DNJN and COMCARE
[2014] AATA 237
[2014] AATA 237
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4514
Re
DNJN
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 24 April 2014 Place Melbourne The reviewable decision, being the decision of Comcare made 12 September 2012 that the Applicant is not entitled to compensation for aggravation of Chronic Fatigue Syndrome, is affirmed.
.........................[sgd]........................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – chronic fatigue syndrome - whether applicant suffered an ailment within the meaning of the Act – whether applicant suffered an aggravation of an ailment – whether aggravation was contributed to, to a significant degree by the applicant’s employment – reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 14(1)
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Federal Broom Company Pty. Limited v Semlitch (1964) 110 CLR 626
Hart v Comcare (2005) 145 FCR 29
Peters v Comcare [2013] FCA 1361Smith v Comcare [2013] FCAFC 65
REASONS FOR DECISION
Deputy President J W Constance
24 April 2014
INTRODUCTION
The Applicant has been employed in the Australian Public Service since 2003. In 2012 she made a claim for compensation for an injury she suffered and which she claimed was caused by her employment. In her claim form the Applicant described the injury as an aggravation of pre-existing Chronic Fatigue Syndrome.
On 12 September 2012 Comcare decided to affirm an earlier determination denying liability to compensate the Applicant. The Applicant has sought a review of this decision by the Tribunal.
For the reasons which follow the reviewable decision made by Comcare will be affirmed.
BACKGROUND
Unless stated otherwise, the following findings of fact are based on the evidence of the Applicant.
The Applicant grew up in country Victoria. She was a healthy child who enjoyed sports and outdoor activities and at the same time was an excellent student.
In 1992 the Applicant took a course of Roaccutane, a drug prescribed by her general practitioner for the treatment of acne. Immediately following her taking the drug the Applicant suffered a number of acute symptoms, including mental fatigue, insomnia, sore throat, swollen glands, sinus pain and headache.
At the time of the onset of these symptoms the Applicant was studying at University. After some time the acute symptoms subsided but the sinus pain and sore glands continued in a mild state. She was able to complete her study and graduate with the Degree of Bachelor of Arts in Criminal Justice Administration. Following graduation the Applicant worked in several jobs.
In 2003 the Applicant commenced employment with Centrelink and has continued in that employment ever since. In 2005 she was working in the Fraud Investigation Team when she suffered anxiety and depression arising, in part at least, from the type of investigative work she was undertaking. After some time off work the Applicant was able to continue working and to manage the symptoms of her condition. Her health issues caused her to take substantial, but not excessive, sick leave.
For part of 2008 the Applicant worked in a claims processing role. As she was experiencing some difficulties in this position she had a fitness for duties examination and was moved into the Disability Processing Team.
In April 2010 the Applicant took part in a coaching meeting with her team leader, Mr Parisi. A week later she had a discussion with her manager, Mr Barillaro. Following these meetings the Applicant formed the view that she may be made the subject of an unsolicited redundancy notice. A short time later she applied for a position in the Random Sample Team. Her application was successful and she commenced working in that team on 21 June 2010.
Soon after she commenced in the new position the Applicant’s health deteriorated and she decided that the work she had been undertaking in her previous position in the Disability Processing Team was more suited to her. On 2 August 2010 the Applicant informed her employer that she wished to return to the Disability Processing Team.[1] At about the same time she spoke to the Manager in that team who advised her that there was not a vacancy available for her in the team.
[1] Exhibit A7 p.166.
The person to whom the Applicant spoke on 2 August 2010 was Ms Eyre of the Human Resources Team.[2] Her notes of this conversation read, in part:
[The Applicant] rang back the same day and stated the following:
She had applied for a permanent position with BI RSS (from Processing at ANC) had been here since late June. She wanted to go back to her previous job and had spoken to staff at ANC who said they needed her because they were understaffed however the Manager says, due to budget constraints, they are not taking on anyone.
I explained that this was the case in most areas – they are often not advertising and not filling vacancies as they occur.
[The Applicant] asked about being transferred back on medical grounds. I explained this would need to be assessed by the Workplace Health Team and she would need a certificate from her treating doctor.
[The Applicant] stated she had a certificate but it had information on it she didn’t want her workplace to see. I suggested she contact the doctor and either ask to have another certificate without that information or make another appt. She advised she had REC leave for 2 weeks at the end of this week so would arrange it then.[3]
I am satisfied that this is an accurate record of the conversation which took place.
[2] Exhibit R3 para.6.
[3] Exhibit R3 attachment C.
On 4 August 2010 the Applicant sent an email to Mr Barillaro which read, in part:
Further to my email sent the other day. I would like to advise that I would like to be considered for a compassionate transfer back to DSM. This is due to health reasons.[4]
[4] Exhibit A7 p.170.
The Applicant was on recreation leave from 4 August 2010 until 23 August 2010. On 16 August 2010, while she was on leave, the Applicant again spoke to Ms Eyre and asked her “how you got on with my transfer”.[5] Ms Eyre again advised the Applicant that she should arrange for a certificate to be issued by her treating doctor and that she should contact her team leader. The Applicant stated that she would do this. She said also that she did not wish to return to her position in the Random Sample Team.[6]
[5] Exhibit R3 attachment C.
[6] Exhibit R3 attachment C.
The Applicant was not transferred back to the Disability Processing Team. Her employer arranged for her to work away from the Random Sample Team. On 28 July 2011 the Applicant went on leave and has not returned to work since.
LEGISLATION
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
(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.
Injury is defined in subsection 5A(1) of the Act. The relevant part of the definition reads:
injury means:
a disease suffered by an employee …
…
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.
Disease is defined in section 5B to mean:
(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.
In subsection 4(1) ailment is defined:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
ISSUES FOR DETERMINATION
The matter in dispute between the parties is whether the aggravation in 2010 of the condition then suffered by the Applicant is an injury within the meaning of subsection 14(1) of the Act in respect of which Comcare is liable to pay compensation to the Applicant.
The Applicant argued that the condition she suffered in 1992 has been properly diagnosed as Chronic Fatigue Syndrome and because of the sudden onset of symptoms following her drug therapy, that condition is an injury simpliciter rather than an ailment. She argues that the aggravation of her condition in 2010 is an aggravation of an injury and not an aggravation of an ailment and therefore not a disease.
On the evidence before me I cannot be satisfied that the condition suffered by the Applicant in 1992 should be classified as an injury. In reaching this conclusion I have taken into account the report of Dr Donohoe, Medical Practitioner, who assessed the Applicant for the purposes of these proceedings.
In the opinion of Dr Donohoe the Applicant suffered a drug injury from the use of Roaccutane. In his report of 24 June 2013[7] Dr Donohoe stated:
The injury caused by the drug was insufficient to cause disabling chronic fatigue syndrome, but was sufficient to make her susceptible to late stresses which did cause chronic fatigue syndrome.[8]
[7] Exhibit A12.
[8] Exhibit A12, p 4.
For the reasons which follow I am satisfied that the condition from which the Applicant suffers is an ailment within the meaning of the Act. As I am satisfied that the Applicant has suffered a disease by reason of the aggravation of her pre-existing ailment, it makes no difference to the resolution of the issues how the original condition is classified. The real issue between the parties is whether the aggravation (whether it be an aggravation of an injury simpliciter or an aggravation of an ailment) is exempted from the definition of injury by reason of the exclusionary provision in subsection 5A(1).
The follow issues arise for determination.
(1)Has the Applicant suffered an ailment within the meaning of subsection 4(1) of the Act?
(2)If so, has she suffered an aggravation of that ailment?
(3)If so, was the aggravation contributed to, to a significant degree, by her employment by Centrelink?
(4)If so, was the aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment?
CONSIDERATION
Issue 1: Has the Applicant suffered an ailment within the meaning of subsection 4(1) of the Act?
On many occasions the Applicant has described in detail the condition she has experienced in varying degrees from 1992 onwards. She claims that what she has experienced are the signs and symptoms of Chronic Fatigue Syndrome.
Based on her evidence I am satisfied that from time to time since 1992 the Applicant has suffered and continues to suffer the following:
·pain in the sinus;
·an overwhelming feeling of tiredness;
·cognitive fatigue;
·post-exertion exhaustion;
·insomnia;
·depression;
·anxiety;
·painful and swollen lymph nodes in the neck;
·cognitive deficiencies;
·adverse reaction to extremes of temperature;
·sore eyes and floaters within vision;
·a flu-like illness with aching and pain and at times a sore throat;
·tightness and pain in muscles throughout the body;
·dizziness;
·digestive problems;
·heart palpitations;
·high sensitivity to the side-effects of medications;
·sensitivity to crowds, loud noise and bright lights.[9]
Not all of these signs/symptoms are constant. They vary in intensity. I accept her evidence that she is never symptom free.
[9] Exhibit A6.
The definition of ailment is very broad, although it is in part circular in that it includes the word ailment as part of the definition. The definition does not require that the ailment be a condition which fits within a recognized diagnostic criteria.[10]
[10] In Federal Broom Company Pty. Limited v Semlitch ((1964) 110 CLR 626) the High Court considered the provisions of State workers’ compensation legislation, but the principles are applicable. Windeyer J at para 639 said:
But I can see no need for the Court to put a label upon the applicant’s illness, or to be concerned because witnesses labelled it differently.
The Macquarie Dictionary includes the following definitions:
Disorder: a derangement of physical or mental health or functions;
Defect: a fault or imperfection.
I am satisfied that since 1992 and as at the date of this decision, the Applicant has suffered from an ailment, being a disorder which manifests itself in variable signs and symptoms which include an overwhelming feeling of tiredness, cognitive fatigue and post-exertion exhaustion. This condition is properly described as a derangement of physical or mental health or functions and therefore is a physical or mental … disorder or defect within the definition of ailment in subsection 4(1) of the Act.
During the hearing of this matter both parties devoted very considerable time and effort in arguing whether or not the Applicant was suffering from Chronic Fatigue Syndrome at the time she alleges she was injured by reason of that condition being aggravated. It is sufficient that I am satisfied that the Applicant suffers from an ailment; it is not necessary that I be satisfied of a particular diagnosis.
However, in case it is found to be relevant, on the evidence before me I am satisfied that the ailment from which the Applicant suffers is properly described as Chronic Fatigue Syndrome.
In this regard I accept the evidence of Dr Donald Lewis, General Practitioner that, based on the history given by the Applicant, she meets both the 2002 Australian guidelines for a diagnosis of Chronic Fatigue Syndrome as well as the 2012 Canadian guidelines.[11] Dr Lewis has had a special interest in the diagnosis and treatment of this condition since 1985. Since 2001 he has practised exclusively in the diagnosis and treatment of Chronic Fatigue Syndrome and has been involved in research into the condition in conjunction with three Australian universities.
[11] Transcript 03/02/2014, p.15; Dr Lewis also gave this diagnosis in his report Exhibit A14.
The diagnosis of Chronic Fatigue Syndrome is supported by the Applicant's general practitioner, Dr Small.[12] In 2009 Dr Small diagnosed the Applicant as suffering from this condition.
[12] Dr Small referred to this diagnosis in her report of 28 October 2010, Exhibit R1 pp.25-28.
Dr Daniel Lewis, Rheumatologist and Consultant Physician, assessed the Applicant in March 2013 at the request of Comcare. He provided reports dated 18 March 2013[13], 13 May 2013[14] and 8 July 2013[15] and gave evidence.
[13] Exhibit R8.
[14] Exhibit R9.
[15] Exhibit R10.
In his reports and in giving evidence[16] Dr Daniel Lewis stated that in his opinion the symptoms reported by the Applicant fit within the diagnostic criteria for Chronic Fatigue Syndrome. On the evidence of the Applicant I am satisfied that she does suffer the symptoms she described to Dr Daniel Lewis and has suffered these symptoms since 1992. However he said that the diagnosis could not be made as the Applicant suffers from a primary psychiatric disorder (being a major depressive disorder) and the consensus criteria state that if there are other causes the criteria cannot be applied.
[16] Transcript 29/11/13 p.4.
In cross-examination Dr Daniel Lewis said that the standard which has been used in Australia is the 2011 Canadian criteria. He agreed that Chronic Fatigue Syndrome and depression can be coexistent and that the fact that the symptoms of each may overlap does not prevent a diagnosis of the former condition.
Based on the evidence of Dr Donald Lewis and Dr Small I am satisfied that the Applicant does suffer from Chronic Fatigue Syndrome and did so in 2010 and for a considerable period prior to that time. Although Dr Daniel Lewis initially stated that the condition could not be diagnosed in the presence of the psychiatric condition suffered by the Applicant, he resiled from that position when he agreed that the Applicant fulfilled the necessary criteria and that the two conditions could co-exist.
Issue 2: Has the Applicant suffered an aggravation of the ailment?
The evidence of Dr Donald Lewis
Dr Donald Lewis said that increased stress increases a person’s cortisone levels, which in turn alters immune reactivity. Immune imbalance accentuates the symptoms of Chronic Fatigue Syndrome. In the opinion of Dr Donald Lewis the Applicant suffered significantly increased stress when she moved from one team to another in June 2010 and this stress was sustained until her body systems were overwhelmed.[17]
[17] Transcript 03/02/14 p.21.
Dr Donald Lewis based his opinion on the written report given to him by the Applicant, a copy of which was annexed to his report.[18] In the report by the Applicant she does not complain of stress arising from being told, prior to 6 August 2010, that she could not be transferred back to the Disability Processing Team.
[18] Exhibit A14; a copy of the report by the applicant is exhibit A5.
When she gave evidence the Applicant verified the statements made by her in this report. On the basis of the Applicant’s evidence I am satisfied that the Applicant suffered significant stress shortly after she transferred to the Random Sample Team and that this stress arose from the realisation that she had been mistaken in seeking a transfer from the Disability Processing Team.
The evidence of Dr Donohoe
In the opinion of Dr Donohoe, to which I have already referred, stress can aggravate the condition of Chronic Fatigue Syndrome.[19]
[19] Exhibit A12.
Finding
Based on the evidence of Dr Donald Lewis and Dr Donohoe I am satisfied that the Applicant suffered an aggravation of the condition of Chronic Fatigue Syndrome. Based on evidence to which I shall refer later, I am satisfied that the aggravation occurred between 21 June 2010 and 4 August 2010.
Issue 3: Was the aggravation contributed to, to a significant degree, by the Applicant’s employment by Centrelink?
On the basis of the evidence of the Applicant and of Dr Donald Lewis, to which I have already referred, I am satisfied that the stress and the resulting aggravation of her condition which the Applicant suffered following her move to the Random Sample Team, was caused by that move. There is no evidence which suggests that the Applicant was caused stress by any other factor or factors at this time. I am satisfied that the aggravation of her condition was contributed to, to a significant degree, by the Applicant’s employment.
Issue 4: Was the aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment?
When did the aggravation occur?
It is necessary to determine when the Applicant suffered the aggravation of her condition as any administrative action, reasonable or otherwise, which occurred after the aggravation cannot be said to have resulted in that aggravation.
In the form claiming compensation[20], which was completed by the Applicant in April 2012, she stated that she first became ill in “early August 2010” and that she first sought medical treatment for the injury when she consulted her general practitioner, Dr Mughal, on 4 August 2010.[21] However the Applicant gave evidence that she consulted Dr Small on 23 July 2010 as she felt unwell.
[20] Exhibit R1 pp.84-103.
[21] Exhibit R1 p.87.
On 6 August 2010 the Applicant informed her employer verbally that she felt she had an exacerbation of her illness.[22] The Applicant’s evidence is confirmed by the report of Dr Mughal dated 15 August 2010[23] in which he refers to the Applicant having “a medical condition which has been exacerbated recently, potentially becuase [sic] of her work changes” [emphasis added].
[22] Exhibit A7 p.13.
[23] Exhibit A3.
The Applicant gave evidence that for about three weeks in June-July 2010, as part of her duties with the Random Sample Team, she interviewed customers. At this time she felt unwell as a result of suffering a chest infection. There is no evidence that this infection was work-related. After conducting the interviews the Applicant returned to her office to start the review process. It was then that she learned that she was required to review a case involving a marriage-like relationship. This realisation caused the Applicant to feel stressed in her new position.[24]
[24] Exhibit A5 paras 37-38.
On the basis of the Applicant's evidence I am satisfied that the Applicant suffered the aggravation of her condition between 21 June 2010 (when she commenced with the Disability Processing Team) and 4 August 2010 (when she sought a transfer back to the Random Sample Team for health reasons).
The Applicant argued that I should find that the aggravation occurred on 23 July 2010, being the date on which she first sought treatment from Dr Small, her general practitioner. She referred me to subsection 7(4) of the Act. I do not accept this argument as this subsection is applicable only after the question of liability for an injury has been addressed.[25]
[25] Smith v Comcare [2013] FCAFC 65; Peters v Comcare [2013] FCA 1361.
What incident or incidents resulted in the aggravation of the Applicant's condition?
The Applicant argued that the aggravation of her condition resulted from the change in her workgroup and duties. In her written submission filed on 3 February 2014 she stated, in part:
My claim is for a workplace aggravation/exacerbation/relapse of chronic fatigue syndrome, the aggravation is dated 23rd July 2010, the cause was significant stress resulting from a change in workgroup and duties, I went from claims processing work to work in the Random Sample Team. I was unaware that I would be expected to do ‘assessment of living arrangements’ and the associated debt raising, my health quickly deteriorated from this point. I developed a phobia about doing debt raising altogether and also, as I had developed a virus when I had visited the CSC interviewing customers, I was worried that this would occur in the future and cause further disruption to the way the team worked. Due to the significance of the decline in my health I saw no real way that I could remain functioning in that workgroup and team and I sought to leave the team for those reasons.
The Applicant's evidence
The Applicant's submission is mainly, but not entirely, consistent with her evidence. In the claim form to which I have referred, she stated in answer to the question “What were you doing at the time you were injured or contracted your illness?:
Changing workplace duties in June 2010 started the chain of events which led to my illness and inability to work.
The Applicant gave evidence that on 4 August 2010 she sent an email to Mr Barillaro requesting that she be considered for transfer back to the Disability Processing Team[26] and that before that date her health was “significantly impacted”.[27] She consulted her general practitioner, Dr Small, on 23 July 2010 as she felt “awful”.[28] The Applicant said that she described to Dr Small that she had moved to a new job and that this was causing her “a great deal of stress.”[29]
[26] A copy of the email is exhibit A2,
[27] Transcript 25/11/13 p.27.
[28] Transcript 25/11/13 p.28.
[29] Transcript 25/11/13 p.28.
The Applicant also gave evidence that:
I should have thought through the decision [to change her position] much better than what I did. I reacted under stress and duress, and I didn’t think through that decision very well at all.[30]
[30] Transcript 25/11/13 p.29.
In an email to the Workplace Health Manager, Centrelink Area West, dated 20 October 2010, the Applicant stated in part:
I believe that what I am asking for is a ‘reasonable adjustment’ from my employer as I have an exacerbation of a health problem caused by moving teams. I want to recover as much as possible and as soon as possible.[31]
[31] Exhibit A7 p.147.
The Applicant also gave evidence that she became stressed upon learning that as part of her duties in the Random Sample Team she would be required to undertake reviews of clients in marriage-like relationships. It was work of this nature which caused the Applicant to suffer a worsening of her condition when employed in another position in 2005. On a number of occasions after July 2010, both in correspondence and in giving a history to medical practitioners, the Applicant referred to this type of work as having caused her distress.
The Applicant said also that it was only the realisation that she was required to do certain types of work in her new position that caused her condition to be aggravated.[32] This is not consistent with what she stated on the several occasions to which I have referred and in her submissions and it is not consistent with the opinions of her treating medical practitioners. I do not accept this evidence.
[32] Transcript 25/11/13 pp.28-29.
The report of Dr Small, General Practitioner
On 28 October 2010[33] Dr Small reported, in part:
When next seen on 23.7.10, [the Applicant] said she felt awful and she looked pale and unwell. She described how she had moved to a new job and this was causing her a great deal of stress. She felt more anxious and depressed, plus the headache and fatigue were much worse.
……
So it is obvious that the new job in Area West in the Random Sample Team caused a physical and emotional deterioration in her condition.
[33] Exhibit R1 pp.25-28.
Copy Medical Certificates for Workers’ Compensation
In several certificates completed by Dr Small[34] the cause of the Applicant's condition is stated to have been caused by “being moved to a new work situation.”
[34] Exhibit R1 pp.247-251.
The evidence of Ms Watkinson, Assistant Director
Ms Watkinson provided a statement dated 2 August 2013[35] and gave evidence. In 2010 she was an Assistant Director in the Random Sample Survey area of Centrelink and managed the Random Sample Team to which the Applicant was transferred.
[35] Exhibit R3
Ms Watkinson met with the Applicant on 23 August 2010 following the Applicant's return to work after being on leave since 6 August 2010. During the meeting the Applicant told Ms Watkinson that before applying for the position in the Random Sample Team “she was feeling comfortable and good both from a health and work perspective” and that she “applied for the position in the Random Sample Team feeling she had skills and ability to do the job and venture in a new direction.”[36] The Applicant said that her preference was to move back to the team where she used to work.
[36] Exhibit R3 attachment B p.64.
Report of Mr Belanti, Psychologist/Rehabilitation Consultant
In September 2010 Mr Belanti assessed the Applicant's occupational rehabilitation needs. Mr Belanti records the history given to him by the Applicant as follows:
[The Applicant] commenced the new role in the Area West Random Sample team on the 16/06/2010. She indicated that when she started she began to miss her previous team and was no longer feeling competent and high functioning. [The Applicant] indicated that as a result of these difficulties her CFS began to escalate and she recognised that her health was declining.[37]
[37] Exhibit R7 attachment A p.3.
Finding
On the basis of the evidence of the Applicant, the medical practitioners referred to and Ms Watkinson I am satisfied that the aggravation of the Applicant's condition was a result, in part, of her transfer from the Disability Processing Team to the Random Sample Team in June 2010. I am satisfied also that the aggravation was in part a result of some of the tasks the Applicant was required to perform in her new position, in particular the review of marriage-like relationships and the raising of debts.
Further, on the basis of the same evidence I am satisfied that the transfer made a significant contribution to the aggravation of the Applicant's condition.
Was the transfer of the Applicant from one team to the other “administrative action … in respect of … [the Applicant's] employment”?
In Commonwealth Bank of Australia v Reeve[38] the Full Court of the Federal Court considered what was meant by “administrative action” in the context of section 5A of the Act. In delivering the majority decision, Rares and Tracey JJ said:
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A (1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as in s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”.[39]
[38] [2012] FCAFC 21.
[39] [2012] FCAFC 21, [60].
Applying these principles it is clear that the action of transferring the Applicant from the Disability Processing Team to the Random Sample Team was administrative action in respect of her employment. It was action directed to the Applicant's employment and not action forming part of her everyday duties. This is to be contrasted with the requirement that the Applicant perform duties such as the review of marriage-like relationships and the raising of debts. These are undoubtedly actions which were part of her duties as an employee of Centrelink.
Was the administrative action “reasonable” and “taken in a reasonable manner”?
The Applicant’s argument
The Applicant argued that her decision to move to the Random Sample Team was made under duress and was therefore neither “reasonable” administrative action nor administrative action which was carried out “in a reasonable manner.”
The Applicant’s evidence
In 2008 the Applicant was experiencing difficulty in her claims processing role, in part as a result of her ongoing health problems. She had a fitness for duties examination and, in accordance with medical advice, she was transferred to the Disability Processing Team. She managed this transition very well and quickly became an efficient claims processor.
In April 2010 the Applicant took part in a coaching meeting with her team leader, Mr Parisi. Mr Parisi had with him statistics relating to the Applicant's performance and indicated that there was no issue with her productivity. During this meeting Mr Parisi said to the Applicant “Frank said you came over on fitness for duties how’s your health?”[40] The Applicant understood Mr Parisi was referring to the Applicant's manager, Mr Barillaro. The Applicant felt “a bit shocked”[41] at being asked this question as she was aware that Mr Barillaro knew that she had chronic health problems. In response to Mr Parisi’s question she said that she had an ongoing headache and fatigue. Mr Parisi said that he would check with Human Resources to see if another fitness for duties assessment may be in order. The Applicant described this coaching as having gone “very well.”[42]
[40] Exhibit A5 para 27.
[41] Exhibit A5 para 27.
[42] Exhibit A1.
A week after the coaching session Mr Barillaro approached the Applicant at her desk and asked if he could speak to her. Mr Barillaro asked the Applicant to elaborate on what she had told Mr Parisi about her health. The Applicant repeated what she had told Mr Parisi. Mr Barillaro said “do you think you’d be better off elsewhere do you want redundancy?”[43]
[43] Exhibit A5 para 27.
As a result of what Mr Barillaro said to her, the Applicant felt scared. She formed the view that she was being put on notice that her job was in jeopardy. This was worsened by her understanding that there was a major restructure underway in her workplace. She was aware that there was a period of time when some staff received redundancy notices in the mail without prior notice. The Applicant thought that she was going to be next to be made redundant as in her view one of the main reasons that staff members were singled out for redundancy was the issue of personal leave. She had been told by management that while sick leave was listed as an entitlement in the Centrelink agreement it was not an entitlement at all. The Applicant believed that she may be next in line for an unsolicited redundancy notice.
The Applicant considered making a complaint about Mr Barillaro’s comments during their meeting but she believed that he would be likely to deny what he had said and that this would place her employment at further risk. Approximately one week after the meeting with Mr Barillaro the Applicant became aware that there was a vacancy at her level in the Random Sample Team. She applied for and won the position. Following this selection process she was transferred to her new position.
The evidence of Mr Barillaro, Manager, Centrelink
Mr Barillaro provided a statement dated 22 July 2013[44] and gave evidence.
[44] Exhibit R4.
Mr Barillaro verified the statements he made in an email he wrote in October 2010 in relation to his meeting with the Applicant. In that email he stated in part:
·I had a routine Attendance Management discussion with [the Applicant] in early April 2010 as a follow up to her Attendance Support Plan review that had recently been conducted by her team leader.
·The discussion centred on her ongoing high absenteeism, her management of her well being, how she was feeling in general, whether she was enjoying her work, whether there are any other issues causing her concern etc.
·In relation to whether she was enjoying her work, I stated that if she was interested in other work opportunities within Centrelink, she should let me know as I would seek to assist her where possible to facilitate a move, but only if she wanted to move. I stressed I was not looking to move her or anyone else for that matter from my team ([the Applicant] had informed me in a previous discussion of her desire to work in a HR capacity at some time in the future).
·I advised that, if indeed she was looking for opportunities outside of Centrelink, then, if she was interested in the prospect of a voluntary redundancy, I would advise HR of her interest.
·I stressed that I was in no position to advise whether she would be successful in receiving one as such decisions were made at the executive level.
·Again, I stressed that I was not actively suggesting she pursue this. I reiterated that if she was happy in her work at DSM, that was fine with me as I was not looking to release any staff. The discussion was solely about making sure she was happy with her work and the work environment.
·At no stage did I suggest to [the Applicant] that her position within my team was under review or in jeopardy.
·I was not aware she had applied for a position with Area West BI. I was made aware when she told me she had been successful in gaining a position with BI.
Finding
On the basis of the evidence of the Applicant and Mr Barillaro I am satisfied that the action of Centrelink in transferring the Applicant from the Disability Processing Team to the Random Sample Team was both reasonable in itself and taken in a reasonable manner.
The test as to reasonableness imposed by the definition of injury in section 5A of the Act is objective. There is no dispute as to the content of the conversation between the Applicant and Mr Barillaro and I accept that they both gave their respective statements honestly and to the best of their recollections. On the evidence before me I am satisfied that the Applicant's concerns were not justified and I accept Mr Barillaro’s evidence that he was not seeking to release the Applicant from her position. As the Applicant's Team Leader and Manager respectively, it was reasonable for both Mr Parisi and Mr Barillaro to have discussed the Applicant's health issue with her. The Applicant had properly advised her employer of those issues and had been transferred to the Disability Processing Team to assist in the management of those issues.
The actual transfer between the teams was a result of the Applicant's successful application for a new position. On the basis of the evidence of Ms Watkinson[45], who was a member of the selection panel, I am satisfied that the selection process and the transfer of the Applicant to her new team were reasonable and carried out in a reasonable manner. The Applicant does not dispute this.
[45] Exhibit R3.
I have found that the type of work which the Applicant was required to undertake (as distinct from administrative action in respect of her employment) also contributed to the aggravation of the Applicant's condition. This does not assist the Applicant. In Hart v Comcare[46] the Full Court of the Federal Court held that where an employee’s condition is contributed to by more than one event, and only one such event is exempted by the legislation, the condition is not a compensable injury under the Act. This is so even though all the events are causally related to the employee’s employment.
[46] (2005) 145 FCR 29.
The alternative argument put by Comcare
I note that Comcare did not rely on the transfer from the Disability Processing Team as administrative action which came within the exclusionary provision of the definition of injury. The only such action relied on was the “denial of the Applicant’s request to be transferred from the Random Sample Team back to the Disability Processing Team”.[47]
[47] Respondent’s Closing Submissions p.20.
I have found that the aggravation occurred by 6 August 2010. The only denials of the Applicant's request for transfer which occurred prior to that time were:
(i)the Applicant being told that there were no vacancies in the Disability Support Team when she telephoned her previous Manager in that team on 2 August 2010; and
(ii)The Manager’s advice being confirmed by a member of the Workplace Health team on the same day.[48]
On the basis of the Applicant's evidence and the evidence of the health professionals to which I have referred, I am not satisfied that these incidents made a significant contribution to the aggravation of the Applicant's pre-existing condition.
[48] Exhibit A7 p.166.
Had I decided that the refusal did make a significant contribution to the aggravation I would have accepted Comcare’s argument that this was reasonable administrative action taken in respect of the Applicant's employment and that it was taken in a reasonable manner.
Subsection 5A(2) provides, in part:
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
…
(f) anything reasonable done in connection with the employee’s failure to obtain a …transfer … in connection with his or her employment.
Mr Barillaro gave the following evidence:
16. After [the Applicant] left the Disability Processing Team, I recall that I went through internal networks to look for internal candidates to fill her role. That is what in fact happened, with a new staff member starting in the role in about 3–4 weeks on a permanent basis. I had only finite resources for employing staff. I was not in a position to increase staff numbers if [the Applicant] wanted to return to her previous role and she certainly had no entitlement to return.
17. I remember that I got a telephone call from Nadine Watkinson at some stage a few months after [the Applicant] left the Disability Processing Team. Ms Watkinson asked about the possibility of [the Applicant] returning to the Disability Processing Team at Broadmeadows. I said that there was simply no position available in the team, as her position had been filled on a permanent basis and there were no other positions vacant. I did not speak directly to [the Applicant] about this.[49]
I accept this evidence.
[49] Exhibit R4 p.3.
On the basis of Mr Barillaro’s evidence I would have decided that the action in advising the Applicant that there was not a position available for her in the Disability Processing Team was reasonable and was done in connection with the Applicant's employment. On this basis the action would have been properly classified as “reasonable administrative action”.
The Applicant made no complaint about the manner in which she was advised that there was not a position available to which she could return. Had it been necessary I would have found that the action was “taken in a reasonable manner”.
CONCLUSION
Having decided that the aggravation of the Applicant's condition was suffered as a result of her transfer from one position to another and that the transfer was reasonable administrative action in respect of her employment and taken in a reasonable manner, the aggravation is not an injury within the meaning of the Act and the Applicant is not entitled to compensation for that aggravation.
EVENTS AFTER THE AGGRAVATION OCCURRED
There was some confusion in the case argued by the Applicant.
The Applicant’s written submissions filed on 3 February 2014 stated, in part:
My claim is for a workplace aggravation/exacerbation/relapse of chronic fatigue syndrome, the aggravation is dated 23rd of July 2010, the cause was significant stress resulting from a change in work group and duties…
Later in the same submissions the Applicant referred to Comcare’s argument relating to the exemption based on reasonable administrative action as follows:
Comcare stated at the start of the hearing that the only administrative action they [sic] were relying on was what they stated as the denial of my return to the Disability Processing Team. The cause however of the exacerbation of my CFS was changing teams, this was thus ‘arising out of the employee’s employment’ and date of injury 23 July 2010 is before any administrative actions occurred, so it cannot be said that these administrative actions, if that’s what they were, contributed to the onset of the aggravation of my condition.
The argument put by the Applicant in her submissions was consistent with what she said when she gave her oral evidence:
… my case is that my CFS was actually aggravated when I changed teams so when I moved from the Disability Processing Team in June 2010, so it was that moving team and moving duties that caused the aggravation and not anything that happened later.[50]
[50] Transcript 25/11/13 p.12.
I have found that the aggravation of the Applicant's condition occurred in July-August 2010.
Notwithstanding the argument put by the Applicant and the evidence I have referred to, I have considered that in the Applicant's Claim for Workers’ Compensation[51] the Applicant provided the following information:
[51] Exhibit R1pp.84-103.
12. When were you injured or when did you first notice you were ill?
28/07/2011 when I had to cease work alltogether [sic].
First became ill early August 2010.
…
24. What were you doing at the time you were injured or contract your illness?
What started the chain of events that led to your injury or illness?
Changing workplace duties in June 2010 started the chain of events which led to my illness and inability to work.
25. What action, exposure or event happened to cause your injury or illness?
Approx 12 months of employer and management lead adverse action subjecting me to workplace isolation, victimisation, discrimination and negligence
This information in the Claim Form suggests that the Applicant’s claim is for an aggravation which was caused by the conduct of her employer over a period of 12 months. This is inconsistent with her claim as put during the hearing.
However, even if the claim is considered on this basis, the Applicant does not succeed in establishing Comcare’s liability to compensate her. I have found that the transfer between teams contributed to the aggravation to a significant degree. In accordance with the principles set out in Hart v Comcare, even if other events which occurred in the following 12 months (and which are not properly classified as administrative action in respect of the Applicant's employment) contributed to the aggravation, the Applicant is not entitled to compensation.
DECISION
The reviewable decision, being the decision of Comcare made 12 September 2012 that the Applicant is not entitled to compensation for aggravation of Chronic Fatigue Syndrome, will be affirmed.
I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. .............................[sgd]...........................................
Associate
Dated 24 April 2014
Date(s) of hearing 25, 27 & 29 November 2013 and 3 February 2014 Applicant In person Counsel for the Respondent Mr R Seit Solicitors for the Respondent Comcare
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