Day and Comcare (Compensation)

[2019] AATA 3323

Day and Comcare (Compensation) [2019] AATA 3323 (6 September 2019)

Division:GENERAL DIVISION

File Number(s):      2018/1764

Re:Jan Louise Day

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Dr Stewart Fenwick, Senior Member

Date:6 September 2019

Place:Melbourne

The Tribunal affirms the decision under review.

....................[sgd]...............................................

Dr Stewart Fenwick, Senior Member

Catchwords

COMPENSATION – Adjustment Disorder – whether the ailment is classified as an injury or a disease – ailment is a disease – whether the disease was contributed to, to a significant degree, by the Applicant’s employment – significant contribution established – whether reasonable administrative action exclusion applies – condition arose from reasonable administrative action undertaken reasonably – decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases
Bailey v Broadside [2017] FCAFC 219

Comcare v Martinez [2013] FCA 439
Lim v Comcare [2019] FCAFC 104

Prain v Comcare [2017] FCAFC 143

Secondary Materials

Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association (DSM-5)

REASONS FOR DECISION

Dr Stewart Fenwick, Senior Member

6 September 2019

BACKGROUND

1. Ms Day applied for a review of a decision by a delegate of the Chief Executive Officer of Comcare to affirm a determination dated 10 January 2018 denying liability for her claim for psychological injury suffered at work.  Her workplace was the Albury office of the Department of Human Services where Ms Day worked in a customer support role in the Child Support Agency.  Ms Day continues to work in this office, and at the time of her claim was an experienced team member of some eighteen years’ service.

2. The existence of a medical condition was not contested either in the assessment of her claim by Comcare, or at the hearing; although its nature and extent was the subject of evidence.  Notwithstanding the broad consensus as to Ms Day’s medical situation, some time was spent at the hearing dealing with her personal medical history.  This approach was driven in part by the legislative pathway and in part by the content of expert medical evidence. 

3. The primary area of dispute arose from Ms Day seeking to characterise certain specific incidents at work, and her manager’s approach more broadly, as bullying and/or harassment.  Her claim for compensation was rejected on the ground that the specific incidents constituted reasonable administrative action, and the claim of bullying was disputed.  There is a significant documentary record, particularly about these incidents, which were the subject of an internal workplace investigation. 

4. The incidents at her workplace arose after Ms Day’s service team was merged with another to form a new telephone service team.  Ms Day came under the supervision of a different team leader and, at around the same time, a new IT platform was trialled.  There are competing versions of one of the incidents, and her manager’s conduct, and a debate as to the proper scope of the claim. 

5. Ms Day represented herself before the Tribunal. Evidence was given at the hearing by her current and former work colleagues, Ms Day’s former team leader, and one medical witness. Comcare lodged documents under s 37 of the Administrative Appeals Tribunal Act 1975 (the T and ST documents).

   LEGISLATIVE FRAMEWORK

6. The Commonwealth’s liability for compensation for work-related conditions arises under    s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act), should an employee suffer an injury which results in death, incapacity for work, or impairment. 

7. Injury is defined in s 5A as:

   (1) …

   (a)   a disease suffered by an employee; or

   (b)   an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)   an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   (2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

   (a)   a reasonable appraisal of the employee’s performance;

   (b)   a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

   (c)   a reasonable suspension in respect of the employee’s employment;

   (d)   a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

   (e)   anything reasonably done in connection with an action mentioned in paragraph (a), (b), (c), or (d);

   (f)    anything reasonably done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

8. Disease is defined in s 5B as:

   (1)  …

   (a)    an ailment suffered by an employee; or

   (b)    an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)  the duration of the employment;

   (b)  the nature of, and particular tasks involved in, the employment;

   (c)  any predisposition of the employee to the ailment or aggravation;

   (d)  any activities of the employee not related to the employment;

   (e)  any other matters affecting the employee’s health.

   …

   (3)  In this Act:

   “significant degree” means a degree that is substantially more than material.

9. Ailment is defined in s 4 as meaning: ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.

10. A psychological condition can be considered to be either a mental injury (s 5A(1)(b)) or an aggravation thereof, or a disease, by way of being understood as an ailment (ss 4 and 5B(1)(a)), or an aggravation thereof.  However, to be considered a disease the ailment must have been contributed to, to a significant degree, by the employee’s employment.  If this threshold is met, or if the condition is considered an injury, then it is necessary to consider whether the exclusion of reasonable administrative action under s 5A applies. 

    ISSUES

11. The issues for consideration are:

    (1)Ms Day’s medical condition, its nature and extent;

    (2)its causal connection with events in the workplace, including the scope of the compensation claim; and

    (3)whether the exclusion of reasonable administrative action applies.

    CONDITION AND ITS NATURE AND EXTENT

12. Ms Day’s Worker’s Compensation Claim form, dated 8 November 2017 (T16, pp 93-99), cites ‘psychological injury’ with onset of symptoms/injury on 1 June 2017.  The form also narrates a series of other encounters at work relating to management conversations.  A report from her GP Dr Wettesinghe, dated 6 February 2018 (T37.1, pp 280-281), provides a diagnosis of ‘adjustment disorder’, and notes a consultation with Ms Day of 6 June 2017 arising from ‘work place bullying and stress’. 

13. Clinical notes from Ms Day’s GP consultations at the Elmwood Medical Centre were tendered in evidence (Exhibit R2).  Notes for the 6 June consultation record ‘Stress; work … stress at work … working with new system … unpleasant incident with team leader on Thursday last week’.  Notes of a consultation on 27 October 2017 refer to ‘work stress … having stressful time at work … her supervisor gives her troubles [sic]’.  Notes of an attendance on 1 December 2016 also describe ‘stress; work review … under stress at work – line manager difficult to deal with and others find her difficult too’.

14. Ms Day saw two specialists in December 2017, both of whom made diagnoses of adjustment disorder.  Consultant Psychiatrist Dr Kenny diagnosed ‘adjustment disorder with anxiety’ in a report to Comcare dated 18 December 2017 (T28.2, pp 224-232).  He reported the cause as being an incident in June 2017 ‘but basically she considers there has been micro-management and bullying and harassment by her team leader … culminating in this meeting which I think occurred toward the end of October 2017’.  Dr Kenny states that tension and conflict in the workplace are ‘the sole cause of her symptoms’ based on her perception of having been unfairly treated.

15. Associate Professor Carroll, also a Consultant Psychiatrist, provided a Fitness for Duty Assessment to the Department of Human Services, dated 29 December 2017 (ST4.5, pp 389-399).  In this assessment he diagnosed ‘adjustment disorder with mixed anxiety and depressed mood’.  Ms Day provided to A/Prof Carroll ‘an account of a strong perception of having been bullied for approximately a year by her current team leader, culminating in a number of specific incidents in 2017’.

16. Ms Day saw a further Consultant Psychiatrist, Associate Professor Varma via videoconference. In his report, dated 20 November 2018 (Exhibit R8), A/Prof Varma diagnosed adjustment disorder with depressed mood from alleged bullying and harassment arising in relation to events at work in 2017.  He describes the condition as an aggravation of a pre-existing condition, based on additional medical information evidencing treatment for ‘depression and other psychological conditions’ between 2013 and 2017. 

17. Both Dr Kenny and A/Prof Carroll report receiving from Ms Day, and through the material provided to them, a history of treatment for prior psychological conditions.  I address Ms Day’s prior medical history below.

18. Adjustment disorders are classifications found in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, (DSM-5) under Trauma- and Stressor- Related Disorders.  All three specialist opinions are consistent with the range of adjustment disorders it identifies, and the opinions of A/Prof Carroll and A/Prof Varma were given with direct reference to the DSM-5 classification system. 

19. According to the DSM-5, the essential feature of this condition is the presence of emotional or behavioural symptoms in response to an identifiable stressor which can be a single event, multiple stressors and/or ongoing stressors.  Diagnostic criteria also include that the condition is not merely an exacerbation of a pre-existing mental disorder; and that symptoms do not persist for more than six months following the termination of the stressor or its consequences.

20. A/Prof Varma gave evidence at the hearing.  When asked if he considered that her work had contributed to a significant degree to Ms Day’s condition, A/Prof Varma confirmed the opinion provided in his report.  In his view the condition ‘happened in her employment’ but was not caused to a significant degree by her work. 

    Prior medical history

21. There are several elements to Ms Day’s prior history with mental health conditions which are, in order of occurrence: a period of psychiatric treatment; a prior workplace compensation claim; and, ongoing GP treatment including with medication.

22. Ms Day reported in her consultation with A/Prof Carroll a three-week period of psychiatric in-patient treatment following self-admission for ‘burnout’ in the 1990’s.  She confirmed this in her evidence at the hearing, stating the cause as ‘personal care work’.

23. In her claim form, Ms Day reports experiencing a similar symptom, injury or illness ‘several years previously with another team leader’.  This appears to be a reference to a Claim for Worker’s Compensation, dated 24 August 2005 (T6, pp 52-66), for ‘work related stress/anxiety’.  GP notes from the Gardens Medical Group (Exhibit R1) include an entry for a consultation on 16 August 2005 in which ‘major depression’ was diagnosed: ‘the main reason she states is due to stress at work, her superior is very negative about her work and scrutinizing all aspects of her work’.

24. Dr Kenny in his report notes a history of prior psychological treatment and depression. A/Prof Varma notes a history of depression ‘around 10 years back’, and that Ms Day sought psychological help in the past.  He also notes prescription of anti-depressants by Ms Day’s GP.  The 2005 GP notes, referred to above, include the prescription of anti-depressants in 2005, 2007, 2008, and 2010. 

25. The GP notes from the Elmwood Medical Centre record the prescription of anti-depressants in 2013, 2016, and 2017.  The prescription of the anti-depressant Sertraline during 2013 does not appear to be related to work issues.  Sertraline was recommenced after a consultation on 2 May 2016.  The notes state: ‘stress at work ? since Jan 2016 … not dealing with things … would like to try anti-depressants again’. 

26. Ms Day’s dosage of Sertraline was doubled from 50mg to 100mg in June 2017.  Notes of a consultation on 13 September 2017 state: ‘weaned off anti-depressants … not on it for just under a month … work is better’.  A/Prof Varma gave evidence that 100mg is a ‘pretty good dose’, as 200mg is the maximum allowable dosage.  He was asked by the representative of the Respondent what the effect might be of coming off anti-depressants after the dosage was previously doubled. He stated that withdrawal symptoms were a possibility, as well as mood swings and irritability. 

    CONDUCT IN THE WORKPLACE

27. As foreshadowed above in the medical evidence, there are two specific incidents which form the core of this matter.  One was an exchange between Ms Day and her supervisor on 1 June 2017, and the second was a performance-related management meeting on 30 October 2017.

28. Ms Day’s 2017 claim form elaborates on the circumstances the incident on 1 June 2017.  She states her team leader asked her to get to work ‘in a very brusque manner’, which embarrassed and upset her, leading her to leave work.  She cites attempts in several follow up conversations to address this incident, and seeking an apology, including in a later meeting about an informal work improvement plan. 

29. Evidence about the event in June differs in one key aspect.  Ms Day gave evidence that her team leader raised her voice during the encounter. This was contradicted by other witnesses who stated that it was Ms Day who raised her voice.  Ms Day gave evidence that at the time of the exchange she was talking to an IT contractor about a real estate website, after having earlier sought his assistance with a technical issue.

30. The meeting on 30 October 2017 was called to discuss an informal work plan that Ms Day’s supervisor had proposed. This was one of several meetings that took place between Ms Day and her team leader, some including the attendance of support persons.  These include two meetings earlier in October at which the idea of an informal plan was raised.  The 30 October meeting ended prematurely because, rather than discuss the plan itself, the evidence was that Ms Day sought to address, instead, the incident of 1 June.  Her supervisor closed the meeting after twenty minutes, after Ms Day made observations about her supervisor’s management style.

31. Both written evidence and oral evidence at the hearing addressed the issues under discussion at the October meeting.  In summary, the meeting was held to discuss the informal work improvement plan, described in the team leader’s evidence as a support plan, in contrast to a formal work plan, which was known as a ‘back on track’ plan. 

32. This plan arose from a number of issues said to have arisen in relation to Ms Day’s work performance.  These issues included her capacity to complete set work tasks on the telephone team, including contributing to the overtime roster, her capacity to use a new IT platform being trialled at the time, and Ms Day’s leave history, particularly her use of unscheduled leave.  Her access to overtime was also to be cut, and Ms Day stated in evidence that this placed her under financial pressure.

33. Following the 30 October meeting Ms Day took an extended period of time off work, later lodging her claim for compensation.  In addition to this claim, Ms Day made a formal complaint to management in January 2018 about her treatment at work.  The investigation (ST26, pp 597-607) was conducted by a human resources manager and found that complaints of bullying and harassment were not made out.  The investigation focused in particular on the June and October incidents.

34. Ms Day gave evidence that, in addition to the incident in June and the October meeting, she had experienced on other occasions what she considered to be bullying behaviour by her team leader.  When asked in cross-examination to elaborate, she specified occurrences of staring, looking over her or being in close proximity, and an inordinate focus on minor details.  Other witnesses stated they did not observe such behaviour.   This conduct was also denied by the team leader.

35. Ms Day called as a witness a former work colleague, Ms Maskell.  Ms Maskell gave evidence that she worked in the same team as Ms Day, under the same team leader, after joining the Child Support Agency.  Ms Maskell stated that her work was hard but rewarding and that she found it difficult to work under the team leader.  She left the organisation in January 2017, and stated that she felt her new work environment was better managed. 

36. In answer to a question from the Tribunal, the team leader, Ms Day’s manager, confirmed that she voluntarily transferred to another team leader position in the same office, prior to Ms Day’s return to work in 2018.

    CONSIDERATION

37. Ms Day did not make a written or oral submission about the classification of her condition, in terms of the Act.  The Respondent’s representative submitted at the hearing that the condition was properly considered a disease.  The Respondent also conceded there had been an aggravation of the ailment, but it  further submitted that the evidence did not support a finding that Ms Day’s condition had been contributed to, to a significant degree, by her employment, as required by s 5B(1).  In the alternative,  the Respondent submitted that the relevant events at work amounted to reasonable administrative action, and so Ms Day’s condition was to be excluded under s 5A(1).

38. There is no dispute in the medical evidence that Ms Day suffered an adjustment disorder, albeit that its particular characteristics vary to some degree between the medical reports.  The particular issue that requires determination then is whether it should be characterised as a disease or an injury.  There is a good deal of legal authority including on the nature of psychological conditions, however in essence the task involves examining the evidence in order to determine the nature and incidents of the change which gave rise to the condition.[1]  The relative speed with which a condition arises, or has developed as a distinct and identifiable change, are also considered relevant, but not necessarily required, in cases of psychological conditions.[2]

    [1] Prain v Comcare [2017] FCAFC 143 at 76.

    [2] Bailey v Broadside [2017] FCAFC 219 at 115.

39. I understand the diagnosis of an adjustment disorder to involve the identification of a distinct psychological condition, caused by identifiable stressors, and being of relatively confined scope in terms of its duration.  I accept that Ms Day reported experiencing issues at work over a period of time, extending to perhaps twelve months.  Indeed, the ultimate origins of her issues in the workplace were the merger of two work teams, and coming under the supervision of a new team leader.  This is consistent with the diagnostic criteria, which encompasses ongoing stressors, as well as specific stressors. 

40. In summary, I accept that her experience overall in the workplace in the time leading up to her departure, and punctuated by the June and October incidents, was the cause of her condition.  I am therefore satisfied that Ms Day’s adjustment disorder is to be classified as a disease, because, whilst representing an identifiable change in her mental state, it emerged over a relatively long period of time. 

1. However, I must also be satisfied that Ms Day’s condition was contributed to, to a significant degree, by her employment.  Identifying factors leading to the diagnosis, as I have done, is subject to consideration of the factors specified in s 5B(2) that may be taken into account when examining this question.  There was significant attention devoted at the hearing to understanding Ms Day’s prior medical history.  There was also evidence given, including by Ms Day, as to her social activities, her performance at work in the context of other ailments, and activities external to work. 

2. I accept that the evidence as to Ms Day’s prior medical history clearly demonstrates a potential predisposition to mental health conditions.  She has experienced admission as an inpatient, had a long history of the use of prescription anti-depressants, and a prior compensation claim for work-related stress and anxiety.  However, I am not satisfied that this evidence is sufficient to displace a finding that Ms Day’s condition was contributed to, to a significant degree, by her employment. 

3. I place particular weight on the consistent diagnosis of adjustment disorder, stemming specifically from Ms Day’s perceptions of mistreatment or unfair treatment at work.  I do not consider A/Prof Varma’s opinion as to aggravation of an existing condition to alter the primary diagnosis of adjustment disorder.  As noted above, I understand the medical evidence as classifying an adjustment disorder as a being a distinct condition, albeit one that – in Ms Day’s case – also included elements of anxiety and depressed mood. 

4. In making this finding, I also take into account that the medical opinions were consistent in finding Ms Day’s condition would not improve through medication, although A/Prof Carroll stated that treatment with a psychologist would be beneficial. The medical evidence is consistent in that it is to the effect Ms Day’s symptoms would resolve given a change in the conditions at work, and when she met with A/Prof Varma, he observed that the condition was in remission.

5. Next, it is necessary to consider whether her disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.  That is, does the exclusion set out in s 5A arise?  This can be understood as a ‘but for’ test.[3]  The approach to determining whether the exclusion arises is to consider the facts and circumstances of the particular case.[4]

   [3] Lim v Comcare [2019] FCAFC 104 at 18.

   [4] Comcare v Martinez [2013] FCA 439 at 83.

6. It was submitted by the Respondent’s representative at the hearing that the claim should properly be confined to the circumstances set out in the claim form.  That is, to the June and October incidents.  Ms Day contended that her claim involved treatment amounting to bullying, its scope being wider than merely the two incidents.  If Ms Day’s contention as to a more widespread range of conduct is accepted, this might support a conclusion that her condition was a result of more than just conduct constituting reasonable administrative action.

7. While I have found, based on the medical diagnosis, that there were factors beyond the two specific incidents contributing to her condition, I do not consider that the evidence supports the wider allegations made by Ms Day.  The witnesses at the hearing did not substantiate the specific kinds of conduct alleged by Ms Day to constitute bullying and/or micromanagement.  While the internal workplace investigation focused on the two incidents, I note that it did not support the allegation of bullying or harassment.

8. Equally, accepting the medical evidence as to her adjustment disorder does not amount to an acceptance of these wider claims.  The medical opinions were based upon Ms Day’s reports about her issues in the workplace, but those opinions were expressed as relating to her perceptions or allegations, and were not based upon any specific independent finding.

9. I find that the specific actions and decisions in and around the June and October incidents can be considered administrative actions under s 5A(2).  I consider the specific incidents of June and October constituted reasonable appraisal of Ms Day’s performance.  I also accept the October meeting, and its antecedent meetings and discussions, constituted informal counselling, as they dealt with the development of an informal management plan.  Further, I accept that the management of Ms Day’s overtime and its withdrawal can be understood as being reasonable action in connection with a benefit.  I am also satisfied that, to the extent Ms Day’s ailment stemmed fundamentally from the consequences of a merger of teams commencing well before the October meeting, that this too was reasonable administrative action.

10. I am also satisfied that the purpose of these administrative actions was the legitimate pursuit of management oversight in Ms Day’s workplace, and that the actions were taken reasonably.  Ms Day admitted that she was not engaged in a work-related task at the time of the 1 June incident.  Furthermore, the 30 October meeting in particular was directed to the implementation of an informal plan to assist Ms Day with meeting certain expectations.  This itself indicates, I consider, that a reasonable approach was being taken to her personal work performance.  This meeting was also presaged in two earlier meetings.  I am also satisfied, that the various meetings in question related to specific performance issues in the context of the trial of a new IT system, in addition to the transition to a single team structure.

11. Accordingly, I find that while Ms Day’s ailment was contributed to, to a significant degree, by her employment, it was suffered as a result of reasonable administrative action taken reasonably.  Therefore, I also find Ms Day’s ailment to be excluded under s 5A.

    DECISION

12. Under s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review to reject the Applicant’s claim for compensation.

I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member

.....................[sgd]....................................

Associate

Dated: 6 September 2019   

Date of hearing:	4 & 5 July 2019
Applicant:	Self-Represented
Counsel for the Respondent:	Mr R Ternes
Solicitors for the Respondent:	Comcare