Dedes and Comcare
[2011] AATA 647
•16 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 647
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0975
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN DEDES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member K Bean Date16 September 2011
PlaceAdelaide
Decision The decision under review is affirmed.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
COMPENSATION – Commonwealth employee – Employee of Australian Valuation Office – Claims for adjustment disorder and aggravation of sleep apnoea – Adjustment disorder established – Whether significant contribution to condition by reasonable administrative action – Reasonable administrative action made significant contribution to development of condition – Condition not “injury” within the meaning of the SRC Act and not compensable – No significant contribution by employment to aggravation of sleep apnoea – Condition also not compensable – Decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7(4), 14
Comcare v Mooi (1996) 69 FCR 444
Hart v Comcare (2005) 145 FCR 29
Re Drenth and Comcare [2011] AATA 582
Dunstan v Comcare [2011] FCAFC 108
Comcare v Caldwell [2008] FCA 2015REASONS FOR DECISION
16 September 2011 Senior Member K Bean introduction
1. Between July 2004 and June 2010, the applicant, Mr Dedes, was employed by the Australian Valuation Office (AVO) within the Australian Taxation Office as a Valuer-in-Training (VIT). He was very pleased to get the job and initially enjoyed his work for the AVO. He hoped that in due course he would be able to become a fully qualified valuer and progress to higher paid positions within the AVO.
2. However under the terms of his employment, admission as an associate member of the Australian Property Institute (API) was required before a VIT could progress to a valuer classification attracting a higher salary. Mr Dedes applied for associate membership of the API in late 2005 but was unsuccessful.
3. At around the same time, changes were introduced to the work systems at the AVO which Mr Dedes found made his job more difficult. He also began to become frustrated with his lack of progression within the AVO and also began to feel that he was being overworked.
4. He subsequently appears to have become increasingly unhappy with aspects of his job and in 2007 and 2008 was unco-operative with the attempts of his then supervisor, Mr Hinkelthein, to have him enter into a performance development agreement (PDA). After he was advised by Mr Hinkelthein that he would be required to attend a PDA meeting, he went to see his general practitioner, Dr Yong, and reported that he felt stressed and overworked. Dr Yong certified him unfit for a work for one month. After that period he returned to work, however following some meetings relating to his performance and behaviour, he again attended on Dr Yong and Dr Yong formed the view that he was suffering from an adjustment disorder with anxiety.
5. In the period 2007-2008 Mr Dedes was also having increasing difficulty with his pre-existing condition of sleep apnoea, partly as a result of being required to start work later than he had previously done.
6. On 29 April 2009, Mr Dedes submitted a claim for compensation for “aggrivated [sic] sleep apnoea, stress, adjustment disorder with anxious mood (exacerbation of existing conditions)” which he claimed he first noticed on 1 January 2007 and for which he said he first sought medical treatment on 28 August 2008. In his claim he said that the cause of his condition was “forced work type and forced workloads on PC equipment”’[1].
[1] T102/326-345
7. By a determination dated 11 September 2009[2] the respondent rejected Mr Dedes’ claims for conditions which it described as “adjustment reaction with mixed emotional features and aggravation sleep apnoea”. Mr Dedes sought reconsideration of the determination on 6 October 2009[3]. However in a reviewable decision dated 4 March 2010 the respondent affirmed the determination[4].
[2] T200
[3] T222
[4] T304
8. On 10 March 2010, Mr Dedes sought review of the reconsideration decision rejecting his claim for compensation by this Tribunal, giving rise to these proceedings. On 17 June 2010, his employment with the AVO was terminated as a result of an involuntary redundancy.
the statutory framework
9. Before identifying the issues and discussing them in light of the evidence, I should first outline the statutory framework which is applicable to determination of Mr Dedes’ claim.
10. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) is the provision which governs “threshold” liability in respect of a particular condition and relevantly provides as follows:
“14(1) 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.”
11. As to what constitutes an “injury” for the purposes of the SRC Act, s 5A relevantly provides as follows:
“(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
...
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 action 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 reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable 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.”
12.The term “disease”’ is further defined by s 5B as follows:
“(1) In this Act:
disease means:
(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.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.”
13.These provisions apply to an injury sustained after 13 April 2007[5].
[5] Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 Schedule 1, Item 42.
the issues
14. It follows therefore that in broad terms, the question before me is whether the respondent is liable to pay compensation to Mr Dedes under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of the claimed injuries being “aggravated sleep apnoea, stress, adjustment disorder with anxious mood (exacerbation of existing conditions)”. That issue in turn requires consideration of the following questions:
(a)whether Mr Dedes suffers from or has suffered from the conditions the subject of his claim for compensation;
(b)in respect of any condition which I am satisfied Mr Dedes has suffered or is suffering from, whether such conditions constitute an “injury” or a “disease” within the meaning of the SRC Act;
(c)if so, whether such conditions give rise to incapacity for work or impairment; and
(d)whether any condition suffered by Mr Dedes is a result of “reasonable administrative action” taken in a reasonable manner in respect of Mr Dedes’ employment pursuant to s 5A of the SRC Act.
the evidence
15. At the hearing, oral evidence was given by Mr Dedes and by his supervisor during 2007 and 2008, Mr Hinkelthein. I propose to first discuss the evidence of Mr Dedes before turning to the evidence of Mr Hinkelthein, the documentary material and the medical evidence.
Mr Dedes
16. Mr Dedes gave detailed oral evidence at the hearing. As alluded to above, he said that sometime in 2005 there were some changes made to the work systems at the AVO which had a significant impact upon him. In particular, he referred to a project called “Xanadu” which he said involved some significant changes in work practices with a view to moving towards a “paperless” office. He said that before the implementation of “Xanadu”, when he was asked to assess the value of a property he would be given a hard copy file containing all of the relevant information. After “Xanadu” came into operation however, he was required to source more of this information on a computer “tablet” which made it harder for him to do his job, as this required “flicking” between screens and he could not view all of the information he needed simultaneously.
17. Mr Dedes also said that at the same time, he was given a very high volume of work and was under a great deal of pressure to get this work done quickly. He also said that in order to achieve the work volumes required of him he was required to “cut corners” in carrying out valuations, which made it much more difficult for him to obtain accreditation. In terms of the volume of valuations he was doing, by reference to figures kept by the AVO, he said that he did the following numbers of valuations in the years indicated:
2005/2006 – 1,448
2004/2005 – 1,117
2006/2007 – 1,1162007/2008 – 1,673
18. As a result of the kind of work he was given and the conditions under which he was expected to work, including the volume of work, he also said that he had begun to feel “belittled”, “used up”, “stressed” and that he “felt like a slave”. Eventually, he said he felt that he needed a rest and “felt like quitting” and at this point he went to consult his general practitioner, Dr Yong.
19. In addition, he said that when he applied for accreditation with the API in 2005, he received no help from the AVO. He also said that he had not been able to complete the kind of valuation which was required for accreditation, due to the type of work he was being asked to do by the AVO, which involved primarily “drive by” assessments of properties rather than full valuations involving inspections.
20. Mr Dedes also referred to AVO statistics indicating the number of valuations he was carrying out compared with other valuers and said that he was clearly carrying out far more valuations than other AVO valuers. For example, he pointed out that in 2007/2008 when he carried out 1,673 valuations, the next highest numbers of valuations were 1,241 and 1,205 respectively[6] .
[6] T7/17
21. In the context of outlining the issues which caused him stress during his work for the AVO, he also referred to the fact that from 2007 onwards, a requirement was introduced for VITs to attain accreditation with the API within two and a half years of commencement of their employment. He said that, because his employment had commenced earlier under different conditions, this requirement did not apply to him but he felt that he was treated as though the requirement did apply to him. He also referred to the fact that, in the course of a performance appraisal for the 2007/08 year, he was given an extremely low score, of 2, which disqualified him from achieving a bonus. He referred to the fact that, in addition to being given an overall score of 2 he was given a score of 0 for communication, which he said “aggravated” him. He said that because of the volume of valuations he was required to carry out, he was forced to do valuations at a rate equating to approximately thirty minutes per valuation. He said he had been hoping to obtain accreditation so that he could earn more money, but felt that he had been thwarted and not supported by the AVO in this endeavour.
22. In relation to the AVO performance management system, he referred to the fact that, prior to the 2006/2007 year, the system was such that he would not be given a score. Rather a manager would fly in from interstate, have a discussion with him, and, provided he was rated satisfactory, he would be paid a bonus. He said that he considered this to be a better and fairer system.
23. In relation to his sleep apnoea condition, Mr Dedes said that he had suffered from this in the past but did not disclose it to the AVO at the start of his employment as he was feeling “OK” when he started his AVO employment and did not see it as a problem. However he said that the condition later became a problem for him once he became stressed as a result of the pressures put on him by the AVO. He said that he began waking up extremely early, at 4:00 or 4:30am because of stress, and because he was waking up so early, he began to start work early as well. He said this pattern enabled him to cope, as he would start early, do his work and leave early and then have a sleep, which allowed him to manage his sleep apnoea. It became more of a problem however when he was later required to start work at 9:00am, as he would become drowsy in the afternoon due to a combination of waking up early and his sleep apnoea.
24. Under cross-examination, Mr Dedes acknowledged that during 2006 he was doing a graduate diploma full-time at the same time as working full-time for the AVO. He said he was undertaking the diploma through the University of South Australia and his lectures would start at 6:00pm. He said he did not do much study at home but would do his assignments and course work on weekends. He said there were no examinations and he was required to attend University four days per week in one semester and three days a week during the other semester. Asked whether he found this tiring, he said “no”. In fact he said that he did it to make him feel better and that it was very enjoyable.
25. He was also asked about the implications of the ‘“Xanadu”’ project, and explained that the computer “tablet” which he was required to use had about an A4 size screen and that he was expected to “flick” between screens to obtain the information that he required to carry out a valuation. For example, he would need to look at different screens to obtain the sales data, the street directory details and “sky shots” of the property. He said that some of the information he required consisted of numbers which he found difficult to hold in his head while he flicked to another screen. He said that after a while he resorted to printing out for himself some of the details he needed, so that he could carry out his assessments more quickly whilst he was on the road. However he said that he resented having to find extra time to print off this information whereas previously he had not needed to do this.
26. In relation to his figures for the 2007/2008 year, he explained that another valuer had been away from work for a few months that year having a major operation and that was part of the reason his figures were so high at that time. It was put to him that he did not complain about taking on this additional work and he said that he believed he had said something to the effect of “lackey boy will pick up the slack”. He also said that those supervising him knew what time he was starting work and how many valuations he was being required to do in a day. He also explained that each job he was given had a required time frame on it and it was implicit that he was required to meet that time frame. He was asked repeatedly whether he had communicated to any manager that his workload was too high, but consistently indicated that those above him knew his situation already and had access to the statistics. He said they also knew that he could only achieve what he was doing by “cutting corners”. He said that in August 2008 he felt like “chucking the job in”. He said those above him knew that he was not doing his valuations according to the API code of conduct. He also said that he had become very frustrated at being a “mass appraisal valuer” rather than being given a wider range of work.
27. In relation to his application for API accreditation, Mr Dedes repeated that he was given very little assistance with this by the AVO. He said that he needed to submit three “full speaking” or fully substantiated valuation reports and although a couple of valuers at the AVO had looked at the reports he had prepared, they were too busy to offer much input and the reports were still deficient when they were submitted. Asked how he felt about failing to achieve accreditation, he said that he was “disappointed, not stressed”. He confirmed that following his failure to gain accreditation he had spoken to the president of the API and had instigated a meeting with him at which he asked for clarification as to why he had been unsuccessful. Mr Dedes said that the president had found this offensive and had said something to him which he in turn found offensive. He said the matter did not ultimately go to court. He said the API had told him he could come back and apply again in six months’ time but he needed assistance and could not get the assistance he needed from the AVO.
28. Mr Dedes said he kept asking for help but “more work was all I got”. He said those above him just “let it run” and did not provide him with the assistance he needed to obtain accreditation. He confirmed that in the event, he did not apply for accreditation again as he needed three referee reports and he could not get anyone to be a referee for him.
29. Mr Dedes also acknowledged that following the exchanges he had had with the president of the API in the context of his previous application, he felt he would have difficulty succeeding in any future applications if they were assessed by that person. However he said “they would have used someone else”. He also acknowledged sending an email to his manager, Mr Hinkelthein, on 1 August 2007 in which he said the following:
“’without prejudice’ I would also like to convey to you that the current API President Alex Heath and I are not on speaking terms. He currently refuses to communicate to me on past matters I have brought up that he is obviously avoiding to tackle on behalf of an API/SA member as I. I am not impressed with this current and past attitude. He vetted my past API/CPV application in late 2005.”[7]
[7] T62/228
30. Asked as to whether he resented the “Xanadu” project, Mr Dedes acknowledged that this had made him feel a “slave” and had made him angry and stressed. As to the difficulties he was having in 2007, he indicated that he objected to both the volume and the type of work he was being given.
31. Asked about his sleep apnoea, Mr Dedes said this only became an issue when he was required to start at 9:00am. He said “I had a right to start at 6:00am”. Asked if he complained about the volume of work in 2007, he repeated that those above him knew about this, that they knew he was “stressed and aggravated” and “any good manager would have known what the numbers were”.
32. Asked about a record made by Mr Hinkelthein of a meeting between he and Mr Dedes on 30 July 2007, Mr Dedes indicated that he did not dispute the record made by Mr Hinkelthein[8] and acknowledged that he may have said that he was “happy doing what he is doing he just wants to be paid more”. However when it was put to him that at that point he was not interested in accreditation but simply wanted to be paid more, Mr Dedes refuted this.
[8] T62/228
33. Asked about the formulation of his PDA, Mr Dedes confirmed that he was resistant to his PDA including a goal that he become a Certified Practicing Valuer (CPV) within two years as he did not want a “two year limit to get my CPV”. He was also concerned about including this because it was something he had “no control over”. He confirmed that he wanted to be trained toward achieving accreditation, but did not want any time limit for this. He also said that, in making a further application for accreditation, he wanted to use the same reports he had submitted previously, and said that he “had a right to use the three existing reports, updated”.
34. Mr Dedes also confirmed that he had told Mr Hinkelthein that he would only prepare “full speaking” reports relating to properties in the suburb where he lived or the adjoining suburb[9] and that he was only prepared to sign a “generalised PDA”.
[9] T62/230
35. Mr Dedes also acknowledged that three sample full speaking valuation reports were supplied to him by Mr Hinkelthein on 13 February 2008[10]. He also acknowledged that Mr Hinkelthein provided him with the opportunity to assess a further two properties for a full speaking report on 21 February 2008[11] and that he had said that he did not consider these to be appropriate as they were “a long way away”. He also confirmed that he had told Mr Hinkelthein that he considered that it would be easier for him to update the three reports he already had. Mr Dedes also said that the pressure he was under in relation to signing a PDA was effectively a “trigger” for the stress he had been under as a result of his workload. He said it was that stress which resulted in him taking leave in August 2008 and he said he took time off to “protect myself” and consulted Dr Yong. He also said that he had spoken in a “heated and agitated” manner to Dr Yong.
[10] T62/231
[11] T62/231
36. Mr Dedes confirmed that he had had a total of eight weeks off after consulting Dr Yong on the first occasion and said that he felt better after this period and returned to work. He said he did not attend upon Dr Yong again before returning to work. He acknowledged that he took another four weeks leave after being “served” with the PDA which contained a rating of 2 and also said that he regarded this document as a form of bullying. He also confirmed that prior to him taking that leave a further meeting took place on 16 October 2008 which was heated and that he was upset at that meeting. He agreed that he went to see Dr Yong again on 16 October 2008 as he was upset after this meeting.
37. Mr Dedes also confirmed that Dr Yong certified him unfit for work from 17 October 2008 to 16 December 2008. When asked whether he went back to Dr Yong to be reviewed, he said he had not done so to his recollection and nor was he prescribed any medication or any other treatments.
38. Mr Dedes confirmed that his main concern throughout his employment with the AVO was that he had too much work. He also said the best evidence of this was the figures for the 2007/2008 financial year indicating that he did 1,600 valuations that year. He also acknowledged however that he did not accrue or take much “flex time” and he said valuers were encouraged not to take flex time.
Mr Hinkelthein
39. Mr Hinkelthein was appointed Acting Managing Valuer, Central, for the AVO on 30 July 2007 and at the same time became Mr Dedes’ manager. He provided a statement[12] to the Tribunal and also gave oral evidence.
[12] Exhibit 2
40. In his statement, Mr Hinkelthein explained that the AVO abides by the industry standard in relation to its valuers, which requires accreditation by and membership of the API. He said that a valuer needs to be a CPV to advance from a VIT position. He also said that “without that accreditation, a VIT cannot carry out certain types of work nor work independently”.
41. Mr Hinkelthein confirmed that whilst it was not a condition of his employment when Mr Dedes commenced at the AVO, the duty statement for a VIT was subsequently amended to include a requirement that a VIT obtain CPV qualification within two years of graduation. He also said:
“Because Mr Dedes remained a VIT he could only do work such as standard first request asset test evaluation work and not work for which the API standards require non-CPV members to be accompanied and to act under supervision.
Mr Dedes wanted to be paid more for the work that he was doing but the problem was that he needed to progress to CPV level for that to occur. He also claimed that he was overworked but so far as I am aware, he worked standard hours and was getting the required work done within those hours.”
42.Mr Hinkelthein went on to say in his statement :
“Because AVO was concerned about the extent of time Mr Dedes was remaining at the VIT level, the issues surrounding his progression to his CPV status formed part of his performance development agreement (PDA) discussions and documentation in 2008. A draft performance improvement plan was developed for the period from 16 October 2008 to 7 November 2008. That plan included completion of the reports and documentation required for API accreditation and that Mr Dedes would not be given a case less workload over the relevant period so that he could concentrate solely on the evaluation exercise and the PDA.”
43. In his oral evidence, Mr Hinkelthein confirmed that during the time that he supervised him, Mr Dedes was completing his work in a timely manner and was in fact very productive, although he indicated that there had been some concerns with the quality of his work. However he said that Mr Dedes’ work met the minimum standard more often than not.
44. As to whether Mr Dedes ever complained to him about the volume of his work, Mr Hinkelthein indicated that he had not. He said that Mr Dedes had pointed out to him that he should be paid more having regard to the volume of work he was doing, but did not complain about the volume of work per se. As to whether he was aware that Mr Dedes was stressed due to his workload, Mr Hinkelthein indicated that he had not been aware of this until Mr Dedes’ general practitioner Dr Yong became involved. He said that if this had been a problem and had come to his attention, he would have reduced Mr Dedes’ workload. He also said that from his point of view PDA discussions were the ideal time to raise issues such as this.
45. In relation to Mr Dedes’ accreditation, Mr Hinkelthein said that he was aware that Mr Dedes felt he should gain accreditation, but said that at the time he became Mr Dedes’ supervisor he did not have enough information to assess whether Mr Dedes had the required skills and competency to obtain accreditation. He therefore set about seeking to have Mr Dedes complete a “full speaking” valuation report so that he could see what level of competency Mr Dedes was at. He also allocated time for Mr Dedes to complete this report. However he said that Mr Dedes’ general response to this appeared to be one of offence and he appeared to be upset that the property selected for him to complete a full speaking report on was outside the area he was familiar with.
46. Mr Hinkelthein said he was not supportive of Mr Dedes submitting the three reports he had used previously to the API for accreditation, given these had been the basis of his previously unsuccessful application. He was also concerned that those reports related to work Mr Dedes had done prior to his AVO employment. He expressed the view that if Mr Dedes had reapplied for accreditation based on reports done prior to 2004, it would “look bizarre” that he had not presented any reports from his current employment. He said that he had also communicated to Mr Dedes that he would write a referee report for him to be submitted with his application to the API, however he would not indicate in that report that he recommended Mr Dedes for accreditation unless Mr Dedes had demonstrated the relevant competencies to him.
47. In relation to the rating of 2 which he had allocated to Mr Dedes as his assessment for the year 2007/2008, Mr Hinkelthein explained that this was given for a range of reasons. These included behaviour that was inconsistent with the Australian Public Service Code of Conduct, such as questioning authority and lack of consideration for other staff as well as lack of engagement with training.
48. Mr Hinkelthein acknowledged that in the year when Mr Dedes completed 1,673 valuations, he did have a high workload. However he said this was not as high relative to others as it appeared, given that others were doing more complex work. He confirmed that Mr Dedes had never approached him to complain about stress in connection with his workload and said that he did not observe any other indications that Mr Dedes was stressed or his workload was too high. For example, he said that Mr Dedes would take flex days and did not work extended hours.
49. Under cross-examination, Mr Hinkelthein confirmed that in order to achieve accreditation, it was necessary for a valuer to have two years post graduate experience, three references from API members, submit three “full speaking” valuation reports and undergo a viva voce examination. He said that it was desirable that the full speaking evaluation reports demonstrate the valuer’s competency and although the guidelines did not specify what segments of the market the reports must relate to, a mix would be best calculated to result in accreditation.
50. Mr Hinkelthein also referred in his evidence to a document he had prepared in December 2008, setting out in some detail his knowledge of and involvement with Mr Dedes’ employment from the commencement of that employment on 1 July 2004. A copy of that document is before the Tribunal[13] and I propose to refer to it in some detail as I consider that it constitutes a valuable and illuminating contemporaneous record of some of the key issues and events relevant to this matter. I consider it to be of particular relevance because of the light which it sheds upon the events leading up to Mr Dedes seeking medical assistance from Dr Yong.
[13] Exhibit 2, annexure ‘SH1’
51. The briefing records the following for 30 July 2007, being the date when Mr Hinkelthein became Mr Dedes’ manager:
“Stephen Hinkelthein (SH) is appointed as acting Manager Valuer for Central and John’s manager. He is acutely aware of John’s situation and is concerned about John’s lack of progress to a[n] AAPI-CPV. His manager explains to John he is in a VIT position and as the name implies he is to be trained to AAPI-CPV. It also explained to John that progression needs to occur so that [he] can better support the organisation and undertake the full diversified workload of a qualified valuer. John’s position is that he is happy doing what he is doing he just wants to be paid more.”
52. The briefing also includes a record of a meeting which took place on 30 October 2007, in which Mr Hinkelthein recorded that he had told Mr Dedes that he wanted to get his professional development “back on track” and assist him in gaining his full professional status. Mr Hinkelthein also records explaining to Mr Dedes that he needed exposure to Mr Dedes’ work, including preparation, on-site inspection and report writing for a variety of property classes. He also suggested that Mr Dedes prepare three new reports and explained to him that he wanted to “structure his training and development through the PDA processes, including a commitment to API status”.
53. The briefing also includes a record of a meeting on 6 February 2008, at which the goal of API accreditation and how this was to be achieved was discussed. It was apparently discussed at this meeting that Mr Dedes was to identify a residential property by 15 February 2008 with the AVO to discuss the process with him and provide templates and examples of reports to him by 22 February 2008. Mr Dedes was then to undertake an inspection and write the first draft of a report by a date to be determined by him. It was also proposed that Mr Hinkelthein would provide feedback within two weeks of provision of the draft from Mr Dedes. However Mr Dedes then apparently indicated that he “didn’t want these specific details in his PDA”.
57. As noted above, Mr Dedes subsequently advised Mr Hinkelthein, on 7 February 2008, that he would only complete full speaking reports for properties in the suburb he lived in or the adjoining suburb. According to the briefing, Mr Hinkelthein explained that this was not what was being looked for and that it would not demonstrate professional confidence or competency.
58. On 12 February 2008, the briefing records that Mr Hinkelthein identified a property for Mr Dedes to carry out a full inspection on with Mr Hinkelthein. However Mr Dedes refused to do this and stated that he would “only sign a generalised PDA”. Mr Hinkelthein stated in an email as follows:
“He requires that I furnish him with several copies of completed reports under the new AVO template, said this is not possible as it is the format is too new, but the principles of a full speaking report remain the same. Basically I am under the impression that John wants me to write the full report for him, I would but he states that he is much further progressed in his training. He presented poor logic stating he is ready willing and able to complete Centrelink objection reports, but not full speaking. I explained that he needs to be able to produce full reports to represent the AVO in the Tribunal; therefore he is not ready and able to complete Centrelink objections unassisted.”
59. The briefing records that on 13 February 2008, examples of three full speaking valuation reports were provided to Mr Dedes, but on 14 February 2008 Mr Dedes returned two of these as “they are not what I am looking for or appropriate for a Residential based Full/VIVA application”.
60. On 21 February 2008, the briefing records that Mr Hinkelthein again presented Mr Dedes with the opportunity to assess a further two properties to complete a full report, however Mr Dedes again refused these as he considered them not to be appropriate. Mr Hinkelthein stated in an email of that date:
“I am now at a loss on how to proceed further; I have now offered John two Centrelink objections to conduct under my supervision both of which have been rejected. They are properties at Bellevue Heights, and Modbury, both of a simple residential nature, being detached dwellings on standard allotments.
John until I can work through a valuation with you from beginning to end (including onsite inspection) I cannot make an informed judgment on your professional practices and competencies. As I mentioned at the meeting, and I know you don’t agree, the VIVA process requires you to submit 3 reports, but neither the AVO nor the API would find it acceptable that they are the only 3 reports that you have produced. They are supposed to be representative of your work, not the only reports you have written.”
61. The briefing also records that on 22 February 2008, Mr Dedes replied to Mr Hinkelthein’s email as follows:
“I do not have to prove to you any further this issue. Your tact of me proving to you if I can do them is in my professional opinion a form of ‘bullying’. My sincere ask is to lay off.”
62.The briefing also records that on 21 July 2008:
“John ask for private meeting with SH, apologise for behaviour on the 5/3/08 then went on and said he would only sign a general PDA with no specifics and then said in a threatening tone of voice that if a PDA review didn’t give him a favourable outcome he would withdraw his services and take action. John is acutely aware that he is at risk of being rated unsatisfactory and what AVO is requiring of him. This is the reason for his unacceptable aggressive behaviour.”
63. The briefing also records part of the content of an email forwarded from Mr Hinkelthein to Mr Dedes on 27 August 2008 as follows:
“John I have been open and transparent with you in respect of your PDA and I re-advise you again that I am trying to organise a PDA meeting with you and Anne Lowe late next week.
You have had very lengthy discussions with me, Anne Lowe, Steve Vesperman and Michael Gaffney on the issue of your PDA. John you are advised that these previous discussions will form a large part of your PDA review for 07/08. In these meeting[s] it was communicated very clearly senior management expectations.
You have stated consistently and repeatedly that you will only sign a generic PDA document, this has been noted. But I remind you that all PDA’s are tailored to suit each individual.
The AVO takes very seriously your concerns, and I always treat you with courtesy and respect. John I have not ‘thrown’ anything at you and your assertions are of a serious nature and will be addressed at the PDA meeting.”
64. The briefing also records that on 28 August 2008, Mr Dedes sent an email stating that he was taking approximately 4.5 weeks unplanned sick leave which would extend to the commencement of some planned recreation leave and that he might not return to work until 7 October 2008. It records the content of a medical certificate provided by him and states “John has given no indications of health issues prior to this, and gives no indication of the nature of the condition and subsequently his fitness to work”.
65. The briefing also records that Mr Dedes returned to work on 7 October 2009 and was advised of a PDA meeting on 8 October 2008. The briefing records the following in relation to that meeting on the subsequent day:
“A brief PDA meeting occur with John 8/10/08, Sue Tomlinson was also in attendance. The purpose of the meeting was to complete John’s PDA review for 07/08 and to progress follow-on actions. As directed and advised the AVO has written a PDA for John.
John asked directly what his rating was, it was stated he has been rated 2 - Borderline/entry. On hearing this John complained about the rating, did not participate in any further discussion, did not want an explanation and walked out of the meeting. He was given a hard copy of the PDA and accompanying supporting documentation.
John was very agitated with this process and was therefore offered the opportunity to go home for the rest of the day to consider his situation, he accepted the offer. He was also informed that until his PDA process is progressed further he will be allocated his ‘normal’ work, John agreed with this”
66. The briefing also records extracts from an email sent by Mr Dedes on the following day, 9 October 2008:
“Without prejudice and disrespect to any person or party in this matter(s).
Also using the ‘Whistle-blowers’ section of the APS Act/section.
For the record I have not agreed on any part of the ‘farce’ of a PDA I have been shoved with yesterday.
As a human being with Civil Rights that is not how a loyal worker should be treated full stop.
I have asked via Carlo Kings desk a review process for this PDA ASAP.
As a gentleman I give the AVO and you a chance to rescind this (PDA) ASAP because there are so many untruths in it.
That are very easily proven wrong.
And this situation could become a huge embarrassment for the line Managers of the day and also the ATO, and maybe the Government of the day.
My kosher concerns conveyed to the
org via various line managers and ignored over a very long period of time, do not show I have been treated fairly over a long period of time.
In fact the PDA yesterday has been tried to be served illegally to me.
I am asking for special needs help from the org to supply me with the job fully printed on paper otherwise it is continually effecting me and my wellbeing.
I also suggest to the org the work should be ASAP given jobs in hard copy prepared by office staff.
If the org is not able to do this ASAP? Then I would be seeking medical leave ASAP.
I therefore forward an official OH&S complaint via your desk Stephen to action ASAP about how I/we are forced to practice in over a long period of time eg. flicking screens to gather information before we try start a job.”
67. The briefing also records that on 9 October 2008 Mr Dedes put in an email claim to the acting General Manager for back pay, claiming he was working at a higher level than he was being paid for.
68. The briefing also records some extracts from the minutes of a meeting which occurred on 16 October 2008 and which was attended by Mr Dedes. The purpose of that meeting was partly to discuss a Performance Improvement Plan which had been prepared for Mr Dedes in light of his PDA rating of 2, equating to “borderline/entry”. The minutes record that Mr Dedes spent a lot of time challenging the PDA rating and that:
“John’s behaviour was inappropriate - he was very disrespectful, he raised his voice, used aggressive body language and gestures (table hitting), accused me of lying, fabrications of truth, collusion with the other senior managers and finally threats that the workplace would be unpleasant for me if I didn’t change the rating to satisfactory.”
69. The briefing also contains extracts of an email sent by Mr Dedes later the same day including the following:
“My filing cabinet and draws I have the keys. The org is welcome to open them up to access jobs hand printed out and also Smartval documentation if needed?
Any communications sent to me will only be received in this period by hard mail and read on the weekend of Saturday 15/11/2008 & Sunday 15/11/2008 inclusive. If all is well? I plan to return back to work on Monday 17/11/2008. From 17/10/2008 to 16/10/2008 I am taking extensive rest and recouperation and will not be at home ... most of this period, I will be on walkabout around the place recouperating.
My personal mobile will not be in use, in fact it does not work at present and I do not plan to read emails at all. In fact I am not on line at home anymore.
For me to read emails I have to go somewhere else away from home to do so at a cost.
Also the log of bona fide claims I have sent to Carlo’s desk to action I would expect to have been actioned in this period, many with outcomes.
Especially the PDA Appeal.
If more evidence is needed for my PDA appeal and others? I am happy to send by hard mail or give in person after the 17/11/2008.”
The non-medical documentary material
70. I propose to first discuss the relevant aspects of the non-medical documentary evidence before me, before proceeding to the medical evidence.
71. The relevant documents before me include Mr Dedes’ claim for workers’ compensation, in which he stated that he had first noticed he was injured on 1 January 2007 and that he first sought medical treatment on 28 August 2008 from Dr Yong[14]. As to what he was doing when he contracted his illness he stated “Conducting my forced work type and forced workloads on P.C. equipment”[15] and as to what made him ill, he stated “The way we are forced to do our work with very high workloads”[16]. As to who was responsible for his illness he stated “ATO systems and workloads force”[17].
[14] T102/329
[15] T102/331
[16] T102/331
[17] T102/332
72. The documentation also relevantly includes some contemporaneous communications from Mr Dedes reflecting his state of mind at the relevant time. For example, on 17 May 2007, he sent an email to those senior to him in relation to aspects of the Xanadu changes as follows:
“Here in Adelaide this on & off Edoc and Eval situation is getting a bit frustrating and tedious.
I actually quite like the paperless median, and also various aspects of using Edoc and Eval, however the general moral and consensus on the shop floor in Adelaide is not the same with this continual IT problems with it. Some do not use it.
I suggest a total revue [sic] of Edoc & Eval and VOIS and how can we move forward as a Project? I am happy to give input or be part of the Project Team. The bottom line it is eating into productivity and also making us do double or triple work eg. for a mass job doing it on paper as a contingency if things break down? Which they often do, then putting it in Eval, Eval is not working then forced to conclude in VOIS, then because of this work done as a back up done on paper needs to be scanned.”[18]
[18] ST39/201
73. In a further email on 29 June 2007, he also stated as follows:
“The continual fluctuation of Centrelink work. It has been happening for 3 years. Always the same, up and down. Go faster go slow. And on top of that PMDA’s connected to this up and down work. It also takes a weathered mainframe to go fast go slow, too much work not enough work, need to finish the work within a certain timeframe etc. I have learnt to cope with it, and in general enjoy the work, but again the reward is low.”[19]
[19] ST58/314
74. On 19 December 2007, Mr Dedes wrote to the general manager of the AVO, Mr Steve Vesperman, making a claim for “Discrimination, Harassment and Equal Opportunity” against the AVO and claiming that he had been “Intimidated by the suppressive bully style culture, bully management style and the suppressive language used on the shop floor since the beginning my employment backdated from 1 July 2004”[20].
[20] ST84/377
75. The documentary evidence also confirms that during the period 2004/2005 to 24 December 2008, Mr Dedes was carrying out a high number of valuations compared with other valuers. The relevant figures are set out in the table below[21]:
[21] Taken from T7/19
Valuers
Adelaide AVO1/7/2008 to
24/12/20082007/2008 2006/2007 2005/2006 2004/2005 John Dedes 515 1,673 1,116 1,448 1,117 481 837 1,006 891 0 272 692 418 370 334 478 907 488 0 0 536 1,205 923 1,272 1,069 44 455 807 1,123 785 591 1,241 907 560 379 757 283 260 201 284 631 189 71 426 71 0 0 1 3 0 0 138 629 41 Note: Names of other valuers deleted
76. The respondent also tendered a “Schedule of Times Worked” and a “Chart of Times Worked”, both relating to the hours worked by Mr Dedes between 1 July 2004 and 26 June 2009[22]. In summary these documents indicate that for each week throughout that period, Mr Dedes worked either his required hours of 7.5 hours per day, or just below or just above these hours. In other words, he did not work significantly in excess of his required hours at any time during that period.
[22] Exhibit 4
The medical evidence
77. In considering the medical evidence before me, I propose to begin with the records of Dr Yong, before proceeding to the other medical evidence. I also intend to discuss first the material directed to Mr Dedes’ psychological health, before addressing that directed to his sleep apnoea condition.
Dr Yong
78. Of particular relevance are the contemporaneous notes made by Dr Yong. These confirm that Mr Dedes consulted Dr Yong late in the afternoon of 28 August 2008. Dr Yong recorded the following:
“Work for ATO as property valuer.
Large volume of work
Unable to cope
Dreads going to work
Withdrawn from social activities
Disturbed sleep
? adjustment disorder
Counselled”[23]
[23] ST9/37
The notes also confirm that as a result of this consultation Dr Yong issued a medical certificate from 28 August 2008 to 28 September 2008.
79. The notes also confirm that Mr Dedes next consulted Dr Yong on 16 October 2008 when Dr Yong recorded the following:
“Still having problems at work
Start work early 6:30am finish by 2pm
2 still having work issues
Too much work
Not able to cope with volume of work
Over 2 years ago changed to paperless system which created more work in downloading and collection of relevant information and data
Loss of concentration
Irritable
Drinking a little more to unwind
Socially isolated
Adjustment disorder with anxiety”[24]
[24] ST9/36
The notes also confirm that following this consultation Dr Yong issued a medical certificate for 17 October 2008 to 16 November 2008.
80. These records also indicate that Mr Dedes consulted Dr Yong again on 13 November 2008, when Dr Yong recorded that Mr Dedes “wants to go back to work” and that he was “ less anxious”.
81. It appears that Mr Dedes also consulted a Dr Rasheed from the same practice on 5 February 2009, who recorded that he was suffering from “work related stress”’[25]. Dr Rasheed also saw Mr Dedes again on 25 March 2009 and recorded that Mr Dedes was suffering from “stress at work, legal issues regarding his ability to work”[26].
[25] ST9/35
[26] ST9/35
82. On 10 June 2009, Dr Yong recorded “anxiety symptoms same”[27] and on 12 October 2009 Dr Yong recorded “work related stress” and “not offered alternative duties”. Under the heading “history notes” Dr Yong also recorded “2adjustment disorder with anxiety, conflict at work”[28].
[27] ST9/34
[28] ST9/33
83. Dr Yong also issued Centrelink medical certificates indicating that Mr Dedes was incapacitated by reason of an “adjustment disorder with anxious mood” together with “sleep apnoea” between 30 March 2009 and 30 April 2009, 29 April 2009 and 29 June 2009, 27 June 2009 and 30 September 2009 and 1 October 2009 to 1 January 2010[29].
[29] ST9/41-44
84. However in a Centrelink medical certificate completed on 17 December 2009, Dr Yong referred to Mr Dedes’ sleep apnoea problem but did not list any other medical problem[30]. Similarly, in a further certificate dated 12 January 2010, Dr Yong did not list any other condition apart from sleep apnoea which impacted on Mr Dedes capacity for work or study[31].
[30] ST9/45
[31] ST9/46
Dr Blakemore
85. I have also had the benefit of evidence from Dr Blakemore, psychiatrist, who prepared two reports[32] each dated 5 August 2009 and also gave oral evidence at the hearing. One of the reports he prepared was directed to compensation issues and the other to rehabilitation and occupational health and safety issues.
[32] T180/463
86. In his report relating to compensation issues, Dr Blakemore indicated that, at the time he saw him on 5 August 2009, Mr Dedes was not suffering from any psychiatric condition. In his report directed to occupational health issues[33], he stated that he found that Mr Dedes was fit for duty and that while he was “somewhat stressed, and there are times of depression, he is not now suffering any psychiatric illness impacting on his capacity to return to work and/or undertake a rehabilitation programme”. Dr Blakemore went on to state:
[33] T180/470
“Mr Dedes, as above, has expressed his disappointment that he is not exposed to a wider range of valuation work in the course of his ordinary employment, and it would help him emotionally if this were possible. He is not actually incapacitated, however, for any of his ordinary work.
…
Apart from the disappointment abovementioned, Mr Dedes explained that he loves his work, and there do not appear to be any motivational or attitudinal factors impacting on his ability to undertake his pre-injury duties.”[34]
[34] T180/474
87. In his oral evidence, Dr Blakemore confirmed that he had seen the patient notes made by Dr Yong in which Dr Yong diagnosed Mr Dedes as suffering from an “adjustment disorder with anxiety”. Dr Blakemore said that such a diagnosis could potentially be given on the basis of one interview, so long as a sufficient history was obtained. He also said that, if a medical practitioner made such a diagnosis, they would generally provide some type of medication and would also usually wish to review the patient before discharge.
88. Dr Blakemore said that in providing his history Mr Dedes had preferred not to speak about his personal life which was unusual and made it more difficult to assess him. However he thought that Mr Dedes presented as being very “intact” and was able to maintain his composure when speaking of events relating to his work. He also agreed that Dr Yong would have been in a better position to assess whether Mr Dedes was suffering from a psychiatric illness at the time he presented to Dr Yong, in late 2008.
Professor Kalucy
89. The documentation also includes a report prepared by Professor Kalucy, psychiatrist, dated 3 September 2009 and based upon an examination on 7 August 2009. Professor Kalucy stated in that report that he had found the assessment of Mr Dedes particularly difficult as Mr Dedes was preoccupied with what he saw as bad treatment from his employer and was also unwilling to discuss any aspect of his personal life or personal relationships “except in the most concrete manner”[35].
[35] T193/491
90. Mr Dedes apparently complained to Professor Kalucy about a number of aspects of his employment, including the AVO office moving to Marion from the city, and the “Xanadu” system of recording information. Professor Kalucy recorded that “he told me that he felt overworked and started complaining in 2005. His notion of the amount of work that he does was that he was grossly overworked and that he did something like 1600 evaluations per year”. Mr Dedes also complained to Professor Kalucy that he was not exposed to a sufficient range of work to allow him to obtain accreditation. Mr Dedes also told Professor Kalucy that “in about August 2008 he took leave because he was feeling devalued”[36]. Professor Kalucy also reported that Mr Dedes “was very bitter about the fact that he was rated unsatisfactory in spite of doing 1600 jobs in the last 12 months, which he said was more than anyone else had done”.
91. Professor Kalucy reported that Mr Dedes saw himself as being trapped because he had not been provided with a broad enough range of work to get accreditation[37]. In relation to the history he obtained from Mr Dedes, Professor Kalucy stated as follows:
“I have given an outline of the history provided and obtained during the consultation. As you will see, it is grossly inadequate and allows pretty much for nothing more than a conclusion that there is no clear evidence of a psychiatric disorder, although there is a clear evidence of stress and disordered thinking.”[38]
92.Professor Kalucy also stated:
“I could not conclude that he had any psychiatric condition in DSM-IV terms. The information provided was simply not adequate to make a specific psychiatric diagnosis. This appeared to be a conscious decision on his part.
…
He remains chronically very dissatisfied and totally pre-occupied with what has happened to him in his workplace, but I was unable to make a diagnosis of a work related psychiatric condition, although it is quite possible that he is unwell.”[39]
[36] T193/492
[37] T193/492
[38] T193/495
[39] T193/495
Dr Ng
93. The documentation also includes two reports of Dr Ng, Occupational Medical Practitioner, dated 10 and 30 April 2010[40].
[40] Exhibit 5
94. In relation to psychological issues, Mr Dedes gave the following history to Dr Ng:
“During this period of time, Mr Dedes reported that he continued to work hard and produce results, performing over 1600 valuations, compared to the average of 1200. Towards the end of 2008 he reported that he was stressed to the point that he was required to take 3-4 weeks off work on sick leave. …
When Mr Dedes returned to work on 7 October, he underwent a performance development agreement meeting (PDA) where he was served an unsatisfactory performance. According to John, there was no feedback as to why this was given and as a result, felt unfairly treated. In addition, he did not get the bonus that he felt he deserved. The outcome of this PDA was that Mr Dedes was required to change his working hours from working independently from 7:00am to 2:30pm to 9:00am to 5:00pm so that his performance could be monitored. Mr Dedes was unhappy with the outcome of the PDA such that he consulted his doctor, who had given him further time off with stress.”
95. In relation to Mr Dedes’ “alleged workplace stress and industrial relations issues” Dr Ng stated as follows:
“Mr Dedes is obviously unhappy with the situation that he is currently in. He feels that he had been unfairly treated by his employer, despite the fact that he worked extremely hard.
His current stressors are financial stress as he is currently on Centrelink, and the current workplace conflicts and dispute. He reports that he is sleeping well, has a good appetite, continues to play soccer and has good relationships with his family. He also states that his mood is fine apart from his stress.
In summary, he does not present as being clinically depressed or having features of an anxiety disorder.”
Evidence relating to Mr Dedes’ sleep apnoea condition
96. The documentation also includes a report from Dr Antic, Director of Thoracic Medicine at Royal Adelaide Hospital dated 26 February 2010 in which he indicated that the severity of Mr Dedes sleep apnoea required “notification to the driving authorities unless it can be controlled”[41].
[41] T302/718
97. In one of his reports referred to above, Dr Ng also notes that a sleep study has shown an increase in the severity of Mr Dedes’ sleep apnoea from moderate to severe. However Dr Ng also states in that report that Mr Dedes does not have obstructive sleep apnoea syndrome, and is fit to perform his normal duties including driving a motor vehicle.
consideration
98. As indicated above, the first issue for me to determine is whether Mr Dedes suffers from or has suffered from the conditions for which he has claimed compensation.
Does Mr Dedes suffer from any relevant condition?
99. On the basis of the evidence before me, there is some doubt as to whether Mr Dedes has in fact suffered from an “adjustment disorder with anxious mood” or any analogous condition, at any relevant time. When Dr Blakemore examined Mr Dedes on 5 August 2009, he did not find him to be suffering from any psychiatric condition and similarly, when Professor Kalucy examined him on 7 August 2009, he also did not find that Mr Dedes was suffering from any psychiatric condition.
100. Against that however, Mr Dedes’ general practitioner, Dr Yong, diagnosed him as suffering from an adjustment disorder with anxiety on 16 October 2008 and continued to certify that he was suffering from that condition up until 1 January 2010[42]. Further, whilst Professor Kalucy did not give evidence at the hearing, Dr Blakemore acknowledged in the course of his evidence that, although not a specialist, Mr Dedes’ general practitioner would have been in a better position to assess whether he was suffering from an adjustment disorder with anxiety in 2008.
[42] ST9/41-44
101. Unfortunately, Dr Yong also did not give evidence at the hearing, however on the basis of the evidence available to me and having regard to Dr Yong’s diagnosis in particular, I am satisfied that Mr Dedes did suffer from an adjustment disorder at the time Dr Yong diagnosed him as suffering from that condition, i.e. 16 October 2008. However, having regard to the fact that Dr Blakemore saw Mr Dedes on 5 August 2009 and Professor Kalucy saw him on 7 August 2009 and neither psychiatrist found him to be suffering from any psychiatric disorder, I am also satisfied that Mr Dedes was no longer suffering from an adjustment disorder on 5 August 2009. Further I am not satisfied that after 5 August 2009 Mr Dedes was “in a condition that is outside the boundaries of normal mental functioning and behaviour”[43]such as to potentially give rise to a liability to pay compensation.
[43] Comcare v Mooi (1996) 69 FCR 444
102. For completeness, I should add that as Mr Dedes first sought treatment for his adjustment disorder on 16 October 2008, when Dr Yong diagnosed the condition, he is taken to have sustained the condition on that day[44]. One effect of this is that ss 5A and 5B of the SRC Act apply to the condition, as the condition was sustained after 13 April 2007.
[44] SRC Act, s 7(4)
103. In relation to Mr Dedes’ claim for “aggravated sleep apnoea” on the basis of the medical evidence before me, I am satisfied that Mr Dedes does suffer from sleep apnoea and has suffered from that condition since the commencement of his employment with the AVO in 2004. As to whether he has at any relevant time suffered an “aggravation” of that condition, I will return to that issue in the context of considering whether compensation liability exists in respect of any such aggravation.
Incapacity or impairment
104. On the basis of the medical certificates issued by Dr Yong, I am also satisfied on the balance of probabilities that the adjustment disorder suffered by Mr Dedes resulted in incapacity for work for the purposes of s 14 of the SRC Act, and is accordingly a condition that could potentially attract liability under s 14. I am also satisfied that Mr Dedes’ sleep apnoea condition resulted in a degree of incapacity and, subject to the question of whether the condition or any aggravation of it was significantly contributed to by his employment, the condition could also potentially give rise to liability to pay compensation under s14 of the SRC Act.
Whether the conditions amount to “injuries” within the meaning of the SRC Act?
Adjustment disorder
The legal issues
105. As alluded to above, s 5A of the SRC Act provides that a disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment is not an “injury” within the meaning of the SRC Act and therefore compensation is not payable in respect of such a disease.
106. In Hart v Comcare (2005) 145 FCR 29, the Full Court of the Federal Court held that the provision which preceded s 5A and which was in relevantly similar terms applied where an excluded cause made a material contribution to the disease. In other words, the Court found that even though a condition may result partly or even predominantly from clearly compensable factors, if an excluded factor makes a material contribution, the condition is not compensable. Although Hart was decided in the context of the former definition of “injury” as contained in s 4 of the SRC Act (as it was prior to the amendments which introduced s 5A), the reasoning outlined in Hart appears to apply with equal force to s 5A.
107. The implications of the decision in Hart were summarised and discussed recently by Deputy President Jarvis in Re Drenth and Comcare [2011] AATA 582, as follows:
“86. … In Hart v Comcare (2005) 145 FCR 29 a Full Court of the Federal Court considered the exclusionary provisions in the former definition of “injury”. It decided that even where one of the factors which was excluded from the definition of “injury” made a material contribution to the employee’s disease, Comcare was not liable even though the disease was also caused by other non-excluded employment-related factors which also made a material contribution to the disease.
…
88. The words “as a result of” reasonable administrative action entail determining the causative effect of the administrative action. However, the legal test of causation is a variable concept that can cover differing degrees of connection between two events. One possible interpretation of the words “as a result of” in the exception to the definition of “injury” is that the required causative connection would be satisfied only if the excepted event was the sole cause of the injury, in contradistinction to an event that was a contributing cause of the disease for which compensation is claimed. The exception in s 5A uses the expression “as a result of”, whereas the very next section, s 5B, uses a different expression, namely “contributed to, to a significant degree” (emphasis added). This change in language might be thought to indicate that s 5B was intended to have a different meaning. …
…
93. If, on the basis of Hart v Comcare, the words “as a result of” in the exclusion to the definition of “injury” are interpreted as simply requiring consideration of the factual test of causation, the exclusion would be satisfied by the sina qua non, or “but for”, test of causation, with the result that an excepted event making a contribution to the applicant’s condition would mean that the applicant had not suffered an “injury” as defined. However, this would appear to us to be inappropriate in circumstances where (unlike the position in that case) the excepted event does not make a significant contribution to the onset or aggravation of an employee’s disease. That is because the operative requirement of the definition of “disease”, which is imported into the definition of “injury”, provides that it must be contributed to, to a significant degree, by employment. We do not think that Parliament would have intended the exclusion to apply where the work event did not make a significant contribution to the applicant’s condition, having regard to the beneficial nature of the SRC Act. It seems to us that the words “as a result of” must be construed in their statutory context, and that those words, appearing as they do in the exception to the definition of “injury”, cannot be said to be “perfectly clear”. In this regard we note that Whitlam J, at first instance in Comcare v Hart [2004] FCA 1144, referred at [11] to the “pellucid” object of the statutory exclusion, and cited authorities to the effect that an injury arising from disappointed hopes of promotion would not, for policy reasons, be compensable, and on his Honour’s analysis of the facts, the applicant’s condition was caused solely by the failure to obtain a promotion. And in Comcare and Mooi (supra) Drummond J expressed a different view, and thought that the definition merely required the excepted factors to be ignored, when examining factors said to have contributed to the applicant’s condition.
94. It is of course well established that the SRC Act is remedial legislation, and so where two constructions are possible, that which is favourable to the worker should be preferred: Whittaker v Comcare (1998) 86 FCR 532 at 544. We also refer to paragraph [9.5] of Pearce and Geddes on “Statutory Interpretation in Australia” (7th Edition, LexisNexis Butterworths, 2011) where the learned authors cite a number of authorities where “exceptions to what was regarded as beneficial legislation were read so as to limit the exception in order to preserve the scope of the beneficial effect of the legislation.”
95. The relevant operative part of the definition of “injury” is that the ailment or aggravation in question must be “contributed to, to a significant degree, by the employee’s employment” (emphasis added). If reasonable administrative action is such that it does not make a contribution to a significant degree to the ailment or aggravation, it would be unnecessary for the action to be excepted from the definition, because the aggravation or ailment would not be included in the operative words of the definition of “disease” (and therefore the definition of “injury”) in the first place. The position might be otherwise if, instead of administrative action constituting an exception to the definition of injury, it were the subject of a separate provision to the effect that if a disease or aggravation was as a result of reasonable administrative action, that would constitute a defence to a claim for compensation. It seems to us that the words “as a result of” in the exception to the definition of “injury” should be construed in accordance with the principles of statutory interpretation whereby regard is had to the context in which they appear, and the need to construe legislation so that it is internally consistent. We therefore consider that the words “as a result of” in the exception to the definition of injury require that the relevant reasonable administrative action should be a significant cause of, or (having regard to Hart v Comcare) contribute to a significant degree to, the ailment or aggravation.”
108. I respectfully agree with the comments made by the Deputy President, and with his reasons for concluding that before an “excluded cause” can operate to defeat compensation liability, it must make a “material” or, in the context of s 5A, “significant” contribution to the injury suffered. As Deputy President Jarvis has pointed out, if it were otherwise it would not have been necessary to exclude events which could in any event not give rise to compensation liability. Further it would also be an odd result if a particular event did not contribute to an injury to a sufficient extent as to potentially give rise to compensation liability, because it played such a minor role in the development of the condition, but was nevertheless capable of defeating otherwise compensable factors so as to defeat compensation liability. That seems most unlikely to have been intended.
109. For the reasons the Deputy President gave in Re Drenth[45], it would be possible to construe the words “as a result of” in s 5A such that a higher degree of causal effect was required before an excluded event operated to preclude compensation liability for a particular disease. Such a construction would potentially have the effect of preserving an employee’s entitlement to compensation in respect of non-excluded events, notwithstanding that an excluded event also made some contribution to their disease. However such a construction would be inconsistent with the Full Court’s decision in Hart[46].
[45] At [88]-[92].
[46] Although the decision in Hart was not expressly referred to, the Full Federal Court recently approved the approach taken by the Tribunal in seeking to determine whether an excluded cause made a “material contribution” to the relevant injury, pursuant to the reasoning in Hart: Dunstan v Comcare [2011] FCAFC 108 at [54]. See also Comcare v Caldwell [2008] FCA 2015 per Perram J at [5].
110. Accordingly, it is necessary for me to determine whether an excluded event, namely “reasonable administration action taken in a reasonable manner” in respect of Mr Dedes’ employment made a significant contribution to his adjustment disorder. If it did, then the condition will not be a “disease” or an “injury” within the meaning of the SRC Act and will not attract compensation liability.
Is there an “excluded cause”?
111. Turning to the circumstances of this matter, on the evidence before me there are no non work related factors which have been identified as causing or contributing to Mr Dedes’ adjustment disorder. The only question therefore is whether an excluded cause, namely “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” made a significant contribution to the development of his illness. If it did, then for the reasons outlined above and pursuant to the reasoning of the Full Court in Hart, the respondent will not be liable to pay compensation in respect of the injury, notwithstanding the contribution of other factors which ordinarily would give rise to compensation liability.
112. In light of the evidence before me in this matter, that question further resolves itself into the question of whether the actions taken by Mr Hinkelthein in assessing and attempting to manage Mr Dedes’ performance and development and “steer” him toward accreditation, made a “significant” contribution to the development of his adjustment disorder or whether, alternatively, the adjustment disorder developed in relation to workload issues and other matters such as the effects of the Xanadu project, without any significant contribution being made by “reasonable administrative action”. If the abovementioned actions by Mr Hinkelthein, or any other administrative action did make a significant contribution to Mr Dedes’ condition, I will also need to consider whether the relevant actions amounted to “reasonable administrative action” in respect of Mr Dedes’ employment.
113. In considering the role played by different events and actions in the development of Mr Dedes’ condition, the most critical evidence in my view is that of Mr Dedes’ state of mind and the contributors to it at and around the time that he first attended Dr Yong and when Dr Yong subsequently diagnosed the adjustment disorder.
114. I consider it to be highly relevant that when Mr Dedes first attended Dr Yong on 28 August 2008, the issue he reported and complained about was the large volume of work. Similarly when he attended Dr Yong again on 16 October 2008, the issues he complained about included “too much work” and “not able to cope with volume of work”. He also complained that “over 2 years ago changed to paperless system which created more work in downloading and collection of relevant information and data”.
115. By itself, this evidence would suggest that the PDA rating, Mr Hinkelthein’s communications with Mr Dedes and his attempts to manage his performance and development made little or no contribution to Mr Dedes’ adjustment disorder. However there is other information before me which suggests that the matters recorded by Dr Yong were not the only ones contributing to the development of Mr Dedes’ disorder. In particular, the timing of Mr Dedes’ attendances upon Dr Yong are significant and in my view, revealing.
116. Mr Dedes’ first attendance upon Dr Yong occurred late in the afternoon of 28 August 2008, the day after Mr Hinkelthein had sent him an email pressing him to attend a PDA meeting and advising him that the discussions he had had with Mr Hinkelthein and other managers “will form a large part of your PDA review for 07/08”. Mr Dedes’ second attendance upon Dr Yong on 16 October 2008, which gave rise to Dr Yong’s diagnosis of his condition, occurred approximately a week after he was given a rating of 2 and on the afternoon following a meeting at which Mr Dedes’ behaviour was discussed and he was presented with a Performance Improvement Plan. According to the minutes of that meeting, Mr Dedes “spent a lot of time challenging the PDA rating” and became aggressive and threatening.
117. The extremely close temporal connection between that meeting, Mr Dedes’ attendance upon Dr Yong and the diagnosis of an adjustment disorder, suggests in my view that the events of the meeting and other preceding events relating to the PDA process, including the PDA rating of 2, played some causal role in the development of Mr Dedes’ adjustment disorder. Dr Yong made no record of Mr Dedes referring to these matters in the consultation of 16 October 2008 and it could be concluded from that that Mr Dedes did not mention them. Unfortunately, as I have already noted, Dr Yong did not give oral evidence in the matter and therefore I do not have the benefit of hearing from Dr Yong as to whether there was any discussion of these issues, or whether Dr Yong considered that they played a role in the development of Mr Dedes’ condition.
118. Doing the best I can on the evidence available to me however, having regard to Mr Dedes’ reported reactions during the meeting of 16 October 2008 and the fact that he attended Dr Yong immediately afterwards, regardless of whether Mr Dedes revealed these events to Dr Yong or not, I consider that they are likely to have played an important role in precipitating his psychological condition. Further, that proposition is also supported by the history Mr Dedes later gave to Professor Kalucy, when he said that in August 2008 “he took leave because he was feeling devalued”. It is also supported by the history Mr Dedes gave to Dr Ng that “he was unhappy with the outcome of the PDA such that he consulted his doctor, who had given him further time off with stress”.
119. That is not to say that other factors, such as Mr Dedes’ workload and his frustration with the Xanadu project did not also contribute to the development of his condition. I am satisfied on the balance of probabilities however that the PDA process, the communications surrounding it, the meeting of 8 October 2008 at which Mr Dedes was given a rating of 2 and the meeting of 16 October 2008 at which his behaviour and performance was discussed further, made a contribution to the development of Mr Dedes’ adjustment disorder which was significant in the sense of “substantially more than material”[47]. I should add that in reaching that conclusion I have also had regard to the fact that there is no evidence that Mr Dedes ever complained to those senior to him that his workload was too great or that it was causing him stress. Further, the evidence also shows that at no time during the relevant period did Mr Dedes work significantly in excess of his standard hours. These matters in my view suggest that the impact of Mr Dedes’ workload upon his psychological state was not as great as he now claims it to have been.
[47] SRC Act, s 5B(3)
120. That only leaves the question of whether the potentially excluded events referred to above are properly described as constituting “reasonable administrative action” taken in a reasonable manner, in respect of Mr Dedes’ employment.
Reasonable administrative action
121. In relation to that issue, I have come to the view that all of the relevant events, that is Mr Hinkelthein’s communications with Mr Dedes in relation to the PDA process and his performance and development more generally, together with the meetings of 8 and 16 October 2008 and the rating given to Mr Dedes fall within the description of “administrative action” taken in respect of his employment. That only leaves the question therefore of whether all of those actions were “reasonable”.
122. The applicable test was described by Deputy President Jarvis in Re Drenth at [75] as follows:
“The definition of “injury” excludes a disease, injury or aggravation suffered as a result of “reasonable administrative action taken in a reasonable manner”. There was no dispute that the actions relied upon by Ms Drenth as stressors were administrative actions. To determine whether the actions were reasonable involves an objective judgment, taking into account all of the circumstances in which they occurred, and determining whether they were rational, lawful and not irrelevant or disproportionate to what was required; and the question of what was “reasonable” does not involve determining whether the action could have been done more reasonably or in a different way more acceptable to the decision-maker: see Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78] – [80], and the helpful analysis of Professor Robin Creyke, Senior Member, and Dr Peter Wilkins, Member, in Re Lynch and Comcare (2010) 114 ALD 394.”
123. The contentions made by Mr Dedes, both in the context of this matter and at the time of the relevant events, were that he should not have been required to enter into anything other than a “generic PDA”. In particular, Mr Dedes argued that he should not have been required to submit to an obligation to obtain accreditation within any particular time period, he should have been permitted to use the three reports he had submitted to the API in 2005 again for any further application to the API, and that a rating of 2 was unreasonable and unacceptable having regard to his work performance and productivity.
124. On the evidence before me however, I consider that Mr Hinkelthein was genuinely seeking to assist Mr Dedes to obtain accreditation and offering him real support and practical assistance in doing this, including allowing him time away from his usual work duties to assess properties and prepare reports, and giving him suitable templates and examples. For reasons which are not entirely apparent however, Mr Dedes was reluctant to take advantage of the assistance offered to him and appears to have been extremely unwilling to devote any time or effort to developing new reports to potentially be submitted for accreditation. In relation to this issue, it is Mr Dedes’ stance which appears to me to have been unreasonable since as Mr Hinkelthein has pointed out, he was unlikely to obtain accreditation based upon three reports which had led to him not obtaining accreditation previously, and were prepared before the commencement of his AVO employment. For reasons which are not entirely clear on the evidence, Mr Dedes does not appear to have been motivated to make another attempt to obtain accreditation. However Mr Hinkelthein’s attempts to encourage and support him in doing so appear to me to have been entirely reasonable.
125. In relation to the PDA process, it is important to note that, on my understanding of the evidence, Mr Dedes was at no time requested or required to sign a PDA agreement which included a requirement that he obtain accreditation within two years. Mr Hinkelthein was attempting to have him enter into a PDA agreement which was tailored to his circumstances, although in the event this did not occur. In my view, Mr Hinkelthein’s actions in attempting to have Mr Dedes enter into a PDA agreement which was tailored to his circumstances were entirely reasonable. In addition, on the evidence before me I consider that Mr Hinkelthein’s behaviour and communications, that of other AVO managers and the content of the meetings of 8 and 16 October 2008 were all also reasonable, as was Mr Hinkelthein’s decision to allocate a 2 rating to Mr Dedes having regard to Mr Dedes’ behaviour, his conduct toward other staff and his lack of engagement with training, as described in Mr Hinkelthein’s evidence and the PDA document[48]. I also consider that rating to have been reasonable in all the circumstances, notwithstanding Mr Dedes’ relatively high productivity.
[48] ST59/315-324.
126. It therefore follows that in my view the administrative action taken in relation to Mr Dedes and which made a significant contribution to his adjustment disorder was also “reasonable” within the meaning of s 5A. For the reasons explained above, this has the consequence that that condition is not a “disease” or an “injury” within the meaning of the SRC Act and does not give rise to compensation liability.
127. In light of my findings that Mr Dedes’ condition only arose on 16 October 2008 and had resolved by 5 August 2009, and that it was entirely attributable to his employment, it is unnecessary for me to consider whether he suffered from any compensable “aggravation” of the condition.
Sleep apnoea
128. As I have indicated above, I accept that Mr Dedes suffers from sleep apnoea and I also accept that the severity of that condition has fluctuated from time to time. However there is no medical or other evidence before me which suggests that the condition was in any way caused or contributed to by Mr Dedes’ employment, or that it was aggravated by his employment.
129. I accept that in Mr Dedes’ perception, the impact of the condition upon him was greater when he was required to commence work at 9:00am, because this meant he needed to work until later in the day when he became more tired. However the fact that an interaction between the effects of his sleep apnoea and a requirement to work particular hours led to the condition having more impact upon him, does not mean that his employment in any way “aggravated” the condition in the sense of in some way worsening or exacerbating the underlying condition itself. I am accordingly not satisfied that Mr Dedes’ employment made a significant contribution within the meaning of s 5B of the SRC Act to his sleep apnoea condition or any aggravation of that condition. Therefore, pursuant to the terms of s 5B, the condition, including any aggravation is not a “disease” within the meaning of the SRC Act and does not attract compensation liability.
130. For those reasons, liability under s 14 of the SRC Act is not established in respect of an “aggravation” of sleep apnoea.
conclusion
131. I am satisfied that between 16 October 2008 and 5 August 2009 Mr Dedes suffered from the condition of “adjustment disorder with anxiety”. However, I have concluded that actions and events which I am satisfied amounted to reasonable administrative action taken in respect of Mr Dedes’ employment within the meaning of s 5A of the SRC Act made a “significant contribution” to that condition within the meaning of s 5B(3) of the SRC Act. Pursuant to the reasoning of the Full Federal Court in Hart, it therefore follows that that condition is not an “injury” within the meaning of the SRC Act and does not attract compensation liability.
132. In respect of Mr Dedes’ claim for an aggravation of his sleep apnoea condition, I am not satisfied that Mr Dedes’ employment made a significant contribution to any aggravation of his sleep apnoea condition and I am accordingly also not satisfied that compensation liability under s 14 of the SRC Act is established in respect of that condition.
133. As I am not satisfied that compensation liability has been established in relation to either condition, I have decided to affirm the decision under review.
decision
134.The decision under review is affirmed.
I certify that the 134 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ...........J Coulthard........................................
AssociateDates of Hearing 22-24 March 2011, 9 May 2011 and 26 May 2011
Date of Decision 16 September 2011
Advocate for the Applicant Self-represented
Counsel for the Respondent Mr S Apps
Solicitor for the Respondent Sparke Helmore
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