Erika Magro and Comcare

Case [2013] AATA 938

[2013] AATA 938 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/2005

Re

Erika Magro

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

RM Creyke, Senior Member
Date 23 December 2013
Place Canberra

The decision under review is affirmed

..........................[sgd]..............................................

RM Creyke, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth Employees – adjustment disorder – whether the condition is an ailment - whether contributed to by employment to a significant degree – whether not compensable because due to reasonable administrative action undertaken in a reasonable manner

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) sections 4(1), 5A(1),(2) and 14

CASES

Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105

Comcare v Martinez [2013] FCA 439

Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR

Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461

Domburg v Nurses Board (Vic) [2000]  VSC 369

Falconer v Pedersen [1974] VR 185 at 187

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Re Findlay and Comcare [2013] AATA 324

Re Georges and Telstra Corporation Ltd [2009] AATA 731

Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25

Re Radulovic and Comcare (2010) 120 ALD 31.

SECONDARY MATERIALS

A Deldridge (ed) Macquarie Australian Dictionary (rev’d 3rd ed, 2001)

DC Pearce Statutory Interpretation in Australia (6th edn, 2006)

Diagnostic and Statistical Manual of Mental Disorders (4th edn - TR, 2000)

Public Service Commission Counselling for Better Work Performance (2000)

Performance Development Scheme (PDS) Guidelines (2008)

REASONS FOR DECISION

RM Creyke, SMember

  1. Ms Erika Magro applied in 2011 for acceptance by Comcare of liability for her adjustment disorder, which she claimed was employment-related.  Comcare rejected the claim in a decision on 14 December 2011. This decision was affirmed by Comcare on 20 April 2012.  Ms Magro sought further review by the Tribunal on 18 May 2012. 

  2. The matter was heard in Canberra on 4-5 November 2012.

  3. The Tribunal is satisfied that it has jurisdiction in this matter.

    Background

  4. Ms Erika Magro, born 1957, was employed by the Department of Health and Ageing (agency) as a Health Programs Manager, an Australian Public Service officer level 6 (APS6) position.

  5. On 29 April 2011, Ms Magro was informed by the Deputy Secretary of the agency that the ACT office of the agency in which she was working was too small to continue and would close on 13 May 2011.  The area closed on 16 May 2001.

  6. On 4 May 2011 Ms Magro was told she would be transferred into a position in the central ACT office of the agency and not long afterwards she was offered a position, which she accepted, as an acting Executive Level 1 (EL1) officer in the general practitioner afterhours section. The position was for an initial period of three months and Ms Magro took up the position on 19 May 2011.

  7. On or around 29 July 2011, Ms Magro suffered an adjustment disorder and ceased working.  Dr Torres said Ms Magro had a panic…

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AGLC
Erika Magro and Comcare [2013] AATA 938
Case
[2013] AATA 938
Decision Date

CaseChat Overview and Summary

Erika Magro brought a claim against Comcare seeking compensation for an adjustment disorder she suffered, which she claimed was the result of workplace stress. Ms Magro was employed by the Department of Health and Ageing as a Health Programs Manager. When her position was made redundant, she was offered a different role. However, she subsequently developed a psychiatric condition and ceased working. The primary issue before the court was whether Comcare was liable for Ms Magro’s condition, given it was an ‘injury’ under the relevant legislation. This raised several subsidiary issues, including whether Ms Magro’s condition was an ailment and whether it was contributed to, to a significant degree, by her employment. The court found that Ms Magro did indeed suffer from an adjustment disorder, which qualified as an ailment. It was also found that her employment had contributed significantly to her condition, as evidenced by the medical reports. However, the court concluded that the events leading to Ms Magro’s condition were reasonable administrative actions taken in a reasonable manner, and thus her condition did not amount to an ‘injury’ for the purposes of the legislation.

The court reasoned that the diagnosis of Ms Magro’s condition was consistent across multiple medical experts, who all identified an adjustment disorder. This condition was recognised as a psychiatric disorder in the Diagnostic and Statistical Manual of Mental Disorders, thus qualifying as an ailment. The court also accepted that Ms Magro’s employment was the significant factor in the development of her adjustment disorder. Medical evidence indicated that her workplace, alongside other personal issues, contributed to her condition. However, the court found that the administrative actions taken by her employer, including a section meeting and a subsequent discussion with her director, were reasonable under the circumstances. The court held that these actions triggered an exception in the legislation, meaning Ms Magro’s condition did not qualify as an ‘injury’. Consequently, the decision to affirm the denial of compensation was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal is satisfied that it has jurisdiction in this matter.Background Ms Erika Magro, born 1957, was employed by the Department of Health and Ageing (agency) as a Health Programs Manager, an Australian Public Service officer level 6 (APS6) position. On 29 April 2011, Ms Magro was informed by the Deputy Secretary of the agency that the ACT office of the agency in which she was working was too small to continue and would close on 13 May 2011. The area closed on 16 May 2001. On 4 May 2011 Ms Magro was told she would be transferred into a position in the central ACT office of the agency and not long afterwards she was offered a position, which she accepted, as an acting Executive Level 1 (EL1) officer in the general practitioner afterhours section. The position was for an initial period of three months and Ms Magro took up the position on 19 May 2011. On or around 29 July 2011, Ms Magro suffered an adjustment disorder and ceased working. Dr Torres said Ms Magro had a panic attack on 1 August 2011 on her way to work. She claimed that the condition was the result of the ‘loss of [her] job due to closing of the ACT office’. She said in her workers’ compensation claim that she first noticed the condition on 1 August 2011 when she sought treatment from Dr Wallace at Phillip Medical and Dental Care. Medical evidenceDr Greblo Dr John Greblo, Ms Magro’s usual general practitioner, reported on 29 November 2011 that Ms Magro consulted Dr Wallace at his practice about her condition on ‘4 August 2011’. Dr Greblo had first seen her concerning the condition on 18 August 2011. He said she ‘appear[ed] to suffer from an Adjustment Disorder as a consequence of work restructuring’. He noted she had also sought medical treatment for depression in 2009, claimed to be secondary to work, and was prescribed an anti-depressant. He said that her workplace contributed to Ms Magro’s depression but she also had domestic problems relating to her husband’s employment and ‘issues with her children’. Dr Torres Dr Christian Torres, clinical psychologist, reported on 17 February 2012. She had seen Ms Magro on three occasions, in November 2011, December 2011, and January 2012, following a referral by Dr Greblo. She said Ms Magro scored ‘in the severe, extremely severe, and moderate range for self-reported symptoms of depression, anxiety and stress, respectively’. She also was in the ‘risky or hazardous drinking’ level bordering on alcohol dependence. Dr Torres diagnosed an adjustment disorder with mixed anxiety and depressed mood due to employment. At that stage Ms Magro was still contemplating a graduated return to work. Dr Saboisky Dr John Saboisky, consultant psychiatrist, reported on 9 October 2012 that Ms Magro was not then suffering any psychiatric condition, but had formerly suffered from an adjustment disorder with mixed features of anxiety, depression and anger, a new condition. He also noted she suffered from excess alcohol consumption. In his opinion the most significant factor leading to Ms Magro’s condition was her section meeting on 28 July 2011 immediately followed by a meeting with her director regarding her behaviour in the earlier meeting. His opinion was that if the director had not had the subsequent meeting with Ms Magro she would still be working. He acknowledged that Ms Magro had said that the final straw was when the team were told that the other EL1 officer in Ms Magro’s section was to be given higher duties during the director’s absence.

Evidence

Evidence Before The Court

On or around 29 July 2011, Ms Magro suffered an adjustment disorder and ceased working. Dr Torres said Ms Magro had a panic attack on 1 August 2011 on her way to work. She claimed that the condition was the result of the ‘loss of [her] job due to closing of the ACT office’. She said in her workers’ compensation claim that she first noticed the condition on 1 August 2011 when she sought treatment from Dr Wallace at Phillip Medical and Dental Care. Medical evidenceDr Greblo Dr John Greblo, Ms Magro’s usual general practitioner, reported on 29 November 2011 that Ms Magro consulted Dr Wallace at his practice about her condition on ‘4 August 2011’. Dr Greblo had first seen her concerning the condition on 18 August 2011. He said she ‘appear[ed] to suffer from an Adjustment Disorder as a consequence of work restructuring’. He noted she had also sought medical treatment for depression in 2009, claimed to be secondary to work, and was prescribed an anti-depressant. He said that her workplace contributed to Ms Magro’s depression but she also had domestic problems relating to her husband’s employment and ‘issues with her children’. Dr Torres Dr Christian Torres, clinical psychologist, reported on 17 February 2012. She had seen Ms Magro on three occasions, in November 2011, December 2011, and January 2012, following a referral by Dr Greblo. She said Ms Magro scored ‘in the severe, extremely severe, and moderate range for self-reported symptoms of depression, anxiety and stress, respectively’. She also was in the ‘risky or hazardous drinking’ level bordering on alcohol dependence. Dr Torres diagnosed an adjustment disorder with mixed anxiety and depressed mood due to employment. At that stage Ms Magro was still contemplating a graduated return to work. Dr Saboisky Dr John Saboisky, consultant psychiatrist, reported on 9 October 2012 that Ms Magro was not then suffering any psychiatric condition, but had formerly suffered from an adjustment disorder with mixed features of anxiety, depression and anger, a new condition. He also noted she suffered from excess alcohol consumption. In his opinion the most significant factor leading to Ms Magro’s condition was her section meeting on 28 July 2011 immediately followed by a meeting with her director regarding her behaviour in the earlier meeting. His opinion was that if the director had not had the subsequent meeting with Ms Magro she would still be working. He acknowledged that Ms Magro had said that the final straw was when the team were told that the other EL1 officer in Ms Magro’s section was to be given higher duties during the director’s absence. Of the other possible contributing factors, including her husband’s employment problems, issues with her children and alcohol consumption, he said these ‘could be viewed as significant’. However, he considered there was insufficient evidence to support the move from the ACT office of the agency as causing her any major psychological disorder. Legislation

Decision

Reasons for decision

Nor was it undertaken in an unreasonable manner since the meeting was conducted in private, the Tribunal accepts that the director did not raise her voice, and as this was an informal process, there was no obligation for advance warning, nor to offer that a support person for Ms Magro be present. The director had simply taken the step to counsel Ms Magro about her behaviour and to suggest that further discussion would take place on her return from leave. Conclusion In summary, while Ms Magro’s adjustment disorder had been contributed to, to a significant degree, by her employment, since the events on 28 July 2011, particularly the subsequent meeting between the director and Ms Magro, triggered her absence from work, to have implemented that counselling in the circumstances was reasonable. Nor was the counselling undertaken in an unreasonable manner. That means the exception in section 5A(1), (2) of the Act is triggered, and Ms Magro’s condition does not amount to an ‘injury’ for the purposes of the Act. As a consequence, Ms Magro is not entitled to compensation. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The principal issue is whether Comcare is liable for Ms Magro’s condition because it is an ‘injury suffered by an employee [that] results in … incapacity for work, or impairment’. In turn that raises issues concerning:·The appropriate diagnosis of Ms Magro’s condition;·Whether the condition is an ailment;·Whether that ailment, being a mental ailment was contributed, to, to a significant degree, by Ms Magro’s employment; and·If so, whether that ailment is not an ‘injury’ because it was suffered as a result of reasonable administrative action undertaken in a reasonable manner. ConsiderationDiagnosis The first issue is the diagnosis of Ms Magro’s condition. Ms Magro has made a claim for an adjustment disorder. Comcare accepted in its reviewable decision dated 20 April 2012 that there was no dispute that Ms Magro suffered from an adjustment disorder. The Tribunal notes that Ms Magro’s general practitioner found in August 2011 that she ‘appeared to suffer from an adjustment disorder’, a view supported by her treating psychologist, Dr Torres, who saw Ms Magro between November 2011 and February 2012 when he had diagnosed ‘an adjustment disorder with mixed anxiety and depressed mood’. Although Dr Saboisky found no psychiatric condition when he saw her in October 2012, he considered she had formerly suffered an adjustment disorder with mixed features of anxiety, depression and anger. The Tribunal is satisfied that the universal opinion from the relevant medical experts was that at the relevant time Ms Magro suffered from an adjustment disorder. The Tribunal so finds.‘Ailment’ The second issue is whether that condition is an ‘ailment’. The Act defines ‘ailment’ in section 4(1) as follows: ‘An ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. Ms Magro’s adjustment disorder is a mental disorder, defect or morbid condition. The condition is recognised as a psychiatric disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000, Text Revision) (DSM IV – TR), a reputable and widely used manual of such disorders. As such, an adjustment disorder qualifies as an ‘ailment’.Was Ms Magro’s adjustment disorder contributed to, to a significant degree, by her employment? Comcare in its reviewable decision conceded that employment was the significant factor in the development of the condition. Dr Greblo said her adjustment disorder was due to ‘work restructuring’. The attribution of the adjustment disorder to work was supported by Dr Torres. Dr Saboisky too said that ‘the most significant factor’ leading to Ms Magro’s condition was her section meeting on 28 July 2011, that is, a work-related matter. Ms Magro in her statement attributed her adjustment disorder to a combination of the closure of the ACT office at short notice in April and May 2011 and her need to counsel her staff about the move, and her move to the central office of the agency and promotion to an acting higher duties position in which she claimed she was faced with an overload of duties. Finally she said a meeting on 28 July 2011 about who was to act in the director’s position while the director was absent was also critical.