DUNN and COMCARE
[2011] AATA 671
•28 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 671
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1189
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH DUNN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr MEC Thorpe, MemberDate28 September 2011
PlaceSydney
Decision The Tribunal sets aside the decision under review and instead decides that Comcare is liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 to pay compensation to Ms Dunn in respect of her psychological injury.
.....................[sgd].........................
Ms N Bell
Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – incapacity to work – correct date of injury or of disease onset – whether incidents complained of contributed to a new injury or to aggravations of injury, or were manifestations of an existing condition – whether reasonable administrative action taken – chronic condition existing prior to an aggravation was primary cause of incapacity – decision under review set aside and substituted
Safety Rehabilitation and Compensation Act 1988 ss 7, 14
Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414
Wilson and Comcare [2010] AATA 396
REASONS FOR DECISION
28 September 2011 Ms N Bell, Senior Member
Dr MEC Thorpe, Member1. Elizabeth Dunn worked for Centrelink (formerly the Department of Social Security), with a short interruption, for more than 40 years. She was medically retired, considered to be totally incapacitated for work, in 2011. In September 2007, Ms Dunn claimed a psychological injury, the rejection of which is the subject of this review.
2. In 2003 Ms Dunn had sought medical treatment for stress in the workplace. She consulted doctors intermittently and infrequently for stress or mental health problems until 2007 and beyond.
3. April 2007 is a critical date in this application because of the 2007 amendment of the Safety Rehabilitation and Compensation Act 1988 to exclude from the definition of “injury” in the Act injuries that result from reasonable administrative action. This means that such injuries do not attract liability to compensate. This exclusion is significant in this application because of two incidents; in 2007 there was some effort on the part of Ms Dunn’s supervisors to alter a longstanding arrangement about her working hours and in 2008 there was a conversation in which she was given feedback by a supervisor (“the hours of work incident” and “the feedback incident”). Comcare contends that these instances amounted to reasonable administrative action and that they significantly contributed to Ms Dunn’s psychological injury in 2007 and thereafter. Ms Dunn rejects this contention.
4. If we conclude that Ms Dunn’s psychological injury or the onset of her disease took place prior to the 2007 amendments to the Act then she is subject to their exclusionary effect only to the extent that the incidents gave rise to an aggravation of her existing condition. It follows that the date of injury or onset is important to the outcome of this application. Ms Dunn contended that the onset of disease or date of injury was 2003 because the condition, together with the symptoms, she suffered in 2007 and beyond was the same condition, with the same symptoms, she suffered in 2003. Comcare contended that no such continuum exists and that her claim in 2007 was for a new condition – a new injury or disease.
5. If we conclude that the date of injury or onset was before April 2007, we must also consider whether, as Ms Dunn also contented, the incidents amounted to aggravations or were simply manifestations of a longstanding psychological condition.
6. If we conclude that the incidents amounted to aggravations (or new injuries) then we must consider the application of the exclusionary provisions to Ms Dunn’s particular circumstances and take into account the nature of the alleged administrative action, its reasonableness, the manner in which it was taken and its contribution, if any, to Ms Dunn’s aggravation or injury. Ms Dunn contended that the hours of work incident did not involve administrative action, that even if it did both it and the feedback incident were not reasonable or reasonably taken, and that neither incident contributed to a significant degree to her injury.
7. Therefore the issues for our consideration are:
(a)Was the date of Ms Dunn’s injury before or after April 2007?
(b)Did the incidents contribute to a significant degree to a new injury or aggravation, or were they simply manifestations of her existing condition?
(c)If the incidents contributed to a significant degree to a new injury or aggravation, did the incidents amount to administrative action?
(d)If so, was that administrative action reasonable and taken in a reasonable manner?
was the date of ms dunn’s injury before or after april 2007?
8. Ms Dunn worked for the Department of Social Security, including as a client service officer from 1966 to 1990, when she took voluntary redundancy and spent two years at home looking after her family and their property. She returned to the Department of Social Security in 1993 to work initially in the Families area and then in 1995 at the Gosford call centre and, later in 1995 at the Maroubra Centrelink Office, working in the Pensions area. It was in this year that Ms Dunn separated from her husband and commenced to sail, an activity which became very important to her and which she pursued on a regular Wednesday afternoon basis.
9. She continued working at the Maroubra Centrelink office for “quite a few years”, generally happily but she noted that she encountered a number of abusive and violent customers.
10. At a point Ms Dunn could not recall, she commenced work at one of two Centrelink offices in Bondi Junction. She described the office as small and dealing only with seniors’ pension work. She said the office was well organised, a self-managed team and had very good customer contact and feedback from customers.
11. In 2003 Ms Dunn commenced to take part in a visiting service at the Redfern Centrelink office on two days per week. She said she saw only a few seniors or age pension claimants and generally dealt with disability related matters. She particularly noted having to deal with a large number of “drug addicts” and very aggressive people. Ms Dunn described the period of 12 months or so during which she took part in this visiting service as one in which Centrelink management was “changing things all the time”. She said it was “terrible” and “a mess”. She said she responded to this period with dread, anxiety, and a need for sleeping tablets. She spoke to her general practitioner about the problems she was having and was referred to Dr Wiren, a general practitioner specialising in psychological problems. Ms Dunn said she recalls one particularly aggressive customer who gave her much trouble.
12. Ms Dunn said she was relieved when the visiting service was finished but also said that she never got back to normal.
13. In 2004 the two offices in Bondi Junction were amalgamated and the area lost two experienced senior officers. Ms Dunn said the workplace was extremely cramped and that she was required to deal with new areas of work in which she had no experience. She said there was too much work, making her very anxious and causing her stomach to churn whenever she was walking to work.
14. Ms Dunn described herself in 2006 and later years as anxious, tearful, and agitated. She said she would talk to her general practitioner, Dr Johnson, about it now and again, and things would flare up with aggressive customers. She said such customers appeared in the office daily and she had direct and personal dealings with them on a weekly basis. She said it would “go around in my head during the… night”. Ms Dunn said that as time went by it got worse and she developed permanent knots in her stomach, flare ups and panics. In late 2007 she was referred by her general practitioner to Professor Parker, psychiatrist. This, she said, was brought about by some discussions she had with her new supervisor, Ms Coleman. The background to the discussions was that Ms Dunn had arranged her working week, since 1995, so as to have every Wednesday afternoon free. This had been with the agreement of her managers over the years and allowed her to go sailing each week. She said she found this activity deeply therapeutic and of great assistance in dealing with her stress. When Ms Coleman arrived at the Bondi Junction Centrelink office she was, according to Ms Dunn, intent on dealing with problems that the office was having and Ms Dunn overheard a conversation between Ms Coleman and another officer about Ms Dunn’s Wednesday afternoons. She said she found this threatening.
15. Ms Dunn said that when Ms Coleman commenced to discuss Ms Dunn’s hours with her, she threatened to put her on standard working hours with the reason that there were staff she wanted to have available for training on Wednesday afternoons. Ms Dunn said that this had never been a problem she had encountered before. She said Ms Coleman questioned why Ms Dunn should be able to have every Wednesday afternoon off.
16. Ms Dunn said that she found these discussions and the general questioning of her working hours very upsetting and “traumatic”. As it transpired, Ms Coleman agreed to continue to allow Ms Dunn to have Wednesday afternoons away from work and also allowed her to use up her excess flex leave by also taking Wednesday mornings as flex time. Nothing changed. Ms Dunn said that after the issue was “resolved” she felt relieved and happy that she still had her sailing. However, she said it did have an impact on her and it had prompted her to seek some psychiatric help. She did so but was unable to continue treatment because of the expense. Ms Dunn said that she just got on with her work and continued to suffer from the work load and the anxieties it produced for her. She said she became more depressed because the workload was not improving and the office was not changing. Rather it was getting worse. In addition, she was aware that an 18 months search for larger premises for the Bondi Centrelink office had fallen through and she found this depressing.
17. Ms Dunn said that in mid-2008 she took a month of leave because she found herself becoming more stressed and teary. Ms Dunn said that at the end of her leave she felt refreshed and ready to face the office again. However, she found on her return that another new manager had been appointed and that she, Ms Hodgekiss, was also intent on changing things. Ms Dunn said that Ms Hodgekiss put no pressure on her about her Wednesday afternoons.
18. Not long after her return from leave Ms Dunn encountered a customer who wished to apply for the pensioner bonus scheme. Ms Dunn said that she adopted a procedure with the customer that was designed to ensure that his payments were maximised and not delayed. After Ms Dunn had dealt with the customer, Ms Hodgekiss told her that she was wrong and should not have done it that way. Ms Dunn said that the conversation “flared up”, that they got into an argument and she felt unable to work, that her chest was “busting” and that she had to get out. She left the office and saw her general practitioner. Ms Dunn said that Dr Johnson told her not to go back to the office and to have a month off work.
19. Ms Dunn said she had used the procedure she followed with the customer on previous occasions and there had never been any problem.
20. Ms Dunn said that she was off work for months and that the thought of anything to do with Centrelink was “sickening”. She said it was a build-up of things and she didn’t realise how long it had been coming until she started going through some old paperwork in which she found Dr Werin’s report from 2003. Ms Dunn said that even though when she claimed compensation in December 2008 she noted the dates of injury as 2007 and 2008 she did so because she had been advised to do so by the case manager she consulted when making her claim. She said that she chose the dates because she had been advised to use the dates contained in medical certificates.
21. Ms Dunn saw a range of psychiatrists at the request of Centrelink and Comcare and attempted a graduated return to work in August 2010 after Comcare had issued a reconsideration rejecting Ms Dunn’s claim for compensation. Ms Dunn said the long queues, aggressive people and sad stories were still there. She said she would hide in the toilet, embarrassed about breaking down in front of colleagues. She said she began by dealing only with correspondence and then she got back into interviewing.
22. Ms Dunn was under the care, during that period, of Joanne Azzopardi, psychologist. She was eventually referred by Centrelink to see Drs Synnott, Walkwer, Miller and Bertucen, psychiatrists, for assessment for fitness for duty. Finally, in February 2011 Ms Dunn was referred to see Dr Barrett, psychiatrist, who recommended Ms Dunn’s medical retirement. Her employment was terminated on 6 July.
23. Ms Dunn said she is now away from the problem and is relieved that she doesn’t have to battle that anymore and that that part of her life is finished with. She considers that now she has left Centrelink that is the end of her problem and she can heal herself.
24. The medical records show that Ms Dunn first consulted a medical practitioner for work-related stress in 2003 when she attended Dr Johnson at the Bondi Junction Medical and Dental Centre and was referred to Dr Wiren, a general practitioner specialising in psychological issues, who diagnosed major depression with permanent anxiety features. Ms Dunn did not attend at the medical centre again in 2003 in relation to work-related psychological issues and attended only once in 2004. In 2005 she attended in relation to these issues on five occasions, on no occasions in 2006, on one occasion prior to April 2007 and five occasions after April 2007, specifically from August 2007. In 2008 Ms Dunn attended in relation to work-related psychological issues on eight occasions, on six occasions in 2009 and on eight occasions in 2010.
25. Dr Johnson, Ms Dunn’s general practitioner, gave evidence of his opinion that Ms Dunn had a long term chronic problem that had existed for a number of years and continues to trouble her. He said there may have been issues from time to time that aggravated the situation but he considered that it was an existing condition which persisted. He said she did not raise with him specific issues, such as her hours of work or the confrontation she had with a supervisor, as matters that aggravated her pre-existing condition. He considered there has been a sustained deterioration in her condition since he first saw her in 2005 (she having first been treated by other doctors in the practice), and found that she remained symptomatic since she first complained of the problem in 2003. He also said there have been times during this decline when she has had precipitants which have aggravated the condition.
26. I note that under cross-examination Dr Johnson conceded that the threat to Ms Dunn’s Wednesday afternoon sailing aggravated her condition.
27. Dr Johnson also said that now that Ms Dunn has ceased to work at Centrelink she is coping satisfactorily with a better sleep pattern and little or no use of medication. Dr Johnson also said that an absence of treatment during the period from 2003 could indicate that a condition had stabilised. That, he said, does not mean that the condition has gone away. It could be aggravated or precipitated by stresses at any point.
28. We note that an entry in the clinical notes of Dr Johnson’s practice on 16 January 2007 describes “stress at work (Centrelink), no staff, long queues breaking down with the pressure; not sleeping well; chronic anxiety. Managed to see psychologist twice previously, see previous care plan; may need new mental health plan; first try Stilnox”.
29. Dr Synnott, psychiatrist, considered that Ms Dunn’s psychological distress, described to him first in 2009, had been going for a long time and as far back as 2003. He said it appeared to him that there had been an “ebb and flow” over the years and that for some period of time there was no documentation that Ms Dunn was having significant psychological distress. He noted that Ms Dunn’s condition appeared to deteriorate markedly in 2007 at which point she was referred to see Dr Gordon Parker, psychiatrist, in late 2007.
30. When the Tribunal asked Dr Synnott whether depression can occur as a single episode or as a continuum, he answered:
All of those … there is a chronic low grade feeling of depression, low mood and/or anxiety without necessarily having a psychiatric condition, so there are people… who are lugubrious … without necessarily having a psychiatric illness, and there are those who … don’t seem to be as disturbed by life’s challenges and swings and arrows. So we have this range of personality style.
31. Later in his evidence Dr Synnott said:
If you have a psychiatric condition that is largely influenced by external factors, then it is understandable how, with the intensity of those external factors, the person’s distress would fluctuate. … but a lot of psychological things are significantly influenced by external factors. So that quite obviously would interfere with continuity.
32. Dr Synnott was firmly of the view that Ms Dunn did not and does not have a psychiatric condition that is biological in origin. Rather, he described Ms Dunn as a person with a natural resilience and who was getting on with things generally, but now responding to external events. Dr Synnott said that the history Ms Dunn had given him was that these external factors, issues at work, were unrelenting and that they started in 2005 (now acknowledged as 2003) and they continued. He said that Ms Dunn gave him a history of the work issues seeming to get worse in about 2005 (2003) and continuing due to changes in staff, the nature of her workload and the requirement to be a generalist rather than a specialist. He said those were the things she identified as external causes for her internal distress. Dr Synnott agreed that if a person with a natural resilience is dealing with persistent stresses year after year the person’s natural resilience can be worn down and an apparently minor incident will set the person off. Finally Dr Synnott gave evidence that an adjustment disorder of the kind he considers Ms Dunn to have can be a long term disorder if the relevant stressors are long term.
33. We note that Dr Elizabeth Barrett reported to Centrelink on 25 February 2011 a history given by Ms Dunn of first experiencing symptoms in 2003 when, she said, the workplace had become stressful due to a change in her job role, her role as a visitor to the Redfern Centrelink office, difficulties with aggressive customers and her and her colleagues’ inexperience with the new practices. Ms Dunn also gave a history to Dr Barrett of relocation to another office where two teams were amalgamated and an increased workload ensued. Dr Barrett described a sensitisation process undergone by Ms Dunn which, together with a perfectionistic personality, means that on any re-exposure to workplace issues, including workplace systems or organisation and dealings with clients, she had and would again become anxious and develop an adjustment disorder. Dr Barrett considered Ms Dunn to be totally and permanently incapacitated for work at Centrelink or at any other organisation.
34. We also note the report of psychologist Joanne Azzopardi to whom Ms Dunn was referred to by Dr Johnson in September 2010. Ms Azzopardi listed work-related stressors experienced by Ms Dunn as: restructuring; losing specialist skills and working in a more generalised capacity; more coding systems; and increased demands on the service and inability to maintain the same quality of service with the increased workloads. Ms Dunn gave a history of her mind racing and an inability to switch off after work.
35. Mr Prasad Serlur, a former colleague of Ms Dunn’s, generally corroborated her evidence of changes in work organisation at Centrelink. Mr Serlur also took part in the Centrelink Redfern office visiting service and the changes at the Bondi Junction office in 2004. Mr Serlur said that from the time of the amalgamation of the offices, Ms Dunn began to lose her temper quickly, became emotionally disturbed and relied to some extent on the security guard at the office because she was not able to deal with irate customers. He said Ms Dunn would say that she was unable to handle various matters and ask him for his help. He said Ms Dunn would have a “tug of war” with managers and mentioned in particular the incident concerning the pension bonus scheme. He said that management was not happy with the way she dealt with that case. Mr Serlur said Ms Dunn was emotionally disturbed before Ms Coleman became a manager at the Bondi Junction office, that is, before April 2007. He also said that Ms Dunn became unhappy with Ms Coleman’s style of management.
36. Mr Serg Tauber, Ms Dunn’s partner of 16 years, gave evidence that in 2004 Ms Dunn began to complain about her workload and the fact that two offices in Bondi Junction had been combined, that there was a shortage of space and that elderly clients were required to stand because there was insufficient seating. He said that prior to that she had been mainly happy at work. Mr Tauber said that Ms Dunn also complained about her change of duties and the requirement that she work in areas for which she had not been trained. He said that she was sleeping poorly and becoming “touchy”. He said that she was generally not the vivacious and bubbly person he had first met and that her emotional condition became continuously worse. He said that, even though she has now left work, she remains very touchy and jumpy and gets annoyed at things that don’t really matter.
37. Mr Tauber described Ms Dunn’s manager’s efforts (Ms Coleman’s efforts) to rearrange her hours as “the straw that broke the camel’s back”.
38. On balance, the evidence supports the conclusion that Ms Dunn developed anxiety about her work in 2003 and that anxiety gathered momentum over the years, resulting in an adjustment disorder, an aspect of which was a high level of sensitisation to events in her workplace. We are not deterred from this view by the absence or paucity of medical records of treatment from 2004 to 2006 nor by the dates of injury entered by her on her claim form. We accept her explanation of why she noted the dates of injury as she did. The development of her condition over the years is supported by lay and medical evidence. We note Dr Barrett’s description of Ms Dunn as a perfectionistic personality and Ms Dunn’s own evidence of attempting to “just get on with it” over the years. Perhaps to an excessive degree, Ms Dunn was intent on providing a service to Centrelink clients and was not so intent on obtaining treatment for her condition.
39. By definition, an adjustment disorder involves the action of external stressors on a person. We consider it out of step with medical opinion (see the opinions of Drs Synnott and Barrett) to artificially distinguish and separate the effect on a person of each individual stressor over a period of sensitisation that spans more than seven years. This is particularly so when some of the relevant stressors, including real or perceived workload, accommodation, nature of clientele and others were continuous over the period – or straddle the critical date of April 2007. We are mindful of the effect on resilience that was described by Dr Synnott and the cumulative effect of stressors on a person over an extended period of time. For these reasons, we consider that Ms Dunn first contracted the disease in 2003 when she first obtained treatment for the disease on 28 May 2003. This is in accordance with the provisions of section 7(4) of the Act which does not require, for a date of injury to be identified, the presence of incapacity for work.
40. Nor does section 14 of the Act require incapacity to establish liability to compensate. “Impairment” is sufficient to establish liability to compensate, which can go to, among other things and in addition to, incapacity for work, medical expenses, permanent impairment or household services. “Impairment” is defined in the Act to include the “damage or malfunction of the body or of any bodily system or function or part of such system or function”. The evidence of Drs Wiren, Johnson, Synnott and Barrett together with Ms Dunn’s evidence and that of Mr Serlur and Mr Tauber support the conclusion that from 2003 Ms Dunn’s psychology or psyche and her ability to function in her employment was damaged, to a greater or lesser extent throughout the period, and therefore impaired.
did the incidents contribute to a significant degree to an aggravation?
41. Ms Dunn’s evidence was that the hours of work incident, while one of a number of issues she was facing at work, was significant and very distressing. This is supported by the evidence of Dr Synnott; Dr Walker, psychiatrist who performed a fitness for duty assessment in January 2009; Dr Parker, psychiatrist, who wrote a letter urging the importance of allowing Ms Dunn a midweek break and who was the first psychiatrist Ms Dunn consulted; and by Dr Miller who also conducted a fitness for duty assessment.
42. We are mindful that the hours of work incident amounted, at least in Ms Dunn’s perception, to a direct threat to her main method of coping with her stressful workplace. The importance to Ms Dunn of her Wednesday afternoon sailing was repeatedly underlined in her evidence and in that of a range of doctors to whom she gave a history of her illness. The significant effect of the threat to that coping mechanism is also borne out by her evidence and by the medical treatment she obtained following it.
43. We are satisfied that this incident had an effect of sufficient magnitude to amount to an aggravation of her existing condition. The incident directly gave rise to the aggravation. In other words, it contributed to the aggravation to a significant degree.
44. The incident heightened Ms Dunn’s anxiety at least until she went on her 4 weeks of leave in 2008. She still refers to it in terms that exhibit its significance to her, but we note her evidence of “relief” that the issue, as a serious threat to her sailing afternoons, “settled down” after Ms Hodgekiss took over as manager. We also note Ms Dunn’s evidence that the matter was raised in tentative terms by Ms Hodgekiss but that nothing came of it. We note Ms Hodgekiss’s evidence that she raised the matter of Ms Dunn’s regular Wednesday afternoons with her when she first returned to work, but took no further action to change her hours.
45. In this way, the aggravation was a temporary one, although it added to the accumulation of stressors that eventually led to Ms Dunn’s final degree of impairment and her consequent incapacity for work.
46. We do not see the feedback incident in the same way. Rather, although it was the precipitator to her absence from the workplace for many months, we consider it was the manifestation of a burgeoning illness – the kind of incident, as described by Dr Synnott, small by comparison with others, that sets off a disproportionate response in a person who has become sensitised and whose resilience has diminished. We base this conclusion on Ms Dunn’s evidence of her sharp reaction to having been given verbal feedback that she had not followed correct procedure in relation to a pension bonus claim:
I couldn’t work, I was busting. My stomach, my chest was – I thought I was going to have a heart attack because my chest was busting. And it was afternoon tea and I had to get out, I had to get out, and I went and saw my doctor.
47. All that had happened was that Ms Hodgekiss told her that she had not followed correct procedure in relation to the claim. The response described above was patently disproportionate to the event. We consider it to have been a feature of her existing condition and the sensitisation it involved, rather than the result of an aggravation. Ms Dunn’s reaction was the kind of response described by Dr Synnott. Her resilience had diminished and she reacted disproportionately. This was the result of her existing condition.
did the hours of work incident amount to administrative action?
48. Given our conclusion about the temporary nature of this aggravation the broader question of whether the incident is excluded under the provisions of section 5A of the Act will have no practical impact.
49. Section 5A(2) provides:
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.
(Original emphasis.)
50. The words of the introduction to the subsection make it clear that the specific examples of action that follow are not intended as an exhaustive list. The list specifically includes “anything reasonable done in connection with an action” described in 2(a) to (d) and then the list specifically includes, at (f), “anything reasonable done in connection with the employee’s failure to … retain a benefit in connection with his employment”.
51. The breadth of scope indicated by the introductory words to the subsection and the specific inclusion of instances of anything done “in connection with” – words that have been interpreted as having a wide range of applications (Minister for Immigration and Citizenship v Haneef (2007) 163 FCR 414 at para 106 as referred to in Wilson and Comcare [2010] AATA 396) – indicate a broad meaning.
52. When Ms Coleman initiated discussions with Ms Dunn with a view to changing her hours of work arrangement to two Wednesdays off per month instead of every Wednesday afternoon, this was, according to Ms Coleman’s evidence, the negotiation prescribed by “the People Handbook”, a Centrelink document which described the processes to be undertaken in relation to staff rosters. According to the People Handbook, the next step, in the event of unsuccessful negotiations, would be for Ms Dunn to revert to standard hours. It appears that the negotiations initiated by Ms Coleman were a necessary step in taking action to alter Ms Dunn’s roster, that is, to remove the benefit constituted by her regular Wednesday afternoons off. The negotiations were a step not only “in connection with”, but necessary to a change to Ms Dunn’s roster.
53. On this basis, we are satisfied that the discussions initiated by Ms Coleman amounted to administrative action.
was the administrative action reasonable and taken in a reasonable manner?
54. It must be remembered that the administrative action in question was the initiation of negotiations.
55. Ms Coleman made attempts to discuss the question of hours of work with Ms Dunn and put to her an alternative to her current arrangements. When asked what she knew of the purpose or importance of the Wednesday afternoons off to Ms Dunn, Ms Coleman said she had been told by Ms Dunn that it was to go sailing and that she had been doing it for a long time. After Ms Dunn had rejected Ms Coleman’s proposal to alter her hours and after there had been some discussion about the possibility of part time work, Ms Dunn gave Ms Coleman the letter from Professor Parker in which he advised the desirability of a mid week break for Ms Dunn. In response to this letter Ms Coleman negotiated with Ms Dunn a continuation of her Wednesday afternoons off together with an allocation of her excess flex leave so that Ms Dunn could, at least for a period, take the whole of each Wednesday off. Ms Coleman said she considered the matter had not been fully resolved and would have to be revisited at a later time. Ms Coleman transferred to another site soon afterwards.
56. Ms Coleman said she realised that Ms Dunn’s Wednesday afternoon sailing was a matter of great importance to her and, once she became aware of Ms Dunn’s psychological issues through the letter from Professor Parker, she took that into account in her discussions and deliberations.
57. Ms Coleman’s evidence was also that, as a manager, two full days absence by Ms Dunn per month were easier to manage than four half days because it was easier to obtain a replacement for a whole day than it was to obtain one for a half day.
58. Ms Coleman said she was never made aware by Ms Dunn nor did she realise from her own knowledge, that Ms Dunn was a member of a sailing team and for that reason it was important that she be available to sail with her team on each Wednesday afternoon.
59. We are mindful that the negotiations initiated by Ms Coleman were never finalised. The evidence is not clear, but it appears that Ms Coleman’s successor did not pursue the matter, and it was taken up again briefly by Ms Hodgkiss, but again not pursued.
60. We can see no lack of reasonableness in these negotiations, the purpose of which was necessarily the exploration of options and possible solutions. In fact, that is what transpired. Ms Dunn made her concerns known and obtained medical support for them. Ms Coleman responded with an interim arrangement that satisfied Ms Dunn’s concerns and answered the need to reduce Ms Dunn’s flex time balance. Her response, once she was appraised of most of the facts, was neither irrational nor disproportionate. It took into account the information that was and should have been obtained and was responsive to Ms Dunn’s concerns.
61. There is no evidence of this reasonable action having been undertaken in an unreasonable manner.
Conclusion
62. We are persuaded by the view of Dr Barrett that Ms Dunn has become sensitised to her workplace. We find support for this view also in the evidence of Dr Synnott. We consider that the process of sensitisation began in 2003 when Ms Dunn was first faced with changes in her workplace and the requirement to take part in the visiting service to the Redfern Centrelink office. Other changes followed in 2004 and she was required to deal with pensions and benefits outside her usual area, an amalgamated office and an increased workload. By January 2007 her anxiety had become chronic, as described by her general practitioner, and she was susceptible and sensitive to stressors in her workplace. She experienced the hours of work incident and the feedback incident against this background of chronic anxiety or adjustment disorder. We are satisfied that the hours of work incident aggravated Ms Dunn’s chronic condition but that her reaction to the feedback incident was merely a manifestation of her condition.
63. We are satisfied that, by January 2007, the chronicity of her anxiety or adjustment disorder and her sensitisation meant that it was inevitable that a stressor in her workplace would produce an effect on her that was disproportionate to the stressor. One of the incidents that has been identified as having produced a particular effect was an instance of reasonable administrative action. The aggravation resulting from that action is excluded by the Act.
64. However, even if we had not concluded that the excluded aggravation was a temporary one, subsumed before her eventual incapacity for work by the ongoing process of sensitisation that was a feature of her existing chronic condition, we would conclude that her chronic condition which began in 2003 continued as a significant contributor to her eventual incapacity. This condition was the primary cause of her incapacity.
decision
65. The Tribunal sets aside the decision under review and instead the Tribunal decides that Comcare is liable under section 14 of the Act to pay compensation to Ms Dunn in respect of her psychological injury.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr MEC Thorpe, Member
Signed: ................................[sgd]................................................
AssociateDates of Hearing 1,2 and 3 August 2011
Date of Decision 28 September 2011
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Mr A McQuilkin, Firths
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Ms D Shiells, Dibbs Barker
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