Ferrini and Comcare

[2003] AATA 1137

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1137

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/524

GENERAL ADMINISTRATIVE DIVISION		)
Re		LUCIANA FERRINI

Applicant

And COMCARE

Respondent

DECISION

Tribunal Michael Sassella
Senior Member

Date14 November 2003

PlaceCanberra

Decision The decision under review is affirmed.  The applicant does not qualify for payment of her costs by Comcare.

...............................................

Senior Member

CATCHWORDS

WORKERS' COMPENSATION – whether employee sustained injury – whether injury in form of psychiatric condition – whether employee made wilful and false representation relating to earlier incidence of disease – whether desire for revised duty statement and performance agreement is desire for benefit connected with employment

Safety, Rehabilitation and Compensation Act 1988 ss 4(1) (“aggravation”, “ailment”, “disease”, “injury”, 7(6), (7), 14(1), 16

Public Service Act 1999 s 13(5)

Casarotto v Australian Postal Commission (1989) 86 ALR 399

Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626

Schofield and Comcare, Re (1995) 38 ALD 124

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Trewin v Comcare (1998) 156 ALR 615

Wiegand v Comcare Australia [2002] FCA 1464

REASONS FOR DECISION

14 November 2003 Michael Sassella
Senior Member     

RESULT

1.      The tribunal agrees with Comcare’s decision.  The tribunal has found that Ms Ferrini has no compensable injury for two reasons.  One is that she did not fully declare her psychiatric history when medically examined as part of her induction in the Australian Taxation Office.  The other is that such disease or aggravation that she may have sustained because of her employment was connected with her failure to obtain a benefit associated with her employment.  This means that Ms Ferrini does not qualify for a costs award in respect of her application.

BACKGROUND

2.      Ms Luciana Ferrini (“the applicant”, “the employee”) claimed compensation on 15 August 2001 for the psychiatric condition, anxiety and reactive depression which she said was caused by distress flowing from conflict and unclear job duties (T4)[1]. Comcare (“the respondent”) rejected the claim because, although it was accepted that Ms Ferrini suffers from a disease, in as much as work may have been a cause of Ms Ferrini’s condition, she was suffering because she had failed to obtain a benefit at work. This would prevent the disease from being an injury because of the way injury is defined in s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”)[2].

[1] References to T documents are references to the documents provided as part of the Section 37 Statement by the respondent.  This and other exhibits are listed in Schedule 1 of these reasons.

[2] Extracts from the Act are in Schedule 2 of these reasons.

3.      In more detail, Ms Ferrini’s complaints were that she accepted a position in the Australian Taxation Office (“ATO”) in Canberra at APS 6 level while working for the ATO in Adelaide.  When she took up the job in Canberra the duties assigned her were not, in her view, those in the APS 6 duty statement she had been given when she applied for the job.  Further she complained that the duties actually given to her were menial and not APS 6 standard.  She saw herself as being treated as the personal assistant of Mr Paul Simonsson, the Executive Level 1officer who was her immediate supervisor.  She argued that her attempts to have her duties clarified were unsuccessful and that this led to her problematic psychiatric status.

ISSUES

4.      In order for Ms Ferrini to succeed in this application the tribunal must be prepared to find that she has an injury.  While there is strictly no burden of proof in administrative proceedings a party seeking advantage from the proceedings is best advised to ensure that there is evidence before the tribunal sufficient to convince the tribunal on the balance of probabilities that the party’s position should be accepted.  It was therefore in Ms Ferrini’s interests to present a case based on evidence.  The Federal Court explained the position clearly in Casarotto v Australian Postal Commission (1989) 86 ALR 399, 412-413.

5.      The tribunal might find the presence of an injury on the basis that conditions in the workplace caused a medical condition right from the beginning.  Alternatively Ms Ferrini could argue that she had a pre-existing disease that was aggravated and that her workplace made a material contribution to that aggravation. 

6.      If the tribunal finds a compensable injury then Comcare wishes to argue that this is only a prima facie finding that can be rebutted because of two possible factors:

(a)The injury may not be an injury under the Act because Ms Ferrini, for reasons connected with her employment by the Commonwealth, made a wilful and false representation that she had not previously suffered from the apparently compensable disease or admitted she had suffered from a disease but was not candid about the number of times she had had the disease. See s 7(7) of the Act.

(b)The injury may not be an injury under the Act because it resulted from Ms Ferrini’s failure to obtain a benefit in connection with her employment, ie clarification of, or a change in, her duties.

An evidentiary onus in respect of these matters of rebuttal lies on Comcare as the party seeking to benefit from the exclusionary provisions.

7.      In summary then the issues for determination are:

(a)Does Ms Ferrini suffer from an ailment as defined in s 4(1) of the Act?

(b)If Ms Ferrini suffers from an ailment did her employment contribute in a material degree to the ailment or to its aggravation?

(c)If the answer to (b) is yes, is Ms Ferrini precluded from compensation because of a wilful and false representation regarding a pre-existing medical condition?

(d)If the answer to (b) is yes and the answer to (c) is no, is Ms Ferrini precluded from compensation because her injury was a result of a failure to obtain a benefit in connection with her employment?

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

(A) Does Ms Ferrini suffer from an ailment as defined in s 4(1) of the Act?

8.      The experts have diagnosed Ms Ferrini as having suffered from recurrent major depressive episodes (Dr Mahoney (ex A3) and probably Dr Wilcox (ex R8)) and/or adjustment disorder with mixed anxious and depressed mood (Dr Mahoney (ex A3), Dr Lucas (ex A4) and Dr Wilcox (ex R8)).  However, Drs Lucas and Wilcox did not see Ms Ferrini as suffering from any psychiatric condition in October 2002 and March 2003, respectively.  Dr Mahoney considered that Ms Ferrini’s adjustment disorder was still present because the workplace problems affecting her had not been resolved.

9.      The tribunal finds that Ms Ferrini suffered an adjustment disorder with mixed anxious and depressed mood in August 2001 when she took time off work and lodged a compensation claim.  The tribunal finds that Ms Ferrini no longer suffers from a recognised psychiatric condition.  The tribunal preferred the evidence of Drs Lucas and Wilcox to that of Dr Mahoney on this point.  Drs Lucas and Wilcox provided opinions on the basis of a more accurate, fuller medical history than Dr Mahoney.  Drs Lucas and Wilcox are psychiatrists whereas Dr Mahoney is a psychologist without a medical training.  Her doctorate is a PhD.  The tribunal was impressed by the explanations Drs Lucas and Wilcox offered for their conclusions.  They relied on Ms Ferrini’s presentation when she saw them and regarded her demeanour as not that of one suffering from depression or any of the other psychiatric effects in issue.

10. Ms Ferrini was interested in incapacity payments under the Act covering her time off work from 7 to 19 August 2001 and she wanted compensation for treatment associated with a compensable condition under s 16 of the Act. That treatment was primarily her monthly consultations with Dr Mahoney. The above finding will affect her ongoing entitlement to s 16 payment. However, she may still qualify for s 16 payments and incapacity payments referable to August 2001 and for a time after that if Comcare is liable to pay compensation to Ms Ferrini.

11.     The tribunal finds that Ms Ferrini suffered from an ailment in August 2001.  The experts tend to agree that she likely suffered an adjustment disorder at that time.

(B) If Ms Ferrini suffers from an ailment did her employment contribute in a material degree to the ailment or to its aggravation?

12. The tribunal finds that Ms Ferrini’s employment made a material contribution to her ailment in August 2001. The experts seem agreed on this point. Dr Lucas (ex A4) considered that when Ms Ferrini took leave in August 2001 she was suffering from adjustment disorder with depression and anxiety and that her psychiatric disorder bore a quite close relationship to problems at work. He agreed that other factors contributed. Section 4(1) of the Act requires only that employment must make a “material” contribution. Dr Lucas considered that it did. It does not have to be the only contributor.

13.     Dr Wilcox (ex R8) said that she did not believe on the balance of probabilities that Ms Ferrini’s employment with the Australian Taxation Office (“the ATO”) made a material contribution.  However, she said that she accepted that Ms Ferrini’s condition arose due to her problems with the work she was performing.  She attributed Ms Ferrini’s distress to non-work factors in that she was alone in Canberra for a number of months, her family being in Adelaide, and she had chosen a job that caused her to be dissatisfied.  I found Dr Wilcox’s opinion somewhat inconsistent internally.  The concession that Ms Ferrini’s condition arose because of her problems with her work is sufficient in my view to establish a work contribution. 

14.     Dr Mahoney (ex A3) thought that workplace difficulties contributed to Ms Ferrini’s condition which, in her view, was continuing.

15.     I rejected the respondent’s submission that there was nothing in Ms Ferrini’s duties or employment history with the ATO that contributed to the aggravation or onset of her psychiatric problem.  The respondent’s submission was based on the principle clarified in the High Court case, Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626, 641 (Windeyer J) and in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, 323 (full Federal Court). Essentially these authorities identify that, in order that a workers’ compensation insurer will be liable, it is not enough that an employee happens to suffer an injury while at work. There must be something that the employee does in his or her employment that contributes to the problem. As Windeyer J said in Semlitch (above), “The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.” 

16.     In Ms Ferrini’s circumstances there was evidence from Mr Simonsson that Ms Ferrini’s duty statement was not literally accurate, that it tended to describe his job at a more senior level than hers at ASO 6 level.  He also told the tribunal that he was aware that she was upset at some stage in 2001 because of this and related issues.  It seems to me that, whether Ms Ferrini’s reaction was reasonable or unreasonable, it was precipitated, at least to a degree that I consider reasonable, by her problems with her duties at work. 

17.     Ms Ferrini’s case echoes Wiegand v Comcare Australia [2002] FCA 1464 in which the employee, also an ATO worker, had work complaints and problems. They were addressed by the ATO but Mr Wiegand's attitude was that they had not been properly dealt with. There was evidence that Mr Wiegand had a major depressive disorder and obsessive-compulsive personality traits. Comcare’s view was that it was Mr Wiegand’s adverse perceptions of the ATO’s dealings with his concerns that resulted in his condition rather than his employment. The argument was basically perception vs reality.

18.     Von Doussa J in the Federal Court set aside the tribunal’s decision that Mr Wiegand’s condition could not materially be attributed to his work for the ATO.  His Honour was influenced by the tribunal’s acceptance of evidence that the matters Mr Wiegand complained of had actually occurred.  He then noted that it was the reasonableness of Mr Wiegand’s interpretations of events and his perceptions about them that the respondent put in question.  Von Doussa J noted that Mr Wiegand’s difficulties were only partially attributable to his work.  The predominant factor in his depressive disorder was his basic personality.  In paragraphs 20-25 His Honour endorsed the following propositions:

(a)There can be more than a single real cause of an employee’s condition.  From this it flows that the workers’ compensation insurer can be liable if employment was one of several causes provided it made a “material contribution” to the claimed condition or injury.

(b)An employee can receive compensation if he or she reacts badly to stressors because of a vulnerability personal to him or her even if a “normal” employee would not so react.  This is an application of the “egg shell skull” rule known in the law of torts.  Its application in workers’ compensation is to be expected given that the workers’ compensation system is not based on an employee having to prove fault in the employer.  It is a no-fault scheme.

(c)The relevant question is whether a stressor or stressors to which the employee was vulnerable happened and whether that happening was contributed to in a material degree by the employment.

(d)A perception held by an employee will meet a “reality” test for the purposes of the definition of disease if it is a perception about an incident or state of affairs that actually happened. 

(e)Compensation is not payable where a neurotic employee wrongly believes that his or her leg pain arose out of his or her work.

His Honour summarised the position in paragraph 31:

“[T]here is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness.  If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.”

19.     In light of these principles I considered that I had no option but to find that Ms Ferrini’s psychiatric condition was precipitated or aggravated by her workplace problems.

If the answer to (b) is yes, is Ms Ferrini precluded from compensation because of a wilful and false representation regarding a pre-existing medical condition?

20.     I find that Ms Ferrini did make a wilful and false representation regarding a pre-existing medical condition.

21.     The respondent’s assertion that Ms Ferrini made a wilful and false representation regarding a pre-existing medical condition is based on information in Ms Ferrini’s “Health Status Assessment” completed by Health Services Australia (“HSA”) for the ATO as part of her induction by the ATO in March 2000 (ex R2).  Comcare takes issue with the answer to question 24 in Section 2 and to the explanation of Ms Ferrini’s answer to question 25 in Section 4 of the HSA form.

22.     Ms Ferrini answered no to “Do you or have you ever had nervous or mental condition?” (Q 24).  She answered yes to “Do you or have you ever had anxiety or stress reaction or depression?” (Q25).  The examiner’s notes regarding Q 25 state that she had the anxiety, stress or depression with respect to her repetition strain injury (“RSI”). 

23.     Comcare saw the answer to Q 24 as false and the notes relating to Q 25 as incomplete and selective.  In her oral evidence Ms Ferrini explained that she did not see her past psychiatric history as involving a nervous or mental condition.  Thus she answered no to that question.  She did see it as involving depression so she answered yes to Q 25.  As regards the incomplete notes concerning Q 25, Ms Ferrini noted that these were in the writing of the examining doctor and she thought he had failed to record fully what she told him.  It is instructive to consider Ms Ferrini’s psychiatric history:

(a)Ms Ferrini left school in 1969 and had a “nervous breakdown” early in the 1970s because of conflict with her parents (ex R3).  In oral evidence Ms Ferrini said that the family conflict related to her leaving home to seek independence.  Ms Ferrini’s mother arranged for her to see a psychiatrist a few times over a month.  Ms Ferrini then went to Italy for a period, returned and again saw a psychiatrist two or three times.  Ms Ferrini said she was not suicidal.  She thought she had probably taken antidepressants at that time. 

(b)Asked about 1979 Ms Ferrini recalled feeling anxious, upset and worried.  She did not recall seeing a doctor then.  Ms Walker, for Comcare, referred Ms Ferrini to notes from Adelaide’s Flinders Medical Centre (ex R5).  Her doctor recorded that Ms Ferrini was “very depressed”.  Ms Ferrini had taken Serepax (a tranquilliser) at that time.  She told the tribunal that she had RSI at this time and that it was a difficult period.  The Serepax was supposed to help with her pain and in relaxation.  It was recorded that Ms Ferrini had told her assessing doctor she had been an inpatient at “Cullen Park” in NSW for a few days at 19-20 years of age.  Ms Ferrini did not recall this.  Those notes recorded a Valium overdose and an attempt to cut wrists at 20 years of age.  The notes recorded she had been suicidal in the past few days (as at August 1979).  Ms Godtschalk noted that these notes did not carry the name of the assessing doctor and that it was unclear that the reference to Cullen Park should be assumed to refer to the Callan Park mental hospital at Rozelle in NSW.  It was suggested that these notes might not even refer to Ms Ferrini.  I was unconvinced by these submissions.  The notes clearly relate to the applicant as can be discerned from the patient’s name at the top of each page and from the fact that much of the medical material echoes similar material in other notes relating to Ms Ferrini.  The misspelling of Callan Park was understandable given that the writer was in South Australia at the time he or she wrote these notes.  Ms Ferrini disowned this material in her evidence.  She could not suggest why these notes had been written when they were.

(c)In September 1987 Ms Ferrini saw psychiatrist Dr P J Papay (ex R5).  In a report dated 31 July 1989 Dr Papay said he first reviewed Ms Ferrini in October 1987 two weeks after the birth of a child.  She was anxious, distressed and in a state of “continual arousal”.  He diagnosed a Post Partum Anxiety State, although Post Partum Depression was a possibility.  He said he then saw her intermittently. 

(d)In 1989 Dr Papay had seen Ms Ferrini more frequently because she could not cope with her commitments and a sense of lacking control.  He identified obsessive compulsive personality traits.  There had been conflict at work and escalating anger.  She had developed RSI in her neck and arms and was off work on workers’ compensation.  She had taken too much Serepax.  Dr Papay arranged hospitalisation.  He diagnosed adjustment disorder with depressed mood but thought major depressive disorder a possible alternative diagnosis. 

(e)In 1989 Ms Ferrini was again in hospital at Flinders Medical Centre (ex R3).  She complained of RSI and of “depression/anxiety”..  She told the hospital of work difficulties – three bosses in the previous year, different demands, job poorly defined.  These complaints found an echo in her complaints about the ATO in the present case.  She referred in 1989 to a lack of any job description and said she was working as an untrained librarian, research assistant, personal assistant to the head nurse and office “dogsbody”..  She referred to feelings of guilt from involvement in “illegal copying of videos”.  She referred to hospitalisation at age 19 with a nervous breakdown. 

(f)Ms Ferrini then presented at Allcare Medical Centre in Adelaide, 1997 – 2001 (ex R4).  Allcare recorded that Ms Ferrini was depressed in October 1997, September 1998 and October 1998.  She was prescribed the antidepressant Zoloft.  Ms Ferrini suggested that depression had been the doctor’s description.  She preferred to describe herself as anxious or worried. 

24.     From this chronology the tribunal finds that Ms Ferrini has suffered from depression and anxiety on a significant number of occasions since 1970 and extending up to 1999 shortly before she joined the ATO.  The tribunal finds further that Ms Ferrini did not provide full and frank information in addressing the questions in the HSA questionnaire.  While Ms Ferrini did accurately record that she had experienced anxiety, stress and depression, she did not respond in the affirmative regarding a nervous or mental condition.  This is inconsistent with the history recorded by Flinders Medical Centre in 1989 where she was quoted as saying that she had suffered a nervous breakdown at age 19.  I recognise that Ms Ferrini’s evidence was that she did not recall telling the Flinders centre this information.  Even if that evidence be accepted, she should still have declared having had a “mental condition”..  The HSA questionnaire unambiguously asks for information about the stated conditions no matter when they affected the new employee. 

25.     The tribunal further finds that it is more likely than not that Ms Ferrini did not tell the assessing doctor of the full range of her experiences of depression and/or anxiety.  It is not credible that the doctor would have recorded so little about these matters in section 4 of the HSA form if he or she had been told of the full range.  I note in this respect that a failure to provide relevant information can amount to a false representation (Re Schofield and Comcare (1995) 38 ALD 124).

26.     The tribunal has found Ms Ferrini’s representations to the HSA to have been false.  It is more difficult to find that they were “wilful” as well as false.  Ms Ferrini’s evidence was that she did not recall several of the episodes of depression and that some others were anxiety rather than depression.  Of course, she had to report anxiety just as surely as she was obliged to report depressive episodes.  My view is that, even if she had forgotten the hospitalisation and even if the notes in 1979 were inaccurate (which I doubt), there was plenty of other material relating to depression, anxiety and worry that she was able to discuss with the tribunal and which should and, I believe, would have been in her mind to tell to the assessing doctor.

(D) If the answer to (b) is yes and the answer to (c) is no, is Ms Ferrini precluded from compensation because her injury was a result of a failure to obtain a benefit in connection with her employment?

27. Given the findings in relation to (c), it is not strictly necessary to discuss this issue. However, in case I am wrong in relation to (c), and given the time spent on this issue during the hearing, it is appropriate to address issue (d). I find that Ms Ferrini did not suffer an injury under the Act because, in accordance with the definition of “injury” in s 4(1) of the Act, any disease or aggravation attributable to her employment resulted from her failure to obtain a benefit in connection with her employment.

28.     Ms Ferrini’s evidence was to the effect that her work in the ATO’s Assurance and Training Section was largely self-directed research.  She commenced there late in 2000.  She said that her supervisor Mr Simonsson, who commenced there a week after Ms Ferrini, asked her to download material, type up his notes and copy out documents and materials.  She felt this was not what was foreshadowed in the APS 6 duty statement she had addressed when applying for the job from her previous post in Adelaide.  She said that she asked Mr Simonsson for a performance agreement as that might clarify her role.  She said he refused and expressed anger as no one else had a performance agreement except investigators.  Ms Ferrini said she had similar discussions with Mr Simonsson approximately every month. 

29.     Ms Ferrini told the tribunal that her skills were not utilised.  She had a tax background from her work in Adelaide.  She said she did not look at tax legislation or policy at all while in the area.  She had an accountancy background and statistical skills.  None of these skills were used.  There was a strong emphasis on typing, editing and correcting documents. 

30.     Mr Simonsson later gave evidence.  Mr Simonsson, aged 36, is now a director of a private enterprise company.  He had come to Australia some years ago from New Zealand where he had been a footballer.  He joined the NSW Police Service and worked there for eight years.  He became a detective in the NSW Police Commercial Crime Agency, worked in various crime task forces and was involved in security for the 2000 Olympic Games.  He then joined the ATO in 2000 where initially he did investigations work at Hurstville in Sydney before moving to the Canberra position.  Mr Simonsson claimed considerable experience as a team leader based on his sporting and police experience.  Mr Simonsson left the ATO early in 2002. 

31.     Mr Simonsson’s Canberra position in 2000 was as National Assurance and Quality Manager at Executive Level 1.  He reported to Mr David Gledhill (the Executive Level 2 officer).  Reporting to Mr Simonsson were Ms Ferrini and Mr Bill Howe.  The work of the unit was to conduct quality assurance reviews of investigations by the Serious Non-Compliance Group.  The unit was responsible for training and standards guidelines.  Within the unit Mr Howe held the training ASO 6 position.  Ms Ferrini was involved with standards.  Mr Simonsson allocated work to Ms Ferrini and Mr Howe. 

32.     He found Ms Ferrini’s work excellent.  She was capable and enthusiastic.  At the same time he found Ms Ferrini’s body language and behaviour towards him a problem.  She demonstrated a lack of respect.  He said he made allowances because she was away from her Adelaide home base.  Ms Ferrini told Mr Simonsson that she felt the level of work expected of her was beneath her.  She thought her job should be that done by Mr Simonsson or Mr Gledhill.  Mr Simonsson said that he explained the situation to Ms Ferrini and explained her role to her.

33.     Mr Simonsson did not see Ms Ferrini’s duty statement for quite some time after he arrived at the ATO.  He was given an oral briefing by Mr Gledhill when he arrived and understood that to define the work the unit was to do.  There was an audit being done by the Australian National Audit Office (“the ANAO”).  Messrs Simonsson’s and Gledhill’s unit had a new responsibility for ATO investigations work.  There had been criticism of ATO investigations performance by the ANAO.  It was made clear that this work was Mr Simonsson’s top priority.  Mr Simonsson said that Ms Ferrini he had Ms Ferrini review the ATO’s policy and legislation to see how it related to the work of the unit.  He himself was absent travelling for work much of the time.  One of Ms Ferrini’s tasks was to adapt Centrelink’s covert surveillance guidelines so that they suited the ATO and conformed to the Privacy Commissioner’s requirements.

34.     In cross-examination Mr Simonsson said that, from his early discussion with Mr Gledhill, he had a composite document setting out the duties of himself, Ms Ferrini and Mr Howe.  He later saw Ms Ferrini’s duty statement and recognised that it better reflected his actual duties than those of Ms Ferrini.  The composite document was not available to the tribunal but I would expect it in general terms to impose on Mr Simonsson the responsibility for ensuring that the tasks in the APS 6 duty statement as before the tribunal were achieved while Ms Ferrini’s responsibility would be to assist Mr Simonsson to produce the deliverables.  In a meeting with them in November 2000 Mr Simonsson communicated Mr Gledhill’s wishes to Ms Ferrini and Mr Howe.  He was unaware of any “dramas” until January 2001.

35.     At the hearing Mr Simonsson addressed the duties in Ms Ferrini’s duty statement and explained that her work actually fitted the description of the listed duties.  The duties (ex R6) and Ms Ferrini’s work related to each were as follows:

(a)Under minimal supervision, analyse legislation, policy and procedures in relation to GST fraud..  Ms Ferrini was asked to synthesise the legal advice on general fraud held by the ATO.  She had full responsibility for this and did a good job.  She had to pick up on audit-related matters.  In the longer term this function was less relevant to the unit.  Mr Simonsson had to explain this to Ms Ferrini who was “a bit upset”.. 

(b)Provide advice to management and staff on GST legislation, policy and procedures in relation to GST fraud.  Mr Simonsson advised that Ms Ferrini was called on to do this in his absence.  He would clear the advice.  He was absent on national quality assurance reviews.  There were others with whom Ms Ferrini could confer regarding this work.  Ms Ferrini was sometimes invited in for executive meetings to explain advice she had prepared where Mr Simonsson felt himself not sufficiently across it.

(c)Liaise as necessary with law enforcement agencies and other government and non-government organisations.  Mr Simonsson said that while he was in the unit that task was his responsibility.  He was attending two or three high level meetings in relation to the Heads of Commonwealth Operational Law Enforcement Agencies standards.  There were two working groups.  One was looking at the quality of training provided to investigators.  The other was looking at rewriting the investigations standards package.  He attended the training group on behalf of Mr Gledhill.  The standards group was doing work directly within Mr Simonsson’s responsibility.  Ms Ferrini attended meetings within the ATO on the standards issues, but not meetings with external bodies and officers.  Mr Simonsson thought Ms Ferrini may have engaged in liaison with the office of the Director of Public Prosecutions (“the DPP”).  “She was free to.”  He thought Ms Ferrini attended one meeting with Mr Simonsson and the DPP regarding the new Criminal Code. 

(d)In liaison with the training manager, introduce development and advise information on staff development programs.  The training manager was Mr Howe.  Mr Simonsson doubted that Ms Ferrini was involved in this aspect.  Mr Howe was responsible for training and concentrated on that.  His impression was that Ms Ferrini and Mr Howe did not work closely on much at all. 

(e)Produce procedural manuals for staff in relation to GST Fraud operational issues. Mr Simonsson said he was working on that manual.  Ms Ferrini reviewed some of the work.  The unit was creating a document and so there was a lot of typing done personally by Mr Simonsson.  He asked Ms Ferrini to assist with formatting.  She refused, saying that she was not employed to do touch-typing.  Mr Simonsson described a working environment that was dynamic.  The staff were, and had to be, multi-skilled.  The unit was required to take on new tasks all the time.  Mr Simonsson said that when he saw Mr Gledhill approaching him it was often so that Mr Gledhill could pass him additional tasks that tended to take him away from the unit’s core business.  The priority at all times was the guidelines manual.  It took six to eight months to complete the manual. 

36.     The sixth duty, participate actively in the staff development and training activities of the Sections was not discussed, presumably because that was within Mr Howe’s portfolio of responsibilities. 

37.     Mr Simonsson explained that Ms Ferrini was asked to write a speech for Mr Gledhill.  She refused to do that task and consulted her union.  She did, however, write a speech for Mr Gledhill’s supervisor, Mr Barlow.  Mr Simonsson said she did a good job. 

38.     Mr Simonsson explained that Ms Ferrini liaised with regional offices.  She was gathering information on the policies and procedures they had each adopted for themselves.  Mr Simonsson’s unit ran an ATO prosecution policy review committee which Mr Simonsson said involved Ms Ferrini with input from the Fraud Investigation Unit.  She was said to be involved also with the ATO media unit.

39.     Mr Simonsson did not regard Ms Ferrini as underutilised.  There was plenty of work to be done.  Ms Ferrini was encouraged to do it.  A problem was that she regarded it as menial.  Mr Simonsson said that he believed Ms Ferrini was being used as an APS 6 officer, that her duties were appropriate to that level.  He explained that the management view was that Ms Ferrini had been selected as an APS 6, that the role described in the duty statement had changed somewhat, that she was engaged in necessary activities and the work was appropriate to an APS 6 level.  Mr Simonsson explained that most of Ms Ferrini’s work was self-directed research because of his frequent absences, although she tended to approach him for work. 

40.     Mr Simonsson denied conducting a “violent attack” on Ms Ferrini at a meeting on 17 January 2001 when she approached him about her role in the unit.  His recollection was that she became emotional and teary and raised her voice at him.  On one occasion she became hysterical.  Mr Simonsson took her to a nearby coffee shop where they discussed the issues.  Mr Simonsson denied ever shouting at Ms Ferrini and embarrassing her.  He said that, on the contrary, she had a tendency to shout at him or others in the office.  Mr Simonsson denied that he told Ms Ferrini that her only role in the writing of the standards was as regards spelling and formatting, although this was a small part of it.  He denied also that he wished Ms Ferrini to act as his personal assistant. 

41.     In cross-examination Mr Simonsson said that he had numerous discussions with Ms Ferrini about her concerns regarding her duties which she insisted were ill defined.  In July 2001 a crisis was reached.  Ms Godtschalk expressed criticism to Mr Simonsson regarding his management of Ms Ferrini.  He consulted Mr Howe in Ms Ferrini’s absence for feedback on Ms Ferrini’s work in the office during his absences travelling as he had received complaints about her from others.  He did this partly, he said, because Mr Howe also had some unresolved issued regarding Ms Ferrini’s activity in the office. 

42.     In cross-examination Mr Simonsson addressed Ms Ferrini’s complaints that she had no finalised performance agreement or accurate duty statement in the first half of 2001.  In fact, he said, Mr Gledhill had taken on the task of settling these matters.  It was Mr Simonsson’s view that Ms Ferrini’s role was clear in 2001.  The problem was that she did not like her role.  She saw it as demeaning.  It seemed that Ms Ferrini was accustomed to a more responsible role for APS 6 officers from her experience in Adelaide prior to coming to Canberra.

43.     As regards the matter of Ms Ferrini’s alleged failure to obtain a benefit the respondent relied on Heerey J’s remarks in Trewin v Comcare (1998) 156 ALR 615. Ms Trewin was a permanent clerk in the Department of Defence. She took leave for the birth of a child and returned to work in 1988. She was unable to secure a permanent position in the department. In 1995 she suffered a form of emotional collapse because of ongoing stress. The tribunal had held that compensation was not payable because the dominant cause of the condition was Ms Trewin’s failure to secure a permanent position. It held that obtaining such a position would be obtaining a benefit in connection with her employment.

44.     It was argued on appeal that the tribunal had made a mistake in treating permanency as a benefit in connection with Ms Trewin’s employment.  Although permanency was “something desirable, good or beneficial” as Ms Trewin saw it, it was argued that permanency for her was not a benefit but a right resulting from a memorandum of understanding between the department and the Public Sector Union dated April 1993 in relation to excess staffing.  A clause in the memorandum required the department to ensure that potentially excess officers receive priority for placement in vacant positions.  They were to be considered as regards their suitability for a vacancy without having to compete in the merit selection process. 

45.     Heerey J at page 620 quoted from the Macquarie Dictionary to say that a benefit is an “act of kindness” or “anything that is for the good of a person”. He saw the latter definition as appropriate to the word “benefit” used in the definition of “injury” in s 4(1) of the Act. A benefit, therefore, includes accessing something apparently available as a matter of right. He said, “I think the intention to be deduced from the exception to the definition of ‘injury’ in s 4 is that parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable.” He concluded that a benefit such as a promotion or transfer to which an employee is entitled as a matter of right, in the sense of something legally and administratively enforceable, is nonetheless within the exception that renders an injury non-compensable.

46.     Ms Godtschalk characterised Ms Ferrini’s aims in the workplace as to obtain certainty regarding what she was to do.  Mr Simonsson was said to have given her no duty statement or performance agreement.  Ms Godtschalk said that Ms Ferrini was not seeking a promotion or permanency.  The tribunal took the submission to be that the ATO was in deficit in its relationship with Ms Ferrini.  If she were to receive what she wanted that would merely give her her entitlement.  It would be a zero-sum gain.  Unfortunately for Ms Ferrini, however, the tribunal considers that this is merely a variation of the type of benefit identified as within the exclusionary provision by Heerey J in the Trewin case (above).  The provision of the requested documents would have been something regarded by Ms Ferrini as good for her, to paraphrase Heerey J.

47.     In any event, I am not convinced that there was the degree of uncertainty in Ms Ferrini’s duties that she suggested.  I found Mr Simonsson an impressive witness.  He was candid in advising that the duty statement given to Ms Ferrini was misleading in implying that she had primary responsibility for the deliverables listed in it whereas final responsibility was a matter for her supervisors.  He explained convincingly to the tribunal how Ms Ferrini was actually required, or invited, to perform at an APS 6 level of performance most of the duties enumerated in ex R6.  He admitted candidly to the challenge Ms Ferrini presented to him as a supervisor and his frustration at not being able to resolve the problems.  His assessment was that Ms Ferrini was informed that she could and should do a significant amount of APS 6-level work with a considerable degree of self-direction.

48. In my view Ms Ferrini completely misunderstood that there is nothing demeaning or inappropriate about an APS 6 officer engaging in even a substantial amount of keyboard work, provided occupational health and safety requirements are met. It is notorious within the Australian Public Service that as long ago as 1987, in the so-called Second Tier Wage Agreement, the Public Service was restructured to abolish dedicated typing pools in the expectation that staff at all levels would develop keyboarding skills and largely attend to their own typing, etc. Mr Simonsson, as he told the tribunal, did this and had no objections to it. He simply asked Ms Ferrini to refine the drafts he produced. Her refusal to do this amounted to an apparent breach of s 13(5) of the Public Service Act 1999[3] which requires of a public servant, as part of the Code of Conduct, that an “APS employee” must comply with any lawful and reasonable direction given by someone in the employee’s agency who has authority to give the direction.  Ms Ferrini could have been exposed to disciplinary action for refusal to obey a lawful direction but was not.

[3] Simonsson’s description of the job of work required of the unit was such that, to achieve the required results, it was necessary for staff to contribute with the utmost flexibility and to contribute in whatever way was necessary within the individual talents of each.  Their task was high profile, urgent and demanding.  However, the work appeared potentially exciting if successfully completed.  Ms Ferrini seems not to have appreciated this.

50.     In light of the above considerations I concluded that Ms Ferrini did not suffer an injury because any disease or aggravation resulted from her failure to obtain a benefit in connection with her employment.

DECISION

51.     The decision under review is affirmed.  The applicant does not qualify for payment of her costs by Comcare.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Michael Sassella
Senior Member

Signed:         .......................................................................................
  Associate

Dates of hearing  13, 16 June, 2 July 2003
Date of decision  14 November 2003
Counsel for the applicant          Ms Jane Godtschalk
Solicitor for the applicant          Pamela Coward & Associates, Lawyers
Counsel for the respondent      Ms Lorraine Walker
Solicitor for the respondent      Phillips Fox

SCHEDULE 1

The tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T20) provided by the respondent.

Exhibit A1 – Applicant’s statement of facts and contentions, 2 April 2002.

Exhibit A2 – Letter dated 20 February 2002 from Pamela Coward & Associates, Lawyers, to Phillips Fox, Solicitors.

Exhibit A3 – Report by Dr J Mahoney, psychologist, 15 August 2002.

Exhibit A4 – Report by Dr W E Lucas, psychiatrist, 20 March 2003.

Exhibit A5 – Extracts from notebook of Mr P L J Simonsson.

Exhibit A6 – Applicant’s 2001 diary.

Exhibit A7 – Applicant’s A5 spirax notebook.

Exhibit A8 – 4 months stage probation report.

Exhibit A9 – Applicant’s performance agreement.

Exhibit A10 – Extract from Australian Tax Office Certified Agreement.

Exhibit R1 – Respondent’s statement of facts and contentions, 8 August 2002.

Exhibit R2 – Health Services Australia documentation.

Exhibit R3 – Clinical notes from Flinders Medical Centre 1989.

Exhibit R4 – Clinical notes from All Care Medical Centre.

Exhibit R5 – Report of Mr Simonsson, 23 November 2001.

Exhibit R6 – APS 6 duty statement.

Exhibit R7 – Respondent’s amended statement of facts and contentions, 11 June 2003.

Exhibit R8 – Report by Dr R Wilcox, psychiatrist, 2 October 2002.

SCHEDULE 2

The relevant provisions of the Act are as follows.

An employee must have suffered an injury, as defined in s 4(1) of the Act, if he or she is to receive any compensation under the Act. An injury is defined in s4(1) as:

(a) a disease suffered by an employee; or

…

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;

Where a disease is involved it must satisfy the definition of a disease in s 4(1):

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;

The definition of a disease refers to an ailment and an aggravation as relevant concepts. These are defined also in s 4(1):

aggravation includes acceleration or recurrence;

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

An aggravation may also be present where the conditions set out in s 7(6) of the Act are met:

(6) An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:

(a) the incapacity or impairment would not have occurred;

(b) the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or

(c) the extent of the incapacity or impairment would have been significantly less.

A disease is, however, not compensable if it was not declared by the employee in any pre-employment medical examination. Section 7(7) states:

(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

If an injury is present then s 14(1) of the Act provides that Comcare is liable to pay compensation to the employee:

Compensation for injuries

14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.