Dr Lewin noted that Dr Phillips opined that the employer had not provided Ms Cooke with timely general support, guidance, appropriate care, or a safe work environment, and that Dr Phillips attributed a progressive deterioration in Ms Cooke’s psychological health to those failures. Dr Lewin also concluded that Dr Phillips had not been given all the relevant information, citing in particular that he (Dr Lewin) had been told Ms Cooke’s son had depression and that her brother was ill, and that these, in his view, constituted stressors.
37. Dr Lewin told us he had not been told about Ms Glancey treating Ms Cooke, but that if she had made a diagnosis, and felt Ms Cooke needed treatment, then that was appropriate. When questioned, he said that the period a person might grieve over the death of a partner varied between individuals and between cultures. He noted that after G’s death, Ms Cooke had approximately five weeks off work, but that in addition to dealing with the loss, she had his family’s animosity, litigation, and other matters to deal with, and that she had been diagnosed with Adjustment Disorder by her general practitioner and Ms Glancey. It was noted that on her return to work, Ms Cooke had performed satisfactorily; there were documents before us indicating she was doing her job adequately. T5 was a reference. In regard to the reference, Dr Lewin opined that there was a range of symptoms and severity people suffering Adjustment Disorder exhibited, and that most were able to continue with work.
38. Dr Lewin was also asked how the events of 2 December 2004 to January 2005 impacted upon Ms Cooke’s time away from work. He noted that Ms Cooke had been certified unfit for eight weeks that is to March 2005, but only eventually returned in October 2005. We noted that the reason for the long delay was Ms Cooke’s request for a transfer away from working near The Group which took time to organise.
39. Dr Lewin was asked whether the events of December 2004/January 2005 had materially contributed to Ms Cooke’s illness. He replied that Ms Cooke had clinical worsening of her condition over that period, but that there was no evidence there was a change from a mild reactive disorder to a psychological illness in that time.
40. Turning then to Dr Phillips; we have not been able to rely on his evidence because we are satisfied that he was not given an accurate history of Ms Cooke’s background. He was not supplied with Ms Glancey’s notes, and he did not have the diagnosis made by Dr Nguyen in 2003 and 2004, and Ms Glancey’s diagnosis in 2004.
41. We noted that Dr Phillips produced a report, Exhibit A9, dated 16 March 2006, following two consultations with Ms Cooke. Dr Phillips referred to two significant psychological stressors Ms Cooke had experienced, the death of her partner on 28 January 2004, and harassment in the workplace, mainly from co-workers from late December 2004.
42. Dr Phillips recorded that Ms Cooke was living with G, had begun a joint business, the coffee shop, with him, and was very upset not only regarding his untimely death on 28 January 2004, but because she was only told about it in the late afternoon when the fatal accident had occurred at 7:50 am. She had also been badly affected by her father suffering a heart attack in September 2003, and because she found a lump in her right breast (later found to be benign), in October 2003. Dr Phillips recorded that Ms Cooke had also been upset by problems with G’s family even before the funeral took place because she was not informed about matters related to the funeral, she was not permitted to attend the viewing of his body, and there was subsequent litigation regarding the business. Dr Phillips said that Ms Cooke told him that whilst the grieving was hard, she coped reasonably well and felt supported by her immediate family, and was also assisted by Ms Glancey.
43. Dr Phillips opined that the employer had not provided Ms Cooke with timely general support, guidance, appropriate care, or a safe work environment, and attributed a progressive deterioration in her psychological health to those failures. However, Dr Phillips had not been given all the relevant information. He had not been told for example, that Ms Cooke’s son had depression and that her brother was ill, all of which are potent stressors.
44. Dr Phillips held that workplace harassment had had a substantive deleterious effect on Ms Cooke's mental status and opined as follows:
“In essence, therefore, I hold strongly that workplace harassment has had a substantive deleterious effect on Ms Cooke’s mental status. She continues to suffer from an adjustment disorder with mixed anxiety and depressed mood. She would not suffer from this disorder currently if there had been no workplace harassment, or if assertive supportive action had been taken by the employer.”
45. As to her mental state examination; Dr Phillips recorded in his report that Ms Cooke was “moderately depressed, somewhat anxious but not irritable at the time of interview.” He also opined that:
“ … Ms Cooke suffered an adjustment disorder with mixed anxiety and depressed mood in the period of her grief. … I accept Ms Cooke’s opinion that she made considerable progress in working through her grief, albeit that the process had been made complicated by the attitude/activities of her dead partner’s family. Nevertheless the plaintiff would have remained vulnerable to stress of any type (including workplace stress) at/around December 2004.
There should be little doubt that Ms Cooke’s psychological status deteriorated rapidly from December 2004, beginning when she faced criticism for not drinking at a Christmas function and leaving early so that she could attend to her then ill brother.
… co-workers acted in an increasingly adverse and harassing manner in their interaction with the plaintiff, and the plaintiff became extremely sensitive to their actions/accusations.
…
On balance Ms Cooke was rendered vulnerable to further psychological insult as a consequence of the death of her partner, but she decompensated with a complex group of psychological symptoms in the context of workplace stress (harassment by co-workers particularly).
…
In essence, therefore, I hold strongly that workplace harassment has had a substantive deleterious effect on Ms Cooke’s mental status. She continues to suffer from an adjustment disorder with mixed anxiety and depressed mood. She would not suffer from this disorder currently if there had been no workplace harassment, or if assertive supportive action had been taken by the employer.”
46. Having considered Ms Cooke’s evidence and the medical evidence of Drs Nguyen, McCroary, Lewin and Phillips, and Ms Glancey, we were satisfied that Ms Cooke suffered Adjustment Disorder as diagnosed by Dr Nguyen in September 2003 and 2 April 2004. We noted the same diagnosis was made by Ms Glancey when she saw Ms Cooke in October 2004.
47. We were satisfied from the evidence before us that the causes of Ms Cooke’s illness were the various personal stressors she had experienced, such as the not entirely successful business venture in opening a coffee shop with her then partner in September 2003, her father suffering a heart attack in September 2003, the illness of her brother, and the tragic death of her partner in a motor vehicle accident on 28 January 2004, followed by litigation with her deceased partner’s family regarding his estate, her house, and the business.
48. Contrary to the diagnosis made both by Dr Nguyen (2003/4) and Ms Glancey (2004), Dr Phillips who examined Ms Cooke once only, in March 2006, and for medico-legal purposes, did not consider that a diagnosis of Adjustment Disorder was appropriate at the time of the loss of Ms Cooke’s partner, even though he found that she suffered symptoms of that condition. Dr Phillips also opined that the panic attacks were integrated with the Adjustment Disorder. We were not able to give much weight to the evidence of Dr Phillips because he had not been provided with full details of Ms Cooke’s background and her personal problems, and not been provided with Ms Glancey’s clinical notes. That does make a big difference in diagnosis.
49. We are mindful that whilst suffering the Adjustment Disorder, Ms Cooke also experienced personal problems with The Group at work from the date of the Christmas party on 2 December 2004. We were mindful of the evidence of members of The Group which was that their approaches to Ms Cooke arose out of their concern for her. We noted that the Applicant interpreted this as overwhelming and controlling.
50. We noted Ms Cooke’s claim that her condition worsened between December 2004 and January 2005 due to work related incidents. We deal with the period December 2004 to January 2005 in the section below where we consider whether Ms Cooke’s Adjustment Disorder with Depressed and Anxious Mood has been materially contributed to by her employment with the Customs Service.
51. However, we noted that Ms Glancey did not find that any worsening of Ms Cooke’s condition had occurred, and were mindful from the lack of clinical notes, and a single account rendered during that period, that Ms Cooke did not consult Ms Glancey between October 2004 and 28 January 2005. Ms Glancey’s clinical notes in the period before and after October 2004 to January 2005 did not reflect Ms Cooke suffering any deterioration in her condition. We found Ms Glancey’s oral evidence not to be of great assistance to us because, as noted above, her reports to Ms Cooke’s solicitors did not accord with what she had written in her clinical notes, or her oral evidence as detailed above. We were not satisfied that Ms Glancey’s consideration of Ms Cooke’s situation was soundly based, when in a report in 2007, she added a diagnosis of Panic Attacks situationally bound, in relation to Ms Cooke’s contact with The Group.
52. We concluded from the medical evidence that Ms Cooke suffered Adjustment Disorder from September 2003 and April 2004 when Dr Nguyen made the diagnosis, and Ms Glancey made the same diagnosis in October that year due to her personal problems which we have detailed in the paragraphs above. From the evidence before us of her general practitioners, and Drs Lewin (2006), and Phillips (at 2006), we are satisfied that it is likely that Ms Cooke continues to suffer that disorder at the time of the Hearing.
53. We moved on to decide whether the claimed incidents at work impacted upon that illness, and whether Ms Cooke suffered a compensable injury, disease or aggravation of her condition as claimed.
WHETHER MS COOKE’S “ADJUSTMENT DISORDER WITH MIXED ANXIETY AND DEPRESSION” HAS BEEN MATERIALLY CONTRIBUTED TO BY HER EMPLOYMENT WITH THE CUSTOMS SERVICE; WHETHER MS COOKE HAS SUFFERED A COMPENSABLE INJURY, DISEASE OR AGGRAVATION
54. We noted that on 22 February 2005, (T8, T9), Ms Cooke made a claim for “environment adjustment disorder with depressed and anxious mood” arising out of work related events between 2 December 2004 and 23 January 2005. In her Incident Report at T9, she named Ms KK and Ms DS as the persons responsible for her injury or illness. Liability has not been accepted by the Respondent.
55. The specifics given in Ms Cooke’s claim at T8 and T9, were “Co-worker’s intimidation, Demanding aggressive attitude, confrontation” given as having occurred on:
9th Dec 2004. Secured work area
We noted that this was with regard to what Ms Cooke perceived as the aggressive attitude of Ms LP regarding her leaving the work Christmas party early and without her friends;
10th Dec 2004. Female Lockers
We noted there was an incident with Ms DS; Ms Cooke, distraught, breakdown;
15th Dec 2004. Outwards C
We noted that contrary to the instruction of Mr GC on 10 December 2004, that the Group only approach Ms Cooke if operationally required to do so, Mr JH approached Ms Cooke to attempt discussion regarding the situation between her and The Group;
24th Dec 2004. Inwards Arrival C
We noted there was a confrontation with Ms KK regarding the return of a work shirt, and an exchange of unpleasant words involving Christmas greetings;
4th Jan 2005. Inwards Arrival B
We noted that Ms DS, acting on higher duties instructed Ms Cooke to take a breakfast break, Ms Cooke objecting to the manner in which the instruction was given;
23rd Jan 2005. Inwards Arrival B/C
We noted that contrary to the instruction of Mr GC on 10 December 2004 that members of The Group only approach Ms Cooke if operationally required to do so, Ms KK approached Ms Cooke with regard to return of the work shirt;
23rd Jan 2005. Bus to Carpark
We noted that Ms Cooke perceived there was a confrontation towards her by members of The Group on the car park bus.
56. Ms Cooke produced three statements which are before the Tribunal as Exhibits A1 (29 March 2007), and A2 (two statements dated 17 May 2007), as well as her diary notes at T4. Ms Cooke also gave oral evidence before the Tribunal.
57. Other witnesses who gave oral evidence before the Tribunal were:
·Ms KK whose statement (with certain deletions), and dated 11 April 2006, was Exhibit R10.
·Ms DS whose statement dated 13 April 2006 is Exhibit R12 (with certain deletions).
·Ms SP whose statement dated 13 April 2006 was Exhibit R13.
·Mr GC whose statement dated 13 April 2006 was Exhibit R14.
·Mr MC whose statement dated 5 April 2006 (with certain deletions), was Exhibit R15.
·There were Minute Papers of various officers in the T-documents, including one each of Mr AH, Ms BP, Mr MC, Ms KK, and Ms DS, and we also had before us the witness statements of:
·Ms BP whose statement dated 5 April 2006 was Exhibit R17.
·Mr MS whose statement dated 21 April 2006 was Exhibit R18.
·Mr JH whose statement dated 12 April 2006 (with certain deletions), was Exhibit R16.
58. Ms Cooke dates her problems with members of The Group who were also her friends during the period of her employment with the Customs Service (from 2001), to 2 December 2004, the date of her work group’s Christmas party held at Fox Studios. Her colleagues and former friends, “The Group” comprised Ms LP, Ms KK, Ms DS and Mr JH. Apart from her oral account and witness statements, Ms Cooke’s version of events is made at T4, which comprises her diary notes. We noted the diary notes were not compiled contemporaneously, but were, the Applicant said, rewritten from her Customs note book and “day sheets” at the end of January 2005.
59. Ms Cooke emphasised that after her grieving in January 2004 following G’s death, she resumed work in March/April 2004, and did well. There was mention of references given for her, including a personal reference at T5 from Mr MM dated 30 July 2004, which praised her work and personal qualities, and was given in support of a promotion. We noted that there were further accounts of satisfactory work performance by way of correspondence and emails, being Exhibit A4 dated 18 May 2004, Exhibit A14 dated 21 July 2004, Exhibit A16, dated 5 May 2004 and Exhibit A17 with regard to warrants, dated 29 September 2004.
60. Mr MC, Ms Cooke’s team leader, stated that Ms Cooke’s standard of work was satisfactory throughout 2004, but that she seemed to be suffering from anxiety and despair related to personal issues outside work. Several of the people from whom we had evidence referred for example to conversations with Ms Cooke, and her worrying behaviour when she was out with The Group during 2004.
61. Mr MC stated that he had conversations with Ms Cooke at least three times between December 2004 and January 2005, in which the Applicant told him about personal problems which had arisen after the death of G, but that she did not mention any work related issues, and he had no indications that there were any difficulties with her colleagues at that time.
62. We have already found in the paragraphs above that Ms Cooke was diagnosed with Adjustment Disorder with Anxious Mood in 2003/4, and her condition given various related nomenclature by the various doctors she consulted. We are satisfied that the Adjustment Disorder she suffers arose as a result of personal pressures she suffered and the death of her partner, as well as the legal action and attitude of his family following his death.
63. We then moved to consider specific events in order to decide whether Ms Cooke’s Adjustment Disorder was materially contributed to by her employment with the Customs Service, and whether she suffered a compensable injury, disease or aggravation within the terms of the legislation.
The Christmas Party - 2 December 2004
64. As to the events related to the Christmas party; Ms Cooke’s evidence was, in summary, that she agreed reluctantly to attend the work Christmas party on 2 December 2004, and drive The Group there and back because she did not drink. However after she had been at the party for sometime, she decided to leave early without them, at approximately 10:30 pm, and inform The Group of her departure by text message at 11pm. Ms Cooke acknowledged that that caused upset as certain of The Group were stranded at the party.
65. There was no conflict of evidence between Ms Cooke and members of The Group regarding the fact they texted and telephoned her that evening and over the next few days. The difference came in that Ms Cooke interpreted the calls as harassment and overbearing behaviour towards her, while the members of The Group said that they had tried to contact her out of concern for her welfare.
66. Contrary to her evidence that she did not drink due to the medication she was taking, Ms KK and Ms LP said in their evidence that Ms Cooke did have an alcoholic drink at the party. We noted that Exhibit R19 was a photograph of various members of The Group with Ms Cooke holding what appeared to be an alcoholic drink. We are mindful that the drink did not play a part in Ms Cooke leaving the party and The Group behind, and put little weight on the inconsistency in the evidence regarding the drink. There was no implication Ms Cooke had drunk anything more or even that she had drunk the drink she was holding in the photograph.
Events of 9 December 2004
67. Ms Cooke told us that the first time she saw Ms LP after the party was on 9 December 2004, and Ms LP was very angry, and scolded her for having left the party early. Ms Cooke told us she had felt very confronted by Ms LP’s approach. Ms DS described her recollection of the events of 9 December 2004 and said that Ms Cooke refused to speak to her.
Events of 10 December 2004
68. Ms Cooke told us that the following day, 10 December 2004, she did not want to be at work with The Group, and had what she termed “a breakdown”, stating that accordingly she could not recall everything that occurred on that day. She did recall being taken to a supervisor’s room (Mr GC), and that stress regarding her partner’s death, and her father was discussed. We noted that a medical officer, Dr Pryba, was called to assist. Ms Cooke said that members of The Group knew about all her problems, but the supervisor did not.
69. Ms DS stated that on 10 December 2004 when she met Ms Cooke in the locker room, she tried to initiate a conversation with Ms Cooke who was very upset and commenced sobbing. Ms DS stated that she felt concerned about Ms Cooke’s mental state and reported it to their supervisor who she found was in fact already with Ms Cooke.
70. We noted that Ms KK was asked to be with, and support Ms Cooke, until medical help arrived.
71. Mr GC (a senior manager), stated that in early December 2004, Ms Cooke’s supervisor advised him that Ms Cooke was suffering increased stress levels. He said that on 9 December 2004 Ms Cooke left work early, and on 10 December 2004, he found her in an extremely distraught state. He indicated that Ms Cooke told him, and others who sat with her that:
· She was upset because her partner had died in a car accident;
· Her brother was ill and had nearly died;
· Her parents were elderly and she had issues with their care;
· She had invested a considerable amount of money in a legal case against her deceased partner’s family, and was concerned regarding finances;
· Her son lives with her ex-husband and both give her little support.
72. Mr GC said that he and the other colleagues who sat with Ms Cooke discussed her medical treatment and were very concerned, and a counsellor was called. He stated that he was surprised to be told by the counsellor that Ms Cooke had requested Ms KK, Ms DS and Ms LP not associate with her at work or privately.
73. Mr GC stated that on 10 December 2004, he then instructed The Group not to approach Ms Cooke unless they were operationally required to, and not to speak to her about non work related issues, agreeing it was not a formal direction, but rather an opportunity to give her some space. He said that Ms KK and Ms DS were upset as they emphasised their past friendship with Ms Cooke. He stated that he was advised a few days later there had been an altercation with regard to private property (the shirt).
74. Mr GC stated that he was on leave from late December 2004 to 19 January 2005, and that he was informed there had been a disagreement when Ms DS, acting on higher duties, directed Ms Cooke to take a meal break which led to a disagreement with Ms Cooke.
75. Mr GC also stated that Ms Cooke believed members of The Group were talking about her. She had time off work at approximately the time of the anniversary of G’s death. A medical certificate Ms Cooke lodged on her return claimed that: “The worker’s employment is a substantial contributing factor to this injury.” Mr GC stated that he discussed the situation with others of his management colleagues.
76. In replies to questions asked of her at the Hearing regarding Mr GC’s statement, Ms Cooke tried to play down the anxiety the litigation with her deceased partner’s family appears to us to have caused her. Ms Cooke agreed that the legal proceedings with her deceased partner’s family were proceeding during 2004, (noted also as of concern in Dr Nguyen’s notes of October 2004), but said that she was not concerned as there was nothing she could do about the situation. We were mindful from the medical evidence before us that the family problems played a greater part in her illness than Ms Cooke would attribute to it at the Hearing, and that legal action was proceeding as recently as in March 2007.
77. Ms Cooke acknowledged that Ms KK had given her unsolicited advice that she should drop the legal action, and agreed that members of The Group tried to advise her about those matters, but said that she did not welcome the attention, and found it overbearing. She said that she had written a group letter asking them to leave her alone (PT13/45 written on or about 17 December 2004). We noted that the letter included: “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. … I feel unworthy of your friendship and tired of trying to comply with your expectations. …I just need you to stop caring and being overprotective of me.” We were satisfied from the evidence before us that members of The Group were caring in their attitude towards Ms Cooke, as well as frustrated by her rejection of them, and she may have found them overbearing at the time.
Events of 15 December 2004
78. We noted that contrary to the instruction of Mr GC on 10 December 2004, that the Group only approach Ms Cooke if operationally required to do so, Mr GH approached Ms Cooke to attempt discussion regarding the situation between her and The Group. Mr GH stated that he approached Ms Cooke because: “I and her other friends were quite frustrated in that Marion had not explained to us why she had suddenly chosen to ignore us. .. In our opinion we had done so much for her and deserved some explanation. …” and with reference to 24 December 2004: “Kim, however, having been very close friends with Marion, was determined to find out what exactly was going on and why she had decided to shun her close friends…”
79. We have noted that Ms Cooke has interpreted the approaches by her former friends as confrontational, as indeed the approach of 24 December 2004 turned out due to the reaction of both Ms Cooke and Ms KK.
Events of 24 December 2004 & 23 January 2005
80. Ms KK described to us how Ms Cooke had been upset one night in October 2004, and ended up staying at her place for two nights. Ms Cooke then borrowed a work shirt for the next day. We had oral evidence and also a diary record dated 24 December 2004 before us in which Ms Cooke recorded that she and Ms KK had discussed the return of the shirt. We noted that this conversation resulted in insults Ms Cooke and Ms KK exchanged regarding Christmas wishes. In her oral evidence Ms KK said that she regretted the altercation she had with Ms Cooke on 24 December 2004.
81. We are also aware there was an altercation regarding return of the shirt which Ms Cooke recorded in her diary notes at PT4/13 (23 January 2005), as Ms KK being unhappy because the shirt had a stain, for which Ms Cooke felt she was not responsible. Ms KK’s evidence was that on 23 January 2005, she approached Ms Cooke because she found that the shirt which had been returned was not hers.
82. Ms Cooke recorded in her diary notes that she told Ms KK to take the matter further and walked off because she could not deal with her attitude, and was tired of being harassed.
Events of 4 January 2005
83. Ms DS stated that on 4 January 2005, she was acting as Team Leader when she allocated Ms Cooke a time for a breakfast break, and described the abusive reaction which followed. Mr MC said that he heard Ms DS raise her voice, and explained to her that there were better ways to negotiate with staff, at which Ms DS walked off the job.
The Bus Ride on 23 January 2005
84. Ms Cooke’s evidence of being on the car park bus with members of The Group was that they treated her with some derision to which she reacted badly.
85. Ms SP made reference to Ms Cooke’s breakdown at work on 10 December 2004, and made mention that Ms Cooke thought she had been harassed by her colleagues on the bus ride to the car park on 23 January 2005. None of the Customs personnel from whom we had statements reported that they observed Ms Cooke being harassed or intimidated on the bus.
The Friendships, the Impact of Problems with G’s family and the Work Incidents
86. We are satisfied from the evidence that Ms Cooke, Ms KK, Ms DS and Ms SP, Mr JH all commenced work in the Customs Service in 2001, trained together and became a close knit group both at work and in their social lives (including farewells, football games, afternoon teas and Christmas parties).
87. Mr GC who was a manager in Ms Cooke’s area told us that in 2004 he ascertained that Ms Cooke was still coming to terms with the loss of G, and that she had four close friends on her shift who had been very supportive throughout. He said that he kept in touch with Ms Cooke’s team leader who informed him that Ms Cooke’s standard of work was acceptable, but that she suffered stress and depression related to her personal problems.
88. Ms KK stated that until recently she had regarded the Applicant as a very close friend, and that right up to December 2004, Ms Cooke often stayed overnight at her house. She acknowledged that she gave her advice as friends do. In her oral evidence Ms KK confirmed the social relationship we have accepted existed between Ms Cooke and members of The Group. She told us said that everyone knew she was Ms Cooke’s best friend at work, and understood that those feelings were reciprocated, although she knew that Ms Cooke had another close friend outside work.
89. Ms KK told us that she had supported Ms Cooke through many difficult emotional situations, including the illness of her father, her son’s problems, and the mourning for G. She stated that she had “opened up my home to Marion and welcomed her into my family”, adding that they had socialised on many occasions. Ms KK said in her oral evidence that Ms Cooke had many pressures, and was involved in litigation with a neighbour, with G’s family about the business, and in regard to a motor vehicle accident. Ms KK stated that Ms Cooke had told her about starting up a coffee shop with G in 2003, that she had invested money in it, that the extra work put a strain on her and G’s relationship, particularly in January 2004. Ms KK told us that Ms Cooke told her in January 2004, that the relationship had not been going as well as they had anticipated. She said that she was aware there had been periods of separation.
90. We noted that on the day of G’s death, 28 January 2004, The Group were given time off work to attend Ms Cooke at her home to assist her, and that various members of The Group continued to visit Ms Cooke at her home during the time she had off work following that event.
91. Ms SP referred to the difficulties which Ms Cooke experienced with G’s family after his death, and the emotional and physical toll she observed it took on Ms Cooke. In her oral evidence Ms SP stated that as friends, The Group were aware of the pressures Ms Cooke faced with G’s family, and the fact that the legal action was affecting her both physically and emotionally.
92. Ms KK also referred to a letter written by Ms Cooke, received by her on 17 December 2004, and written to her (Ms KK), Ms DS and Ms LP, telling them they had done nothing wrong, but that she did not want their unwelcome attention.
93. Ms KK concluded by denying that she and The Group treated Ms Cooke inappropriately or smothered her. She said that “Marion and I had a ‘falling out’ in December 2004, however she was showing signs of emotional instability in the months preceding this.”
94. Ms DS stated that her relationship with the Applicant was both of a professional nature and as a friend. She described similarly to Ms KK, the support she gave Ms Cooke with her personal problems in 2003/4, and the friendship commencing from 2001. She referred to Ms Cooke’s problems with G’s family, and stated that: “After this tragedy I noticed that Marion’s behaviour seemed to become erratic.” Ms DS also referred to Ms Cooke asking members of The Group for statements to support her claim in Court that she and G were in a de facto relationship. She said that Ms Cooke appreciated the support she received from The Group, in particular Ms KK and Ms DS saying: “I’m glad you guys are here, as I would not have coped without you.”
95. Ms DS also stated that Ms Cooke’s claims of bullying and harassment by her colleagues were inaccurate and untrue. She stated that Ms Cooke became distant and was distracted by her personal issues. Ms DS stated that she herself was preoccupied from 24 December 2004, with a friend who was in hospital for two weeks following a serious accident, and “confronting Marion at that time would have been the furthest thing from my mind”.
96. Ms BP who was not a member of The Group, stated that she observed Ms KK and Ms DS’s demeanour change in regard to their relationship with Ms Cooke after the Christmas party. She stated that she observed episodes of behaviour from them directed to Ms Cooke which were confrontational and hostile. Ms KK did not accept this was correct.
97. At the Hearing, Ms Cooke tried to minimise her problems with G’s family and concentrate on the work incidents she had claimed as stressors. We noted however from Ms Glancey’s Notes on 15 October 2004 (Exhibit R6), that rather than problems at work reported to her by Ms Cooke, Ms Glancey recorded matters relating to Ms Cooke’s partner’s family, and her work colleagues. We are mindful also that Dr Nguyen had referred Ms Cooke to Ms Glancey to assist her with her grieving and problems with G’s family. Ms Glancey’s notes indicate as follows:
“This family are horrendous. Never dealt with these sort of people before. No flowers at funeral. …
The family changed the locks on the house – she hasn’t been able to go back since he died. Her personal belongings still there. She facing a court battle.
She has no issues with G’s death – she said she loved him – the last words she said. She has closure.
The business, house etc now a nightmare….
The other week, had big breakdown. Overwhelmed. Were talking about Xmas. Tight knit group at WK. Very close. WK have been supportive.”
98. We noted in particular that Ms Glancey had recorded Ms Cooke as saying “Tight knit group at Wk. Very close. Wk have been supportive.”
99. When Ms Cooke was asked about Ms Glancey recording that the “business, house etc now a nightmare…”, Ms Cooke deflected her reply to the legal action with G’s family, stating that that she had been told by her solicitor that the legal action would take a long time. (We were informed a court case was listed in March 2007). We were not satisfied with Ms Cooke’s reply, and preferred to rely on the contemporaneous entry made by Ms Glancey on 15 October 2004 which indicated that the pressures arising from G’s family were Ms Cooke’s primary stressor. We have already noted in the paragraphs above that Ms Cooke’s Adjustment Disorder was diagnosed by Dr Nguyen in 2003, and in April 2004, and that the origins were personal stressors, amongst them the business enterprise she had started with G, her relationship with him, and the illness of her father. After January 2004, the clinical notes refer to Ms Cooke’s grief at her loss, and then her reaction to the way she perceived his family were treating her.
100. In regard to Ms Cooke’s relationship with her colleagues, we also noted from PT4/13, Ms Cooke’s own notes, that she had made an entry on 23 January 2005: “All I asked of them was to back off and let me have space, so to be treated in this way (reference above to ‘sniggering, comments attitude and aggressive attitude’), by people I respected I cannot comprehend. How K (Ms KK) can go from a person I saw as my best friend and would understand what I was asking to a person I now fear I don’t know.” (the Tribunal’s emphasis).
101. Ms Glancey’s notes of 28 January 2005 which mention The Group, also makes mention of Ms KK as follows: “One of them K - she was, used to be very close …”. There was further annotation regarding Ms KK: “K and her very close when G died. Its as if K feels she’s betrayed her … She can’t understand. She expected them to be supportive.”
102. Ms Cooke denied having written that Ms KK was her best friend, and referred to the second document in Exhibit A2, an eight page statement in which she refuted statements made by members of The Group to the Tribunal. She also referred to Exhibit R7 which she said consisted of notes she had assembled in order to write a book. We noted that that material mainly emphasised her love for her (deceased) partner and how she missed him.
103. Ms Cooke alleges that the relationship with The Group deteriorated in November/December 2004. She said that she had asked Ms KK for a statement in relation to a Customs matter (not G’s family litigation), which Ms KK had refused to provide.
104. Ms KK agreed that it was towards the end of November 2004 when Ms Cooke asked if she would write a statement for her in regard to her court case, confirming that she and G were in a de facto relationship. Ms KK wrote in her statement: “I believed that what she was requesting was untrue and would be misleading, so I refused to write the statement for her or get involved.” Ms KK confirmed that she based her view on the fact that Ms Cooke had twice sent her a text message saying she and G had broken up.
105. We were satisfied from the evidence before us corroborated by another witness that the statement was to have affirmed Ms Cooke’s personal relationship with G for the court case which Ms KK said she felt unable to give, knowing that Ms Cooke had informed Ms KK only weeks before G died that they had had problems and periods of separation.
Did the work situation between December 2004 and January 2005 aggravate Ms Cooke’s condition
106. Accordingly, having accepted that Ms Cooke suffered an Adjustment Disorder, however described since September 2003, we moved to consider whether the events at work between December 2004 and January 2005 aggravated Ms Cooke’s Adjustment Disorder within the terms of the legislation.
107. We have already noted above that Dr Lewin described Ms Cooke’s account of the difficulties she experienced with G’s family after his death, and her friendship with The Group. Dr Lewin also recorded Ms Cooke telling him that matters had come to a head in December 2004, and that she had been physically and psychologically abused by The Group at that time.
108. In May 2006, (Exhibit R3), Dr Lewin concluded that when he saw her, Ms Cooke was not suffering from any psychiatric condition. He opined that:
“I think it is likely that she would have developed psychiatric symptoms in response to the death of her partner, the family disruptions and the prolonged legal disturbances which ensued. She was receiving treatment both from her general practitioner and a psychologist at the time the difficulties at work emerged.
When comparing the gravity of the stressors which emerged in the immediate aftermath of the death of her partner with the stressors described in the workplace, it appears that the former stressors were of far greater severity. When all the factors are considered, I think it likely that Ms Cooke was suffering from a mild reactive psychiatric condition in the period before the problems in the workplace emerged. Those symptoms of anxiety in particular could be characterized as an Adjustment Disorder.
…
There was no evidence that an Adjustment Disorder was made worse by these circumstances in the workplace.”
109. When asked about what Ms Glancey had described as Anxiety Disorder with Panic in 2007, Dr Lewin characterised the description given to him of Ms Cooke not wanting to meet The Group as a fight or flight response, and anxiety, but not necessarily a disorder. He emphasised that the reactions were of a person who was not only vulnerable, but already unwell.
110. We have already said above that Dr Lewin in commenting on Dr Phillips’ report noted that Dr Phillips had not been given a full history of Ms Cooke’s life circumstances, and that we accordingly could not rely on Dr Phillips’ diagnosis. We noted further that Dr Lewin had not been told that Ms Glancey had been treating Ms Cooke, and that that may have made a difference to his opinions.
111. When Dr Lewin was asked how the events of 2 December 2004 to January 2005 impacted upon Ms Cooke’s time away from work, he replied that Ms Cooke had been certified unfit for eight weeks that is to March 2005, but only eventually returned in October 2005. We know however from the evidence before us that the long delay in returning to work was not due to further illness, but because Ms Cooke waited to obtain a position where she did not work in proximity to The Group.
112. Dr Lewin was also asked whether the events of December 2004/January 2005 materially contributed to Ms Cooke’s illness. He replied that in his opinion Ms Cooke had clinical worsening of her condition over that period, but that there was no evidence that there was a change from a mild reactive disorder to a psychological illness in that time. He added that fitness to work was not a diagnostic criterion, but a possible consequence of an illness.
113. In summary Dr Lewin opined that the life events were a far greater stressor in Ms Cooke’s life that her work situation.
114. We have also considered Dr Phillips’ opinion that the employer had not provided Ms Cooke with timely general support, guidance, appropriate care, or a safe work environment, and attributed a progressive deterioration in her psychological health to those failures. However, Dr Phillips had not been given all the relevant information. He had not been given Ms Glancey’s records, and not been told for example, that Ms Cooke’s son had depression, which was a potent stressor in her life. Dr Phillips considered there were two significant psychological stressors Ms Cooke had experienced, the death of her partner on 28 January 2004, and harassment in the workplace, mainly from co-workers from late December 2004 on.
115. Dr Phillips held that workplace harassment had had a substantive deleterious effect on Ms Cooke's mental status and opined as follows (Exhibit A9, March 2006):
“In essence, therefore, I hold strongly that workplace harassment has had a substantive deleterious effect on Ms Cooke’s mental status. She continues to suffer from an adjustment disorder with mixed anxiety and depressed mood. She would not suffer from this disorder currently if there had been no workplace harassment, or if assertive supportive action had been taken by the employer.”
116. As to the workplace problems; Dr Phillips recorded that Ms Cooke told him things at work deteriorated during 2004, and that she found herself to be overly directed by others, she was preoccupied with her brother’s medical problems from November 2004, and described the problems with the work Christmas party in December 2004. In summary Dr Phillips relied on Ms Cooke’s accounts of the breakdown in relationships with her work colleagues, and her reactions to it.
117. As to her mental state examination; Dr Phillips recorded in his report that Ms Cooke was “moderately depressed, somewhat anxious but not irritable at the time of interview.” He also opined that:
“ … Ms Cooke suffered an adjustment disorder with mixed anxiety and depressed mood in the period of her grief. … I accept Ms Cooke’s opinion that she made considerable progress in working through her grief, albeit that the process had been made complicated by the attitude/activities of her dead partner’s family. Nevertheless the plaintiff would have remained vulnerable to stress of any type (including workplace stress) at/around December 2004.
There should be little doubt that Ms Cooke’s psychological status deteriorated rapidly from December 2004, beginning when she faced criticism for not drinking at a Christmas function and leaving early so that she could attend to her then ill brother.
… co-workers acted in an increasingly adverse and harassing manner in their interaction with the plaintiff, and the plaintiff became extremely sensitive to their actions/accusations.
…
On balance Ms Cooke was rendered vulnerable to further psychological insult as a consequence of the death of her partner, but she decompensated with a complex group of psychological symptoms in the context of workplace stress (harassment by co-workers particularly).
…
In essence, therefore, I hold strongly that workplace harassment has had a substantive deleterious effect on Ms Cooke’s mental status. She continues to suffer from an adjustment disorder with mixed anxiety and depressed mood. She would not suffer from this disorder currently if there had been no workplace harassment, or if assertive supportive action had been taken by the employer.”
118. Dr Phillips confirmed the contents of his report in his oral evidence, emphasising that the degree of pain a person suffers reflects their vulnerability, and that the events of December 2004 at work caused great distress and psychological discomfort to Ms Cooke.He did not consider that a diagnosis of Adjustment Disorder was appropriate at the time of the loss of Ms Cooke’s partner, even though she suffered symptoms of that condition. Dr Phillips also opined that the panic attacks were integrated with the Adjustment Disorder.
119. Dr Phillips opined in his oral evidence that on the facts he was supplied, the stressors Ms Cooke suffered, that is her father’s heart attack in September 2003 and her breast lump, caused distress, which followed by the death of G, increased her vulnerability, and that it was the events of December 2004/January 2005 which led to the development of the Adjustment Disorder. He agreed however that the family litigation related to G could be a stressor which was the cause of the Adjustment Disorder.
120. As he had only an incomplete history relating to Ms Cooke, without knowledge of the fact she had been diagnosed with Adjustment Disorder arising out of her family problems as far back as September 2003 and April 2004, we were only able to give little weight to the evidence of Dr Phillips. He had not been supplied with Ms Glancey’s notes, which emphasised the importance as stressors, of the litigation regarding the business, and the issues regarding the Applicant’s house.We noted that Dr Phillips did not have the diagnosis made by Dr Nguyen and Ms Glancey when he gave his opinion.
121. Notwithstanding Ms Glancey’s observations that Ms Cooke’s condition did not deteriorate over December 2004 to January 2005, the Respondent has accepted that it did. We have considered that. We have already noted above that Dr Phillips was given an incomplete history dating Ms Cooke’s illness to the events of year end 2004. We know from Dr Nguyen’s clinical notes that Ms Cooke was diagnosed with Adjustment Disorder in September 2003 and April 2004. We are satisfied that Ms Glancey did not see Ms Cooke from October 2004 until 28 January 2005, and that Ms Glancey did not diagnose her condition as deteriorating in that period. The clinical notes before and after those dates do not indicate to us that there was a clinical worsening of Ms Cooke’s condition. We are mindful that she appeared to be irritated and confronted at some of the meetings involving her former friends, The Group, but that does not satisfy us to the requisite standard that her condition became worse.
122. We noted that Dr Lewin considered that Ms Cooke had experienced worsening of her condition over the period December 2004 to January 2005, but opined that there was no evidence that there was a change from a mild reactive disorder to a psychological illness in that time. He considered that the life events were a far greater stressor in Ms Cooke’s life than her work situation.
123. We are satisfied that the stressors which led to the development of Ms Cooke’s condition in September 2003 and April 2004, extended to the period December 2004/January 2005, and that the symptoms of her condition she suffered at that time, remained. The most prominent stressors were:
·Her father’s illness and her brother’s illness;
·Worries about the business she had been trying to establish with G;
·The death of G in January 2004;
·The ongoing legal battle regarding the estate;
·Problems with Ms Cooke’s son;
·The impending anniversary of G’s death given that the Applicant first raised the employment issues with Ms Glancey on 28 January 2005, the anniversary of her partner’s death; and
·Certain issues at “work”.
124. We were not satisfied that Ms Cooke’s condition worsened over the December 2004 to January 2005 period even though she recorded a number of problems with The Group over that time. We accept that she continued to suffer Adjustment Disorder over the period, and was more vulnerable as the anniversary of G’s death approached. However, we are satisfied that she did not find it necessary to consult Ms Glancey between October 2004 and 28 January 2005 which she was more likely than not to have done if her condition had worsened.
125. In considering the impact of the situations Ms Cooke found worrying in relation to her work colleagues between December 2004 and January 2005, we moved to consider the concept of “employment” which was considered by Windeyer J in Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 at 632-633:
“When the Act speaks of ‘the employment’ as a contributing factor 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 the employment or some characteristic of the work performed or the conditions in which it was performed.”
126. We noted Mr Minehan’s submission that it is the perception in the mind of the Applicant which is the relevant consideration: Wiegand v Comcare Australia [2002] FCA 1464, per Von Doussa J at [31].
“In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand.. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
127. Mr Minehan submitted that the Applicant perceived the various incidents at work as confrontational, aggressive, intimidating and harassing.
128. We noted further that in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 Davies J, in considering the issue of a “contributing factor” in s.29 of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) stated (at 240):
“It does not matter that the worker’s response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence.
Although the applicant had to show more than that the employment was merely the scene in which the development of his depression took place, a purely inert factor upon which the applicant’s developing depression focussed its attention, it was not necessary that the applicant show that there was a special, unusual or wrongful factor of his employment which was the contributing factor. It was sufficient that the employment positively contributed to the development of the applicant’s depression, that is to say that the employment provided external stimulus to aggravate or accelerate his disease.”
129. We are mindful however that the current position regarding contribution to a material degree in section 4(1) of the Act, in regard to workplace injuries, is established by reference to the case of Comcare v Sahu-Kahn (2007) 156 FCR 536. In that case Finn J referred to Treloar vAustralian Telecommunications Commission (1990) 26 FCR 316, and the reference to contribution of the workplace in injuries or disease sustained pursuant to the 1971 Act, predecessor to the current Act. His Honour also referred to the Full Court’s comments in Comcare v Canute (2005) 148 FCR 232 regarding Treloar, and the Full Court’s reference to the Bill which preceded the amendments to the present legislation. His Honour stated that he agreed with the approach of French and Stone JJ in Canute, “in particular, in their conclusion that the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.” His Honour also referred to the dictionary definition of “in a material degree” being “substantially, considerably”. Justice Finn concluded that the section 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.”
130. We are of course bound to apply the tests in Canute and Sahu-Khan which reflect the current law on the interpretation of “material” in the Act.
131. Mr Minehan also drew to our attention The Australian Customs Service Harassment Policy (Ex A18) which he submitted makes it plain that for harassment to occur there does not have to be an intention to discriminate or offend, and that harassment may occur although the harassing behaviour may appear to be of a minor or trivial nature: paragraph 3.3. Workplace harassment may also occur outside the work place such as at work functions and outside of working hours: Ex A18 paragraph 3.4.
132. Mr Dube argued that the question whether the events complained of by the Applicant are “employment” is a vexed one. He submitted the Federal Court held in Dunstan v Comcare (2006) 93 ALD 390 that the scope of the Act does not mean that every event which befalls an employee at work, and which leads to an ailment such as depression is work-related in the relevant sense. He submitted that the clearest example of that was the Christmas party in December 2004, and that the issues arising from that event were because of the friendship between the various people, rather than constituting something employment related. He submitted that the Applicant’s contention that the Christmas party was an “employment related event” ignores the requirements of Semlitch and the definition of employment.
133. He submitted that in respect of the shirt incident, Ms KK’s statement put the loan of the shirt in a different context, noting that Ms KK stated that she loaned the shirt to the Applicant because the Applicant had stayed with her for a number of days when she was feeling unwell, and that she did not have a uniform shirt to wear to work. Mr Dube submitted that the disagreement which then took place, whilst it occurred in the workplace, did not in Comcare’s submission, constitute “employment” (Dunstan).
134. Mr Dube submitted that the majority of the events complained about by the Applicant were because of the friendship between her and the other employees rather than because of the employment or a state of affairs in the Applicant’s employment required contact of the type complained about.
135. Mr Minehan submitted that this contention was unsustainable because the incidents almost wholly occurred in the workplace, during working hours, and the work Christmas party was an employment related activity. The Australian Customs Service Harassment Policy document recognises, he submitted, that workplace harassment can occur at work, during work breaks, at work related functions and outside of working hours (Ex A18, para 3.3). He submitted that all the incidents identified in the evidence had the necessary connection and nexus with the Applicant’s employment.
136. Mr Minehan submitted that it is incorrect to categorise the workplace incidents as merely the “scene” in which the Applicant’s adjustment disorder deteriorated from December 2004 to January 2005. He argued that the evidence of the Applicant, Dr McCroary, Ms Glancey and Dr Phillips clearly established that the deterioration in the Applicant’s condition was a direct result of the workplace incidents.
137. Mr Dube submitted that the Respondent felt the Applicant’s evidence was deliberately untruthful in certain aspects. He drew to the Tribunal’s attention in particular:
·Ms Cooke’s denial of a close friendship with Ms KK;
·The explanation that the “statement” the Applicant sought from Ms KK was in respect of a Customs prosecution (rather than in support of the litigation with G’s family);
·That Ms Cooke was first treated by Ms Glancey shortly after the death of G;
·Ms Cooke’s assertions that the legal dispute with G’s family were not a cause of anxiety;
·That Ms Cooke did not tell Mr Campbell on 10 December 2004 that she was having difficulties with the legal proceedings and her family.
138. Readers of these Reasons for Decision will note that we have already commented upon the points made by Mr Dube in the paragraph above.
139. Mr Dube submitted that the only incident claimed by the Applicant which could amount to “employment” would be the issue of Ms DS directing the Applicant to take a meal break. He noted that there were two quite different versions of this, Ms DS claiming that the Applicant was rude to her, and the Applicant claiming that she was harassed and assaulted. He noted that Mr GC who was present at the time indicated he had asked the Applicant about the incident after it happened, and that she told him that she did not notice, and that it was of no consequence. We are satisfied from the evidence that Ms Cooke had been upset by the tone of voice used by Ms DS, and that the result of the exchange of words was that Ms DS walked off the job.
140. Mr Dube submitted that the other general allegations regarding harassment and intimidation were in general vague and unsubstantiated. He submitted that while there was some corroboration in the statements of Ms BP and Mr AH regarding the meal break incident and the exchange of words between Ms Cooke and Ms KK on 24 December 2004, the interactions between the Applicant and The Group had to be seen in the overall context of the breakdown of the relationship, and the nature of the employment. Mr Dube submitted that even accepting that the claimed events took place, there was a strong argument that events did not materially contribute to the Adjustment Disorder.
141. Mr Dube submitted that following the Full Federal Court decision of Comcare v Canute and the Federal Court decision of Comcare v Sahu-Kahn, the material contribution test has been substantially strengthened. We acknowledge Mr Dube’s submission, and have already commented upon that in the paragraphs above.
142. Mr Dube’s submission was that Dr Phillips’ opinion was inherently flawed because of the incorrect history upon which he relied, and his unwillingness to acknowledge the existence of the same symptoms and a diagnosed condition long before the alleged events. He said that Ms Glancey acknowledged in cross-examination the difficulties in attributing diagnosis to a “stressor” where the symptoms were already in existence prior to the stressor event occurring.
143. Mr Dube submitted that all the medical witnesses acknowledged that an Adjustment Disorder generally should continue for six months after the stressor occurs. He submitted that in the Applicant’s circumstances the accepted stressor for the onset of the Adjustment Disorder in 2004 was the litigation with G’s family. He told us that the Supreme Court hearing did not take place until March 2007, and that the Applicant’s evidence regarding the significance of that litigation on her mental state should not be accepted.
144. Mr Dube also submitted that Dr Lewin’s evidence was that a person either has an Adjustment Disorder or they do not, and that the Applicant’s own treating general practitioner and psychologist had already diagnosed the Applicant as suffering from an Adjustment Disorder at least two months before the first “employment” incident claimed. He submitted that Dr Lewin agreed that it was more likely that the employment was the scene in which the Applicant’s Adjustment Disorder deteriorated, rather than where it commenced. We accepted that argument, if indeed Ms Cooke’s condition worsened between December 2004 and January 2005. We noted however that she had not consulted Ms Glancey from October 2004 until the anniversary of G’s death on 28 January 2005, and if there was a worsening of her condition, the medical evidence indicates that the anniversary and other personal issues were far more potent stressors than a disagreement with friends at work. We are mindful also that the litigation with G’s family was still ahead of Ms Cooke at that time, and did not take place until March 2007.
145. Mr Dube submitted that on the available evidence, the Tribunal could conclude on the balance of probabilities that there was not a material contribution by the Applicant’s employment to her Adjustment Disorder.
146. We are satisfied that Ms Cooke’s illness as diagnosed by Dr Nguyen in September 2003 and April 2004 and by Ms Glancey in October 2004, being Adjustment Disorder made Ms Cooke vulnerable, and accept the Respondent’s submissions regarding the impact of the various events which occurred between December 2004 and January 2005. We accept Ms Cooke may have felt upset by her former friends, and their attitude to her. We are also mindful of the argument regarding whether the events claimed as stressors were “employment”. We accept that at least the Christmas party and the situation on 4 January 2005 when Ms DS directed Ms Cooke to take a meal break easily fall within the definition of “employment”. It is possible the other events claimed as stressors do as well, although they appear to us to more generally be personal altercations between former friends. However, even if all the events claimed are taken to be “employment”, we are not satisfied that Ms Cooke has suffered an injury, disease or aggravation which is compensable pursuant to the Act.
CONCLUSION
147. In conclusion:
· We accept that Ms Cooke has suffered, and it is likely continues to suffer Adjustment Disorder with Anxiety and Depression since the condition was diagnosed by her treating medical practitioner, Dr Nguyen, in September 2003 and April 2004, and in October 2004 by Ms Glancey.
· We accept that the stressors the cause of Ms Cooke’s condition were her personal problems, amongst them, the business start-up with her partner, the illness and subsequent death of her father, the illness of her brother, the tragic death of G, the litigation with G’s family, and the attitude and actions of G’s family toward her.
· We are satisfied that the incident arising out of the Christmas party on 2 December 2004, and the other incidents claimed by Ms Cooke as stressors such as the attitude towards her of her former friends, The Group, the instructions given to her by Ms DS regarding a meal break, the altercation regarding the return of the shirt with Ms KK, and other such incidents which may be characterised as “employment” took place in the workplace. We are satisfied that the connection with Ms Cooke’s Adjustment Disorder was temporal. However we are satisfied that they cannot be held to be causal, or in particular making a material contribution to her illness in the terms of Sahu-Kahn.
· We rely on the contemporaneous notes of Drs Nguyen and McCroary, and Ms Glancey (rather than to later written and oral evidence), with regard to the stressors causally related to Ms Cooke’s illness. We note that Ms Glancey did not consider that Ms Cooke’s condition had worsened between December 2004 and January 2005, and are satisfied that Ms Cooke did not consult Ms Glancey from October 2004 until the anniversary of G’s death on 28 January 2005. We acknowledge from the evidence that Ms Cooke was upset with her former friends and rejected them. However, we are not satisfied that any clinical worsening of the Applicant’s condition took place over that period, and if it did, we are not satisfied that any actions of her work colleagues or interaction with them qualified towards the threshold for a material contribution in the terms of Sahu-Khan.
· We are satisfied that reference to incidents at work only arose in Ms Glancey’s reports after 2005, and that the emphasis on the contribution of the workplace to Ms Cooke’s condition was not in accord with contemporaneous records, being those of the treating doctor, Dr Nguyen, and Ms Glancey’s clinical notes, (the treating psychologist).
· We give little weight to the opinion of Dr Phillips regarding the aetiology of Ms Cooke’s illness because he was not provided with a full history of the situation, in particular, the diagnosis by Dr Nguyen of Adjustment Disorder in September 2003 and April 2004, and the October 2004 confirmation of the diagnosis of Adjustment Disorder with Anxiety and Depression by Ms Glancey, and as recorded in Ms Glancey’s clinical notes.
· We rely on the opinion of Dr Lewin with regard to the aetiology of Ms Cooke’s illness, his opinion that the personal stressors in her life were far more significant than those at work which took place at a time when the Applicant was already ill and vulnerable, and prefer Dr Lewin’s opinions to those of Dr Phillips’ for the reasons stated above.
· We are not satisfied from the evidence that Ms Cooke suffered an aggravation of her condition from December 2004 to January 2005, noting in particular that she did not consult her treating psychologist from October 2004 until the date of the anniversary of G’s death, 28 January 2005.
· We are satisfied that the Respondent is not liable for Ms Cooke’s Adjustment Disorder with Anxiety and Depression or any aggravation of the condition, in particular over the claimed period December 2004 to January 2005. Liability can therefore not be accepted, and compensation can accordingly not be paid.
DECISION
148. The Tribunal affirms the decision under review.
149. Pursuant to section 67(8) of the Safety Rehabilitation and Compensation Act 1988 costs may not be awarded.
I certify that the 149 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr I Alexander, Member.
Signed: [sgd]
Associate
Dates of Hearing 23 and 24 May 2007, 9 and 10 April 2008, 30 June 2008
Date of Decision 8 October 2008
Counsel for the Applicant Mr M Minehan
Solicitor for the Applicant Ms T Kontos, Marsdens Law Group
Counsel for the Respondent Mr B Dube
Solicitor for the Respondent Ms A Bortone, Sparke Helmore
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