Drenth and Comcare
[2011] AATA 582
•23 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 582
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1482
GENERAL ADMINISTRATIVE DIVISION ) Re SARAH DRENTH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis
Professor D Ben-Tovim, MemberDate23 August 2011
PlaceAdelaide
Decision The decision under review is affirmed. D G Jarvis
...[Signed]...
Deputy President
CATCHWORDS
COMPENSATION – Commonwealth employee – employee of Australian Taxation Office – held that applicant suffering from borderline personality disorder, depression and anxiety – asserted aggravation of conditions by work stressors – inadequate disclosure of conditions on applying for employment – held that aggravation contributed to, to a significant degree, by work stressors – relevance of reasonable administrative action not making a significant contribution to aggravation – definition of “injury” – meaning of “as a result of” – held that certain significant stressors constituted reasonable administrative action – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 7(7) and 14
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105
Comcare v Hart [2004] FCA 1144
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Fellowes v Military Rehabilitation and Compensation Commission (2008) 170 FCR 531
Hart v Comcare (2005) 145 FCR 29
Re Lynch and Comcare (2010) 114 ALD 394
Re Wiegand and Comcare [2010] AATA 790
Whittaker v Comcare (1998) 86 FCR 532
Wiegand v Comcare (2002) 72 ALD 795
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (7th Edition, LexisNexis Butterworths, 2011)
The New Shorter Oxford English Dictionary, Clarendon Press, Oxford, 1993
REASONS FOR DECISION
23 August 2011 Deputy President D G Jarvis
Professor D Ben-Tovim, Member1. The applicant, Sarah Drenth, was previously employed by the Australian Taxation Office (ATO). In July 2008, she claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). She asserted in effect that she was suffering from a pre-existing psychiatric condition, namely borderline personality disorder (BPD), and that certain employment related events that occurred early in 2008 resulted in an incapacity for work.
2. In a primary determination made in February 2009, a delegate of Comcare decided that Ms Drenth had sustained an aggravation of her condition of BPD that was significantly contributed to by Ms Drenth’s employment. However, the delegate further decided that the injury resulted from reasonable administrative action taken in a reasonable manner by her employer, and accordingly her condition was contributed to by events that were excluded from the definition of “injury” in the SRC Act, and so compensation was not payable. In June 2009, in a reviewable decision on reconsideration made at Ms Drenth’s request, a Comcare review officer decided that while Ms Drenth’s employment played a part in the development of the aggravation of her condition, it did not add to an existing incapacity, and did not significantly contribute to the aggravation of her condition, and so she was not entitled to compensation pursuant to s 14 of the Act. The review officer also went on to decide that the events relied upon by Ms Drenth as contributing to her injury constituted reasonable administrative action taken in a reasonable manner, and that for that reason also she was not entitled to compensation under s 14 of the SRC Act. The review officer accordingly affirmed the primary determination.
3. Ms Drenth subsequently applied to this tribunal for review of the above reviewable decision. In the proceedings before us, the asserted injury was not confined to an aggravation of a pre-existing BPD, but was extended to constitute a claim for an aggravation of a pre-existing BPD or some other mental condition, and there was evidence before us that Ms Drenth had been diagnosed with other psychiatric conditions. Ms Drenth asserts that she was incapacitated for work as a result of the aggravation of her pre-existing condition(s) to some extent during the period from February 2008 until she ceased work in early June 2008, and also from then until she resumed employment with the ATO pursuant to a return-to-work plan in or about March 2010.
Issues before the Tribunal
4. The issues before the tribunal, as they emerged from the contentions and evidence before us, are as follows:
(a)what pre-existing ailment or disorder was Ms Drenth suffering from prior to the occurrence of the asserted employment related events on which her claim for compensation is based;
(b)was the pre-existing ailment or disorder aggravated;
(c)if so, was that aggravation contributed to, to a significant degree, by her employment by the ATO; and if so:
(d)did that aggravation result in incapacity for work or impairment;
(e)was the aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment; and
(f)should the aggravation not be taken to be an injury for the purposes of the SRC Act because Ms Drenth made a wilful and false representation that she did not suffer, or had not previously suffered, from the disease for which she is claiming compensation.
Background Facts
5. The following background facts are based on the evidence of Ms Drenth and documentary material before us, and except where we indicate otherwise, are not in contention.
6. Ms Drenth is aged 52. After leaving school, she commenced studying law at the University of Adelaide. She was then employed by the ATO between 1978 and 1989, and completed her degree, part time, in 1986.
7. She married in 1987 and moved to Melbourne in 1988. She worked as a senior tax consultant for KPMG in Melbourne from 1989 until 1993. She then started a home-based domestic cleaning agency, which involved providing sub-contractors to clients.
8. She has two daughters, who are now aged 23 and 21. Her marriage ended in 2001, and she divorced in 2005. She decided to return to Adelaide, where she had been brought up and where her parents lived. She moved back to Adelaide not long before Christmas 2005.
9. During 2005 she also applied to re-join the ATO in a graduate program, and was accepted for a position in the Adelaide office. The program involved 12 months of a combination of formal training and three periods of practical experience in different sections of the ATO. She commenced in the graduate program in February 2006.
10. She completed her graduate program, and in February 2007 commenced work in a GST recovery and litigation (R & L) team. This involved dealing with objections to GST assessments and working on matters in the Federal Court and in this tribunal. She started with a mentor, namely one Helen Wishnia, who taught her how to use the ATO systems and the relevant procedures and time frames. The mentor position was then taken over by a Mr Louis Iancar, and he remained her mentor until he was promoted to a different position with the ATO in early February 2008. She had previously worked with Mr Iancar from late March or April 2007, when he became her team leader.
11. Ms Drenth continued to work in the R & L team, with Mr Iancar as her mentor and team leader, during the remainder of 2007, and until Ms Drenth went on compassionate leave late in November 2007. In an email of 24 November 2007 in support of her application for leave, Mr Iancar referred in very favourable terms to Ms Drenth’s competency in dealing with objections and penalties, as well as to her work ethic and attitude generally, and said that she had reached a stage where she was the most productive member of the team relating to objections: see exhibit R1, T3, pages 6 and 22.
12. In or about October or November 2007, the ATO decided to amalgamate, on a pilot basis, the two teams engaged on GST matters in the South Australian and Western Australian offices of the ATO. The two teams were the R & L team, where Ms Drenth had been working, and the GST Advice team. Each of the amalgamated teams was to be under a separate leader. In the South Australian office of the ATO, Margaret Sanderson was appointed the leader of one team, and Shane Vokes of the other team. The Advice team had dealt with requests for private rulings, where taxpayers sought a ruling as to their position on a specific set of facts, and this entailed the ATO employee involved in making a determination, and advising the taxpayer of the position. In addition, it entailed determining applications by taxpayers to vary their reporting periods, and this involved making a determination involving the exercise of discretion, and advising the taxpayer of the determination.
13. Ms Drenth had had health issues during 2007, to which we will refer below. She took leave, and by late November had used up all of her accrued annual and sick leave entitlements. On or about 21 November 2007, the ATO became aware that Ms Drenth was experiencing significant psychological stress and that she had recently been hospitalised following an overdose of medication. The ATO identified her as an “at risk” employee and considered ways in which it could assist her, including allowing her fully paid leave on compassionate grounds, which could occur when an employee had exhausted all his or her personal leave credits, and in the opinion of the Commissioner, special circumstances existed. Ms Drenth applied for paid leave on compassionate grounds, and this was granted to her for the period 3 to 13 December 2007, when she worked five hours a day, four days a week. After that she worked five hours a day until Christmas and went on leave over the Christmas period. She returned to work on 2 January 2008 when the ATO re-opened, but then only worked for two part days until she returned to work again on 16 January 2008, after having been cleared to do so by her treating psychiatrist, Dr Barrow, for hours further reduced to 3.5 hours per day. Another return-to-work plan was prepared, covering the period from 16 January to 15 February 2008, with Ms Drenth’s hours to remain at 3.5 hours per day, and with her hours and days of work thereafter to be in accordance with advice from Dr Barrow. She then worked from 16 to 29 January 2008, but only for restricted hours, and she took two days off work during this period.
14. In a letter dated 29 January 2008, Dr Barrow advised the ATO that in her opinion, Ms Drenth was able to work four hours per day, and if she was coping well, this could be increased to five hours as soon as possible. In the meantime, Dr Graham George, a consultant psychiatrist, to whom Ms Drenth had been referred by the ATO in April 2007, had examined her again at the ATO’s request on 18 January 2008. In a report dated 19 January 2008 (which was not, however, received by the ATO until 29 January 2008) Dr George said that he did not believe that Ms Drenth was capable of working 3.5 hours per day, five days a week, and said that it was impossible to estimate when she would be ready to return to work: see exhibit R2, ST76, at page 1227. Dr George reported that she had been using excessive doses of medication in the period prior to seeing him on 18 January 2008, and it appears that she overdosed on or about 9 January 2008 (see exhibit R6, paragraph 16).
15. Ms Drenth was very distressed when she was advised, by letter dated 30 January 2008 (exhibit R1, T11, page 21), that she was not to work as from 31 January 2008, in consequence of Dr George’s opinion. She prepared a detailed submission dated 6 February 2008 (exhibit R1, T13, pages 23-64) in which she requested a review of the decision as to her fitness for work, but the ATO adhered to its earlier decision. Ms Drenth also made a complaint to the Human Rights and Equal Opportunity Commission. This complaint was settled, and after reviewing further medical assessments by Dr George and Dr Barrow, the ATO agreed that she should return to work. She did so on 18 February 2008, working five hours a day (in accordance with a recommendation from Dr George). She was located in the GST area, in one of the two newly constituted integrated Interpretation, Advice and Assistance teams, with her team leader being Margaret Sanderson. In the meantime, as mentioned above, Mr Iancar had been promoted and transferred to a different section of the ATO. On the morning of 18 February, the day Ms Drenth returned to work, a meeting was convened to review and formalise an updated return-to-work plan. It was determined that she was to do Advice work, but no AAT case conference work, and that one Warren Lawson was to be her new mentor: see exhibit R1, T15, pages 68-70.
16. There was a conflict of evidence as to whether Mr Lawson refused to act, or ever acted, as Ms Drenth’s mentor, but soon after the meeting on 31 March 2008 another mentor, Ms Xenia Macheras, was appointed to be her mentor in place of Mr Lawson.
17. Ms Drenth continued to work for five hours per days as from 18 February 2008, but at a meeting on 5 March 2008, it was agreed that she could take a longer break on one day a fortnight, and could vary her hours if and when required: exhibit R1, T22, page 78.
18. A further case conference meeting was held on 26 March 2008 to review the progress of Ms Drenth’s return-to-work program and to discuss workplace issues she had identified as needing resolution. This meeting was aborted due to difficulties with a speaker phone, and it was re-arranged for 31 March 2008. Following discussion at this further meeting regarding the role of the external rehabilitation consultant, the ATO engaged a different external rehabilitation consultant, namely Ms Jane Lacey, in place of the consultant who had previously been engaged, Ms Meryl McCarthy. We will refer below to other aspects of this meeting.
19. Following the further meeting on 31 March 2008, Ms Drenth remained off work for most of the time, although she attended a further meeting on 9 April. Later that day, Ms Drenth advised that she was discussing with Dr Barrow the possibility of having a pre-determined time of leave, for example, a month without any work commitments. Following a further assessment on 11 April 2008, Dr George considered that a break from work over the following three weeks, followed by a graduated return to work, five a hours a day, five days a week, would be a “reasonable” option (exhibit R1, T34, page 128). It appears that Ms Drenth later attempted a return to work on 6 May. At a meeting on 13 May 2008, it was agreed that Ms Drenth would attempt to return to work on Thursday, 15 May, working one to two hours (exhibit R1, T37, page 134). At a meeting on 26 May 2008, it was recorded that Dr Barrow had cleared her to return to work for three hours a day, five days a week. However, Ms Drenth ceased work from 5 June 2008, and in a letter dated 14 July 2008 (exhibit R2, ST102, page 1301), Dr Barrow advised that she continued to be unfit for work from 5 June to 29 August 2008 inclusive. According to an occupational health assessment dated 8 July 2008 prepared by her team leader, Mr Vokes, Ms Drenth only attended work for a total of 25 hours and 45 minutes spread over 10 part-days during the period from 1 April to 30 June 2008, and spent virtually all of that time trying to bring her leave documentation up-to-date, with no training packages attempted or completed (exhibit R12, Attachment D).
20. In August 2008, Dr Jules Begg, a consultant psychiatrist engaged by the ATO, assessed Ms Drenth and considered that she was not fit for work and would be unlikely to be fit for work for another 12 months. However, after receiving continuing treatment, Ms Drenth returned to work at the ATO in March 2010 on a graduated return-to-work program. She gained a promotion in about July 2010 and moved to Melbourne in September 2010 to take up a new role with the ATO. However, she developed pneumonia in late November or early December 2010 and had time off work. A return-to-work program was developed by an external consultant, but she was unable to return to full-time work and finally ceased work with the ATO again in January 2011.
Applicant’s Claim for Compensation
21. Ms Drenth’s claim for compensation is dated 28 July 2008. She prepared a detailed addendum to the claim in which she identified six “trigger events” as the relevant events that gave rise to the asserted exacerbation of her condition, which she described as BPD. These six events were as follows: (a) organisational restructure; (b) loss of Louis Iancar as mentor; (c) actions by Margaret Sanderson; (d) actions by Meryl McCarthy (the first external rehabilitation consultant engaged by the ATO); (e) disciplinary action contemplated (being a matter which she said was raised at a return-to-work meeting on 31 March 2008); and (f) actions by Shane Vokes.
22. In the contentions section of the applicant’s statement of facts, issues and contentions, it is asserted that the change in her employment from the GST R & L area to the GST Advice area, method of training employees and the attitude of mentors and superiors in and from February 2008 resulted in an aggravation of her BPD and an incapacity for work. It is also asserted that before altering the nature of the applicant’s employment, the respondent (presumably this was intended to refer to the ATO) “failed to take any advice to ensure” that her mental state would not be likely to deteriorate as a result. The facts asserted in the same document also refer to two incidents, which have been described as the air-conditioning incident (which occurred on 18 February 2008) and the time-sheet incident (which occurred on 21 May 2008).
23. During his final address, counsel for Ms Drenth, Mr Britton, used what he called shorthand terms to describe work-place stressors as follows: (a) personality differences with M Sanderson and S Vokes; (b) the training offered by the ATO in relation to Advice work; (c) mentoring difficulties; (d) the air-conditioning incident on 18 February 2008; and (e) the time-sheet incident on 21 May 2008. The descriptions of the asserted work-place stressors in the addendum to the claim for compensation, the applicant’s statement of facts, issues and contentions and counsel’s final address are therefore somewhat different, but appear to embrace the same asserted stressors, except that counsel did not identify the actions of Ms Meryl McCarthy as a stressor.
24. It seems to us that there was one other work-related stressor that was not referred to in Ms Drenth’s addendum or in Mr Britton’s address, and that was the decision by the ATO on 30 January 2008 that she was not fit to work.
25. The facts surrounding certain of the above events and their relevance to Comcare’s liability for compensation were in dispute, and we will refer later in these reasons to the events and the evidence in relation to those matters.
26. Ms Drenth did not make separate claims for compensation based on aggravation contributed to by particular asserted stressors. It was accepted by her counsel that her claim for compensation is based on the combined effects of all of the asserted employment-related stressors, and that the claim should not be treated as a claim for compensation for each of the individual stressors. Counsel’s position is consistent with Ms Drenth’s addendum to her claim for compensation, where she refers to the “totality of the ATO’s actions” (exhibit R1, T50, page 191).
Medical Evidence
27. In order to determine the issues before us, it is necessary to have regard to evidence as to Ms Drenth’s condition prior to 2008, when the employment related events on which she relies occurred, and also to consider the effect of those events.
Applicant’s condition prior to the asserted work-related stressors in 2008
28. The section 37 documents include the notes and records of some of the doctors and institutions who were involved in the treatment of Ms Drenth during part of the period when she lived in Melbourne, as well as after she returned to Adelaide. She was asked about her medical history in cross-examination, and admitted that she had had a sense of depression and futility for most of her adult life. She said that she attempted suicide when she was 19, following her grandmother’s death, and that she had had episodes of depression since her late teens. She also said that she had had post-natal depression after the birth of each of her daughters, although this only lasted for two to three months on each occasion. She admitted to one significant episode of depression in 1991 and to a major breakdown in 1996, when a work colleague died in a house fire. She said that she was hospitalised after that but not for long. She said she was treated by Dr Brous, a psychiatrist in Melbourne, from August 1996 to September 1997, and during this period was hospitalised for five weeks for major depression and alcohol abuse. There were also issues of anorexia.
29. After Dr Brous, Ms Drenth received psychiatric treatment from a Dr Heffernan, for about two years, and from a Dr G Wood until she left Melbourne to return to Adelaide in late 2005. She was cross-examined about records of repeated episodes of having taken overdoses from and after August 1999 until July 2005, entailing admissions to various hospitals and clinics in Melbourne, and she accepted that the records were correct. Ms Drenth said that over that period she had had difficulties because of her marriage breakdown, because after that, her older daughter refused to speak to her. She also had financial problems and could not repay her credit cards.
30. In examination-in-chief, Ms Drenth said that she had not taken medication when she lived in Melbourne since mid-2005, and that she was feeling better by September 2005 and had ceased all medication except for medication required for panic attacks. She also admitted to having taken overdoses in April, June and July 2005 entailing inpatient admissions, and that her general practitioner, a Dr Fowler, had provided three certificates certifying that she was unfit for work for successive periods of three months commencing from 21 March 2005 and ending on 20 December 2005. In a letter dated 21 September 2005, Dr Wood also referred to Ms Drenth’s capacity to work (although his letter appears to have been written in response to a facsimile despatched on 8 September 2005 on behalf of Ms Drenth by a financial counsellor, requesting a letter to support an application to withdraw superannuation on hardship grounds: see exhibit R2, ST173 page 1692). Dr Wood’s letter states that he had seen Ms Drenth in weekly therapy over the preceding five years, and continues:
“She suffers with a chronic psychiatric disorder. Because of this disorder, her capacity to sustain reasonable independence in her personal and working life has been very impaired. She has required daily medication to control significant symptoms of anxiety and depression.
She has been unable to seek work let alone sustain any employment.
From time to time, she has been erratic in her behaviour; she has not been able to act, in what is her usual, responsible level-headed manner.
In the past two months she has significantly improved. I have been able to withdraw and cease her medication. She is now at the point where she can resume an effective, independent existence.” (exhibit R2, ST173, page 1693)
However, according to contemporaneous medical notes put to her in cross-examination, her general practitioner had prescribed medication on several occasions in September, October and December, and Dr Wood later issued prescriptions for Neulactil, Temaze and Kalma.
31. Ms Drenth was also cross-examined, by reference to matters recorded in her treating doctor’s notes, as to other employment in which she had apparently engaged whilst she was living in Melbourne, which she had not referred to in the course of her examination-in-chief. At first she denied that she had engaged in other employment (apart from her cleaning business) between 1993 and 2005, but when contemporaneous notes of medical consultations were put to her, she at first admitted to three short periods of employment with three different employers. However, the records put to her indicated that she had started new jobs in or about the following months, namely February and September 2000, April and October 2001, and March and September 2002, with a period of work with the ATO in a volunteer role in about June and July 2002. Ms Drenth said that she had not been well and that her memory of that period was not good. She disputed that she had complained of having difficulties such as being denigrated or bullied by some of her employers. She said that the positions which she had obtained were in the main accounting positions for which she was not trained, and that had led to her employment being terminated or ceasing.
32. She was then asked in examination-in-chief how her health had been during 2006 (when she had returned to Adelaide), and she said that she was well, hardly ever missed a day and could not recall any leave of any significance, but that towards the end of 2006 she started to become a little anxious because it had been a long year and she had an assignment that was due. She said that in late 2006 she had used the Acute Crisis Intervention Service (ACIS) people a couple of times, and they had referred her to a psychiatrist, Dr Meredith, whom she saw from January to July 2007. When she was asked whether she was off work at any time during 2007, she said that there was a period early in February when she was a little erratic in her attendance. She further said that in February 2007, Dr Meredith advised her that he had diagnosed that she was suffering from BPD. She said that she then advised a person in Adelaide from the ATO Health and People Management team. She said she recovered quite quickly and only took a few days off. She said that at the beginning of February 2007 her mother had been diagnosed with Alzheimer’s disease and she was a bit shattered by her own diagnosis of BPD.
33. Ms Drenth went on to say in examination-in-chief that Dr Meredith prescribed medication and she saw him on a weekly or fortnightly basis, and that helped her a lot, although from July to October 2007 she might have taken time off work, but not much. She commenced treatment from Dr Barrow in later September 2007, and was referred for Dialectic Behaviour Therapy (DBT), and Dr Barrow provided psychotherapy and medication. She said that she became unwell in November 2007, as she had a tooth infection, and she was also having DBT once a week and psychotherapy five times a week. As mentioned above, she applied for paid leave on compassionate grounds.
34. It became apparent from Ms Drenth’s cross-examination and other material before us that she under-stated the effects of her psychiatric condition and her employment capacity during her period with the ATO in 2006 and 2007. When it was put to her that she had had about 38 consultations with her general practitioner in 2006, she accepted that she was wrong in her recollection that she had been well in 2006, and she acknowledged that she had had problems with depression and anxiety. She also admitted to having taking overdoses in July, November (on two occasions) and December 2006. She said that she started to regularly use ACIS from November 2006, and admitted that she had used them on 24 separate occasions during December 2006. Nevertheless, she maintained that her work had not been affected and was therapeutic, and said she loved it.
35. Ms Drenth also accepted that records of overdoses in 2007, in January, March, April (on two occasions), June, July, August, September, November and in December (on two occasions) would be correct. She told Dr George that she had overdosed again the night before she saw him on 19 January 2008. Ms Drenth agreed that there were a number of stressors affecting her in December 2007 and January 2008. These included continuing concerns about her mother’s Alzheimer’s disease, her difficult relationship with her elder daughter, an issue with her brother, finding a shadow on her lung, continuing pain from the abscess on a tooth, severe headaches, changes to her medication, financial stress because she was not working full-time, her DBT which she found unsettling, and concern about both Dr Barrow and Mr Iancar being away on leave. Nevertheless, she re-iterated that she loved her work, and said it was important for her self-esteem, and she was working effectively.
Applicant’s condition after the asserted work-related stressors in 2008
36. Five psychiatrists gave evidence, namely Drs N Ford and P Smith, who were called by Ms Drenth, and Drs G George, M Clarke and J Begg, who were called by Comcare. Two of the three assessments of Ms Drenth were made by Dr George prior to the six asserted stressors. The other four psychiatrists became involved after these stressors. We have already referred above to assessments made by Drs Barrow, George and Begg of Ms Drenth’s capacity to work from and after mid-January 2008, and to the times when she worked after that. Ms Drenth agreed that in the early months of 2008, a number of the stressors that had been affecting her in the preceding December and January continued, and in addition, she was having other medical problems, including hot flushes, an irritable bowel syndrome, and continuing difficulties in stabilizing her medication.
Legislative Scheme
37. Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations. It 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.”
38. The requisite connection between a psychological condition suffered by an employee and his or her employment is provided for indirectly, via the definitions of “injury” and “disease”. “Injury” is defined relevantly, in s 5A, 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.”
39. “Disease” is defined relevantly, in 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.”
40. The word “ailment”, which is used in paragraph (a) of the definition of “disease”, is defined in s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”. The word “aggravation” is defined to include “acceleration or recurrence”.
41. Under s 7(7) of the SRC Act, a disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee if the employee has at any time, for purposes connected with his or her employment or proposed employment “made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease”.
Consideration
42. It is common ground that Ms Drenth was suffering from one or more pre-existing psychiatric conditions prior to her re-employment by the ATO in 2006. In order to determine her claim, it is first necessary to decide the nature of her pre-existing condition(s).
Evidence as to diagnosis
43. In a medical certificate dated 8 September 2008 provided by Ms Drenth in support of her claim for workers’ compensation, Dr Barrow certified that she examined Ms Drenth on 21 May 2008 in relation to the asserted injury, and in a response to a question included in the certificate as to the cause of the injury based on the information available to her, Dr Barrow referred to borderline personality disorder, long-standing depression and a “more recent recurrence of anxiety going to work” (exhibit R1, T58, page 251). In an earlier report dated 28 November 2007 to the ATO (exhibit R1, T4, page 7), Dr Barrow said that Ms Drenth had been referred to her two months ago, and presented with symptoms of “depression, anxiety, associated personality issues, and a propensity for taking over-doses.”
44. Ms Drenth continued to receive treatment from Dr Meredith after that diagnosis, but she became dissatisfied with his treatment and his advice that he could not continue to help her, and she then commenced treatment with Dr Barrow in late September 2007. Dr Barrow later became unwell and subsequently died, and in March 2010 Dr N Ford became Ms Drenth’s treating psychiatrist. Dr Ford considered that Ms Drenth had a recurrent major depressive disorder and showed borderline personality traits, but he added that whether these were diagnosable when she was not unwell with depression was not clear (exhibit R2, ST180, page 1758).
45. There is no report before us from Dr Meredith (who, as we have said, treated her before Dr Barrow, from January to July 2007) but his records were summoned by Comcare and tendered. Ms Drenth gave evidence that in February 2007 Dr Meredith advised her that he had diagnosed that she was suffering BPD. She said that she then advised a delegate in Adelaide of the Health and People Management team of the ATO of this diagnosis, and a consultant to that team made contact with the ATO Employment Assistance Program representative on her emergency line to have someone call Ms Drenth at home because she had “a bit of suicidal ideation” (exhibit R1, ST24, page 1083). Ms Drenth also gave evidence that she had then researched BPD on the internet and could see that she met most of the criteria for BPD, and she thought that the diagnosis was accurate, although it shocked her.
46. Neither party called Drs Brous or Wood, the two psychiatrists who had treated Ms Drenth before she returned to Adelaide late in 2005. In a letter dated 8 September 1997 from Dr Brous to Ms Drenth’s general practitioner, Dr Brous reported that Ms Drenth suffered a “severe personality disorder”, and said that she had developed episodes of major depression at times. We have already referred to Dr Wood’s letter of 21 September 2005 (see paragraph 30 above). In a later letter dated 15 December 2006 to Eastern Community Mental Health Service, Dr Wood contradicted the statement in his letter of 21 September 2005 that Ms Drenth suffered with a “chronic psychiatric disorder”. In his later letter, he said that she “does not suffer with a psychiatric disorder but experiences significant anxiety at times of uncertainty. She has significant dependancy (sic) traits but not a disorder.” The letter proceeds:
“She has over used alcohol and prescribed medications in the past to try to lessen her distress.
A past pattern was her presentation at emergency departments following an overdose and then usually self discharge within 6 hours.
She can feel desperately losnely (sic) and can become overly dependent on individuals or health care personnel.” (exhibit R2, ST16, page 1065).
47. Following her return to Melbourne in September 2010 she was referred to another psychiatrist for treatment, namely Dr Keryn Fitzpatrick. In a letter dated 27 October 2010 to her general practitioner, Dr Fitzpatrick diagnosed Ms Drenth with BPD and chronic depression, and said that she presented with increased anxiety related to current stressors in her life.
48. Dr George, following his first assessment in April 2007, diagnosed Ms Drenth as having major depression with anxiety, panic disorder and probable obsessional personality traits (exhibit R2, ST38, page 1132). In his second report dated 19 January 2008, he diagnosed borderline personality disorder in association with poly-substance abuse. In his final report dated 13 April 2008, Dr George said that he would “perceive her as suffering more of a generalised anxiety disorder in combination with an element of poly substance abuse”, and thought that that abuse remained a challenge in the therapeutic context. When he was cross-examined about his first report, Dr George said that BPD was not a diagnosis that he would make after one consultation, and at the time of the first consultation, he had not asked about episodes of self-harm or overdoses. However, by the time of his second report, he had become aware of the diagnosis of BPD, and had had some contact with the treating psychiatrist, Dr Barrow. He also thought that there had been some remission of Ms Drenth’s major depressive and anxiety disorder, but there had been a deterioration in her general behaviour and there had been episodes of self-harm, and he thought that substance abuse was just as significant as BPD. In cross-examination, he said that Dr Ford’s opinion and his opinion were in accord “to quite a degree”, and that Dr Ford had “pull(ed) it all together quite cohesively” (transcript, 23.06.11, page 257, lines 33-35). He also said that in a hierarchical approach to diagnosis, “depressive disorder, a major depressive disorder, far outweighs (BPD)” (transcript, 23.06.11, page 257, lines 31-33), and he did not see Ms Drenth’s BPD as a “predominant condition for her”.
49. Dr Begg, a consultant psychiatrist to whom the ATO referred Ms Drenth for assessment on 8 August 2008, accepted that Ms Drenth’s history of overdosing and other behaviour evidenced a diagnosis of BPD, and from his examination believed that any clinical depression which was present was mild or moderate at most, and that her subjective experience of a severe depression was due to her underlying borderline personality, not to a clinical disorder (exhibit R1, T54, page 217). Dr Begg confirmed this diagnosis in his reports of 27 July 2009 (exhibit R2, ST133, page 1421) and 19 February 2010 (exhibit R2, ST151, page 1471) following reassessments of her condition, and in his evidence.
50. Dr M Clarke, a further consultant psychiatrist who assessed Ms Drenth on 25 November 2008 at the request of Comcare, also made a diagnosis of BPD: see exhibit R1, T69, page 315.
51. In a report dated 28 February 2011, Dr Smith, a consultant psychiatrist from Melbourne, stated as follows, in the context of assessing Ms Drenth’s prognosis at the request of the ATO:
“Ms Drenth’s co-morbid symptoms of debilitating anxiety particularly generalised anxiety and work phobic anxiety together with moderate depressive symptoms are chronic, associated with high levels of functional incapacity and social handicap.” (exhibit R2, ST180, page 1766).
Earlier in his report he referred to “trait anxiety and possible mild/moderate obsessionality” as personality traits, but said that there was no evidence from his current assessment to support the diagnosis of a personality disorder (exhibit R2, ST180, page 1766).
52. In summary, therefore, as far as BPD is concerned, four of Ms Drenth’s treating psychiatrists, namely Drs Brous, Meredith, Barrow and Fitzpatrick, diagnosed that condition, but another of her treating psychiatrists, Dr Ford, did not consider BPD to be a correct diagnosis, (although he did refer to personality disorder traits, but said it was not clear whether these were diagnosable when she was not unwell with depression). Of the consultant psychiatrists who expressed an opinion about diagnosis, Drs Begg, Clarke and George diagnosed BPD (although Dr George in cross-examination was prepared to accept Dr Ford’s diagnosis), and Dr Smith referred to certain personality traits but saw no evidence from his one assessment to support a diagnosis of a personality disorder. The letters from Dr Wood to which we have referred above are contradictory, and do not assist.
53. We found the evidence and opinions expressed by Drs Clarke and Begg to be balanced and objective, and consistent with the information before us as to Ms Drenth’s history of past behaviour, functioning and treatment. We found Dr Ford’s evidence to be less objective. Further, his opinion was dependent on the history that he had obtained from Ms Drenth, and that in turn was dependent on her recollection and interpretation of events that she described to him. We think that her recollection, particularly of relevant events that occurred in the past when she lived in Melbourne after moving there the first time, was likely to have been deficient, as she herself admitted. For example, when she was cross-examined Ms Drenth appeared unable or reluctant to recall details of events relevant to her past employment in Melbourne. Drs Clarke and Begg also said that persons with BPD commonly have a distorted understanding of events which they have experienced, and thought that Ms Drenth’s BPD and the stress she was under was likely to have affected the reliability of her recollections (transcript, 24.06.11, page 273, lines 19-36 and page 312, lines 20-45). Dr Ford appeared not to have been fully apprised of the extent of Ms Drenth’s behavioural and functioning difficulties over a long period of time before she recommenced employment with the ATO, and we think it likely that the history she gave to Dr Ford was unreliable. Further, unlike Drs Clarke, Begg and George, Dr Ford had not been provided with all of the historical information that is included in the section 37 documents in relation to Ms Drenth’s situation over the years before she returned to Adelaide in 2005. As to Dr Smith’s diagnosis, we place little weight on this, because he only assessed Ms Drenth on one occasion, which was approximately three years after the occurrence of the events in issue, and that was for the purpose of undertaking an occupational health assessment. He also did not have access to all of the historical information contained in the section 37 documents.
54. We find on the evidence before us that Ms Drenth was suffering from BPD when she resumed employment with the ATO in 2006. We further find that at times she has suffered from substance abuse and conditions of depression and anxiety, and that she was suffering from these conditions, as well as BPD, when she returned to work on 16 January 2008, that is prior to the first of the asserted trigger events upon which she is basing her claim for compensation.
Was there an aggravation of the applicant’s pre-existing condition(s)
55. Counsel for Comcare, Mr Krupka, contended that in the months of December 2007 and January 2008, being before the occurrence of the asserted work-related stressors, Ms Drenth was considerably unwell for a number of reasons unconnected with work, and he pointed out that she had had three overdoses during that period (see paragraph 35 above). He also observed that prior to the asserted work stressors she had been put on reduced working hours, and was absent from work through sickness for various periods prior to Christmas 2007, and in January 2008. He accordingly contended that the asserted work-related stressors did not make a significant contribution to Ms Drenth’s symptoms, and that her employment was not the cause of her symptoms, but no more than the “theatre” in which her symptoms played out. He relied on the well-known dictum of Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641, where his Honour said that the reference in the workers’ compensation legislation there under consideration to employment being a contributing factor:
“... refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.”
56. Mr Krupka also referred to the judgment of Sweeney and Woodward JJ in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195, where their Honours referred to the difference between on the one hand the sequelae of employment making a sick mind sicker and thus contributing to incapacity and, on the other hand, a sick mind “latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity.” Mr Krupka submitted that on the evidence, it was likely that Ms Drenth’s incapacity for work during 2008 was merely the ebb and flow of her pre-existing psychiatric condition.
57. It is clear from such cases as Wiegand v Comcare (2002) 72 ALD 795, Federal Broom Co Pty Ltd v Semlitch (supra) and Fellowes v Military Rehabilitation and Compensation Commission (2008) 170 FCR 531 at [33] that in considering Comcare’s liability for compensation, Comcare must take the employee as it finds him or her, that is, with any pre-existing vulnerability to injury that the employee might have. This principle is relevant to Ms Drenth’s claim, because it is apparent from the medical evidence before us that her BPD and the other conditions from which she was suffering as at 30 January 2008 made her vulnerable to events which were unlikely to affect other employees.
58. We also observe that a perception held by an employee about a state of affairs or events relevantly related to his or her employment that actually happened and contributes to the requisite degree to the occurrence of a disease will give rise to an entitlement to compensation under s 14 of the SRC Act, even if the perception is not objectively reasonable: Wiegand (supra). In that case, after referring to the medical evidence of the applicant’s pre-existing personality traits that rendered him vulnerable to stressors, von Doussa J said that the applicant’s depression would nevertheless be compensable if it was “an aggravation of an ailment to which the employment was merely one of a number of factors that contributed to a material degree” ([2002] FCA 1464 at [20]). His Honour continued, at [21]:
“It is not to the point to ask whether the vulnerability is the result of constitutional factors rather than external factors ... The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment.”
59. We have referred above to Ms Drenth’s condition in the period when she lived in Melbourne prior to resuming employment with the ATO in the graduate program, and it is apparent that there were periods when Ms Drenth was not fit for work due to episodes of depression, including in particular the period from March to December 2005, when she was certified unfit for work. It also appears that in the period prior to late January 2008, her periods of incapacity for work were increasing, for reasons not related to her employment. However, we accept Ms Drenth’s evidence that after that, her symptoms of depression and anxiety became worse due to work-related stressors. Her evidence is consistent with her significantly reduced hours and absences from work, and with contemporaneous records of her concerns and difficulties over the period from 30 January 2008 to 5 June 2008, when she went on extended sick leave because of her condition. We are satisfied that from and after 30 January 2008, when she was told that the ATO regarded her as unfit for work, her then pre-existing psychological conditions were aggravated. We further find that her perception of certain work-related stressors contributed, in varying degrees, to increased symptoms of depression and anxiety after that date.
Were the applicant’s pre-existing conditions aggravated, to a significant degree, by her employment?
60. The question of whether the asserted work-related stressors made a significant contribution to Ms Drenth’s incapacity or impairment is more problematic. The SRC Act previously included a lower threshold for the compensability of diseases, in that the definition of “disease” required that it be contributed to, in a material degree, by employment. However, that formulation was amended with effect from 13 April 2007. Section 5B of the SRC Act in its current form requires the aggravation of a pre-existing condition to be contributed to, “to a significant degree”, (emphasis added) by employment. The matters to be taken into account in applying this test are referred to in ss 5B(2) and (3), which we set out in paragraph 39 above. We note that the matters to be taken into account are not exhaustive.
61. The expression “significant degree” is defined in s 5B(3) to mean “a degree that is substantially more than material”. The significance of this threshold requirement can be appreciated by considering the meaning of the predecessor requirement, namely “in a material degree”. In Comcare v Sahu-Khan (2007) 156 FCR 536, Finn J referred to the change in terminology between the SRC Act and its 1971 predecessor in relation to the requisite causative connection between an employee’s employment to be entitled to compensation under the SRC Act. His Honour pointed out in effect that by virtue of the definition of “disease”, the contribution from the employee’s employment was required not to “contribute” simpliciter, but to the suffering or aggravation of an ailment. He concluded, at [16], that the definition of “disease”:
“(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii)whether this will be so in a given case will be a matter of fact and degree.”
Section 5B(3) makes it clear that the current requisite causal connection is a degree that is substantially more than material, which was the applicable requirement at the time of the above judgment in Wiegand (supra).
62. We will now refer to each of the employment-related events that are relevant to the issues of whether her employment contributed to a significant degree to the aggravation of her pre-existing psychological conditions.
(a) The determination on 30 January 2008 that the applicant was unfit for work
63. As mentioned above, Ms Drenth does not rely on this event in support of her claim for compensation. However, she strongly disagreed with this decision as soon as she learned of it, and as we have said, took steps to seek a review of it and lodged a complaint with HREOC. We regard this event as significant in our consideration of relevant related events. We further consider that this event had a significant adverse effect on her pre-existing condition. She maintained that her BPD and other health and personal issues did not impact on her work. We note that in her submission dated 6 February 2008 seeking a review of the ATO’s decision that she was not fit for work (see exhibit R1, T13, pages 33 and 36, she referred to her work as “an extremely important, indeed essential, part of managing (her) illness and getting better”, and said that she had been “plunged into a position of financial hardship”. These concerns were confirmed by a report dated 2 February 2008 from Dr Susan Hughes, from her GP’s practice (exhibit R1, ST13, page 48). Our view as to the significance of this event is also supported by the evidence of Ms Meryl McCarthy, the rehabilitation consultant who was involved very closely with Ms Drenth at the relevant time. She said that Ms Drenth was very concerned about the ATO’s decision as to incapacity for work, both because work was what Ms Drenth wanted, and because of her financial position.
(b) Organisational Restructure
64. It is clear that Ms Drenth had become familiar with R & L work and enjoyed doing it, and indeed found it therapeutic. She did not stop doing R & L work until her return to work on 18 February 2008, and it appears that she did not at any stage work effectively or productively on Advice work prior to eventually going on extended sick leave on 5 June 2008. Her concern about the restructure was bound up with her concern that there was a lack of appropriate training and that she did not have suitable mentoring arrangements in place, being matters to which we now refer.
(c) Mentoring difficulties
65. Ms Drenth was concerned by the withdrawal of Mr Iancar as her mentor following his promotion to a different section in the ATO early in February 2008, and also by Mr Lawson’s perceived refusal to act as her mentor and by a perceived unsatisfactory mentoring relationship with Ms Macheras. She had clearly had a very good mentoring relationship with Mr Iancar, which had helped her to become a very productive member of the R & L team. There was a conflict of evidence as to her mentoring relationship with Mr Lawson; she said that he refused to be her mentor when she approached him, whereas Mr Lawson disputed this, and said that he had reviewed one case on which she had worked, and told her team leader, Ms Sanderson, that he had found it unsatisfactory, and that he did not wish to continue in his role as mentor. We find it unnecessary to resolve this conflict of evidence, because we accept that Ms Drenth perceived that Mr Lawson had refused to be her mentor, and that this perception was honestly held. Ms Drenth also gave evidence of difficulties with her next mentor, Ms Macheras, apparently in part because Ms Macheras was not prepared to adopt the mentoring practices that had been used by Mr Iancar, whereby he would explain necessary steps and processes at the time of allocating cases to her. Again, we accept Ms Drenth’s perception of continuing difficulties with her new mentor.
(d) Training in relation to Advice work
66. Mr Britton emphasised that the members of the Advice team who, following the restructure, were allocated R & L work were all provided with a program of formal training with a presenter from interstate, and of the five remaining people from the R & L team after Mr Iancar’s promotion, Ms Drenth alone was put on Advice work, but was given no formal training. Rather, she was told that she had to consider cases to which she was allocated, then engage in self-training using a computer program, and apply what she learned to the cases she had been allocated, and then attempt to provide the necessary advice and to take her work to her mentor, when she would receive feedback. Mr Britton submitted that this was wholly inappropriate having regard to Ms Drenth’s successful past experience with Mr Iancar as her mentor and her vulnerable condition, and was inconsistent with Ms Drenth’s expressed wish to be treated the same as everyone else in the GST section of the ATO. He also referred to the ATO’s Mentoring & Coaching – a guide for managers and staff (exhibit A1) and the ATO’s Practice Statement PS CM 2006/03 concerning Health, safety and wellbeing (exhibit A2).
(e) Actions of Meryl McCarthy
67. Ms McCarthy gave evidence as to her very extensive contact with Ms Drenth over the period for which she was the rehabilitation consultant. She said that sometimes she had up to 25 to 30 communications or contacts with Ms Drenth in a day, and would spend a minimum of 30 minutes and a maximum of four hours a day on Ms Drenth’s case. She gave evidence that she was very concerned about Ms Drenth’s wellbeing, and felt obliged to respond to her immediately, because she was concerned about Ms Drenth’s condition and the risk that she would self-harm. Ms McCarthy also liaised with Dr Barrow periodically concerning Ms Drenth’s condition and fitness for work, and provided a copy of Dr George’s second report to Dr Barrow on 29 January 2008. These matters appear to have caused Ms Drenth concern and resentment, and caused her to question Ms McCarthy’s role and whether Ms McCarthy was acting in the interests of the ATO rather than her own interests (see, for example, her email to Ms McCarthy of 23 January 2008, exhibit R1, T10, page 20). As a result of these matters, on 5 February 2008, Ms McCarthy telephoned Ms Drenth and discussed and explained her role, but indicated that she would reduce her level of contact with her. Ms McCarthy nevertheless continued in her role and to be responsive to communications from Ms Drenth until after the meeting on 31 March 2008, when a different external consultant was appointed in place of Ms McCarthy.
(f) Interpersonal relationship with Ms Sanderson and Mr Vokes
68. Ms Drenth said that after Ms Sanderson became her team leader, she felt she had to do what she was told, but was not being consulted, and Ms Sanderson was not listening to her requests for a mentor and to be trained properly. She said she had been directed not to return to work from 31 January 2008, and this was contrary to her wishes. She said that she resented being told by Ms Sanderson and Mr Vokes that because she was an APS 4 level employee, it was not appropriate for her to do R & L work, notwithstanding that she had been doing this type of work for almost a year. She then referred to the so-called air-conditioning incident, which occurred on the day she returned to work on 18 February 2008. She said she explained to Ms Sanderson that the breakdown of the air-conditioning unit was making her very hot and she was having problems, and that about 20 minutes prior to her scheduled finish time she said she had to leave. Ms Sanderson advised that if she did so without waiting for approval from management, she would not be paid for the time lost. It transpired that management had later approved staff leaving early that day, and Ms Drenth gave evidence of a subsequent discussion in which Ms Sanderson refused to pay her for the 20 minutes of time lost, and being upset as a result of that discussion.
69. Ms Drenth also gave evidence of another occasion when she submitted work she had done on a particular case for approval, and was told that the advice should have been oral and not in writing; this was different from her practice with R & L work, and she said that she had not been given any contrary direction in relation to Advice work. At some stage she requested that Mr Vokes should become her team leader in place of Ms Sanderson. This occurred with effect from 31 March 2008.
70. She also gave evidence she had been “told off” about a time-sheet incident. This referred to her recording of the time when she commenced work on 20 May 2008. She said Mr Vokes in effect challenged her the next day by saying that he had not seen her at work at that time. Mr Vokes gave evidence that he had merely asked a question about the time she had recorded in the course of a discussion about bringing her time sheets up-to-date and reconciling them, and that he did not accuse her of being dishonest.
(g) Reference to contemplated disciplinary action
71. This asserted stressor arose from the discussion at the meeting on 31 March 2008. Ms Drenth described this meeting as being more formal than earlier meetings, and she was upset because Mr Iancar, whom she had arranged to be present as a support person, was not permitted to speak. She said that during the meeting, the words “disciplinary action” were mentioned, by Ms Turner as far as she could recall, and she became very upset and left the meeting in tears, with Mr Iancar. She said that this was the first time in which she had heard those words used in an employment context in relation to herself.
72. Ms Turner gave evidence that it was Dr Barrow who had used the words “disciplinary action”, but in the context of a discussion about Ms Drenth’s wellness to be at work, and not to indicate that any such action was contemplated against Ms Drenth. She said that the discussion related to looking holistically at the fitness of an employee to be in a working environment, where there were expectations as to the behaviour of the employee, and not just the effect of an illness on fitness for work. Ms McCarthy’s recollection was similar to that of Ms Turner, but other witnesses were not able to assist as to this issue. The minutes of the meeting and also paragraph 4 of the agenda (which appears on the first page of Attachment D to exhibit R12) appear to be consistent with the recollection of Ms Turner and Ms McCarthy, and we prefer their evidence to that of Ms Drenth on this matter. Nevertheless, we accept that Ms Drenth perceived the reference to disciplinary action to relate to her and that this caused her to be concerned that she would be subjected to such action.
73. In paragraph 39 above, we set out the terms of s 5B of the SRC Act, which includes a non-exhaustive list of matters that may be taken into account when considering whether an aggravation was contributed to, to a significant degree by employment. In the present matter, ss 5B(2)(b), (c), (d) and (e) appear to be relevant. We have considered the evidence before us against these criteria.
74. Section 5B(2)(c) refers to “any predisposition of the employee to the ailment or aggravation”. It is not clear whether this requires that any such predisposition should be used in effect to discount the impact that employment-related events would have on a vulnerable person, or whether the section was intended to have the opposite effect, that is that any such predisposition would leave the employee vulnerable to the effects of work stressors, so that employment would then be more likely to contribute to the ailment or aggravation to a significant degree. We are inclined to prefer the latter interpretation, bearing in mind that the SRC Act is beneficial legislation, and further, one would have expected to see clear language if Parliament had intended to reverse well-established judicial approval of the “egg-shell skull” theory in workers’ compensation cases. However, the parties did not address this issue, and it is not necessary for us to resolve it, because we are satisfied that on either interpretation, having regard to Ms Drenth’s perception, the employment-related events to which we referred above in combination (and a number of them separately) made a significant contribution to the aggravation of Ms Drenth’s pre-existing conditions of depression and anxiety.
Did the employment-related events constitute reasonable administrative action taken in a reasonable manner?
75. 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.
76. The question of whether the various matters relied upon by Ms Drenth constituted “reasonable administrative action” must also be determined by reference to the non-exhaustive list of matters referred to in s 5A(2) of the SRC Act. The only paragraphs that may be relevant to the present matter are paragraphs (a) and (c), and (e) to the extent that any actions are incidental to the actions referred to in paragraphs (a) and (c).
77. Having had regard to the principles that we enunciated in paragraph 75 above and to paragraphs (a), (c) and (e) of s 5A(2), we have concluded that each of the asserted employment-related events constituted reasonable administrative action taken in a reasonable manner in respect of Ms Drenth’s employment.
78. As to the determination of unfitness for work made by the ATO on 30 January 2008, it is relevant that Ms Drenth had been absent from work for significant periods immediately prior to 30 January 2008 and that there had been a history of recent overdoses, and we are satisfied that it was reasonable, after Ms Turner had informed Dr George of the then most recent assessment by Dr Barrow, for the ATO to act on Dr George’s advice of 29 January 2008, in which he said that he had spoken to Dr Barrow, and confirmed that his earlier conclusions as to Ms Drenth’s fitness for work had not changed.
79. As to the organisational restructure, Mr Vokes explained that this was to ensure that the GST teams in South Australia and Western Australia were adequately resourced, and to ensure that all members of the GST team were multi-skilled. We are satisfied that the arrangements made for Ms Drenth for mentors and for training following her transfer to Advice work were reasonable. We accept that it would not have been appropriate for Mr Iancar to have continued to be Ms Drenth’s mentor after he had been transferred to a different section of the ATO, that Ms Macheras was an appropriate person to act as Ms Drenth’s mentor, and that the proposed manner in which mentoring assistance was to be provided was reasonable. We also accept Mr Vokes’ evidence that the Advice work to be allocated to Ms Drenth following restructure entailed the same basic technical knowledge of GST legislation as had applied to the R & L work she had been doing, and that she would have received adequate training and assistance from the computer training module (which we understand related to Advice work generally in the ATO, and would have assisted her with the procedural aspects of GST Advice work), in conjunction with the assistance available to her through Ms Macheras and the quality assurance processes within her GST team, whereby each operator’s work was checked by a more experienced member of the team. Further, Dr Barrow was made aware of the proposals with respect to mentoring and training at the meeting on 31 March 2008, and did not raise any queries regarding those matters, or suggest that the proposals were in any way inappropriate.
80. As to the air-conditioning incident, we find that it was reasonable for Ms Sanderson not to grant paid leave to Ms Drenth until she had been given permission by management for staff to leave because of the air-conditioning problem; Ms Sanderson was complying with management directions as to that matter, and, in any event, she later offered to pay Ms Drenth for the time she was absent.
81. As to the time-sheet incident, we prefer Mr Vokes’ account of the circumstances in which this issue had arisen, and find that the question he asked was reasonable having regard to the difficulties of clarifying Ms Drenth’s time-sheets and bringing them up-to-date, and he later made it clear that he was not accusing her of having been dishonest when he queried the relevant time-sheet entry.
82. We think that other actions by Ms Sanderson and Mr Vokes also constituted reasonable administrative action taken in a reasonable manner, having regard to Ms Drenth’s condition and difficulties, and the measures they had been advised to adopt in order to assist her to return to work.
83. As to the actions of Ms McCarthy, it appears that there was a comparatively short period when Ms Drenth had some concern about Ms McCarthy’s role, notwithstanding the assistance and attention she had provided to her, but this concern was overcome by the appointment of a new rehabilitation consultant, and we do not think that the concerns regarding Ms McCarthy’s role were significant.
84. Finally, we find that the statements made at the meeting on 31 March 2008, including in particular the reference to the disciplinary action, were appropriate and consistent with the purpose of the meeting and with the ATO’s ongoing process of endeavouring to secure a graduated return to work for Ms Drenth, and we find that this discussion also constituted reasonable administrative action taken in a reasonable manner. We further find that all of the above events in combination also constituted reasonable administrative action taken in a reasonable manner.
Exception to definition of “injury” – meaning of “as a result of”
85. Two of the asserted stressors, namely the air-conditioning incident and the problem with Ms McCarthy, require further consideration. We do not think that either of those two events in themselves made a significant contribution to the aggravation of Ms Drenth’s conditions. She did not worry about claiming her small loss of wages even after Ms Sanderson subsequently told her that she would approve paying her. Ms Drenth’s perceived difficulties with Ms McCarthy did not prevent Ms McCarthy from responding to issues that Ms Drenth raised, and in any event she was replaced by Ms Lacey relatively soon after Ms Drenth raised her concerns about Ms McCarthy.
86. Because those two stressors did not make a significant contribution to the aggravation of Ms Drenth’s conditions, the question arises as to whether they fall within the exception to the definition of “injury”. 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.
87. The definition of “injury” in its current form appears in s 5A(1) of the SRC Act. The concluding words of the definition provide that it 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” (emphasis added). We are, of course, mindful of the stricture that decision-makers should apply the language of the statute, where the relevant statutory words are not “perfectly clear”. This stricture is referred to in Re Wiegand and Comcare [2010] AATA 790 at [72] (although we note that on the facts of that case, the excluded events were found not to have made a material contribution to the applicant’s condition in any event).
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. The New Shorter Oxford Dictionary, Clarendon Press, Oxford, 1993 includes the following relevant definitions, namely “result” means “The effect, consequence, issue or outcome of some action ...”; whereas “contribute” means “Make a contribution. Play a part in the achievement of a result”; and “contribution” means “an action etc. which brings about a result; the action of contributing.” The above interpretation would mean that if, for example, an employee suffered depression solely as a result of a failure to obtain a promotion, he or she would not be entitled to compensation, and we can readily understand that Parliament would have intended that result. However, if the employee’s depression was merely contributed to by the failure to obtain a promotion, and one or more other non-excepted work-related events also contributed to the depression, it is more difficult to think that Parliament would have intended that the employee should not be entitled to compensation.
89. Different words, namely “arising out of, or in the course of, the employee’s employment” (emphasis added), are used in the definition of “injury” where the injury is not a disease: s 5A(1)(b) of the SRC Act. These words have themselves been given a broad interpretation, and once again, there is a change of terminology to “as a result of” in the exception to the definition, (although a case where an injury other than a disease is suffered as a result of administrative action would be an unlikely eventuality).
90. The Explanatory Memorandum in respect of the Commonwealth Employees’ Rehabilitation and Compensation Bill 1988 (which was later renamed the SRC Act) refers to the definition of “injury” on page 13, and states:
“The definition of ‘injury’ excludes the ill-effects of disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or other employment-related benefit.”
91. In Comcare v Mooi (1996) 69 FCR 439, Drummond J referred at 448 to the exception to the definition of “injury”, and referred to another possible interpretation. His Honour’s remarks were obiter, but he said that insofar as any one of three excepted factors (which resulted from a failure to obtain a promotion or a benefit in connection with employment) might have contributed to the applicant’s condition, the Act required them to be “ignored”. This further possible interpretation would appear to be consistent with the Explanatory Memorandum, but was disapproved by the Full Court in Hart v Comcare (supra) at [24].
92. However, the foregoing possible interpretations would be contrary to the Court’s reasoning in Hart v Comcare, where the excepted event was found to be one of a series of work-related events that were material causes of the applicant’s condition (so that the excepted event was merely a contributing cause), with the result that the applicant was held not to have suffered an “injury” as defined in the SRC Act. The attention of the Full Court in Hart v Comcare does not appear to have been directed to the change of terminology from “contributed” in s 5B to “as a result of” in s 5A, or to the Explanatory Memorandum to which we referred in paragraph 90 above, and the point which gave rise to the appeal was whether the Judge at first instance had been correct in deciding that the tribunal had erred in distinguishing between on the one hand the failure to obtain a promotion, and on the other hand the events connected with the procedures employed in the process leading to the decisions as to promotions. Hart v Comcare was decided under the SRC Act as in force prior to the 2007 amendments, but in the present matter the parties’ contentions proceeded on the basis that we are bound by that case, and we accept that position.
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.
96. However, even though the two stressors referred to in paragraph 85 above did not make a significant contribution to the aggravation of Ms Drenth’s condition, we find that each of the remaining stressors which we have identified above did make a significant contribution to the aggravation of her condition, and that all of the events constituted reasonable administrative action. And on the Court’s approach in Hart v Comcare (supra), even if one of the remaining stressors constituted reasonable administrative action and (on our above interpretation) was itself a significant cause of the aggravation of Ms Drenth’s condition, the exception to the definition of “injury” would apply. It follows from our above findings that Ms Drenth did not sustain an “injury” within the meaning of the definition of that expression in s 5A of the SRC Act.
Application to recall medical witnesses
97. During his closing address, Mr Britton applied to recall all of the five psychiatrists who had given evidence, with the possible exception of Dr Begg, so that they could be asked whether their opinions would be affected by what (he said) was by then known about Ms Drenth’s situation, namely that she was the only person in the Adelaide office of the ATO who was subject, in the early part of 2008, to the type of training that she had described, and that those who remained in the R & L team were not trained in Advice work for a period which may have extended up to January 2009. Mr Krupka opposed this request.
98. In considering this request, we were mindful that the psychiatrists who gave evidence were interposed, in order to accommodate the witness arrangements that had been made. Dr Ford was called during the morning of the third day of the hearing, after Ms Drenth had completed her examination-in-chief, and after the commencement of her cross-examination. Dr George was called in the afternoon of the third day of the hearing, after some further cross-examination of Ms Drenth, and Drs Clarke, Smith and Begg were called on the fourth day of the hearing. After that, on subsequent days Ms Drenth’s cross-examination and re-examination were completed, and the remaining lay witnesses gave evidence.
99. Notwithstanding the interposing of the psychiatrists, the nature of the training that had been proposed for Ms Drenth for Advice work, including the mentoring arrangements and the concerns that these matters had caused her, were matters that were known, from the material that had been lodged before the commencement of the hearing, to be stressors upon which she relied. They were confirmed in her examination-in-chief. The further facts to which we referred in paragraph 97 above were elicited in the cross-examination of witnesses from the ATO, but of course Ms Drenth was well aware of the type of training provided to her, and we think it likely that she was also aware that she was the only person who received that type of training in 2008 on being transferred to Advice work. We accordingly decided to refuse the belated application to recall the witnesses. We were satisfied that there had been adequate opportunity for all relevant matters to have been explored in examination-in-chief and to have been put to the psychiatrists at the times when they were interposed. Further, to have had the doctors recalled would inevitably have resulted in the proceedings being adjourned, with resultant further expense to the parties. This would have been inconsistent with the obligation on this Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (see s 2A of the Administrative Appeals Tribunal Act 1975 (Cth)). In any event, as we have said above, we accepted that Ms Drenth’s perception of the training and mentoring regime proposed for her were stressors that made a significant contribution to the aggravation of her pre-existing conditions. We do not think that any supplementary evidence from the psychiatrists would have been of sufficient relevance to the further issue of whether the arrangements proposed for Ms Drenth constituted reasonable administrative action taken in a reasonable manner, which issue we have decided adversely to the applicant, for the reasons referred to above.
Is the aggravation deemed not to be an injury because of an asserted wilful misrepresentation by the applicant that she had not suffered from her pre-existing conditions?
100. Mr Krupka also submitted that by virtue of s 7(7) of the SRC Act, the aggravation of Ms Drenth’s conditions should not be taken to be an injury because when she applied to be re-employed by the ATO in 2005, she made a wilful and false representation that she did not suffer, and had not previously suffered, from the disease which she claims was aggravated by her employment. In support of his argument, he referred to a pre-placement medical evaluation form which Ms Drenth had been asked to complete in November 2005 (exhibit R2, ST5, page 993). She responded “Yes” to questions as to whether she had, or had ever had, (a) a nervous or mental condition, or (b) anxiety or stress reaction or depression. She answered “No” to two further questions, namely question 29 (whether she had required prolonged periods of time off work for illness in the last two years) and question 33 (whether there was any other health issue relevant to her ability to work in either an office environment or call centre). Section 4 of the form provided for the examining medical adviser to comment on “Yes” answers, and the information appearing in section 4 presumably reflected what Ms Drenth disclosed to the doctor who completed it. Section 4 refers only to Ms Drenth having had post-natal depression for three months after the birth of her second child. It does not refer to her extensive history of psychiatric illness and treatment, or the fact that she had been certified unfit for work for periods totalling nine months concluding in December 2005.
101. In view of the above omissions, it might be inferred that the information which Ms Drenth provided to the medical examiner was misleading or deceptive. The same comment might be made about her answer to question 29. However, s 7(7) applies where there is a wilful and false representation that the employee did not suffer, or had not previously suffered, from the disease that is alleged to constitute the injury for which compensation is claimed, and Ms Drenth answered “Yes” to the question of whether she had, or ever had had, anxiety or stress reaction or depression. Section 7(7) does not by its terms extend to situations where an employee, for purposes connected with his or her employment, or proposed employment, engages in misleading or deceptive conduct. As mentioned above, Ms Drenth’s treating psychiatrist had also diagnosed BPD, but there is no evidence that she was aware of that when she filled out the form. We therefore conclude that s 7(7) does not apply.
102. Nevertheless, for the reasons which we have explained in detail above, Ms Drenth did not suffer an “injury” within the meaning of the SRC Act because of the reasonable administrative action exception to the definition of “injury”.
Decision
103. The decision under review is affirmed.
I certify that the 103 preceding paragraphs are a true copy
of the reasons for the decision herein of Deputy President
D G Jarvis and Professor D Ben-Tovim, MemberN. Misiajlo
...[Signed]...
AssociateDate/s of Hearing 21, 22, 23, 24 and 27 June 2011 and
1, 4, 5, 6 and 7 July 2011
Date of Decision 23 August 2011
Counsel for the Applicant Mr G Britton
Solicitor for the Applicant T F Owen & Co
Counsel for the Respondent Mr B Krupka
Solicitor for the Respondent Sparke Helmore
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