Dyer and Comcare
[2011] AATA 748
•25 October 2011
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1593
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINE DYER Applicant
And
COMCARE
Respondent
CORRIGENDUM
Tribunal Egon Fice, Senior Member Date9 January 2012
PlaceMelbourne
Senior Member Fice made a Decision under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 25 October 2011.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the text in the reasons for decision be altered in the following way:
1.inserting the words on the cover page at the end of the paragraph entitled ‘Decision’:
Comcare shall pay Ms Dyer’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.
2.inserting the words at the end of paragraph 69:
Comcare shall pay Ms Dyer’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.
..........[sgd] Egon Fice.............
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 748
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1593
GENERAL ADMINISTRATIVE DIVISION ) Re CHRISTINE DYER Applicant
And
COMCARE
Respondent
DECISION
Tribunal Egon Fice, Senior Member Date25 October 2011
PlaceMelbourne
Decision
The Tribunal finds that the decision made by Comcare on 6 April 2010 revoking incapacity determinations made for the period 16 November 2009 to 24 December 2009 was not the correct decision. The Tribunal sets aside the decision and in substitution decides that Ms Christine Dyer is entitled to compensation for incapacity for that period.
..........[sgd] Egon Fice..............
Senior Member
COMPENSATION – Mental injury – Aggravation of mental injury – Reasonable Administrative Action – Department of Defence – Anxiety – Stress – Sexual harassment – Psychiatric condition – Depression – Post-traumatic Stress Disorder – Brain Tumour
Compensation (Australian Government Employees) Act 1971 (Cth) s 29
Freedom of Information Act 1982 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5B, 5A(1), 5A(1)(a), 5A(1)(c), 5A(2), 14, 24, 62, 64
Safety, Rehabilitation, Compensation and Other Legislation Amendment Act 2007 (Cth)
Casarotto v Australian Postal Commission (1989) 86 ALR 399
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
George v Rockett & Anor (1990) 170 CLR 104
McKinnon v Department of Treasury (2006) 228 CLR 423
Stroud’s Judicial Dictionary of Words and Phrases (4th ed, 1974)
The Shorter Oxford English Dictionary (3rd ed, 1983)
REASONS FOR DECISION
25 October 2011 Egon Fice, Senior Member 1.Ms Christine Dyer was employed by the Department of Defence commencing in October 1986 as a clerical assistant and then, later in October 2007, in Data Administration Support. In 1995 Ms Dyer was a victim of sexual harassment and received compensation for time she needed off work as a consequence of that.
2.In 2003, she had surgery on her brain to remove a benign tumour. She suffered a small amount of memory loss as a result of that surgery but was able to return to work and to normal duties. In about September 2006 she had further surgery on her brain to remove another benign tumour. As a result of that surgery, she experienced a reduced capacity for stress but was able to return to work on normal duties.
3.On 27 May 2008 Ms Dyer submitted a claim for workers’ compensation with Comcare which was received by Comcare on 4 June 2008. She claimed she suffered anxiety/stress arising out of pressure she experienced at work. At the time, Ms Dyer had been on a return to work program and had been advised only to work at her own pace and to do the amount of work with which she felt comfortable. Nevertheless, her claim for liability was accepted for aggravation of adjustment reaction with anxious mood. She was compensated for the time which she was unable to work and her medical expenses were paid by Comcare.
4.In November 2009 the unit in which Ms Dyer worked, the National Codification Bureau (NCB), had planned to change some of its internal operations. Although the proposed restructure was not major, it involved changes to reporting lines and in some cases, minor changes to duties. Ms Dyer had become aware that a meeting was to be held on 12 November 2009 to explain those changes. On the morning of that day, concerned by the proposed changes, she spoke with her supervisor, Ms Nancy Wain, who was the Manager of Systems Operations in Defence Materiel Organisation (DMO). Ms Wain told Ms Dyer that it was inappropriate for her to be given the information in advance of the meeting to be held later that day. As the meeting commenced, Ms Dyer felt so ill that she found it necessary to leave the premises, indicating that she was going home because she felt sick. She later obtained a medical certificate from Dr John Lamont, her general practitioner, who certified she was unfit for work between 16 November and 15 December 2009. Dr Lamont subsequently issued a further certificate on 11 December 2009 certifying Ms Dyer unfit for work between 16 December 2009 and 24 December 2009.
5.Comcare initially accepted liability for Ms Dyer’s incapacity between 16 November 2009 and 14 December 2009. It subsequently also accepted her incapacity for the period 16 December 2009 to 24 December 2009.
6.On 5 January 2010 DMO requested a reconsideration of the incapacity determinations made for the period 16 November 2009 to 24 December 2009 pursuant to s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). After reconsidering both determinations, on 6 April 2010 Comcare decided to revoke those determinations.
7.On 21 April 2010 Ms Dyer lodged an application for a review of the reconsidered determination made by Comcare on 6 April 2010 in accordance with s 64 of the SRC Act.
8.The issues which arise for my determination in this matter are whether:
(a)on 12 November 2009, Ms Dyer experienced an aggravation of a mental injury, the aggravation having arisen out of or in the course of her employment at DMO;
(b)Ms Dyer was incapacitated for work as at 12 November 2009, or alternatively 16 November 2009, until 24 December 2009 as a consequence of suffering the aggravation on 12 November 2009; and
(c)if Ms Dyer suffered an aggravation on 12 November 2009, whether the aggravation suffered was as a result of reasonable administrative action taken in a reasonable manner.
RELEVANT WORKPLACE EVENTS LEADING TO CLAIM
9.Ms Dyer’s mental condition needs to be understood in light of the events which took place in about November 1994 while she was employed by the Department of Defence. That was the first occasion on which Ms Dyer lodged a compensation claim as a result of the conduct of one of her supervisors at defence. Comcare accepted liability for that claim.
10.Ms Dyer lodged a second claim for compensation on 27 June 1996. She claimed that she had been the subject of sexual harassment which was ongoing from about November 1994. As a result of making a sexual harassment complaint against one of her supervisors, she claimed she had been harassed, abused and intimidated and treated very badly in the workplace. She claimed she suffered stress and anxiety as a result of that behaviour. Comcare accepted her claim on 26 June 1997.
11.Dr John Honey, a psychiatrist, prepared a report dated 22 December 1997 in which he said he was of opinion that Ms Dyer suffered from anxiety depressive syndrome of a mild to moderate severity which had, at that time, abated to a significant extent. Dr Honey was of the view that the sexual harassment and, subsequently, the treatment at the hands of her female co-workers caused her psychiatric condition.
12.Comcare obtained another assessment from Dr Louise N Seward, a psychiatrist, on 23 February 1999. The purpose of that examination was said to be to obtain an assessment about whether Comcare remained liable for the injury sustained by Ms Dyer in November 1995. Dr Seward concluded in her report that Ms Dyer was suffering from post-traumatic stress disorder with some minor chronic residual features. Dr Seward was of the opinion that there was no evidence at that time of an aggravation of an underlying condition. From a psychological perspective, Ms Dyer was well prior to the incident despite a matter which occurred in November 1994. She described the incident on 30 November 1994 as minor, from which Ms Dyer had made a good recovery. Dr Seward said that it appeared the 1995 incident led to the development of a permanent condition and that Ms Dyer had been left with minor residual symptoms. Comcare rejected Ms Dyer’s claim for permanent impairment under s 24 of the SRC Act. On reconsideration under s 62, Comcare affirmed its decision.
13.Ms Dyer sought review of that decision by this Tribunal on 16 August 1999. Dr Seward provided a brief supplementary report on 22 November 1999 in which she said that Ms Dyer exhibited reactions to stresses of daily living with a minor loss of personal or social efficiency. She reported that Ms Dyer had become anxious and tearful and had developed a poor sleep pattern. She became focused on the incident and although counselling resulted in some improvement in her mood, she remained preoccupied by the incident and had a difficult sleep pattern. She was more socially withdrawn and described herself as intolerant and irritable. Dr Seward concluded that all of these factors affected her efficiency at work and they occurred in the setting of the employment problems she described in her original report. She described the overall work environment for Ms Dyer as very unpleasant.
14.Ms Dyer commenced therapy with a psychologist, Ms Avril H Regan, on 9 February 2000. She was self-referred.
15.Dr Seward provided a further report dated 5 June 2000 in which she concluded that Ms Dyer continued to suffer permanent impairment in relation to her psychiatric condition. Dr Seward said that Ms Dyer would qualify for a diagnosis of major depressive illness as well as post-traumatic stress disorder. She did not consider that Ms Dyer’s impairment was likely to resolve. She said Ms Dyer would always be left with a residual impairment. Dr Seward also cautioned that while hoping her condition would remain constant, there was always the possibility it would worsen if she had another major negative life event. Dr Seward noted that Ms Dyer had, after consulting her general practitioner, started on antidepressant medication and had been referred for more counselling. She observed that Ms Dyer would benefit from counselling and being able to talk about major issues for her in relation to the incident which occurred in 1995.
16.On 19 June 2000 Ms Dyer’s solicitors lodged a notice of withdrawal of her application to this Tribunal following acceptance by Comcare to pay her costs and disbursements in a fixed sum.
17.Ms Dyer consulted a psychologist, Ms Toni Milone, in about June 2003 and her treatment by Ms Milone has been ongoing.
18.On 16 January 2004 she consulted Dr Maria Milone, a psychiatrist, who said Ms Dyer presented in a state of anxiety, was tearful and had difficulty being able to concentrate. She expressed feelings of anger, despair, frustration and helplessness. Dr Milone reported that in exploring causation for the deterioration in Ms Dyer’s condition, she became aware of changes currently being undertaken in the workplace. The changes essentially involved a move back to city premises after an interval at Laverton. The reconfiguration of workplace stations apparently occurred without consultation and it appeared she was to be placed at a workstation which caused her unnecessary confrontation with issues that were responsible for her initial workplace injury. This incident is, in my opinion, significant because, as will be seen presently, this is not dissimilar to what occurred in November 2009 which resulted in the current claim before this Tribunal.
19.In a further report dated 27 January 2004, Dr Milone said that Ms Dyer’s work related condition was depression and anxiety occurring secondary to incidents of sexual harassment at the workplace some six years prior. While the effects of her condition were controlled to some extent with ongoing antidepressant medication and counselling, she continued to have relapses and exacerbation of ongoing symptoms intermittently in response to events occurring at the workplace. Comcare continued to accept liability for Ms Dyer’s incapacity entitlements in 2004.
20.On 15 November 2006 Comcare wrote to Ms Dyer stating that it accepted liability for general practitioner consultations and pharmaceuticals up to and including 31 January 2007. This was as a result of her ongoing condition which first occurred in November 1995. Comcare accepted further liability for incapacity entitlements and medical expenses through to September 2008. Ms Milone, in a report dated 5 April 2007, said that Ms Dyer’s reactions to the sexual harassment incident appeared to have been enduring even at that date. However, she was of the view that with the re-establishment of a social network, supports and positive experiences within the workplace, there was likely to be significant improvement in Ms Dyer’s symptomology.
21.Ms Dyer lodged another claim for compensation on 4 June 2008. In a statement attached to her claim, Ms Dyer explained that when she was away from work to have a brain tumour removed for the second time, a co-worker was left to do her work as well as his own but he did not cope. She described him as having had a nervous breakdown. On her return to work she had temporary assistance for a couple of months but then was left on her own, although her workload had effectively doubled. She said she repeatedly asked for the co-worker who had left due to a nervous breakdown to be replaced, that did not happen. She found herself under pressure and stress which caused her to experience anxiety and stress. She described her head as throbbing and had chest pains to the extent that she thought she was having a heart attack. She also had stomach pains and developed a rash on her hands which was very itchy and painful. She also described times when she had difficulty breathing. A Defence Occupational, Health and Safety Incident Report was raised and the supervisor’s comments were as follows:
Christine’s work tasks have been changed. The tasks causing the large volume of work have been removed. Also, finally, a sustainable work plan has been introduced after a period of 1+ years when management did not properly address the situation.
22.The report also stated that Ms Dyer had been under a return to work program. She had been advised to work at her own pace and to only do the amount of work with which she felt comfortable. Regardless, as the report stated, the fact that she had been told to work at her own pace did not alleviate her perception regarding the work expected of her. A return to work plan was formulated and it appears she returned to work on about 27 June 2008 on a reduced work schedule. Dr Lamont provided a report to Comcare dated 25 July 2008 in which he said that Ms Dyer seemed more settled when seen on 20 June 2008 and was happy with her current work schedule.
23.Dr Azita Moradi, a psychiatrist, also provided a report to Comcare on 29 August 2008. Dr Moradi diagnosed Ms Dyer as suffering chronic adjustment disorder with anxiety symptoms. Her differential diagnosis was major depressive episode, mild to moderate severity with symptoms of anxiety however, persistent low mood symptoms appeared to be absent. Dr Moradi said that Ms Dyer continued to experience intermittent symptoms of anxiety and stress in response to a difficult situation and her panic attacks were not frequent enough to warrant a DSM-IV diagnosis of panic disorder with or without agoraphobia. Dr Moradi was of the opinion that there was some relationship between Ms Dyer’s condition and her employment. She was of the opinion that Ms Dyer’s employment was likely to have contributed to her claimed condition in a significant, yet transient manner. Ms Dyer was taking Lexapro and Dr Moradi considered that there may be benefits in increasing her medication dose slightly if she continued to experience symptoms of anxiety. In a letter dated 20 October 2008 Comcare notified Ms Dyer that it accepted her claim for compensation. Comcare described her condition as aggravation of adjustment reaction with anxious mood. The writer of the report was satisfied that, on the balance probabilities, Ms Dyer’s employment significantly contributed to an aggravation of her condition.
24.Ms Dyer experienced another stressful incident in January 2009. She had obtained permission to put a small unlocked cabinet in the women’s toilets so that she could keep personal things in there. An unknown person removed the cabinet and left her a note saying it was a security and health risk. The person who left the note did not disclose her name. Ms Dyer left a note with her name on it asking for the cabinet to be returned and if there was a problem, the person concerned should contact her. Nobody contacted her so she put another cabinet in the toilet and went and sat at her desk to work. She then heard yelling and turned around to see a woman bellowing at her, pointing her finger at her and threatening her. Although the Director of the section was on the floor, he did nothing to calm the situation. Ms Dyer said after that experience, her anxiety/stress level went through the roof.
25.In cross-examination Ms Dyer agreed that the woman was not from her section but that at some time after the incident, she attended a meeting where the woman apologised to her for her conduct. However, when she later saw the person who was the woman’s boss, although he said she smiled and said hello to him, he simply walked passed her.
26.Following that incident Ms Dyer said she was distressed, frightened and fearful of using the toilets in case she came across the women who had abused her.
27.According to Ms Wain, who commenced work as Manager of Systems Operations in DMO in May 2009, Ms Dyer was employed in the Data Management Team part of Systems Operations in one of the teams which she managed. Ms Dyer reported to the Data Manager, Mr G Harlock, who reported to Ms Wain. In a statement made on 17 March 2011 Ms Wain said that in May 2009, Ms Dyer’s work primarily consisted of the distribution of CDs, each CD containing a library of items to be used by various departments of the Defence Department. However, between May 2009 and September 2009, the work requiring the distribution of CDs came to an end because the information previously contained on CDs became available online. Ms Wain said that at that time she discussed alternative work which Ms Dyer could do and she undertook fill in work in the Supply Records area and administration work.
28.In about September 2009, according to Ms Wain, it was decided that the area in which Ms Dyer worked would be restructured with a view to consolidating areas of work arising from changes in the work being undertaken. This was to be achieved primarily by altering reporting requirements and placing the area where Ms Dyer worked under the control of another manager. According to Ms Wain, during September and October 2009, she asked Ms Dyer to undertake different duties to those which she previously performed in order to accommodate the reductions in her work. She said she told Ms Dyer that the work was changing because the main function she performed was no longer required. She said that Ms Dyer, on occasions, stated she was stressed by the changes in duties and that she took time off, for example, six days sick leave in September 2009. She noted that at times, Ms Dyer appeared willing to assist other persons with their duties on an ad hoc basis.
29.In her written statement, Ms Dyer said that in about October 2009 she informed Ms Wain in confidence that she was reluctant to be sent to work under the manager of a different section, Mr Christopher Felsinger. According to Ms Dyer, Ms Wain betrayed her confidence and informed Mr Felsinger about her reluctance to work under him. Ms Wain denied breaching Ms Dyer’s confidence. Ms Dyer said following that incident, Mr Felsinger would ignore and snub her and she became anxious about attending work to the point where she was almost physically ill. Ms Wain said that she asked Ms Dyer to collect work from Mr Felsinger who was seated at the other end of the floor from where she was seated and to take work back to her desk and to do it there. They were duties of a kind which she had previously been doing.
30.In cross-examination Ms Dyer maintained that Ms Wain wanted her to move into what she described as the manufacturer’s section, which was managed by Mr Felsinger. She disagreed with the suggestion that she was simply required to pick up work there and to do it at her own desk. However this statement does not sit comfortably with what Mr Felsinger said occurred on one occasion in 2009 when he approached her at her desk and she said piss off I am not doing it. The fact that Ms Dyer agreed she made that statement suggests, strongly, that she had grave concerns, whether unfounded or otherwise, about working for Mr Felsinger. Ms Dyer was also concerned that Ms Wain betrayed her confidence when she told Mr Felsinger she did not wish to work with him. Whether or not that was the case, Ms Dyer nevertheless was under the impression that her confidence had been breached. She was certain that Mr Harold Crozier, a colleague, had told her that Mr Felsinger made it fairly plain to him that he knew about the conversation Ms Dyer had with Ms Wain about him.
31.Matters came to a head when at 10.19am on 12 November 2009 Mr Andrew Mudie sent an email to all of the employees of NCB informing them that there would be a meeting at 2.30pm that afternoon to take the employees through an NCB organisational proposal, as he put it. Mr Mudie explained there had been some discussion and rumour about the issue and he wished to correct the situation. The employees were asked to treat that information as in-confidence until such time as they were advised otherwise. According to Ms Dyer, she was aware that a meeting was to be arranged the following day and the night before the meeting she slept poorly because she said she was anxious and stressed about the meeting.
32.According to Ms Wain, Ms Dyer came to see her on the morning of 12 November 2009 and asked for information relating to the meeting. In her written statement, Ms Wain said she advised Ms Dyer that the meeting was about changes to the structure of the section and duties, but that it was not proper for her to discuss the issues with Ms Dyer without other employees who were interested in the issues being present at such a meeting. From her evidence in re-examination, it appears Ms Dyer had been told by Mr Harlock that there was to be a meeting on the following day. Ms Dyer said she started to have panic attacks as a result of what Mr Harlock told her and that caused her not to be able to sleep the night before the meeting. In fact Ms Dyer agreed that there were rumours going around prior to the meeting and a lot of people were aware of the restructure prior to the meeting taking place. Ms Dyer also said that there were in fact no rumours going around but that people were aware of pending changes because they were having meetings but would not discuss what was said.
33.Ms Dyer was cross-examined about her recollection of the meeting with Ms Wain on the morning of 12 November 2009. She said Ms Wain refused to discuss with her the issues which were intended to be discussed at the meeting that afternoon. According to Ms Dyer, Ms Wain said she couldn’t discuss it because she wasn’t allowed. Ms Wain said in evidence that Ms Dyer did get upset. Ms Wain also said that she was aware at that time of Ms Dyer’s psychiatric history but only since May 2009, when she first came to DMO. Ms Wain was asked if Ms Dyer was angry in the course of that meeting and she answered: No, she wanted information – she was demanding information. She described Ms Dyer’s mood before the meeting as not being down, but simply telling her that she needed to be told about who her immediate supervisor was to be.
34.Ms Dyer said that she continued to work herself up to levels of stress and anxiety that made her physically ill and as a result, she was late in attending the meeting. When she arrived she sat next to Mr Crozier and felt instantly claustrophobic and was unable to focus. She said she said she remembered very little of what was said but she knew it involved relocating her to a new section. After about five minutes she said she felt so ill that she couldn’t take it any longer and left the meeting. On the following day, 13 November 2009, she sent an email to Ms Wain explaining why she left the meeting. In that email, Ms Dyer said she was getting very stressed and if she didn’t leave she would have had a breakdown and she didn’t want that to happen. She said she left because she was sick. She also posed a question about why Ms Helen Vincent was given special treatment by way of advance information regarding the restructure proposal. In cross-examination and in re-examination Ms Dyer explained that she was aware that Ms Vincent was given a one on one meeting with Ms Wain about the proposed changes and she could not understand why Ms Vincent had been preferred for that treatment when she was not accorded the same treatment. Ms Wain explained that the purpose of the private meeting with Ms Vincent was to get her approval for the leadership role which was proposed for her. Regardless, that did not appear to satisfy Ms Dyer’s complaint.
35.On 13 November 2009 following Ms Dyer’s email, Ms Wain responded by email indicating that Erin (from Konekt, the rehabilitation provider) and Terrianne Dwyer (Assistant Director Rehabilitation, Department of Defence) would be in touch with her in the near future to see what actions they could take in assisting Ms Dyer work through the changes. Ms Wain also explained that Ms Dyer did not allow the leadership team to share information with her or to explain fully what the proposal was and to get her feedback. She said that all reasonable issues would be considered and, where practicable, implemented. However, despite this assurance, Ms Dyer was of the view that, as she had been told by Mr Crozier, all of the issues had been decided and Mr Mudie rarely, if ever, changed his mind irrespective of concerns raised by employees. In fact Mr Mudie sent all employees an email on 16 November 2009 seeking feedback regarding any issues, concerns or observations that anyone wished to raise relating to the new structure prior to finalisation.
36.The clinical notes of Dr Lamont disclose that Ms Dyer consulted him on 16 November 2009 and he recorded that she felt the problems in the workplace had not changed, she was not coping with stress and she was weepy and depressed with suicidal thoughts. She explained to Dr Lamont she had to walk out of a meeting because she felt overwhelmed with the stress of the situation. He provided her with a medical certificate valid until 15 December 2009.
37.Ms Dyer sent Ms Wain another email on 13 November 2009 again attempting to explain why she left the meeting. She explained why she distrusted Ms Vincent. It appears, at least from Ms Dyer’s perspective, that she talked about her behind her back. She explained that she had seen Ms Vincent do that previously and she described it as a bad habit of hers. She said that was why she had to leave the meeting before she said anything that she shouldn’t have. She said she knew that Ms Vincent had a meeting on her own and knew what was coming. She told Mr Crozier, if it was true, she would be leaving. She also described how she knew that Mr Mudie, when he made a decision, would not change his mind irrespective of what anybody else said. She said she had seen that too many times in the past. Ms Dyer also said she had sent an email to Erin from Konekt to let her know what had happened.
38.Ms Terrianne Dwyer sent an email to Ms Dyer on 17 November 2009. The email explained that Ms Wain had told her that she went to see her doctor and that she would be sending in her medical certificate. Ms Dwyer said she had made an appointment for Ms Dyer to attend a combined s36/fitness for duty medical assessment. The appointment was made for 3 December 2009. Ms Dyer responded by email on the same day in which she explained why she had to leave the meeting shortly after it commenced. She said that she had attempted to explain this to Ms Wain but when she read Ms Wain’s return email, she said she had tears running down her face and could not believe that someone could write what she had. She said she wanted to commit suicide after reading that email as Ms Wain had no idea how to treat someone who was under stress.
39.In re-examination, Ms Dyer complained about the emails she was getting from Ms Dwyer. She said they were always negative and that she even sent them to her doctor. She said she had rehabilitation before, but never persons such as Ms Dwyer. In an email dated 18 November 2009 Ms Dwyer said:
I understand you have had a brain tumour in the past which was previously operated however it is your responsibility to ensure you attend the assessment, whether that be you write a post-it note, put a message on your phone, whatever it takes, it is your responsibility to attend.
As the letter states, if you fail to attend without reasonable justification you may be billed for the appointment.
I also remind you to communicate in an appropriate manner. I note that you are stating you are stressed however you are also reminded that at all times you must behave in an appropriate manner. Your emails of late are inappropriate. I advise you to take the time to prepare your correspondence and check the content and tone before sending.
40.The email, from which I have quoted above, followed an email from Ms Dyer on 17 November 2009 asking for instructions regarding the location of the premises where she was required to undertake a medical assessment. Upset with the response, on 26 November 2009 Ms Dyer emailed Ms Dwyer’s immediate superior asking for another rehabilitation officer to be appointed to her case. She made it plain to Ms Dwyer that she was of the opinion that Ms Dwyer did not like her and that she did not feel comfortable with her. This followed an email from Ms Dwyer on the same date to Ms Dyer and copied to Ms Wain about a note she had written on the doctor’s certificate. Ms Dyer had stated that the only place she worked was in CB Department of Defence where she worked until the anxiety/depression returned due to bad management. Ms Dwyer said she had made contact with Ms Dyer’s treating doctor to ask whether he was aware of the comments or whether they had been added after he completed the certificate. According Ms Dwyer, Dr Lamont said he did not witness any of the comments and was not aware that Ms Dyer had added anything to the certificate. Ms Dyer understood Ms Dwyer regarded her as a liar despite the fact that she said Dr Lamont told her to fill out the back of that form and that is when she wrote the comment. She said she did not intend to alter the certificate.
41.Ms Dwyer’s supervisor, Ms Michelle Vella, responded by stating that Ms Dwyer was managing her case and that her challenging material put forward by Ms Dyer was part of her job. Ms Vella said she would not allocate a new case manager to Ms Dyer. Ms Vella also added some condescending remarks in that email regarding how Ms Dyer should address others. She was also criticised for writing a letter using entirely upper case. It is hardly surprising that Ms Dyer became further stressed by the entire episode and explained that she became too scared to speak to Terrianne by telephone because Ms Dwyer had put her down in her emails and she was concerned about what might happen over the phone. Mr J Lenczner of counsel, who appeared on behalf of Comcare, submitted that these matters all constituted reasonable administrative action taken by the employer following Ms Dyer’s departure from the meeting on 12 November 2009.
DID MS DYER SUFFER AN INJURY IN 1995?
42.Section 14 of the SRC Act provides for compensation to be paid to an employee in respect of an injury suffered if the injury results in incapacity for work or impairment. An injury is defined in a primary and secondary sense. In its primary sense, an injury under the SRC Act is frequently described as an injury simpliciter. In the secondary sense, it is a disease suffered by an employee as that term is described in s 5B of the SRC Act. It is an injury in the secondary sense because a disease suffered by an employee becomes an injury under s 5A(1)(a) of the SRC Act.
5A Definition of injury
(1) In this Act: injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(d)a reasonable suspension action in respect of the employee’s employment;
(e)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(f)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.
43. There is a substantial body of law dealing with the distinction between injury simpliciter and disease. However, it appears to me that in this case, I need not analyse the cases dealing with the distinction as Comcare accepted that Ms Dyer suffered a mental injury in the course of her employment in 1995. Furthermore, the medical practitioners to whose evidence I have referred above, have consistently reported that following her mental injury, Ms Dyer was likely to be either vulnerable to relapse following a negative event or that she was left with a residual impairment.
44.The undisputed evidence before me is that Ms Dyer suffered from stress and anxiety as a result of sexual harassment by an employee of the Department of Defence in about November 1995. Dr Honey, who examined Ms Dyer on 22 December 1997, described her as having suffered from anxiety depressive syndrome of a mild to moderate severity which has to a significant extent abated with time. When Ms Dyer was examined by Dr Seward on 23 February 1999, Dr Seward diagnosed her as suffering from post-traumatic stress disorder with some minor chronic residual features. She described that Ms Dyer became acutely anxious and depressed following the sexual harassment incident in November 1995 and that she has continued to re-live that event and had chronic symptoms of anxiety and depression and sleep disturbance. She described Ms Dyer’s symptoms as having gradually improved but that she had been left with mild chronic residual symptoms.
45.At that time, Dr Seward was of the opinion there was no evidence of an aggravation of an underlying condition. She described Ms Dyer as being well, psychologically, prior to that incident. Ms Dyer had said to Dr Seward that this episode was very painful for her and it was taking a long time for the healing process to occur. According to Dr Seward, this situation appears to have led to the development of a permanent condition and she has been left with minor residual symptoms. Because Ms Dyer had not made a good recovery from her condition within two years after the incident of sexual harassment, she considered the condition had become permanent. She described Ms Dyer as having been left with chronic residual symptoms.
46.Ms Regan, a psychologist, reported in March 2000 that Ms Dyer presented with moderate symptoms of anxiety and depression which she had attributed to her experiences of sexual harassment and resultant conflict at work. Ms Dyer was self‑referred, clearly seeking assistance with her condition. Ms Regan was of the opinion that Ms Dyer required further therapy to be better equipped to handle work related stress although her quiet, peace-maker nature could, at times, make conflict resolution difficult for her.
47.Dr Seward again examined Ms Dyer in May 2000. She described Ms Dyer as saying throughout the interview that she did not feel able to forget about what happened to her (the sexual harassment) and that she would have to live with this for the rest of her life. She also described having difficulties with co-workers which she tended to bottle up and not discuss with others as she was frightened that they would turn on her. Dr Seward described Ms Dyer as extremely preoccupied with the incident and that she re-lived it frequently, having intermittent suicidal thoughts. Dr Seward was of the opinion that Ms Dyer’s condition had deteriorated significantly in the past 15 months. Her depression had worsened as well as her anxiety symptoms and her general practitioner had started her on anti-depressant medication. She was also undergoing further counselling. Dr Seward was of the opinion that Ms Dyer continued to suffer from permanent impairment in relation to her psychiatric condition. She said Ms Dyer had now become depressed and qualified for a diagnosis of major depressive illness as well as post-traumatic stress disorder. She considered that Ms Dyer’s impairment would be unlikely to resolve. She then said:
I would not consider that her impairment is likely to improve, as I think she has had sufficient treatment and has now stabilised. I would hope it will remain the same but there is always the possibility it would worsen if she has another major negative life event.
48.Ms Dyer was again examined in August 2008 following a further stress claim. Dr Moradi reported that Ms Dyer told her she had previous work problems relating to a sexual harassment claim. She had also had two brain tumour operations and she experienced significant stress and was prescribed anti-depressant medication. Ms Dyer suffered from a number of symptoms including low mood, tearfulness, poor sleep, fluctuating appetite and cognitive and somatic symptoms of anxiety including symptoms of stress, panic, palpitations and nervousness and agitation. According to Dr Moradi, Ms Dyer appeared to have experienced some psychological sequelae of possible sexual harassment at work, developing symptoms of anxiety as a result of that. She had experienced more recent stressors including the removal of two brain tumours. Dr Moradi also said it appeared to her that Ms Dyer had continued to experience symptoms and stress and anxiety since 10 years previously.
49.I find the medical evidence clearly discloses that Ms Dyer suffered a mental injury in 1995 following sexual harassment in her workplace. Furthermore, the effects of that mental injury continue to be experienced by Ms Dyer, varying in intensity from time to time.
DID MS DYER SUFFER AN AGGRAVATION OF A MENTAL INJURY ON 12 NOVEMBER 2009?
50. In order to satisfy section 5A(1)(c) of the SRC Act, the evidence must disclose, on the balance of probabilities, that Ms Dyer experienced an aggravation of her mental injury which arose out of or in the course of her employment. I deal later with the exclusion which is attached to that subsection of the SRC Act.
51. Aggravation is defined in section 4(1) of the SRC Act and it includes acceleration or recurrence. Although the words aggravation and acceleration represent two different ideas having different shades of meaning, as Hill J said in Casarotto v Australian Postal Commission (1989) 86 ALR 399, there is some overlap between the two when used in s 29 of the Compensation (Australian Government Employees) Act 1971 (the Act). Although that section of the Act is slightly different to the current SRC Act, the words appear in the same context. After reviewing a number of cases which have dealt with that expression in the context of Compensation Acts, Hill J said, at 405:
These quotations illustrate what appears in any event from the ordinary English meaning of the words “aggravation and acceleration”, namely that “aggravation” connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.
52. The evidence indicates that Ms Dyer became anxious and concerned prior to 12 November 2009, having heard rumours about proposed changes in the workplace and reporting structures. That should have come as no surprise to any of the persons with whom she worked if they were aware of her past history. This is plain enough from the report prepared by Dr Milone, to which I have referred above. On that occasion, she presented in a state of anxiety, was tearful and had difficulty in being able to concentrate, expressing anger, despair, frustration and helplessness. According to Dr Milone her mental state arose out of changes being undertaken to her workplace about which she had not been consulted. In fact, as early as June 2000, after Dr Seward examined her and provided a medical assessment, it should have been clear to her supervisors that Ms Dyer’s fragile mental state would worsen if there was another major negative event in her life. In addition to the mental injury she suffered in about 1995, and after Dr Seward wrote her report, Ms Dyer also had two operations to remove benign tumours from her brain. These events, in themselves, were significantly stressful. It is difficult to understand how persons responsible for managing Ms Dyer in the workplace would not have been conscious of the need to consult with her and to allay her anxiety and fears about any intended changes to her workplace.
53. In his oral evidence in chief, Dr Dush Shan, a psychiatrist, was given a lengthy summary by Mr Lenczner of the history which the documentary evidence disclosed, and he was finally asked to give his opinion about the effect on Ms Dyer of the events which occurred on 12 November 2009. Dr Dush Shan said Ms Dyer experienced an aggravation of an existing condition when she received the information regarding the proposed changes to the workplace. That caused a flare-up of her symptoms. Dr Dush Shan also stated she was incapable of work after that event.
54. Dr Albert L Kaplan, a psychiatrist, examined Ms Dyer on 7 July 2010. In his opinion, Ms Dyer appeared to develop a psychiatric disorder in 1995 following sexual harassment and subsequent victimisation. Over the previous 2 ½ years, Ms Dyer again began to experience symptoms of depression and anxiety due to stress in the workplace. Dr Kaplan said that as a result of her condition, Ms Dyer had a greatly reduced capacity to cope with stress. The events in November 2009 caused her to decompensate and cease work. She had now developed a dread of working in any workplace, particularly the Department of Defence.
55. The only professional who disagreed with Dr Dush Shan and Dr Kaplan was Dr Peter Cotton, a clinical psychologist, who examined Ms Dyer on 3 December 2009. Although Dr Cotton said it was possible that Ms Dyer’s symptoms were more significant when she in fact ceased work, he said they had subsided since that time. It is difficult to work out from the evidence whether Dr Cotton was accepting that Ms Dyer had suffered some mental health symptoms prior to his examination. He described the symptoms as mild and not clinically significant. However, given the descriptions of her symptoms by other medical professionals, and having examined a number of emails written by Ms Dyer at around about that time and shortly after 12 November 2009 in which she threatened suicide, I cannot accept Dr Cotton’s analysis of her symptoms and her degree of incapacity to engage in employment following the events of 12 November 2009. Furthermore, his finding that Ms Dyer did not exhibit with any clinically significant mental health symptoms is obviously inconsistent with the fact that she continued with taking anti-depressive medication and continued to consult a psychologist. This is precisely the point made by Dr Dush Shan in his report. I am not persuaded by Dr Cotton’s report. Accordingly, I find that the aggravation of Ms Dyer’s existing mental injury arose out of or in the course of her employment with the Department of Defence.
EXCLUSIONARY PROVISION
56. An injury, as defined in section 5A(1) of the SRC Act, does not include an injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. While section 5A(2) sets out actions which may be regarded as reasonable administrative action, the use of the word include makes it clear that the list is not exhaustive.
57. Section 5A was inserted in the SRC Act by the Safety, Rehabilitation, Compensation and Other Legislation Amendment Act 2007, which commenced on 13 April 2007. While the amendment has received mention in two Federal Court cases, there has been no formal judicial pronouncement on what else might constitute administrative action or whether such action was or was not reasonable. Given that the expression administrative action is not defined in the Act, the expression must be given its ordinary meaning, having regard to the context in which the expression appears and any grammatical construction which may apply (Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297, 304-305). The Shorter Oxford English Dictionary defines the adjective administrative as:
1. Pertaining to management; executive.
58. In the context in which the expression administrative action arises in the SRC Act, and taking into account those matters in section 5A(2) which are regarded as administrative action, it is fair to say that any action undertaken by those in management roles in the course of managing the workplace in which the employee is engaged would fall within the expression administrative action. Therefore, in the context of Ms Dyer’s case, the restructure undertaken by the NCB under Mr Mudie with a view to consolidating areas of work arising from changes in the nature of the work undertaken by that section appears to fall within the description administrative action.
59. There is probably no dispute about the fact that the action taken to restructure the section following a change in the nature of the work is properly described as reasonable. The Shorter Oxford English Dictionary defines reasonable in a number of ways, the most relevant being:
2. having sound judgment; sensible, sane. Also, not asking for too much.
b. requiring the use of reason.
3. agreeable to reasons; not irrational, absurd or ridiculous.
4. not going beyond the limit assigned by reasons; not extravagant or excessive; moderate.
60. If it were necessary, I would find that the action taken by Mr Mudie to restructure the NCB group is properly described as reasonable administrative action taken in respect of Ms Dyer’s employment.
61. The more difficult question is whether the reasonable administrative action was taken in a reasonable manner. The word reasonable has been considered on numerous occasions and in numerous contexts by the courts. Stroud’s Judicial Dictionary of Words and Phrases 4th Edition says this about the word reasonable:
REASONABLE. (1) It would be unreasonable to expect an exact definition of the word “reasonable.” Reason varies in its conclusions according to the idiosyncrasy of the individual, and the times and the circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child’s toy. But mankind must be satisfied with the reasonableness within reach; and in cases not covered by authority, the verdict of a jury (or the decision of a judge sitting as a jury) usually determines what is “reasonable” in each particular case; but frequently reasonableness “belongeth to the knowledge of the law, and therefore to be decided by the justices” (Co. Litt. 56 b).
(2) “The word ‘reasonable’ has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know” (per cur. in Re a Solicitor [1945] K.B. 368, 371).
62. In more recent times, the High Court of Australia in McKinnon v Department of Treasury (2006) 228 CLR 423, when dealing with the Freedom of Information Act 1982, was required to determine whether reasonable grounds existed for a claim that disclosure of documents would be contrary to the public interest. Gleeson CJ and Kirby J referred to an earlier High Court decision in George v Rockett & Anor (1990) 170 CLR 104 and said that the test was an objective test (at 429). Although that case concerned whether the decision maker had reasonable grounds for a particular state of mind, and as Hayne J explained, at 445, the question in McKinnon’s case was different as it required determination of the existence of reasonable grounds. His Honour nevertheless seemed to accept that the test was objective. The plurality then examined in more detail what needed to be considered when evaluating the reasonableness of a state of mind, or for that matter, the reasonableness of conduct. They said, at 430:
Where a claim, or an argument, or a conclusion or some other state of mind (such as suspicion, or belief, or satisfaction) involves an interplay of observation (of objective facts and circumstances), opinion, and judgment (which may involve an evaluation of matters such as reasonableness of conduct, or of the public interest), the question whether there are reasonable grounds for such a claim, or argument, or state of mind requires a consideration of all relevant matters and an assessment of the reasonableness of the claim, or argument, or state of mind having regard to all relevant considerations… It is a question to be answered in the light of all the known circumstances. This applies to all relevant considerations whether they be matters of objective fact (as in the example given), or of opinion, or of argument. Until all relevant considerations, that is, all (known) considerations that could have a rational bearing upon the claim, or state of mind, or decision under review, are taken into account, it is impossible to form a just and fair judgment whether, objectively considered, there are reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.
63. Taking into account the views of the High Court, in order for me to determine whether the reasonable administrative action was taken in a reasonable manner, I need to examine all of the known circumstances in order to determine the reasonableness of the Department’s conduct in the course of its restructure of the NCB group.
64. Ms Dyer’s mental condition has been well known to the Department of Defence since 1995. Her fragile mental state was made clear by Dr Seward in her report of 5 June 2000 where she said that Ms Dyer’s mental state could worsen if she had another major negative life event. The prediction made by Dr Seward became reality in 2004 following the NCB’s move back to city premises after being at Laverton. The reconfiguration of workplace stations occurred without consultation with Ms Dyer and that plainly aggravated her state of anxiety as was reported by Dr Milone in January 2004.
65. Since that time, there have been a number of further events which I have described above involving changes in the nature of Ms Dyer’s work and lines of reporting which have also exacerbated her mental condition. Finally, the organisational restructure of NCB including changes in reporting lines was introduced on 12 November 2009 without any consultation at all with Ms Dyer, even though she sought assurances.
66. While I can understand why the meeting was called and the restructure proposals made without consultation with individual employees, it should have been reasonably foreseeable to the managers involved in the organisational restructure of NCB that unless Ms Dyer was given information and reassured prior to a general announcement being made, her anxiety levels would again be elevated to such an extent that she would be unable to function normally in the workplace. While I appreciate the problems this creates for employers in managing their employees and the workplace environment, it does not excuse an employer from disregarding any particular fragilities, either physical or mental, suffered by any employees. In the circumstances in which the reasonable administrative action was taken regarding the restructure of the NCB, I find that it was not taken in a reasonable manner insofar as it affected Ms Dyer. Her fragile mental condition was well known to her employer. She should have been informed and consulted prior to the meeting on 12 November 2009. Therefore, I find that the exclusionary provision set out in section 5A(1)(c) of the SRC Act does not apply to Ms Dyer’s case.
67. Even if I am wrong about whether the organisational restructure and its announcement was taken in a reasonable manner, the subsequent actions by the employer and in particular the conduct of those persons involved with Konekt and Human Resources who had the responsibility of assisting Ms Dyer return to work following the announcement most certainly cannot be described as administrative action taken in a reasonable manner. No consideration seems to have been taken of the fact that Ms Dyer suffered a serious breakdown in mental functioning as a consequence of the decision. Her protests were seriously criticised by the very persons who were employed to assist her return to work.
CONCLUSION
68. I have found that Ms Dyer suffered an aggravation of a mental injury which arose out of or in the course of her employment on or about 12 November 2009. While I have found that the restructure of the NCB group was reasonable administrative action, I have also found that it was not taken in a reasonable manner. It did not take into account Ms Dyer’s well-known fragile mental state and her inability to accept change following her sexual harassment in the same workplace in about 1995. It should have been clear to her employer that Ms Dyer had never fully recovered from that experience and that she required careful treatment in the work environment to avoid an aggravation of her mental condition.
69. I find that the decision made by Comcare on 6 April 2010 revoking the incapacity determinations made for the period 16 November 2009 to 24 December 2009 was not the correct decision. I set aside that decision and instead determine that Ms Dyer is entitled to compensation for incapacity for that period.
I certify that the sixty-nine [69] preceding paragraphs are a true copy of the reasons for the decision herein of
Egon Fice, Senior MemberSigned: .........[sgd]..................................................................
Elise Montalto, AssociateDates of Hearing 23, 24, 25 March 2011,
8 April 2011,
1, 2, 3 August 2011
Date of Decision 25 October 2011
Counsel for the Applicant Ms A Malpas
Solicitor for the Applicant Victorian Compensation Lawyers
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Sparke Helmore
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