DUSAN PERICA and COMCARE
[2013] AATA 430
[2013] AATA 430
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3856
Re
DUSAN PERICA
APPLICANT
And
COMCARE
RESPONDENT
Decision
Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, MemberDate 25 June 2013 Place Sydney The Tribunal affirms the decision under review.
........................[sgd]................................................
Ms G Ettinger, Senior Member
Catchwords
COMPENSATION – Commonwealth employees – whether the applicant is eligible for compensation for his psychiatric condition or injury – exclusionary provisions - whether condition was a result of reasonable administrative action taken in a reasonable manner – decision under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 5A, 7(4), 14
Cases
Hart v Comcare (2005) 145 FCR 29
Comcare v Mooi (1996) 69 FCR 439
secondary materials
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REASONS FOR DECISION
Ms G Ettinger, Senior Member
Dr I Alexander, MemberSUMMARY
Mr Dusan Perica is 45 years old and has held a position as Senior Radiation Security Advisor with the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) at the EL1 level since 2008. He suffers an anxiety condition which has been variously diagnosed as Adjustment Disorder with depressed and anxious mood, and Major Depressive Disorder.
On 8 February 2012, Mr Perica made a claim for compensation pursuant to the Safety Rehabilitation and Compensation Act 1998 (the Act). Mr Perica stated on his claim form that he suffered major depressive illness, anxiety and adjustment disorder and indicated May 2011 in reply to Comcare’s question regarding when he first noticed he was injured or ill. Comcare, whilst accepting that the Applicant suffers from a psychiatric injury which is an ailment, and accepting that his employment contributed to the condition to a significant degree, has refused to accept liability due to the operation of section 5A of the Act and its exclusionary provisions.
Mr Perica has exercised his rights to ask for review at this Tribunal as he is entitled to do. Mr Perica stated on his claim form that his condition developed as a result of normal duties, bullying and harassment.
Comcare submits that Mr Perica’s psychological injury has been suffered as a result of reasonable administrative action taken in a reasonable manner, and that he is therefore precluded from receiving compensation because of the operation of section 5A of the Act .
There is disagreement between the parties as to the date of injury. The Tribunal has made a decision regarding the date of injury in this matter, and has preferred the argument of Comcare in finding that the exclusionary provisions of section 5A of the Act apply. Our reasons follow.
ISSUE BEFORE THE TRIBUNAL
Comcare accepts that Mr Perica has suffered a psychological injury which was significantly contributed to by his employment. However Comcare contends that Mr Perica’s injury was caused by reasonable administrative action taken in a reasonable manner, and that therefore compensation cannot apply. Comcare, in its decision also stated that:
For the exclusionary provision of reasonable administrative action to apply, the reasonable administrative action need not be the sole contributor to your disease but it must be a significant contributing factor to your condition.
We noted that authority for this proposition is the decision in Hart v Comcare (2005) 145 FCR 29.
Accordingly the only issue for the Tribunal to decide is whether liability is to be accepted and compensation is payable to Mr Perica, or whether it is excluded pursuant to section 5A of the Act.
THE LEGISLATION
The relevant legislation in regard to this matter is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
10. Section 14 provides that compensation is payable in respect of an injury suffered by an employee if the injury results in ... incapacity for work.
The definition of injury is set out in section 5A(1) and 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.
The definition of disease is to be found in section 5B, and is defined to mean:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment ...
Section 5B(3) provides that:
significant degree means a degree that is substantially more than material.
Under section 4(1) an ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 5A(2) states that 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.
Section 7(4) of the Act deems the date of injury to be when the employee first sought medical treatment or the condition first resulted in incapacity for work or impairment of the employee.
MR PERICA’S EVIDENCE
Mr Perica told us that he trained as an electrician, and that from 2002 – 2005, he worked in security matters for ASIO. He subsequently advised the Trade Commission in Shanghai on security upgrades, and it was from there that he was, in 2008, advised by a former colleague, of a position at ARPANSA. He told us that his conditions of employment in Shanghai were better than those offered by ARPANSA for the EL1 level for which he was applying, but that his mindset was to protect Australian borders. He was also satisfied that the lower salary offered by ARPANSA would be offset by the arrangement of home based work which he had negotiated as part of his contract. He said that he also negotiated being paid at the top of the scale for an EL1, and that he was told there was ample overseas travel involved, which was attractive to him. Part of the work was, as he understood, advising on security issues, and further, how the Code of Practice for radiation security applied to State and Commonwealth licence holders.
Mr Perica said that he commenced work at ARPANSA in 2008 and wrote training manuals in the first half of 2009. By the end of 2009 he was engaged with licence holders who dealt with Category 1 – 3 radioactive equipment, and had dangerous radio isotopes in their equipment. He explained that this included, amongst others, big and small medical research institutions, industrial institutions and the gas and oil business.
In elucidating what he did, Mr Perica explained that ARPANSA’s role in relation to the States was only to advise the State bodies, that he never attended institutions on his own, and that after any visit to such a body, which could take up to an hour, he would follow up with an email and report. He described himself as the public face of security – gave written advice.
Mr Perica told us that in 2010 there were a few licence holders who were not happy with his advice, and due to financial constraints did not see the need to install the security he had advised was necessary. He mentioned the Red Cross and Macquarie University. Mr Perica emphasised that his advice did not extend to advice about the acquisition of equipment.
Mr Perica’s evidence was that right from the start, after joining ARPANSA, he felt uneasy because he found that he was not being paid at the top of the scale for an EL1, the level he had negotiated. He said that he sorted that initial glitch out over a couple of weeks. He said that he also felt uneasy because his permission to work from home, which he thought was a permanent arrangement, and part of his employment contract, was challenged. He said that one of his colleagues said he would see to that being put in place on a permanent basis, but what transpired was that he was still required to lodge an application every six months for the permission to operate from his home based office. Mr Perica said he had not seen a file note in relation to his home based office arrangements which indicated any future CEO could change those arrangements. Mr Perica said that by early 2011, there was a new manager who stated that he would not support home based work. Mr Perica said that he felt devastated when he heard that, but agreed that he was nevertheless permitted to continue with those arrangements.
Other pressures which Mr Perica told us he experienced were in regard to overseas attendance at conferences. He said that in April 2010 he was invited to present at a World Institute of Nuclear Security (WINS) professional workshop in Vienna, and thinking ARPANSA would not fund the trip, he organized for WINS to do so. He said that subsequently he was informed he should pay the costs, and that on his return, ARPANSA would refund those costs. He told us that ultimately ARPANSA did not do that, so he ended up paying for the attendance himself.
Mr Perica also said that in May 2010, (although recorded as 2009 by Mr Harold Bilboe, the clinical psychologist to whom he was referred by his general practitioner in 2010), he walked into a radiation exposure bay, which caused him alarm because he thought he had been affected by the radiation. He said that he consulted his general practitioner, Dr Peter Ragg because he was feeling dizzy. He said that Dr Ragg gave him a referral to Mr Harold Bilboe, but that once he felt better, he did not proceed with the appointment until May 2011, when he felt he needed it.
Mr Perica also agreed that he had suffered anxiety some ten years previously (approximately 2002), when he thought his mother was seriously ill, although that had ultimately not been the case.
Mr Perica gave evidence about the security of isotopes when in transit, and the fact they had to be secured in containers or security cages made of very specific and suitable material. He described how in August 2010 when doing site visits for the Victorian Government, he saw mobile security cages, and suggested to Mr Peter Ellis, his manager, that ARPANSA should perhaps purchase samples to show other license holders. He said that he subsequently contacted the company All-Form Industries, and purchased one sample on behalf of ARPANSA for which it paid. He told the participants at a NDT forum research meeting about the container, but found that a colleague had also brought along the container. Mr Perica told the Tribunal that he was upset about that.
In cross-examination, Mr Perica said that as far back as 2010 he had heard Mr Ellis was spreading rumors about him, and that there was an insinuation he had a vested interest in the sale of mobile isotope security containers made by All-Form Industries.
Mr Perica told us that in 2010 he delivered three highest security level projects for ASIO, but was suffering a loss of confidence due to the strains and pressures he was suffering at work.
In April 2011 Mr Perica was invited to present at an International Atomic Energy Agency (IAEA) seminar. The Agency had approached the CEO of ARPANSA to personally invite the Applicant. He told us that the CEO did not consider the matter until five or seven days prior to the conference, when he refused Mr Perica leave to attend. Mr Perica was left to personally inform the organisers that he could not attend, he said, and made to feel terrible.
Mr Perica said that the organisation was rudderless at that time, and he was doing a difficult job. He said, as noted above, that in April 2011, he was told that his application for home based work was not supported by the new manager, even though he considered it an integral part of his employment contract. In cross-examination, he agreed that he was able to retain that privilege despite the new manager’s policy.
Mr Perica said that by May 2011, he was exhausted, and suffering from what he perceived as broken promises, back stabbing, and lack of management at his workplace. He said that when he first consulted Mr Bilboe on 5 May 2011, using the 2010 referral from Dr Ragg, he was not sleeping, was suffering cold sweats, and was trying to soldier on with a young family. He said that he was at the end of his tether.
Mr Perica said that in July 2011, he had arranged site visits to the Northern Territory, and was informed by Mr Loch Castle his section manager that he would be accompanying him. Mr Perica said that this was unusual, and he felt he was being micro-managed. He said that after the Gove, Northern Territory visit, he gave advice about security containers and received back good positive feedback from the licence holder, and initially from Mr Castle. Mr Perica said that he had explained how to build the containers, adding that he is passionate about security and does waffle on a bit. He said that when Mr Castle told him that on his visit to Melbourne he would again be accompanied by someone, he was once again very concerned that he was being micro-managed.
Mr Perica said that following the Gove visit, and before his return, Mr Castle rang him in Darwin and said that he had changed his mind about the favourable views he had previously expressed on Mr Perica’s performance during the Gove visit. Mr Perica said that Mr Castle informed him his advice had not been product neutral, and that he had been talking over the clients. Mr Perica said that he was affronted by the fact Mr Castle had not told him face-to-face. He said he was humiliated. Mr Perica told us that in the weeks following, from 2 - 5 August 2011 he was located in ARPANSA’s Miranda office, and that although Mr Castle was also present, he did not raise the Gove comments. He said however, that the Northern Territory regulator gave him a glowing report.
Mr Perica said that he was then invited to the NSW regulator’s office in connection with implementation of earlier advice for the Prince of Wales Hospital. He said that he realised he could not advise properly because what was intended was not part of his plan, but had been based on advice by Peter Ellis in Canberra. He said he felt devastated by the mistrust shown towards him.
A visit to Melbourne licence holders was next. Mr Perica said that Mr Castle advised him Mr Ellis would be accompanying him, and that he was to make no further appointments for inspections, as Mr Castle would do that. Mr Perica said that he had been doing his job and managing with the regulators for two years, and was given no reason for the change in arrangements. He said he felt belittled.
In Victoria at an industrial radiology company, aluminium security containers had been installed which Mr Perica said he advised against, although he heard Mr Ellis had advised they be used.
On 30 August 2011 Mr Perica received an email from Mr Castle as to his duties, which were to include finalising the ‘NDT Practice Specific Guide’. Mr Castle had also sent the email to Julie Murray and Peter Ellis with whom Mr Perica was to collaborate on the project. He also sent the email to Martin Dwyer who was the branch manager, and Mr Castle’s manager. Mr Perica said that as a result, he felt all trust was lost, and he felt unworthy. There was also a further email on that day which upset him, he said.
On 30 August 2011 Mr Perica received a letter from ARPANSA, informing him that in accordance with ARPANSA’s Procedures for Determining Breaches of the Code of Conduct, they had appointed Quality Management Solutions (QMS) to determine whether he had breached the APS Code of Conduct in section 13 of the Public Service Act 1999. The investigations were said to be associated, but not limited to, site inspections at the Royal Children’s Hospital, the Ludwig Institute, and Australian Radiation Services. The letter offered him an opportunity to make submissions.
Mr Perica said that he had been given no reasons for the investigation, and was very upset, to the extent he could not sleep, and consulted his doctor.
Mr Perica also explained that security cages were not security containers, and the allegations were made in relation to cages. He emphasised that the security boxes/containers were not the same thing as the security cages which were site specific.
Mr Perica said that he also received a letter from Mr Des Lyons of QMS in regard to the investigation, dated 12 September 2011. He said that he could not understand what was being queried, and he contacted his union for advice. He told the Tribunal hearing that he still does not know what the Inquiry is about.
Mr Perica told us that on advice of his union, a dispute was lodged with Fair Work Australia in September 2011, and a conference took place before a Commissioner on 8 February 2012. In a letter to Comcare dated 27 March 2012, the Head of the Corporate Office of ARPANSA wrote:
The parties subsequently attended a conference before Commissioner Degan in Sydney on 8 February 2012. At the conclusion of the conference, the Commissioner confirmed the actions taken by ARPANSA to date in trying to progress this matter were appropriate (in terms of procedural fairness); that Mr Perica had sufficient information about the reasons why ARPANSA’s management suspected he may have breached the APS Code of Conduct and to make a preliminary submission should he wish to do so, and that the investigation by QMS into whether Mr Perica may have breached the Code should proceed.
Mr Perica disagreed with the above, stating that it did not reflect what the Commissioner had expressed. We noted that on the following day a claim for worker’s compensation was lodged by the Australian Manufacturing Workers Union (AMWU) on behalf of Mr Perica.
We noted that in connection with an unsuccessful application for a promotion to an EL2 position, the AMWU also applied on 30 August 2011 on Mr Perica’s behalf, to the Office of the Merit Protection Commissioner. The Commissioner replied on 23 November 2011 informing the Union and Mr Perica that the actions referred to it in connection with the interview process, and other matters relating to the EL2 position were not reviewable.
COMMENCEMENT DATE OF THE PSYCHOLOGICAL CONDITION
The commencement date of Mr Perica’s psychological condition was not unanimously agreed by the parties. We are mindful that section 7(4) of the Act deems the date of injury to be when the employee first sought medical treatment, or the condition first resulted in incapacity for work, or impairment of the employee.
As noted above, Mr Perica stated on his claim form that he suffered major depressive illness, anxiety and adjustment disorder, and indicated May 2011 in reply to the question: When were you injured or when did you first notice you were ill? He also indicated that he first sought medical treatment when he consulted clinical psychologist, Mr Harold Bilboe, on 18 May 2011, as referred by his treating general practitioner, Dr Ragg. Mr Perica also stated that his condition developed as a result of normal duties, bullying and harassment.
The decision of the Comcare delegate dated 27 April 2012, and reviewable decision dated 20 August 2012 denied liability due to the operation of section 5A of the Act. The delegate (27 April 2012), noted further, that Mr Perica did not require any time off work until after his consultation with Dr Ragg on 5 September 2011, and that it was from that date that his condition could be considered as clinically significant.
The Review Officer (20 August 2012) held that the date of injury was 31 August 2011, the date Mr Perica was first impaired by his condition. The Review Officer also referred to the report of Mr Bilboe, and to the opinion of Dr Ragg, noting that the latter stated in his report dated 12 March 2012 that Mr Perica did not suffer from a psychological condition prior to August 2011.
The Review Officer noted that the letter received by Mr Perica on 30 August 2011, (being the letter regarding an investigation into possible breaches of the APS Code of Conduct), caused him serious emotional distress, noting that Mr Perica left work on that day, and has not returned. He also noted that on 5 September 2011, Dr Ragg diagnosed Mr Perica with an Adjustment Disorder, and certified him unfit for work due to harassment in the workplace.
In order to decide the commencement date of injury or commencement of Mr Perica’s psychological condition for purposes of section 7(4) of the Act, we have considered the medical evidence.
Dr Peter Ragg
We had before us a Medical Certificate of Dr Peter Ragg dated 5 September 2011, said to be the initial Medical Certificate, which stated that Mr Perica was suffering Adjustment Disorder caused by harassment in the workplace, and noting that he had been referred to a psychologist. In a further Medical Certificate issued by Dr Ragg on 4 October 2011, he stated that he had examined Mr Perica in relation to the injury stated as occurring on 18 May 2011, and found he was suffering Adjustment Disorder. Again on 8 December 2011, in a further Medical Certificate, Dr Ragg continued with the same diagnosis, and stated he would review Mr Perica’s condition on 8 February 2012.
On 15 March 2012, Dr Ragg wrote a letter to Comcare in which he stated that Mr Perica had consulted him on 4 October 2011 with regard to a notice received some four weeks earlier that he was being investigated for allegedly corrupt practices in the workplace. That appears to us to have been the letter to Mr Perica of 30 August 2011 indicating he was being investigated with regard to the APS Code of Conduct. Dr Ragg stated that following receipt of the letter, Mr Perica was:
extremely distressed. He felt traumatised and was clearly unfit to work. He felt overwhelmed by the unfairness he perceived in the process and the fact that his whole career could be at risk over something about which he had no information. At this consultation and subsequently Mr Perica’s mood was severely depressed.
Dr Ragg stated that initially his diagnosis had been Adjustment Disorder with depressed mood, but he now, (at 15 March 2012), felt that Major Depressive Illness was a more appropriate diagnosis. He also stated that: Prior to August 2011 Mr Perica had never had a depressive illness.
Mr Harold Bilboe
In Mr Harold Bilboe’s report of 4 January 2012, he noted that Dr Ragg had referred Mr Perica for ongoing recurrent anxiety both in May 2010 and May 2011. We are mindful that notwithstanding the dates of the referral, the first time that Mr Perica consulted Mr Bilboe was on 5 May 2011. Mr Bilboe noted that Mr Perica reported that the first time that he had suffered anxiety was approximately ten years previously when he thought his mother was very ill and might die, although matters had not turned out that way.
Mr Harold also noted that in 2009 (Mr Perica said that it was in May 2010), Mr Perica experienced elevated anxiety following fears he had been exposed to radiation.
Mr Bilboe also noted that the next occasion when Mr Perica felt increasing levels of work related stress and anxiety, and for which he sought medical assistance, was in February 2010, in association with the issue of the home based office coming into question.
Mr Bilboe then noted four major events which caused Mr Perica increasing levels of work related stress and associated anxiety, being:
·the non-reimbursement of the attendance at the WINS conference in Vienna in June 2010;
·issues associated with the development and manufacture of a mobile source security container; (PT26/106 Increased frustration because of behaviour of Employer affecting his Reputation);
·a telephone interview for a job, and the employer’s reliance on Mr Perica’s home based work which prevented Mr Perica from gaining the position of Temporary Section Manager Security and Community Safety Section; (PT26/106 Clinical Notes of Mr Bilboe – 26 May 2011 – not going through 2nd round);
·the question over the home based work arising again in June 2011.
Mr Bilboe also noted Mr Perica’s concerns that he was being micro-managed in July 2011, and the receipt on 30 August 2011, of the letter telling him he was being investigated for a possible breach of the APS Code of Conduct.
We are mindful that Mr Perica underwent psychological tests which Mr Bilboe conducted. Mr Bilboe wrote on 4 January 2012, that:
As a consequence of events the results of the DASS have significantly shifted from ‘normal’ in May 2011 to Severe in November 2011. The current results indicate Mr Perica is evidencing Extremely Severe symptoms across the Depression, Anxiety and the Stress scales. With a similar shift of the K10 Kessler Psychological Distress Scale where there is elevation suggestive of Severe Risk of psychological distress noted.
Mr Bilboe also provided a report dated 1 March 2012. He reiterated his comments about the stressors noted above which increased Mr Perica’s anxiety and stress (from the incorrect calculation of his salary on commencement with ARPANSA in 2008, to the issue of home based work in late 2008), to the other events of 2009, 2010 and 2011 as noted above.
On 1 March 2012 Mr Bilboe stated:
… at our last session on the 23rd February 2012 Mr Perica had still not been advised of the nature and source of the allegations against him, resulting in ongoing severe Anxiety and Depressive symptomatology
He stated that he found Mr Perica to be suffering a Major Depressive Episode, and eventually, Major Depression Disorder, Single Episode, and Unspecified. Mr Bilboe stated that the events which preceded the letter of 30 August 2011 were the precipitator to the 30 August event.
We noted from Mr Bilboe’s clinical notes his record of a consultation with Mr Perica on 31 August 2011 in which he referred to the allegations made in the letter of 30 August 2011. He recorded:
Serious emotional distress caused by letter of 30th August 2011. … Question/Implied Dusan is getting kick backs…. Workplace harassment – ongoing undermining of Dusan within the workplace.
Mr Bilboe noted that Mr Perica was not provided with specific details of what he was supposed to have done, and that this increased his stress. We are satisfied from Mr Bilboe’s Clinical Notes reproduced above that Mr Perica had indicated to him what the problem was; that is, Question/Implied Dusan is getting kick backs…. Workplace harassment – ongoing undermining of Dusan within the workplace. We have also noted from the letter of QMS that Mr Perica was offered the opportunity of making submissions.
In reply to the question from Comcare on 1 March 2012 regarding what factors caused or aggravated Mr Perica’condition, Mr Bilboe opined that from the information available, he was subjected to a persistent pattern of harassment starting from 2008 … Mr Bilboe also raised Mr Perica’s concern that he was overlooked for a promotion to an EL2 position he had applied for, because of confusion and poor communication about the home based office issue. Mr Bilboe also referred to the anxiety Mr Perica suffered as a result of being made aware for a period of approximately 12 months prior to the letter of 30 August 2011, that he was rumoured to have a vested interest in a mobile source security container from All-Form Industries.
Dr Bruce Westmore
Dr Bruce Westmore, a forensic psychiatrist, provided reports dated 26 February 2013 and 18 March 2013 following his examination of Mr Perica on 14 February 2013. He also gave oral evidence before the Tribunal. Dr Westmore opined that Mr Perica’s employment was a substantial contributing factor to the onset of his Adjustment Disorder with depressed and anxious mood, agreeing on that point with Dr Selwyn Smith, another psychiatrist who examined Mr Perica, and gave evidence before us. However, Dr Westmore indicated that in his view, Mr Perica’s psychiatric difficulties clearly commenced prior to his departure from the workplace on 30 August 2011. He emphasised that he disagreed with Dr Smith who attributed events occurring on 30 August 2011 which precipitated an Adjustment Disorder with depressed and anxious mood.
When questioned about the role of the notification of the investigation on 30 August 2011 in regard to Mr Perica’s psychiatric condition, Dr Westmore referred to his report (Exhibit A5), where he stated that Mr Perica reported that 18 – 24 months following the letter, he had still not heard details of the alleged breach, and that, that continued to be a source of distress and worry for him. He also wrote that Mr Perica has developed an Adjustment Disorder with depressed and anxious mood.
In his conclusions at page 3 A6, Dr Westmore wrote as follows:
Mr Perica’s psychiatric difficulties clearly commenced prior to his departure from the workplace on 30 August 2011. It is that date … that Dr Smith attributes events occurring which ‘precipitated an Adjustment Disorder with depressed and anxious mood’. The history is contrary to the view expressed by Dr Smith, in that Mr Perica was already seeking psychological assistance prior to that particular date and that assistance, was, I understand, required because of his previous work related problems. I would accept that the events of 30 August 2011 were stressful for him and contributed to his already developed Adjustment Disorder with depressed and anxious mood.
Dr Westmore was also asked whether he would be influenced by Dr Ragg’s opinion as expressed in his letter of 15 March 2012 where he stated that: prior to August 2011 Mr Perica had never had a depressive illness. Dr Westmore opined that based on Mr Perica’s evidence, the illness commenced in approximately May 2011, sometime before he left work.
When questioned about the results of the psychological testing, Dr Westmore stated that psychiatrists did not carry out such tests, that there was some worry about their reliability, and that there was no substitute for taking a good history, and a proper examination of the patient.
Dr Selwyn Smith
Dr Selwyn Smith, a psychiatrist, provided a report dated 12 December 2012, (Exhibit R4), and gave oral evidence before the Tribunal. He stated that based on the documentation provided to him, and his examination of Mr Perica, it was his opinion that:
Mr Perica prior to his occupational conflicts has experienced pre-existent anxiety. In all probability he has experienced symptomatologies consistent with a pre-existent Generalised Anxiety Disorder and a proneness to panic… Despite his symptomatologies he was able to undertake his work and his symptomatologies did not emerge to the extent that he requested time away from work until he took sick leave on 31 August 2011.
Dr Smith also noted that Dr Ragg and Mr Bilboe diagnosed Major Depressive Disorder. Dr Smith stated that he did not find clinical evidence to support that diagnosis, but agreed with Dr Ragg who stated in his letter of 15 March 2012 that Mr Perica did not have a depressive illness prior to August 2011.
Dr Smith opined that the events of 30 August 2011 did result in heightened levels of anxiety and a modicum of depression, and in all probability precipitated an Adjustment Disorder with depressed and anxious mood. He opined that Mr Perica was not incapacitated for work, even based by his own account, but that his psychiatric condition had not resolved because he was engaged in ongoing litigation.
In his oral evidence Dr Smith indicated he had reviewed the results of the psychological testing Mr Perica had undergone, which he noted initially showed normal results, followed by significant scores for depression and anxiety following the events of 30 August 2011. He acknowledged that Mr Perica had sought assistance for stress from Dr Ragg and Mr Bilboe prior to the events of 30 August 2011. He opined that stress does not constitute a formal psychological disorder. He opined that the psychological disorder only arose from 30 August 2011. Dr Smith acknowledged orally, as in his report, that Mr Perica had a predisposition to anxiety, and referred to Dr Ragg’s referral to Mr Bilboe in May 2010 where he had stated (as to Mr Perica), long term anxiety about the health of himself and his family. (lots of anxieties)
Consideration regarding commencement date of injury or Mr Perica’s psychological condition
In order to decide the date of the commencement of Mr Perica’s psychological condition, and in our consideration of the application of section 7(4) of the Act, we have noted from the medical evidence that Dr Ragg referred to 18 May 2011 as the date of injury in his Medical Certificate dated 4 October 2011. We noted that Dr Ragg and Mr Bilboe diagnosed Major Depressive Disorder, whereas Dr Smith considered that Mr Perica was suffering Adjustment Disorder with anxiety and depression. Dr Smith agreed with Dr Ragg’s statement in his letter of 15 March 2012 that Mr Perica did not have a depressive illness prior to August 2011.
Dr Smith also opined that the events of 30 August 2011 resulted in heightened levels of anxiety and a modicum of depression, and in all probability precipitated an Adjustment Disorder with depressed and anxious mood.
Dr Westmore agreed that Mr Perica’s employment was a substantial contributing factor to the onset of his Adjustment Disorder with depressed and anxious mood, but indicated that in his view, Mr Perica’s psychiatric difficulties clearly commenced prior to his departure from the workplace on 30 August 2011.
Dr Westmore stated that:
Mr Perica was already seeking psychological assistance prior to that particular date and that assistance, was, I understand, required because of his previous work related problems. I would accept that the events of 30 August 2011 were stressful for him and contributed to his already developed Adjustment Disorder with depressed and anxious mood.
Dr Westmore nominated May 2011 when Mr Perica sought assistance from Mr Bilboe and Dr Ragg as the date for the commencement for the Adjustment Disorder.
We have noted the divergence of views as stated above, and are mindful that as to diagnosis of a psychiatric condition such as Mr Perica’s, Drs Smith and Westmore’s opinions are to be preferred over Mr Bilboe who is a psychologist, and Dr Ragg as a general practitioner, because they are psychiatrists. We are accordingly satisfied that Mr Perica suffers Adjustment Disorder with anxiety and depression, rather than a major depressive disorder.
We are also mindful that Dr Ragg who was Mr Perica’s general practitioner referred to 18 May 2011 as the date for commencement of Mr Perica’s psychological condition in his Medical Certificates, but that in his letter of 12 March 2012 to Comcare, Dr Ragg stated that Mr Perica did not suffer from a psychological condition prior to August 2011.
We are satisfied from the medical evidence that Dr Ragg first referred Mr Perica to Mr Bilboe for anxiety in 2010, but that Mr Perica did not feel the need to consult Mr Bilboe until 5 May 2011. We have noted from the evidence recorded above, a series of events occurring in this period, including personal events such as Mr Perica’s anxiety about his mother’s health in approximately 2002, and his worry about having been exposed to radiation in 2010. We have noted that there were work related events as well which caused Mr Perica anxiety. They are listed Mr Bilboe in his reports, and we have noted the evidence about them in the paragraphs above.
Anxiety as a reaction to stressful events such as Mr Perica experienced in his personal life as well as at work often occurs. The evidence satisfies us that Mr Perica was upset and anxious in 2008 about the level at which he was initially paid, which was different from what he negotiated. He also suffered anxiety over the uncertainty about whether he could maintain a home office, because he understood that had been negotiated as part of his employment contract with ARPANSA, and yet was queried by management. That occurred several times between approximately 2009/2010.
Mr Perica gave evidence about the other issues which caused him anxiety such as the problems with attendance at international conferences, and being micro-managed. We noted Mr Bilboe enumerated these and others in his reports, and we have dealt with them below.
Meanwhile, having considered the medical evidence, we are satisfied from the results of the psychological testing carried out by Mr Bilboe, that he reported on 4 January 2012 to Dr Ragg that:
As a consequence of events the results of the DASS have significantly shifted from ‘normal’ in May 2011 to Severe in November 2011. The current results indicate Mr Perica is evidencing Extremely Severe symptoms across the Depression, Anxiety and the Stress scales. With a similar shift of the K10 Kessler Psychological Distress Scale where there is elevation suggestive of Severe Risk of psychological distress noted.
Mr Bilboe’s test results indicated Mr Perica tested as normal in May 2011 to severe in November 2011. We rely also on Dr Ragg’s opinion that Mr Perica did not suffer from a diagnosable psychological condition prior to August 2011. Even if he did, Mr Perica did not suffer incapacity for work and impairment prior to August 2011 as contemplated in section 7(4) of the Act. We note the authority of Comcare v Mooi (1996) 69 FCR 439 in regards to this point, where it was held that it is:
…essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
There is no dispute that the personal anxieties and work events leading up to the letter of 30 August 2011 caused Mr Perica anxiety, but that the letter of 30 August 2011, is likely to have precipitated the Adjustment Disorder with depressed and anxious mood (Dr Smith’s diagnosis), which caused him to leave work and be unable to return.
Accordingly we accept that the appropriate date for commencement of Mr Perica’s condition of Adjustment Disorder with depressed and anxious mood follows the letter of 30 August 2011, and can be said to have commenced on that day, or the day after when he sought medical assistance.
CONSIDERATION OF THE APPLICATION OF SECTION 5A IN REGARD TO MR PERICA’S PSYCHIATRIC CONDITION
Background
As noted above, we accept, as the parties do, that Mr Perica suffers a psychiatric condition, being Adjustment Disorder with depressed and anxious mood, which has been contributed to, to a significant degree by his employment with ARPANSA. Pursuant to section 7(4) of the Act, the deemed date of injury is the date on which the employee first sought medical treatment for the condition for which compensation is sought, or the condition first resulted in incapacity for work, or impairment of the employee. We have accepted, as stated above, that the date of commencement of Mr Perica’s Adjustment Disorder with depressed and anxious mood was 30 August 2011, that being the date he received the letter informing him that he was under investigation for possible breaches of the APS Code of Conduct. That caused him to leave work, and be incapacitated, and he has been unable to return since.
Comcare, whilst accepting that the Applicant suffers from a psychiatric injury which is an ailment, and accepting that his employment contributed to the condition to a significant degree, has refused to accept liability due to the operation of section 5A of the Act and its exclusionary provisions.
The question this Tribunal has to determine is whether Mr Crawford is eligible for compensation for his psychiatric condition, or whether it is excluded pursuant to section 5A of the Act on the basis that the condition he suffered was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.
We are mindful that pursuant to Hart v Comcare, if any injury is the result of an excluded cause, it is immaterial if the other employment related causes may have also contributed to the injury.
Mr Perica has claimed that his condition developed as a result of normal duties, bullying and harassment. The incidents which we can identify from Mr Perica’s evidence, and which were noted also by Mr Bilboe as having caused stress and anxiety, including two personal issues, were as follows:
·Anxiety over mother’s health, approximately 2002; personal, not work issue;
·Commencing salary at ARPANSA in 2008 not paid at the negotiated rate;
·Issues in regard to the home based office which commenced shortly after Mr Perica commenced employment with ARPANSA;
·Anxiety over fear of exposure to radiation in 2010; personal, not work issue;
·Non-reimbursement of the attendance at the WINS conference in Vienna in June 2010;
·Issues associated with the development and manufacture of a mobile source security container; (PT26/106 Mr Bilboe: Increased frustration because of behaviour of Employer affecting his Reputation);
·A telephone interview for a position; Mr Perica not gaining a promotion to the position of Temporary Section Manager Security and Community Safety Section; (PT26/106Clinical Notes of Mr Bilboe – 26 May 2011 – not going through 2nd round);
·CEO’s late consideration and refusal for Mr Perica to attend the IAEA Conference to which he was invited; Mr Perica having to inform the organisers himself that he could not attend;
·Mr Perica’s concerns that he was being micro-managed in July 2011;
·The receipt on 30 August 2011, of the letter telling him he was being investigated for a possible breach of the APS Code of Conduct.
In considering each of the above, we do so within the context of section 5A(2) of the Act which states that 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.
We are mindful that the above list is not exclusive, and that certain of the above points do not apply in this case. We are mindful also that notwithstanding it was not diagnosed as a psychological condition in 2009/2010, Mr Perica reported anxiety to Mr Bilboe and Dr Ragg in relation to personal matters, being his mother’s illness in approximately 2002, and his fear of having been exposed to radiation in May 2010.
Commencing salary at ARPANSA in 2008 not paid at the negotiated rate
The first work related unease Mr Perica reported related to not being paid at the top of the EL1 scale he had negotiated as part of his employment with ARPANSA in 2008. Mr Perica’s evidence was that that was resolved favourably within a couple of weeks. We have no evidence before us to indicate that that was not a simple error, and resolved with reasonable administrative action carried out in a reasonable manner.
Issues in regard to the home based office
Mr Perica was very focused on the issue of home based work which he told us he had negotiated before joining ARPANSA in order to offset the salary at ARPANSA, which was lower than he had been earning in Shanghai. He told us he understood it was part of his contract of employment, and was upset to find out after he had commenced work with ARPANSA that he had to reapply for the privilege six monthly. Mr Perica was upset when shown a file note which he had not previously known existed which indicated that a future CEO could change the arrangements with regard to home based work. He said that he felt devastated, even though he was told that the issue would be rearranged in his favour, and agreed when asked, that the arrangement continued throughout his time at ARPANSA.
In early 2011, Mr Perica had a new manager, Loch Castle, and was informed that he would not be supported for home based work. The evidence satisfies us that the arrangement did continue throughout Mr Perica’s time at ARPANSA. We are satisfied that the arrangements made for Mr Perica’s home based work were reasonable administrative action taken in a reasonable manner.
However, the uncertainty regarding whether he could continue with the home based work caused Mr Perica stress over a period of time commencing not long after he joined ARPANSA, and continued. He did not suffer a diagnosable psychological condition over this issue, and was not impaired or incapacitated for work as a result.
The non-reimbursement of the attendance at the WINS conference in Vienna in June 2010
We also considered the evidence regarding the invitation to Mr Perica to attend the WINS conference in Vienna in 2010 in the context of his employment, which he understood would include overseas travel. His evidence was that initially the organisers had offered to pay his expenses, which ARPANSA then also offered to pay. Mr Perica said that he relied on ARPANSA to reimburse him when he returned, but that that did not happen.
We did not have evidence before us to contradict Mr Perica’s evidence, and note that whilst the non-reimbursement may not have been correct given the earlier arrangement, any stress or pressure it caused did not precipitate any diagnosable psychiatric condition or cause him to be impaired or incapacitated for work.
We are mindful Mr Perica complained to Mr Bilboe about what had happened, as recorded in the Clinical Notes. We are not able to say whether the actions of ARPANSA in regard to the reimbursement of expenses to attend WINS were reasonable administrative action taken in a reasonable manner. From the evidence before us, we are not satisfied that they were not, and note that any stress or pressure the actions caused did not precipitate any diagnosable psychiatric condition in Mr Perica or cause him to be impaired or incapacitated for work.
CEO’s late consideration and refusal for Mr Perica to attend the IAEA Conference
In April 2011 Mr Perica was invited to present at an IAEA seminar. The evidence we have is that the Agency approached the CEO of ARPANSA to personally invite the Applicant. He told us that the CEO did not consider the matter until five or seven days prior to the seminar, when he refused leave to attend. Mr Perica was left to inform the organisers that he could not attend, and made to feel terrible, he said.
We are satisfied that whilst this may not have been an act to commend the CEO, particularly in the context of it being a personal invitation to Mr Perica, and in the context of his arrangements to be permitted to engage in international travel, the stress and discomfort it caused did not precipitate a diagnosable psychological condition or cause him to be impaired or incapacitated for work.
We are mindful Mr Perica reported his distress in regard to the above to Mr Bilboe, who recorded it in his Clinical Notes. We are not able from the evidence before us to be satisfied whether the CEO’s actions constituted reasonable administrative action taken in a reasonable manner. From the evidence before us, we are not satisfied that they were not.
A telephone interview for a position, and Mr Perica’s disappointment at the failure to obtain a promotion
Mr Perica told us that in June 2011 he undertook a telephone interview for a position which would have been a promotion to EL2. He stated that the telephone interview put him at a disadvantage, and that the interview panel’s reliance on his arrangement to do home based work without raising it with him, contributed to him not gaining a promotion to the position of Temporary Section Manager Security and Community Safety Section. He told Mr Bilboe about the situation as reflected in the Clinical Notes of the psychologist dated 26 May 2011. – not going through 2nd round).
We are mindful that notwithstanding the emphasis Mr Perica gave with regard to the value to him of home based work both to his employers and before the Tribunal, he said that he indicated at the interview for the EL2 position that he would relinquish the home based work and move to Sydney if he were successful in obtaining the position.
We are satisfied that Mr Perica was interviewed for a position which he was not offered. We accept that that was reasonable administrative action taken in a reasonable manner. We have note the stress and discomfort the failure to gain a promotion caused Mr Perica, and note also that it did not precipitate a diagnosable psychological condition, or cause him to be impaired or incapacitated for work.
Mr Perica’s failure to obtain a benefit by not gaining a promotion brings him squarely within the exclusionary provisions of section 5A(2) of the Act.
Mr Perica’s concerns that he was being micro-managed in July 2011
Mr Perica said that he felt he was being micro-managed in July 2011 when he was told by Loch Castle after he had arranged site visits to the Northern Territory, that Mr Castle was accompanying him.
He said that after the Gove, Northern Territory visit, where he gave advice about security containers, he received good positive feedback from Mr Castle, and a glowing report from the licence holder. Mr Perica told us that he had explained how to build the containers, adding that he is passionate about security and does waffle on a bit.
Mr Perica said that following the Gove visit and before he arrived home, Mr Castle rang him in Darwin and said that he had changed his mind about the favourable views he had previously expressed on Mr Perica’s performance during the Gove visit. Mr Perica said that Mr Castle informed him his advice had not been product neutral, and that he had been talking over the clients. Mr Perica said that he was affronted by the fact Mr Castle had not told him face-to-face, and said that he was humiliated. Mr Perica told us that in the weeks following, from 2 - 5 August 2011 he was located in ARPANSA’s Miranda office, and that although Mr Castle was also present, he did not raise the comments he had made about the Gove visit.
A visit to Melbourne licence holders was next. Mr Perica said that Mr Castle advised him Mr Ellis would be accompanying him, and further that he was to make no further appointments for inspections as Mr Castle would do that. Mr Perica said that he had been doing his job and managing with the regulators for two years, and was given no reason for the change in arrangements. He said he felt belittled and micro-managed.
Mr Perica said that he was then invited to the NSW regulator’s office in connection with implementation of earlier advice for the Prince of Wales Hospital. He said that he realised he could not advise properly because what was intended was not part of his plan, but had been based on advice by Peter Ellis in Canberra. He said he felt devastated by the mistrust shown towards him.
In Victoria at an industrial radiology company, aluminium security containers had been installed which Mr Perica said he advised against although he heard Mr Ellis had advised they be used.
Mr Perica said that on 30 August 2011 he received an email from Mr Castle as to his duties, which were to include finalising the ‘NDT Practice Specific Guide’. Mr Castle had also sent the email to Julie Murray and Peter Ellis with whom Mr Perica was to collaborate on the project. He also sent the email to Martin Dwyer who was Mr Castle’s manager, and the branch manager. Mr Perica said as a result, he felt all trust was lost, and he felt unworthy. He said that there was also a further email on that day which upset him.
We are satisfied given the context of the sentiment expressed by Mr Castle regarding the Gove visit that Mr Perica’s advice was not product neutral, informing Mr Perica that he would be accompanied to various site visits by his superiors was reasonable administrative action taken in a reasonable manner.
We are mindful Mr Perica felt upset and stressed and felt micro-managed in mid-2011. However he was still working and there is no indication that he was incapacitated for work, or that he was impaired.
Issues associated with the development and manufacture of a mobile source security container
Mr Perica gave evidence about the security of isotopes when in transit, telling us that they had to be secured in containers or security cages made of very specific and suitable material. He said that in August 2010 when doing site visits for the Victorian Government, he saw mobile security cages, and suggested to Peter Ellis, his manager, that ARPANSA should perhaps purchase samples to show other license holders. He said that he subsequently contacted the company All-Form Industries, and purchased one sample on behalf of ARPANSA, for which it paid. He told the participants at a NDT forum research meeting about the container, but found that a colleague had also brought along the container. Mr Perica told the Tribunal that he was upset about that.
In cross-examination, Mr Perica said that as far back as 2010 he had heard Mr Ellis was spreading rumors about him, and that there was an insinuation that he had a financial connection with the company manufacturing the containers.
In connection with the issue of the containers, we are mindful of the emails dated 28 October 2010 at Exhibit R2. The first was from Gary Arthur, Chief Radiation Oncology Medical Physicist, Sydney & Central Coast Radiation Oncology Centres who wrote to Mr Perica as follows:
I am struggling to find anyone to construct a HDR unit security cabinet for us …. Do you know of any Sydney manufacturers who may be able to construct the cabinet to the required security specifications or any hospitals that have had cabinets with the required specification made?
Mr Perica replied:
I am working with a design/construction company on the security cabinets and should have preliminary designs ready for distribution to license holders very soon. I would hold off until these are ready.
The plan is that the containers could be provided by a third company as a “flat pack” ready for installation, or you could use the design and put out a tender.
Mr Perica’s evidence and explanation of the above email exchange was that security cages and security boxes were two different things, and that the reference in Exhibit R2 as noted above, was in regard to security cabinets.
We noted from Mr Bilboe’s Clinical Notes of 25 May 2011 that Mr Perica was suffering: High levels of work related stress – Increased frustration because of behaviour of Employer affecting his Reputation.
We are satisfied that when ARPANSA management suspected that Mr Perica had a financial interest in the production of equipment used by its stakeholders, the evidence indicates it took reasonable administrative action in a reasonable manner in monitoring Mr Perica’s contact with the stakeholders. This culminated in the letter of 30 August 2011 instituting an Inquiry as discussed below.
However up to this time, and until the receipt of the letter of 30 August 2011, although we have evidence of Mr Perica being stressed and suffering psychological symptoms, he was working and cannot be said to have suffered impairment or incapacity for work.
The letter of 30 August 2011
On 30 August 2011, Mr Perica received a letter from ARPANSA informing him he was being investigated for a possible breach of the APS Code of Conduct, and attaching a document, ‘Procedures for Determining Breaches of the Code of Conduct’. The letter indicated that Quality Management Solutions, (QMS) had been appointed to conduct an Inquiry:
..in order to investigate whether, in carrying out your duties as Senior Radiation Security Advisor during site inspections: including but not limited to those site inspections at the Royal Children’s Hospital, the Ludwig Institute and Australian Radiation Services, you committed a breach of the Code.
QMS has been appointed to investigate your behaviour and actions during these visits and determine whether your conduct amounts to a breach of one or more of the following sections of the Act:
s13(1) An APS employee must behave honestly and with integrity in the course of APS employment;
s13(10) An APS employee must not make improper use of:
inside information; or
the employee’s duties, status, power or authority;
In order to gain, or seek to gain, a benefit or advantage for the employee or for any other person;
s13(1) An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.
The letter also indicated what sanctions might be available if there was a determination made that Mr Perica had breached the Code of Conduct, including termination of employment. Finally the letter indicated that QMS would contact Mr Perica to determine if he wished to make a written or oral statement, or both.
Mr Perica said that he also received a letter from Des Lyons of QMS dated 12 September 2011 in which the writer offered Mr Perica the opportunity of making submissions, and informed him that:
The notice provided to you on 30 August 201, by ARPANSA, referred to concerns and/or complaints about some of your alleged conduct and/or incidents/actions. As I understand it, at this very early stage of my investigation, these concerns/complaints relate to at least a perception that you have promoted the use of security cages during inspections and that you have may have a direct interest in the promotion and/or installation of security cages. At this stage, the main documents that I have been given, that could be seen to support that perception, are emails from you to organisations in which it is perceived you are promoting the use of security cages over other possible options. …
Mr Perica said that he could not understand what the Inquiry was about, and contacted his union for advice. He emphasised that the security boxes/containers were not the same thing as the security cages which were site specific. He said at the Tribunal hearing that he still does not know what the Inquiry is about.
We noted from Mr Bilboe’s Clinical Notes of 28 July 2011 his understanding that Mr Perica had informed him regarding the Gove inspection: Advice is not product neutral. Was an issue over a Container – Based on recommendation Dusan had put forward – Insinuation Dusan was profiting from this – also allegations Dusan talked over people …
On 31 August 2011, Mr Bilboe recorded:
Under investigation for breach of Code of Conduct – currently off on stress leave as from today – serious emotional distress caused by letter dated 30 August 2011. Dusan has spoken to lawyer/union and given direction on addressing issues … question/implied Dusan is getting kick backs …. Noted that no specifics of the allegations against Dusan have been provided to him – thus increasing his stress – because he does not know what he is alleged to have done …
On 8 September 2011 Mr Bilboe recorded that Mr Perica had been prescribed anti-depressant medication, and provided with a Medical Certificate. He also stated: Dusan does not believe he can return to the workplace until this matter is resolved.
Both Mr Perica and Mr Bilboe indicated that levels of Mr Perica’s stress were high because he did not know what the Inquiry was about.
Mr Perica told us on advice of his union, a complaint was lodged at Fair Work Australia in September 2011. A conference with a Commissioner took place on 8 February 2012.
We are satisfied that the letter of 30 August 2011 and the subsequent letter of Mr Lyons dated 12 September 2011 clearly indicated to Mr Perica what the Inquiry was about. We note further his evidence that from 2010 he was aware of rumours that he had been profiting from the provision or recommendations regarding the containers.
We are satisfied from the evidence that the letter of 30 August 2011 was provided as part of reasonable administrative action carried out in a reasonable manner given management was concerned Mr Perica may have breached the APS Code of Conduct.
We are satisfied from the medical evidence that Mr Perica suffered a psychological condition, being Adjustment Disorder with depressed and anxious mood, and has been incapacitated for work, since receipt of the letter of 30 August 2011.
We are satisfied that Comcare cannot accept liability for compensation for Mr Perica’s psychological condition which arose out of the reasonable administrative action carried out in a reasonable manner on 30 August 2011, as described above.
The outcome of the Inquiry does not concern us in regard to this application for compensation by Mr Perica.
CONCLUSIONS
We recognise that there were a number of incidents both in Mr Perica’s private life which have caused anxiety (his anxiety over his mother’s illness, and his anxiety at having been exposed to radiation), as well as events at work which have precipitated his psychiatric condition.
The events at work which Mr Perica nominated have been dealt with in the paragraphs above. We accept certain ones may have caused anxiety, and that Mr Perica sought assistance from Dr Ragg because he was stressed with events at work in May 2010, and that he consulted Mr Bilboe in May 2011.
We have considered the evidence in relation to each of the events Mr Perica nominated as causing him stress, and contributing to his psychological condition. We have decided above that several of the events were reasonable administrative action carried out in a reasonable manner, even if Mr Perica did not like the outcomes or deal well with them psychologically. As a result, compensation is explicitly excluded pursuant to section 5A of the Act.
We rely on Mr Bilboe’s psychological testing, and his interpretation of the results, and accept that as Mr Bilboe reported to Dr Ragg, in May 2011 that:
As a consequence of events the results of the DASS have significantly shifted from ‘normal’ in May 2011 to Severe in November 2011. The current results indicate Mr Perica is evidencing Extremely Severe symptoms across the Depression, Anxiety and the Stress scales. With a similar shift of the K10 Kessler Psychological Distress Scale where there is elevation suggestive of Severe Risk of psychological distress noted.
It is undisputed that Mr Perica went left work suffering Adjustment Disorder with depressed and anxious mood, following the receipt of the letter of 30 August 2012. He has suffered a psychological condition which has incapacitated him for work, and he has not returned. We have found that the letter was provided as part of reasonable administrative action carried out in a reasonable manner given management was concerned Mr Perica may have breached the APS Code of Conduct. Accordingly Mr Perica’s claim for compensation cannot succeed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 144 (one hundred and forty four) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr I Alexander Member.
.......................[sgd].................................................
Associate
Dated 25 June 2013
Dates of hearing 13 and 14 May 2013 Counsel for the Applicant Bruce McManamey Solicitors for the Applicant Richard Dababneh, of Turner Freeman Counsel for the Respondent Rhonda Henderson SC Solicitors for the Respondent Kristina Miller, of Sparke Helmore
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