Fairall and Comcare (Compensation)
[2020] AATA 27
•14 January 2020
Fairall and Comcare (Compensation) [2020] AATA 27 (14 January 2020)
Division:GENERAL DIVISION
File Number(s): 2017/6784
Re:Laura Fairall
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:M J McGrowdie, Senior Member
Date:14 January 2020
Place:Sydney
The reviewable decision of 4 October 2017 is set aside and instead a decision be substituted that the Applicant suffered a compensable injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), namely psychological injury by way of an adjustment disorder for limited periods on or about 13 October 2016, 18 January 2017 and 22 March 2017;
The Respondent is to pay the Applicant’s costs of the proceedings.
...........................[sgd].............................................
M J McGrowdie, Senior Member
CATCHWORDS
WORKERS' COMPENSATION — psychological condition – liability to pay compensation – whether stressors in employment constituted injury – whether actions of employer administrative actions – whether Applicant’s claimed condition excluded from the definition of injury
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7, 14
CASES
Comcare v Martin [2015] FCA 4
Comcare v Power [2015] FCA 1302
Commonwealth Bank of Australia v Reeve [2012] 199 FCR 463
REASONS FOR DECISION
M J McGrowdie, Senior Member
14 January 2020
INTRODUCTION
The Applicant, Laura Fairall, born in 1976, makes this Application seeking a determination that the Respondent, Comcare, is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for psychological injury.
In a reviewable decision dated 4 October 2017, Comcare affirmed its earlier determination of 10 July 2017 that Comcare was not liable for the claimed psychological injury.
ISSUES
The issues which arise in respect of the claim are:-
(1)whether the Applicant suffered a work-related psychological condition that was an ailment or an aggravation that was contributed to in a material degree by her employment; and
(2)whether any such ailment or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment so that there is no liability to pay compensation.
BACKGROUND
The Applicant commenced employment with the Department of Human Services in late August 2007 as a Client Services Representative. A large part of her work was processing applications for social security benefits. Her last date of active service was on 21 March 2017. She resigned in May 2018 and took up other employment.
Prior to the present claim which relates to events in 2016 and 2017, she had a claim for compensation in late 2011 for anxiety and depression arising from various work issues. That claim was initially accepted by Comcare. The Applicant, after some time off work, returned to work in accordance with a return to work plan and with some regard to the disabilities which the Applicant suffered, namely, dyslexia and an anxiety condition.
In respect of these disabilities the Applicant completed a Request for Reasonable Adjustment which, according to the Applicant, would excuse her from processing any paper claims for benefits unless already digitized and to be seated in an area with non-fluorescent lighting, that is, an area which also had natural light.
From all accounts this is how the Applicant proceeded with her duties. When the Applicant was working overtime, she could simply not do paper based claims and put them back in the system without that being counted against her performance.
Paper based claims were generally added claims to applications for social security benefits. Add on claims for Rent Assistance and Shared Care Claims were paper based claims so the Applicant could put the primary claims with the ‘add-ons’ back into the system. Also, the Applicant could choose claims to process which did not appear to have any “add-ons”.
Compensation payments for the 2011 claim ceased in February 2015 upon the basis that Comcare determined the Applicant no longer suffered from the effects of the compensable injury. In a report dated 27 January 2015, Dr Eliza Butt considered that the Applicant was in remission in regards to her severe depression and anxiety.
The Applicant had regular counselling sessions with Mrs Roz Hamilton, Psychologist, over the years in respect of the condition. Even if in remission from her major depressive episode, it is clear that the Applicant was not without certain stressors in her life. The Applicant was concerned about debt problems which she had, a prolonged issue she had with a former employer, relationships as well as some difficulties in her employment with the Department of Human Services.
DISCUSSION
From about August 2015, the Applicant came to have particular problems at work. It appears that the Applicant had had quite sympathetic Team Leaders and her special needs were accommodated over an extended period. At that time there were changes proposed in relation to teams and the work station of the employees, including the Applicant.
In about mid-August 2016, the Applicant met with her then Team Leader Ms Toni Franks about her need for natural lighting and other matters. The situation remained unresolved. There were changes in Team Leaders as well. The Applicant felt very unsettled and became distressed.
There also arose an issue for the Applicant with the way in which overtime was managed. A new computer program called “Workplace Manager” was introduced and that system could not facilitate the Applicant’s previous practice of excluding paper based claims relating to Shared Care or Rent Assistance from the overtime work she performed.
The Applicant spoke with Ms Michelle Passlow, temporary Team Leader, about the changes at work and in particular about the seating arrangements and matters remained unresolved from the Applicant’s perspective. On 13 October 2016, the Applicant went off work due to a psychological condition as a result of what for her were unresolved issues in the workplace. The Applicant sought medical care and was prescribed anti-depressive medication. The Applicant had previously taken anti-depressive medication following the 2011 depressive episode but had been off them for quite some time before the events at work in late 2016.
The Applicant attended Dr Hilliar, General Practitioner, on 13 October 2016 and was certified unfit for work. The Applicant was further seen by psychologist, Mrs Hamilton.
It seems to me that the Applicant was managing quite well at work and felt supported by her Team Leader up until changes in seating arrangements, the computer program for overtime and in regard to Team Leaders who the Applicant felt were not so well aware of her needs and background. This in my view did result in the Applicant suffering a psychological condition in circumstances where work was a significant contributing factor (see: Comcare v Martin [2015] FCA 4).
The Applicant was off work for a period and then returned to work. The issue with the work stations was resolved but issues in relation to overtime continued. The issue relating to overtime was raised by the Applicant with a new Team Leader, Mr Danny Vardanega, who headed up the team that the Applicant worked in. The Applicant had a brief discussion with Mr Vardanega who said he would look into the matter. Subsequently, the Applicant received a Skype message from Mr Vardanega to come and have a chat with him.
The Applicant’s evidence was that she thought this was to be a chat about a work barbeque, given the informal nature of the message. Because of her anxieties and dyslexia, there had previously existed a general acceptance by the Applicant’s Team Leaders that anything significant in relation to the Applicant’s work was to be set out in an email. What Mr Vardanega wished to discuss with the Applicant was the matter of overtime. Overtime was something that was approved on the application of an employee by the employee’s Team Leader. An application for overtime by the Applicant for a particular weekend had not been approved.
When the Applicant met with Mr Vardanega on 2 March 2017, the Applicant said to Mr Vardanega that if the meeting was work-related, this should have been set out in an email. Mr Vardanega indicated that he was simply responding to the Applicant’s previous query about overtime and that he had been attempting to reduce email correspondence in line with policy. In her evidence the Applicant said that had she known what the meeting was about she would probably have organised for a support person to be there with her.
The meeting progressed and Mr Vardanega explained to the Applicant that to be allocated overtime, that was now being allocated to centres throughout Australia from Canberra, she would not be able to select what applications she worked or would do. The allocation of overtime by Canberra was based on targeting areas where there were backlogs. Mr Vardanega also discussed that he had checked and the Applicant only had one “skill tag” whereas overtime sessions required the employee to have various “skill tags”. He suggested the Applicant work towards getting more “skill tags”. From the Applicant’s perspective, she felt unsupported and felt that Mr Vardanega had little or no appreciation of her special needs. The Applicant was also distressed by what she perceived as Mr Vardanega’s very casual manner.
She became quite upset during the meeting and Mr Vardanega suggested to her that they stand the meeting over. The Applicant’s evidence was that she became so upset that she went to the bathroom after it and vomited. Nonetheless, the Applicant continued work until 21 March 2017 when the Applicant was not approved overtime by Mrs Renee Ferguson, who was the Applicant’s Line Manager at the centre. The Applicant ceased work and sought further medical treatment for her continuing psychological condition exacerbated by what had occurred in March 2017.
There had also been an incident in January 2017 when the Applicant took a call from a social security recipient who informed the Applicant that the client’s child had died. The Applicant felt very distressed by this and perhaps had one day off work. I regard this as a self-limiting incident and was not part of the continuing difficulties that the Applicant was experiencing at work.
Dr Sharon Reutens, Psychiatrist, in a report dated 5 December 2017 to the Applicant’s employer, diagnosed the Applicant with chronic major depression. Dr Reutens considered that the Applicant’s condition was a continuation which had manifested itself from 2011. Dr Reutens expressed the view that the Applicant continued to suffer incapacity.
Dr Barrett, Psychiatrist, in a report dated 24 July 2018 to the Respondent, expressed the view that against a background of a psychological condition going back to 2011 and which had largely resolved, the Applicant had a vulnerability to develop further problems. Dr Barrett was called to give oral evidence by the Respondent. Dr Barrett considered that the Applicant had a pre-existing vulnerability which made the events at work more significant and challenging for the Applicant. He stated that what happened at work should be viewed against this background.
Ms Wendy McColl, an employee of the Department of Human Services, was called to give evidence by the Applicant. She had been previously involved in a Return to Work meeting following the 2011 injury where the Applicant’s restrictions were discussed and which were to be kept under review. She gave evidence that subsequently the Applicant discussed with her the ongoing dealings of the Applicant with Mr Vardanega and that the Applicant spoke of her belief that Mr Vardanega was not acknowledging her restrictions. This does tend to support the Applicant’s reaction to what was happening in the workplace. I accept the Applicant did suffer a psychological injury as a result.
In a statement dated 21 December 2018 of Ms Toni Franks, the Applicant’s former Team Leader, which was admitted subject to weight, given her unavailability to attend the hearing, she speaks of how the Applicant’s special needs were taken into account at work. This accords with the impression I have formed that with the change in team leadership which occurred in late 2016 and early 2017, various accommodations previously afforded to the Applicant were no longer being fully accommodated.
Mrs Renee Ferguson was called to give evidence by the Respondent. She was the Applicant’s Team Leader for a short period in late 2016 in the section where the Applicant worked. She believed the Applicant had settled into her new work station. Her evidence was about how this was simply implementing ordinary workplace arrangements and thought the Applicant’s absence from work for two weeks from 13 October 2016 was due to overtime issues. She also spoke of the way in which the new overtime system worked.
Ms Michelle Passlow was also called by the Respondent to give evidence. She was a temporary Team Leader in late 2016. She spoke in relation to the issues of seating and indicated that attempts were made to accommodate the Applicant’s concerns in relation to seating. To her understanding, the Applicant’s concerns were largely met.
Overall, I consider that after a period of psychological symptoms suffered by the Applicant, the seating issue was largely resolved and after a brief period off work for two weeks from 13 October 2016, the Applicant was able to return to work generally until further issues in relation to overtime arose particularly in the early part of 2017.
On 13 October 2016 the Applicant presented to her General Practitioner who diagnosed depression and put the Applicant on anti-depressive medication. The Applicant also attended Ms Hamilton, Psychologist.
Dr McClure, Psychologist, gave evidence on behalf of the Applicant and, on reflection by the doctor, considered that the Applicant had suffered an adjustment disorder in October 2016 which, by its nature, was a self-limiting condition so that when the issue of seating resolved so would the condition. This conclusion was also one advanced by Dr Barrett.
I accept that as a result of issues at work relating to the Applicant’s work station, she suffered a period of incapacity for two weeks from 13 October 2016 due to an adjustment disorder. The Applicant was then able to return to work, generally, until March 2017 when the Applicant again went off work in response to overtime issues.
Dr McClure considered that the Applicant’s incapacity for work from 22 March 2017 was the result of significant work stressors at the time in relation to overtime issues.
There had been a meeting at work on 21 March 2017 when the Applicant’s application for overtime on the following weekend was declined. I accept that for a period of time from 22 March 2017 the Applicant was incapacitated from work as a result of psychological injury, namely an adjustment disorder, where work was a significant contributing factor. I believe that this incapacity continued until May 2018 when the Applicant resigned her employment with the Department of Human Services to take up other employment. Dr Barrett assumed that the contribution of work stressors was one third, with the remaining two-thirds being due to pre-existing vulnerabilities and the Applicant’s past history. Dr McClure attributed fifty percent to pre-existing vulnerabilities. In my view, that in either case, there is a sufficient contribution to conclude that the contribution by work was significant given that one takes the Applicant as she is, with her vulnerable personality. I accept that the adjustment disorder suffered by the Applicant is to be a disease within the meaning of the legislation.
LEGISLATION
In accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) there is a liability for Comcare to pay compensation in respect of an injury.
Injury is defined in section 5A and includes “a disease suffered by an employee”. “Disease” is defined in section 5B to be an “ailment” or “an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment…”
The notion of “to a significant degree” was examined in Comcare v Power [2015] FCA 1502 at [93] – [94] where the Court considered that an evaluative exercise was to be undertaken to determine that such an aggravation had to be substantially more than a contribution that was trivial.
“Significant degree” is defined in section 5B(3) to be “a degree that is substantially more than material”. Non-exhaustive factors for consideration are set out in section 5B(2) such as duration of employment, the nature of, and particular tasks involved in, the employment, any predispositions or other matters affecting the employee’s health.
According to section 7(4)(b), an injury in the case of a disease is to be taken to have happened when the aggravation first resulted in impairment. In the present case the evidence suggests that the Applicant’s back symptoms first appeared in late 2006 or at some time prior to May 2003 when the first ergonomic assessment took place.
Section 5A(1) contains a proviso that an injury, for the purposes of the Act, 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.
ADMINISTRATIVE ACTION
The next issue which arises is whether the Applicant’s psychological condition was a result of reasonable administrative action. Administrative action is, however, confined to action that would be properly regarded as “operational” and not directed at the Applicant but rather to the organisation as a whole.
As stated in Commonwealth Bank of Australia v Reeve [2012] 199 FCR 463 at [33]:-
…matters of general administration, management and the implementation of policy are excluded (from what is to be taken as administrative action), even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
In the present case the changes taking place at work are to be properly regarded as operational rather than administrative and not subject to the exclusion. This applies not only in relation to the change in teams/seating in October 2016 but also to the changes in the way overtime was allocated which impacted on the Applicant in the way it did in March 2017.
There were measures that were being taken in relation to the workforce in a general way and not specifically directed to the Applicant. What was specific to the Applicant was her particular disabilities which in the past had been accommodated, most specifically in relation to overtime, which appeared no longer to have been accommodated. Were the changes to seating and to overtime better be regarded as “administrative” action then the level of care extended to the Applicant would have needed to be greater to be considered reasonable given the Applicant’s vulnerabilities and limitations. As it is, the employer simply had to take the Applicant as they found her, and recognise there to be liability for the psychological condition the Applicant experienced as a result of the changes.
In saying this, I accept that the employer was in a difficult situation in terms of dealing with the Applicant’s situation. Nonetheless, it does give rise to a liability to pay compensation in respect of various periods of incapacity suffered by the Applicant.
CONCLUSION
As a result of psychological injury in the form of an adjustment disorder, the Applicant was incapacitated for work and required medical treatment for approximately two weeks in October 2016 commencing on about 13 October 2016 and from 22 March 2017 to 6 May 2018.
Further, the Applicant suffered psychological injury as a result of an incoming call from a client on 18 January 2017 necessitating a day or so off work and any related medical treatment.
DECISION
The reviewable decision of 4 October 2017 is set aside and instead a decision be substituted that the Applicant suffered a compensable injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), namely psychological injury by way of an adjustment disorder for limited periods on or about 13 October 2016, 18 January 2017 and 22 March 2017.
The Respondent is to pay the Applicant’s costs of the proceedings.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of M J McGrowdie, Senior Member
..............................[sgd]..........................................
Associate
Dated: 14 January 2020
Date(s) of hearing: 27, 28 & 29 May and 17 July 2019 Counsel for the Applicant: Mr A Coombes Solicitors for the Applicant: Turner Freeman Lawyers Counsel for the Respondent: Mr M Snell Solicitors for the Respondent: Comcare
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