Crawford and Comcare
[2007] AATA 2113
•18 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2113
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/64
GENERAL ADMINISTRATIVE DIVISION ) Re JANE CRAWFORD Applicant
And
COMCARE
Respondent
DECISION
TribunalJ.W. Constance, Senior Member
Dr M. D. Miller, Member
Date18 December 2007
PlaceCanberra
Decision The reviewable decision of Comcare dated 21 February 2006, is affirmed.
………(signed)…………………………….
J. W. Constance, Senior Member
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
Level 10, MLC Court, 15 Adelaide St BRISBANE QLD 4000
PO Box 13038 George St Post Shop BRISBANE QLD 4003
Tel:1300 308 420 Fax:(07) 3503-1199
Email: [email protected] Website:TRANSCRIPT OF PROCEEDINGS
O/N 71139
ADMINISTRATIVE
APPEALS TRIBUNAL
MR J.W. CONSTANCE, Senior Member
DR M.D. MILLER, MemberNo. A2006/64
CRAWFORD
and
COMCARE
EXTRACT OF TRANSCRIPT OF PROCEEDINGS
CANBERRA
TUESDAY, 18 DECEMBER 2007
MS R. PEZZELLA appears for the respondent
EXTRACT OF TRANSCRIPT OF PROCEEDINGS [9.28 am]
MR CONSTANCE: In this matter, Ms Crawford has sought a review of a decision of Comcare of 21 February 2006 which affirmed an earlier determination denying liability to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988. Ms Crawford’s claim is in respect of an adjustment reaction with mixed emotional features. The injury is alleged to have arisen as a result of her employment by the Defence Housing Authority between May 2003 and June 2004. For the reasons which follow, the decision under review will be affirmed as indicated previously.
RECORDED : NOT TRANSCRIBED
MR CONSTANCE: Section 14(1) of the Safety, Rehabilitation and Compensation Act of 1988 provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in section 4, and the relevant part of that definition reads:
“Injury” means disease suffered by an employee.
There are qualifications to what which are not relevant in this application. “Disease” is also defined in section 4, and the relevant part of that definition reads:
“Disease” means any ailment suffered by an employee being an ailment that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
And the final relevant definition is that of “ailment” which is defined to mean:
Any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development.
We are satisfied that Ms Crawford suffers from an adjustment disorder with mixed anxiety and depression symptoms. This has been diagnosed in varying forms, but to the same effect by Dr Lucas, a psychiatrist who assessed her for the purpose of these proceedings, Dr Willington, her general practitioner, and by Ms Staunton, a psychologist who was consulted by Ms Crawford in 2004. It has not been in dispute that Ms Crawford suffers from this condition. We are therefore satisfied that this condition is an ailment within the definition of section 4 and, again, that has not been an issue.
The issue between the parties is whether this ailment is a disease and, therefore, an injury as defined in section 4. This requires a determination of the question, was the ailment suffered by Ms Crawford contributed to in a material degree by her employment by the Defence Housing Authority. Turning now to the facts of this matter, unless other stated the facts are found on the basis of the evidence of Ms Crawford, and we are satisfied of the facts found on the balance of probability.Ms Crawford is 36 years of age. She commenced employment by the Defence Housing Authority in December 2002 at a level of APS4. She told us that she was hired as an extra pair of hands, but was given no further information than that. Later she said she was aware that her job would involve largely data processing. She did not undergo any induction at the commencement of her employment, but did undertake an induction course in about August of 2003. She was working in a performance-monitoring team, as part of a group. There were two other members of the team, Ms England and Ms Clemson. She was given responsibility for collecting data at the end of each week, and she was also asked to generate some weekly reports.
After some time, she said that she ended up mostly working with Ms England who was responsible for preparing a monthly report. This report was required to be prepared between the first and fifth business day of each month, to be delivered to the client, namely the Department of Defence, on the fifth business day. In May 2003, Ms England was transferred to another area of the Authority. When asked by her counsel as between December 2002 and May 2003, “How did you find your workload at DHA?” she replied, “Oh, it was fine.”
Ms Crawford said that in May 2003, when Ms England left, she took over the role of preparing the monthly reports. She said that if that hadn’t been done, it would have been a dire consequence to the organisation as it would have been in breach of contract with the Department of Defence, and that that contract was worth around $13 million. Ms Crawford said that in May 2003 she was not provided with any further training and, in fact, she asked Ms England to come back and assist her with preparation of reports which she says Ms England did, after hours.
She said that after Ms England left she became anxious. She said that she noticed she was becoming more fatigued and indecisive, that her self-confidence and self-esteem decreased. She said that she also started to get sick more often with cold and flu-type illnesses, and also had a couple of bouts of crying at lunch time, just out of the worry of the situation.
Sometime after Ms England left, a replacement was hired, but it appears that this person did not stay in the job for very long, and then another replacement was hired. Ms Crawford said that she trained both of these people and found that stressful. She said that she became more anxious at the time that each monthly report had to be prepared, and that the symptoms she was suffering became worse as time went on. She said that she began to wake up in the mornings feeling unrefreshed, and this worsened. She said her concentration and her memory decreased, her breathing became more rapid and shallow, and, at times, when she would park her car when arriving at work, she would not want to leave the car to go into the office.
Ms Crawford gave specific evidence of the preparation of the report for December 2003. She said that the person preparing the report at the time, senior to her, was a Mr Smith, and that she was assisting him in preparing that report. They worked on the report and were expecting to deliver it to the client around midday on Friday. Ms Crawford says that on early Friday morning she found out, by accident, that Ms England had been called in to finish the report. She gave this evidence as to how she felt:
I felt really angry, and I felt like the contribution I’ve been making since May, it was down to me that the company had delivered on the reporting obligations thanks to me, and I felt, like, well, none of that mattered and I didn’t matter to anyone or anything in the organisation. I just wasn’t recognised, and I had no value.
That comes from the transcript of 15 October 2007 at page 12.
Ms Crawford continued working at the Authority until June of 2004 when she was seconded to another department. She said that from December 2003 she developed an eczema rash and she was very unmotivated and had less desire to socialise. She says that all of the symptoms that she had previously referred to had escalated from that time. She says that between December 2003 and June 2004 she had a sense that she was not functioning and not coping very well. She was fatigued, had difficulties in concentrating and her memory was bad. Her sleep patterns continued to be such that she woke up feeling unrefreshed.
After she left the Authority in August of 2004, her grandmother passed away. She applied for leave without pay on the stated basis that she needed to look after her grandfather. She gave evidence that this was not the real reason, and that she gave this reason simply to save face. She said that she needed the leave because she wasn’t coping and needed a rest. She was granted leave, which was for a period of 12 months.
In September 2004, she started a party-plan business which involved her attending at homes to sell particular items. In mid-November 2004, she consulted Ms June Staunton, a psychologist. She was not referred by any medical practitioner to Ms Staunton, but this was arranged through a friend. When asked the reason for consulting Ms Staunton, she gave this evidence:
By that stage, I threw up my hands, so to speak, and I just faced up to the fact that I wasn’t okay and I needed help, and stopped trying to pretend I was okay and be so strong.
She said that when she first consulted Ms Staunton in mid-November 2004, she was not able to fully describe the difficulties she had had at the Authority. She said she became too emotional, but did discuss various matters with Ms Staunton and, ultimately, did discuss the problems that she had experienced at work. In the summer of 2004/2005, she first considered lodging a claim in respect of the injuries which she alleged she had suffered at work, but she found it difficult to confront the situation, and finally completed and lodged the claim in May of 2005.
In cross-examination, Ms Crawford was asked whether she would agree that she had suffered that she had suffered psychological distress prior to her employment with the Authority. Ms Crawford gave evidence that, when her de facto marriage failed, that it was emotionally difficult. This was in 2001, and it appears that Ms Crawford did not recover from this situation until February 2002, over 12 months later. Ms Crawford also said that in the early 1990s a relationship had ceased and that she was upset concerning that relationship having come to the end. She said that that was about 1992 or ’93.
It further appears on the evidence, and we accept, that in October of 2003, which was before the incident with the report in December of that year, Ms Crawford had attended a general practitioner, Dr Fedoroff. She said that she was ill on that day, she didn’t want to go to work, and wanted to get a medical certificate, that she was suffering what she described as a cold and flu type of thing. Ms Crawford did not tell Dr Fedoroff of any of the other problems that she was experiencing, and, similarly when she consulted another general practitioner, Dr Gow, at the Erindale Medical Centre in November of 2003, again seeking a medical certificate, she did not tell that general practitioner of her other problems, but, again, report a flu type of illness.
Dr Gow was in a different practice to Dr Fedoroff. In fact, in 2003 and, in fact, since 1997, Ms Crawford’s usual general practitioner was Dr Willington, in another practice. In December 2003, around the 17th and 18th of that month, Ms Crawford consulted another general practitioner at the Foundation Health Care in Erindale, a Dr Murphy, again seeking certificates for her absence from work. Again, she described a cold and flu-type illness and did not tell him of her other symptoms.
Ms Crawford also gave evidence in cross-examination as to other instances of feeling depressed prior to May 2003, being the time that she nominated as the time problems commenced for her in her employment. She consulted a general practitioner at the Erindale Health Centre in May of 1997 and described a history of depression for a long time, or rather, that is what is recorded in the notes, and Ms Crawford did not deny that that was an accurate statement. She also saw a psychiatrist, a Dr Gravell, at about this time. She saw him for a number of months, and said that those consultations related to difficulties she experienced in relating to men. She said that this was a long-standing problem, although she said in evidence she did not believe she was depressed.
In June of 1997, there is an entry in the notes from the Erindale Health Centre that Ms Crawford was given information regarding depression, but she said that she would not have returned seeking treatment in relation to that. She said that she did not recall that consultation. There is also a record in the notes before us that, on 18 August 1997, some months after she first attended Dr Gravell, that she attended the general practitioner complaining of flu and depression.
In 1997, Ms Crawford consulted Dr Willington about sexual difficulties, and later told us that, as a result of consultations with Ms Staunton in November of 2003, she believed that she may have been sexually abused as a very young child. In August of 2001, she consulted Dr Willington inquiring about anti-depressants in relation to the effects of the break-down of her de facto marriage. In November 2001, she returned to see a general practitioner at Dr Willington’s practice, and was depressed and crying. In August or September of 2001, she sought the assistance of a counsellor, a Mr Male. She said that the reason she sought that assistance was that she felt she was not getting over the break-up of her marriage quickly enough. Ms Crawford also gave evidence of consulting a Ms Graham in 1999. Ms Graham conducted a Buteyko course, and in exhibit R2, which is a health questionnaire completed for Ms Graham on 23 June 1999, Ms Crawford indicated that she suffered from anxiety, loss of memory, lack of concentration and depression.
On 12 January 2003, Ms Crawford completed an application for life insurance and authorised the insurance company to contact a Dr Campbell, a chiropractor who she was consulting at the time. Dr Campbell was asked to provide information as to whether Ms Crawford had ever suffered from or required treatment for any mental illness, including depression, anxiety, emotional, nervous or stress-related condition, or required treatment with tranquillisers, anti-depressants, hypnotics or psychotherapy. Dr Campbell circled “Yes” in response to that question, and, when asked concerning this, Ms Crawford said that she guessed that that information would have come from the initial form that she filled in for Ms Crawford when she first consulted her.
Between May 2002 and June 2003, Ms Crawford consulted a M Volkas, a counsellor. She told us that her chiropractor had recommended that she undertake a Pilates class, and that she found trying to do the exercises frustrating. She gave evidence that she continued to see the counsellor to work out her feelings before she continued the Pilates class. It appears that those consultations extended over a year.
In about July 2004, that is after Ms Crawford left the Defence Housing Authority, she formed another relationship which ended in October 2004. When asked why that relationship ended, Ms Crawford replied:
I became pregnant and I wasn’t happy about it and decided to end the pregnancy, and the relationship didn’t continue after that.
She underwent a termination of that pregnancy on 19 October 2004, and, on a questionnaire which she completed at the clinic in relation to the termination, she noted that she had previously suffered from depression. We are also satisfied on the evidence that between early 2004 and November 2004, Ms Crawford moved out of her mother’s home where she was living and then changed accommodation on a number of occasions. Also, in the latter half of 2004, the party-plan business which Ms Crawford had been conducting came to an end. Although Ms Crawford consulted the psychologist, Ms Staunton, in mid-November 2004, she did not consult her general practitioner, Dr Willington, about these problems until February of 2005. When asked what caused her to see Dr Willington at that time, she said it was a phone call to an injury help line, and she had been advised to see her general practitioner and, for that reason, she made her appointment. It appears that injury help line gave information in relation to compensation claims. She agreed that she went to see Dr Willington on this occasion to provide support for her claim.
Ms Crawford also gave evidence, when she was being cross-examined, that it was only in retrospect that she formed the view that it was her employment that made her feel unwell. She said that she did not relate her illnesses to stress at work at the time she was at work, and that she had met someone socially in May 2005 who she believed was the person who had informed her that people often get illnesses like colds and flu as a result of being overly stressed.
Evidence was also given by Mr Vazako. He was an analyst working at the Authority and, for part of the time when Ms Crawford worked there, worked with her. He gave evidence that Ms Crawford’s role was basically to assist the analyst in coordinating the data, collection of data and having the data available for the analysts to undertake their task in completing monthly and other reports. He said that reports would go to their supervisors in advance, and he did not recall reports ever going directly to the Department of Defence. He said that:
I think there might have been, during those periods when the transition was occurring, that Jane was expected to assist probably at a higher level than what basically would be expected, or was, or occurred when there was an analyst in place.
Ms England also gave evidence. She said that up until about April of 2003 she found the Authority as a good working environment. However, after that time, she described it:
The most hideous place that I could have worked.
And:
It was just a toxic environment.
That’s at page 87 of the transcript of 16 October 2007. She also gave evidence that, in her opinion, Ms Crawford had been subject to exclusionary bullying, although, when questioned on this, she said that she guessed it was an opinion she formed at the time that Ms Crawford wasn’t being recognised. We have formed the opinion that Ms England’s evidence was influenced by her attitude to her workplace, and it appeared that she had personal issues with that workplace. The description which Ms Crawford gave of the workplace was not in the terms of which Ms England described it, and we approach Ms England’s evidence with considerable caution, particularly if there has not been some corroborating evidence.
Turning now to the evidence of the various health professionals, Ms Staunton, a psychologist, gave evidence. She said that she was first consulted by Ms Crawford on 15 November 2004 and, in fact, was satisfied that this was the first time that Ms Crawford sought professional help for the problems she said she was experiencing. Ms Staunton provided a report which is in evidence as exhibit A5. She had diagnosed Ms Crawford as suffering an adjustment disorder with mixed anxiety and depressed mood. She was of the opinion that there was a relationship between the depression and Ms Crawford having worked at the Defence Housing Authority.
At paragraph 12 of the report, which is exhibit A5:
There are several events listed by Jane as being contributors to her depression. They include no job description or guidance to assist her with the job; induction to DHA did not occur until nine months after she started; poor senior management practices, including unstable staffing in the relocation services agreement team; lack of training and guidance for report preparation; lack of acknowledgement and feedback; lack of professional guidance from senior staff, other than the APS6 who had moved to another position and assisted Jane out of business hours; isolation from colleagues as there was often only one other team member; notification of position being unexpectedly made redundant as of July 1, 2004; lack of support re move to a position in the Department of Education and Training.
Ms Staunton gave evidence that, at the first session, Ms Crawford talked about borrowing money from her grandparents to invest, the death of her grandmother, the possibility that she had been sexually abused when she was three years of age, and her personal relationships. Ms Staunton described her as emotionally low and totally confused. When asked in cross-examination, Ms Staunton said that she was not aware of any relationship which Ms Crawford had formed in about August of 2004. She also was unaware that Ms Crawford had undergone a termination of pregnancy just a couple of weeks prior to the consultation.
It was also put to Ms Staunton that Ms Crawford had been told by her supervisor, in relation to the business that she had been conducting, that she was going well and was improving in terms of performance. When asked whether that was consistent with her understanding, that is Ms Staunton’s understanding, of how the business was going, she replied, “No.” Ms Staunton agreed that it appeared that Ms Crawford had suffered a cyclical pattern of episodes of depression, but said that, in her work, that is Ms Staunton’s work, she focused on what had happened at the Defence Housing Authority. She did not do a lot of looking into those patterns or the incidents in any detail.
We are satisfied that Ms Staunton was, in fact, concentrating on the issues in relation to the work that Ms Crawford had been undertaking, and we do not criticise her for that, but it does indicate that she did not consider the broader situation.
Dr Lucas, a psychiatrist, gave evidence. He assessed Ms Crawford for the purpose of these proceedings and provided a report of 18 July 2006. It is exhibit A7. His diagnosis of Ms Crawford at the time was that she suffered an adjustment disorder with mixed anxiety and depression symptoms, and was of at least moderate severity, which arose because of her employment of the Defence Housing Authority. At page 113 of the transcript of 16 October 2007, the following was put to Dr Lucas:
Are you aware that in October of 2004 the relationship that I have described to you previously, in terms of the likelihood of being consistent with depression, broke up, and that the business was ceased, and that the termination of pregnancy occurred, and all of this within a few weeks of the applicant seeking assistance from Ms Staunton?
Dr Lucas replied:
Yes, but I was not aware of that until you told me, of course.
Dr Lucas agreed that the factors that had been described to him were possibly capable of causing a depressing reaction. He said that it depends on all of the circumstances of which he was aware at the time. He only knew the outline of them and that he could not, without having discussed with Ms Crawford, be definite as to the effect on his diagnosis. He agreed that possibly the history of Ms Crawford’s symptoms of depression did suggest a cyclical pattern. He said:
It does suggest a tendency to depression in stressful circumstances and relationship difficulties. Yes, it does suggest that is a tendency to react that way.
That’s at page 114 of the transcript. Dr Willington, Ms Crawford’s general practitioner, gave evidence. She provided a report of 1 August 2005 which is exhibit A8, and she told us that Ms Crawford first consulted her in her general practice in November of 1997. Dr Willington said that it is difficult to provide a specific diagnosis as she was not able to assess Ms Crawford during acute stages of her condition. She said that, in her opinion, the experiences of Ms Crawford in the workplace left her with significant symptoms of anxiety and mild depression, and that all the symptoms related to that experience. Dr Willington’s diagnosis of was adjustment disorder, and she explained this as Ms Crawford was unable to adjust suddenly to what she perceived as an extreme responsibility placed on her in her workplace.
Dr Willington gave evidence that, from her clinical notes kept in relation to Ms Crawford, that in August of 2001 Ms Crawford had consulted a colleague of Dr Willington’s in the practice inquiring about anti-depressants, and that, in November 2001, Ms Crawford had indicated to the colleague that she had found a good counsellor, Mr Male, and it is recorded that Ms Crawford was depressive, crying all the time, sleeping okay, eating poorly. It is also recorded that she was not able to concentrate and was given a certificate for two weeks.
It is also recorded in Dr Willington’s clinical notes that, in September of 1999, Ms Crawford felt unwell, was emotion and terrible. In 1999, Dr Willington recommended Ms Crawford see a psychologist in relation to sexual trauma issues. Dr Willington gave evidence that she was not aware that, in October of 2004, Ms Crawford had suffered a relationship break-up and a termination of her pregnancy. At page 124 of the transcript, it is recorded that Dr Willington was asked:
Would it be relevant to your diagnosis if you were made aware of an extensive history, or previous history, of difficulties?
She replied:
Well, I would have to have that – I would have to have that information in the context of a consultation, and I haven’t seen this patient since February 2006, so I really can’t make any assessment of how she is now, or what, you know, what the diagnosis might have been in the past. I can only tell you what I was able to conclude with the information that I had at the times when I saw her.
We turn, then, to the question of are we satisfied on the balance of probabilities that Ms Crawford’s employment contributed to her condition in a material degree. The Tribunal has been given guidance on this issue by Finn J in the Federal Court in the decision of Comcare v Sahu-Khan (2007) FCA 15. At paragraph 16 of that decision, Finn J, in relation to the interpretation of the words “in a material degree”, said:
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 section 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etcetera, 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, etcetera, in question ("the threshold evaluation");
(iii)whether this will be so in a given case will be a matter of fact and degree.
His Honour also referred to the Shorter Oxford English Dictionary definition of “material”, which he said:
…probably captures the essence of what the legislature was conveying. The meaning is:
In a material degree: substantially, considerably.
Applying this text, we are not satisfied that the contribution, if any, of Ms Crawford’s employment to her condition as being in a material degree. In other words, the evaluative threshold required by that phrase, we are not satisfied that it has been reached. In coming to this conclusion, we have considered Ms Crawford’s description of her work environment, her description of the events of 5 December 2003, which did not appear to be particularly troubling to her, the lack of reporting to her doctors prior to and after the events of 5 December 2003, and, in particular, later in that month, when she did not complain to her general practitioner of her condition, other than reporting a flu-type condition for the purposes of obtaining a certificate.
We also take into account that she did not seek help for the condition from which she said she was suffering until November 2004 when she consulted Ms Staunton. We also take into account that there are other events which may have caused her stress, in particular the relationship break-down in 2004, the termination of her pregnancy that year, the cessation of the business which she had started, the death of her grandmother, and other financial issues. We further take into account the episodes of depression prior to her employment by the Authority, particularly those associated with the break-down of relationships, and the reporting of depression from time to time to various medical practitioners. It appears to us that there has been established a cyclical nature of those episodes prior to her commencing employment at the Authority.
We have also taken into account the evidence of the medical practitioners and the psychologist. In evaluating that evidence, we have considered that those professionals were not fully aware of the significant history of Ms Crawford’s condition, and they agreed that there was a need for this additional material in making a proper and full diagnosis. We also take into account that, as Ms Staunton readily admitted, she was concentrating on employment issues rather than the whole picture. For those reasons, as I said, we are not satisfied that the evaluative threshold required in the definition of “injury” has been established.
The decision of the Tribunal, therefore, is that the reviewable decision of Comcare made 21 February 2006, which denied liability to pay compensation to Ms Crawford in respect of the claimed injury of the adjustment reaction with mixed emotional features, is affirmed.
END OF EXTRACT [10.14 am]
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