Fitzgerald and Comcare (Compensation)

Fitzgerald and Comcare (Compensation) [2019] AATA 1348 (5 June 2019)
Division:GENERAL DIVISION
File Number(s): 2017/1265
Re:Marianne Fitzgerald
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Date:5 June 2019
Place:Adelaide

The Tribunal affirms the decision of the respondent.
................................[sgnd]........................................
Deputy President P Britten-Jones
CATCHWORDS
COMPENSATION — Whether an adjustment disorder was an ailment or aggravation of an ailment — Whether the aggravation was contributed to, to a significant degree, by applicant’s employment — Whether aggravation suffered as a result of reasonable administrative action — Whether administrative action in respect of the employment of the applicant — Whether administrative action reasonable — Whether administrative action taken in reasonable manner — Conduct of the employer causative of aggravation — Conduct of the employer was reasonable administrative action — Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 42B
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14
CASES
Comcare v Martin (2016) 258 CLR 467
Comcare v Reardon (2015) 148 ALD 356
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Dean v Australian Postal Corporation (2010) 52 AAR 54
Drenth v Comcare (2012) 128 ALD 1
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Plumb v Comcare (1992) 39 FCR 236
REASONS FOR DECISION
Deputy President P Britten-Jones

The applicant has been an employee with the Department of Human Services (DHS) since May 1987 located at various regional offices. In December 2014, she was transferred to the DHS Marion office (Marion) where she was working in a customer service role. Approximately 7 months after commencing at Marion, a new manager (the Manager) was appointed. This change in circumstances is the root for this application.
The applicant claims that she has been the victim of workplace harassment at the hands of her Manager and that the Manager’s conduct is responsible for her diagnosed condition of ‘chronic adjustment disorder with depressed mood’ (the Adjustment Disorder). The applicant purports that the conduct of the Manager contributed significantly to the onset of her Adjustment Disorder. The applicant’s claimed date of onset is 1 September 2015.
LEGISLATIVE FRAMEWORK
The respondent’s liability to pay compensation arises under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act)[1] which states:
…the Commonwealth is liable to pay compensation in accordance with this Act of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
[1] All references to legislation are to the Safety, Rehabilitation and Compensation Act 1988 (Cth) unless otherwise stated.
For the purposes of s 14, injury under s 5A(1) can mean one of the following:
(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.
An injury will 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]
[2] S 5A(1)
Disease under s 5B(1) means:
an ailment suffered by an employee or an aggravation of such an ailment that was contributed to, to a significant degree, by the employee’s employment by the commonwealth.
Ailment under s 4 means ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. An aggravation includes ‘acceleration or recurrence’.
In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment, I am permitted to take the following into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.[3]
[3] S 5B(2)
Moreover, significant degree is defined as ‘a degree that is substantially more than material’.[4]
[4] S 5B(3)
BACKGROUND
The applicant is an employee with DHS and has been since May 1987. She has worked in DHS’ different offices in the greater metropolitan area of Adelaide.
In about 2004, the applicant started experiencing pain in her right elbow. In the following four years, she experienced highs and lows. There were phases where she was in little pain and able to work but then there would be phases where the symptoms returned and she would be incapacitated.
In 2008, after ongoing issues with pain and problems in the workplace, the applicant suffered some form of nervous breakdown. She was referred by her GP to a consultant psychiatrist, Dr Vance Tottman.
Dr Tottman, by letter dated 17 June 2008, noted that the applicant had ongoing problems with supervisors and reacted with “tension and anger” at times when receiving directions she did not agree with.
Dr Michael Clarke, consultant psychiatrist, by letter dated 23 June 2008 diagnosed her with an adjustment disorder with depressed mood. He identified personality factors, interpersonal conflicts and the pain resulting from her right elbow condition as contributing to her psychological health.
There was a further diagnosis of adjustment disorder with depressed mood by Dr Blakemore, a psychiatrist who stated in a report dated 29 October 2009 that her disorder was contributed to by her right elbow condition, the compensation process and interpersonal conflicts in the workplace.
In May 2008, the applicant made a claim for compensation for her diagnosed condition of depression. The claim was rejected by Comcare. Consequently, the applicant lodged an application (the original claim) in the Administrative Appeals Tribunal (the Tribunal).
The Tribunal dealt with the original claim in June 2010. The Tribunal made orders by consent which relevantly stated that:
·the applicant is entitled to compensation, under ss 16 and 19, in respect of the ‘aggravation of humeral epicondylitis (right)’ (right elbow condition); and
·the applicant is not entitled to compensation, under s 14, in respect of ‘psychiatric condition’.
As a result of the accepted right elbow condition, the applicant received compensation by way of reduced work hours.
Dr Grant Tschirn, consultant occupational physician, examined the applicant on 17 March 2011 for the purposes of a s 36 assessment and provided a report that day. As to the applicant’s adjustment disorder, Dr Tschirn stated that “she continues to see Dr Tottman regularly but reports that her psychological status has improved compared with what it was previously…but overall she is reporting that she is better…she still, however, feels somewhat vulnerable to stressors…”.
On 1 December 2014, the applicant was transferred to Marion where she commenced working in a customer service role.
Dr Sara Souter, occupational medicine specialist, assessed the applicant on 21 January 2015. The applicant reported that a change in her work tasks, following the move from the Noarlunga to the Marion office, impacted her right elbow condition. Dr Souter identified factors impacting the applicant’s work capacity to include complex right upper limb pain, the left knee injury, possible left lateral epicondylitis and psychological symptoms which, based on the medical evidence, had been impacting her capacity for work in the last 3 to 6 months.
On 28 July 2015, the Manager commenced working at Marion as the applicant’s manager. The Manager and the applicant had worked together previously at the Edwardstown Centrelink service centre.
The applicant was referred to Dr Nicholas Ford, treating psychiatrist, on 5 August 2015. The applicant first saw Dr Ford in October 2015. By letter dated 17 November 2015, Dr Ford diagnosed the Adjustment Disorder.
Dr Shiva Gunapu, consultant psychiatrist, examined the applicant in December 2015. Dr Gunapu noted that the applicant’s mental state did “not reflect any grave psychiatric disorder but a mild level adjustment reaction”. He further stated that there were multiple factors that explained the applicant’s diagnosis, not just the physical pain. He referred to other factors such as the applicant’s diminished resilience, anxiety, sleep patterns, weight-related energy levels, fatigue, and behavioural/attitudinal/motivational factors.
The applicant’s major complaints against the Manager relate to the applicant’s lanyard (the lanyard dispute) and the applicant being late for work and how the applicant’s leave was to be coded (the attendance and coding issues).
The Compensation Claim and Subsequent Psychiatric Assessments
On 30 May 2016 the applicant lodged a claim for compensation for the Adjustment Disorder and stated that “from September 2015, I have had increased time off work due to bullying and harassment and micro-managing increasing my distress”.
The applicant was assessed by Dr Zoltan Zsadanyi, consultant psychiatrist, on 13 July 2016. He diagnosed the applicant with chronic adjustment disorder. The applicant stated that her reasons for ceasing employment in January 2016 were related to her “most recent manager and the issue of timesheets”.
By determination dated 12 August 2016, a delegate of the respondent denied compensation under s 14 in respect of the Adjustment Disorder.
The applicant was examined by Dr John Lam-Po-Tang, consultant psychiatrist, on 9 August 2016 who diagnosed her with an adjustment disorder.
PRELIMINARY ISSUE: SECTION 42B OF ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
The respondent’s preliminary contention is that the Adjustment Disorder that is the subject of these proceedings is the same ‘psychiatric condition’ which has already been found by consent to be non-compensable.
The respondent suggests that the current application should be dismissed under s 42B(1)(c) of the Administrative Appeals Tribunal Act 1975 (AAT Act) because the condition has already been determined by the Tribunal as not being compensable and therefore the current application is an abuse of process. The abuse of process claim was only faintly pressed and I am not persuaded by it.
The original claim was dealt with by consent in 2010 without a contested hearing. There were no findings of fact. It related to a different period to that now being claimed: see Plumb v Comcare (1992) 39 FCR 236 at 240.
I am not satisfied on the evidence that the current Adjustment Disorder is the same ‘psychiatric condition’ that was the subject of the Tribunal consent order in June 2010. The application under s 42B(1) of the AAT Act is dismissed.
ISSUES
The applicant contends that the Adjustment Disorder is a new condition arising on or about 1 September 2015. She says that her condition was caused by the Manager’s bullying and harassment and that the condition had manifested itself by the time of a claim being lodged on 13 May 2016. There is a factual issue as to this conduct of the Manager.
The medical evidence from both parties supports the applicant’s contention that, as at the date of the claim being lodged, she suffered from the Adjustment Disorder. This diagnosis was first made by the applicant’s treating psychiatrist, Dr Ford, in November 2015.
A later assessment by Dr Zoltan Zsadanyi, consultant psychiatrist, on 13 July 2016 diagnosed the applicant with chronic adjustment disorder. Dr John Lam-Po-Tang, consultant psychiatrist, made the same diagnosis on 9 August 2016.
The medical evidence also supports a finding that the applicant was suffering from a mental illness prior to the events involving the Manager. This gives rise to the respondent’s contention that there is no new condition and that the applicant, in the period during and after the disputes with the Manager, was merely experiencing symptoms of her ongoing condition and that there was no change to her underlying condition.
The contentious issues relate to whether the Adjustment Disorder was contributed to, to a significant degree, by her employment with DHS and in particular the conduct of the Manager; and, if so, whether the applicant suffered the Adjustment Disorder as a result of reasonable administrative action taken in a reasonable manner.
For the purposes of s 14, injury under s 5A(1) includes an aggravation of a mental injury that is an aggravation that arose out of, or in the course of, employment. It follows that an aggravation of a pre-existing chronic adjustment disorder could potentially be compensable.
The issues that arise are:
(a)The conduct of the Manager and how she dealt with the applicant;
(b)whether the applicant’s Adjustment Disorder meets the definition of an ailment or an aggravation of an ailment;
(c)whether the applicant’s Adjustment Disorder was contributed to, to a significant degree, by her employment with DHS;
(d)whether the applicant suffered the Adjustment Disorder as a result of reasonable administrative action taken in a reasonable manner; and
(e)whether the respondent is liable to pay compensation in respect of the Adjustment Disorder.
Conduct of the Manager
The evidence given by the applicant and the Manager diverged as to their dealings with each other. The applicant said that she felt bullied by the Manager and that she intimidated her and admonished her in front of other colleagues. This is firmly denied by the Manager.
Where the evidence from the applicant and the Manager differs, I prefer the evidence of the Manager. The Manager was a candid witness who gave her evidence calmly. She had often made contemporaneous notes of events which she later compiled into a “Manager’s Statement” dated 20 June 2016.
I make findings as follows with respect to the conduct of the Manager and her dealings with the applicant.
The lanyard dispute
An incident occurred on 8 October 2015. The applicant’s evidence as to this incident was:
·She was wearing a non-standard lanyard with photo ID. As she was on her way to lunch, the Manager yelled at her across the room that she wasn’t wearing the correct lanyard.
·She yelled back that she did have one and that she didn’t need the Manager to give her another one.
·Ultimately, she changed to the correct lanyard.
The Manager did not agree with the applicant’s recollection of that incident. She gave evidence that she spoke to the applicant but not with a raised voice. The applicant was not wearing a uniform and had chosen to wear a “Tweetie Bird” lanyard such that her name tag was obscured. The Manager wanted to make sure that the applicant was identifiable as a Centrelink staff member. She asked her to change her lanyard and she said “no”. Later, the applicant changed to the correct lanyard.
I accept the evidence of the Manager over the evidence from the applicant with respect to the lanyard. I accept the evidence from the Manager that it was her practice to not raise her voice nor to speak in front of other staff when admonishing the applicant (or other staff members).
The attendance and coding issues
In October and early November 2015 the applicant was regularly absent from work on sick leave. The applicant called her work on 12 November 2015 and advised that she would not be coming until the following Monday. The Manager asked the applicant to provide her medical certificates as evidence otherwise the applicant’s pay would be impacted to which the applicant responded that her pay would not be affected and even it if was she would be ok financially. The Manager noted that the applicant would provide the medical evidence on 16 November 2015.
On Monday 16 November 2015 there was a meeting between the applicant, the Manager, the applicant’s Rehabilitation Case Manager (the RCM) and a support person. There is no material dispute about what happened at this meeting.
The Manager and the RCM raised with the applicant her recent absences from work, the need to provide medical certificates and the coding of the applicant’s leave. The Manager asked the applicant to advise the team leader or herself when she called in whether the leave was related to the successful aspect of her original compensation claim or whether it was unrelated. She explained that the purpose of the applicant doing this was to ensure that the coding was correct on the applicant’s ESSentials record (ESS) (the DHS pay and leave electronic record).
The Manager advised the applicant that she would be coding the applicant’s leave from then on and that the applicant needed to provide her medical certificates as soon as possible. The applicant said that she did provide copies of her medical certificates. The Manager and the RCM said that it was the Manager’s responsibility to code leave for employees. The RCM provided the applicant with a copy of the Department policy which provides that “the supervisor, or designated contact person, must enter leave for the employee when the employee makes contact to report their absence”. The applicant explained that it was not necessary for the Manager to code her leave and she begged her not to do so.
The applicant gave evidence in relation to the 16 November 2015 meeting that she felt as though the Manager and the RCM had discussed her before the meeting. She felt as though they had colluded with one another and that this was to undermine her confidence. She said that she felt ambushed by them. There was no basis for this feeling.
A further meeting was held on Thursday 26 November 2015. There is no material dispute about what happened at this meeting. The applicant was requested to come into the Manager’s office. She brought her support person with her. The Manager was typing on her computer during the meeting. She explained that she was typing up an attendance support plan. The applicant told the Manager that she could only concentrate on ‘one thing at a time’ and that she should put the attendance support plan on her desk when it was done. She would sign it if she agreed with its contents. She then got up and left.
The applicant gave evidence that the Manager reprimanded her in front of colleagues for being late to work sometime in late November or early December 2015. The Manager denies this and said it was her practice with respect to all staff to talk to them one on one and in private if there was an issue.
On 8 December 2015, the applicant returned to work after a period of absence from 30 November 2015 to 7 December 2015. The Manager asked her for medical certificates. The applicant told the Manager that she would get them once her shift had ended. The Manager was not happy with that and requested her to get them immediately. The applicant went to her locker to get the medical certificates and made two copies. She placed one of the copies on the Manager’s desk. The Manager was sitting at her desk and asked her to stay so that they could have a discussion. The applicant told the Manager that she had provided the medical certificates and that she would now go to the self service desk. The applicant turned around to leave and the Manager asked the applicant to stay so that they could discuss the medical certificates that the applicant had just provided. The applicant told her that she wanted her support person to be present. The Manager told the applicant that it would not take long but the applicant ignored her and left the office.
The applicant gave evidence that the Manager raised her voice and pointed her finger at the applicant and told her she could not have a support person present. The Manager denies this. I accept the evidence from the Manager.

The applicant returned to the Manager’s office sometime later the same day with her support person. The Manager told the applicant that her behaviour was inappropriate and that she should give notice to her if she wanted a support person present. The applicant said that she wanted a support person present whenever the Manager spoke to her. The Manager said that that would make it difficult to run the business because she needed to speak to her often during each day. The remainder of the meeting was about her medical certificates. The Manager insisted that she did not have the appropriate medical certificates.
The Manager explained when giving evidence the reason why she queried the certificates provided and their applicability to the period in question namely from 30 November 2015 to 7 December 2015. One of the certificates was a Workcover Medical Certificate dated 30 November 2015 stating that the applicant was fit to return to modified duties from 24 October to 5 December 2015. The other certificates related to leave taken prior to 30 November 2015. I consider that the Manager was justified in her concerns given the contents of these certificates.
On 14 December 2015 the applicant was absent from work again and the Manager again requested that a medical certificate be provided.
The coding issues did affect the applicant’s pay prior to Christmas 2015 but it was resolved by the end of December 2015 when the correct medical certificates were provided. The Manager should not be blamed if the applicant’s pay was affected due to the applicant failing to provide medical certificates in a timely fashion.
In her oral evidence, the Manager conceded that she made an error on one occasion, namely with respect to the applicant’s coding for 24 November 2015. On that occasion, the Manager incorrectly coded that the applicant was on leave when in fact the applicant had been at work. This was subsequently corrected in January 2015. The applicant said that the incorrect coding devastated her and that she felt she was being accused of lying.
I have found above that I consider the evidence from the Manager to generally be more reliable than that of the applicant. The evidence of the Manager is also supported by evidence given by the Region Manager of the DHS in South Australia (the Region Manager). The Manager reported to the Region Manager during the relevant period. He provided a written statement that:
To the best of my recollection, [the Manager] discussed a number of issues with me about Marianne [the applicant]. The main issues revolved around her not supplying medical certificates in a timely manner, not updating her attendance information (such as Flex sheets) on the system and her attitude towards the leadership team as a result. The issue of Marianne’s failure to comply with the uniform policy also arose on occasions.
Marianne was reluctant to cooperate in getting her attendance record updated in a timely manner in spite of the manager or team leader wanting to sit with her and go through the records and identify any discrepancies (due to her compensation related hours) so they could be adjusted. Marianne also did not want anyone entering anything in regards to her attendance in ESSentials. She was adamant that she should be the only one going into her attendance records in ESSentials. It has been pointed out to Marianne many times that we have the requirement to record her attendance on the days she does not attend on the system. If she then provides medical evidence, the record can be updated to reflect the correct information.[5]
[5] Exhibit 13, p 2 [10]–[11].
The Region Manager gave evidence that he was contacted by the applicant on one occasion when she asked him to reprimand the Manager. The Region Manager responded by saying that it was not unreasonable to ask the applicant to contact and report absences directly with her team leader or manager so as to update her attendance record or work cooperatively with the leadership. The Region Manager recalls that the applicant said words to the effect of “I do not want anyone touching my attendance record”. He responded by explaining to the applicant that when she is not at work they have an obligation to update ESS and that it is done with all staff.
The applicant described the conduct of the Manager as bullying and harassment. I disagree. I reject the applicant’s allegation that she was admonished publicly by the Manager. The applicant was often late for work or absent from work without contemporaneous medical certificates in the period from September 2015 to January 2016.
An ailment or an aggravation of an ailment?
It is not disputed by the respondent that the applicant has suffered an ailment, namely the Adjustment Disorder. The respondent says that the applicant was suffering from this ailment prior to September 2015 when the Manager’s alleged conduct commenced. Further, the respondent says that the applicant’s ailment was not aggravated post September 2015 and that the applicant was merely experiencing symptoms of her ailment in that period.
Given the applicant’s allegations that it was the Manager’s bullying that caused her mental condition it is useful to consider the applicant’s mental condition before and after the Manager’s conduct.[6]
Prior to the Manager’s Conduct
[6] Drenth v Comcare (2012) 128 ALD 1, 8 [33].
The medical reports from Dr Clarke and Dr Blakemore establish that the applicant was suffering from an adjustment disorder with depressed mood in 2008 and 2009.
The applicant continued to suffer pain from her right elbow condition and a later injury to her left knee. There were periods of depression and regular attendances on her general practitioners. The applicant continued to work reduced hours with modified duties.
The applicant’s Adjustment Disorder worsened in mid-2015. On 17 July 2015, the applicant visited her general practitioner, Dr Paul Molyneux, and reported that she had not left home for a week and that she had active suicidal ideation. Dr Molyneux said that she needed input from a psychologist and that she would benefit from a psychiatric review.
Dr Molyneux wrote to the respondent on 5 August 2015 and stated that ‘the chronic nature of the pain and the workers compensation process has caused a number of negative psychological symptoms’. Dr Molyneux also referred the applicant to Dr Ford on 5 August 2015 noting that “there is no doubt Marianne’s mental health has been deteriorating over the past years and especially the last months and this has a negative impact on her pain and function”.
Post the Manager’s Conduct
The applicant and the Manager clashed in the period from the beginning of October 2015. There were issues between them about the need to wear a uniform and the correct lanyard. The applicant considered that the Manager adopted an inappropriate style by threatening her and chastising her in front of other staff. There is a divergence of evidence as to what was said at numerous meetings when these issues were discussed. Irrespective of what was said between them, the applicant had become distressed about these issues as at October 2015.
The most significant issue between the applicant and the Manager related to the attendance and coding issues. The applicant felt intimidated and harassed by the Manager and became increasingly distressed during and after meetings held on or around 16 and 26 November and 8 December 2015.
Further, the applicant considered that she was underpaid because of the way that the Manager recorded or “coded” her leave. The dispute as to coding intensified in the period leading up to Christmas 2015 and into January 2016. During this time the applicant was regularly off work or late for work.
Clearly, her distress was having a significant impact on her. Her treating doctor referred her to Dr Ford who increased her daily dose of Pristiq from 150mg to 200mg from 10 November 2015. Dr Ford diagnosed her with the Adjustment Disorder. In Dr Ford’s report dated 19 December 2017, he said that he observed a more severe exacerbation of the applicant’s symptoms from the end of 2015 onwards albeit it being more evident from February 2016 when he saw her again after a lag of three months.
Dr Josh Munn, occupational physician, examined the applicant on 16 December 2015. At the time of examination, the applicant reported ongoing pain associated with the right elbow condition. She noted long-term issues with depression, and stated that she has issues with her new manager whom she described as a “micromanager”. Dr Munn reported that the “…main issue…was her mental state. She has interpersonal issues with her new manager and finds that her method of coping with this is withdrawal and has had a significant degree of absenteeism as a result”.
On 21 December 2015, the applicant visited Dr Molyneux who noted that she has continued issues with her current manager and that she has not attended work on 3, 4, 7, 10, 11, 14, 15 and 21 December 2015. From August 2015 to January 2016 inclusive, the applicant was late for work approximately 50% of the time and had about 30 unplanned leave days.
On about 21 January 2016, the applicant felt she could no longer take the harassment and bullying from the Manager and that she was unable to continue to work so she left the office. From the applicant’s perspective, it was the coding and related issues of being underpaid that finally pushed her over the edge. Since ceasing work in January 2016, the applicant described the course of her psychiatric symptoms as “absolutely crap – I don’t go anywhere, I don’t see anyone.”[7]
[7]Exhibit 1, p 219.
On the issue of aggravation of a mental disorder, Windeyer J said in Federal Broom Co Pty Ltd v Semlitch:[8]
The question whether there has been an aggravation, acceleration, exacerbation or deterioration of a mental disorder is, I think, essentially one of fact. It is a question on which the opinion of psychiatrists may obviously be helpful. But the answer depends upon whether for the sufferer the consequences of his affliction have become more serious. The criteria of that are comparisons based upon the nature, apparent intensity and persistence of irrational beliefs, the degrees of insight and of withdrawal from reality that the sufferer has, the degree of his divergence from what may seem to be normal behaviour and the extent of his capacity to participate in and adjust himself to the normal requirements of life as a member of the community. It is by considerations of that sort, partly the results of observation of conduct and demeanour and partly elicited from what the patient says, that the question must I think be answered, whoever has to answer it.
[8](1964) 110 CLR 626, 637; see also Commonwealth v Beattie (1981) 53 FLR 191, 200–201.
In Comcare v Reardon Mortimer J said that, where the experience of an injury is increased or intensified, or recurs, there may be an aggravation.[9]
[9] (2015) 148 ALD 356, 365 [31].
On the evidence before me, I am satisfied that the applicant suffered an aggravation of her ailment in the period following the Manager’s appointment at Marion. Her symptoms intensified resulting in regular absences from work. The applicant became more and more distressed to the point where she was unable to continue in her role at Marion from January 2016. Her declining condition was noted by Dr Ford who observed a “severe exacerbation of her symptoms from the end of 2015”.
Whether the applicant’s Adjustment Disorder was contributed to, to a significant degree, by her employment?
In Wiegand v Comcare (Wiegand), von Doussa J said:
…there 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.[10]
[10] (2002) 72 ALD 795, 797 [31].
Perram J in Dean v Australian Postal Corporation expanded on what von Doussa J said in Wiegand and noted that the implication of the remarks of von Doussa J is that a three part test is to be applied in such cases: whether the events or state of affairs occurred; whether the events or state of affairs caused the perception in the employee’s mind; and whether the perception contributed to a significant degree to the ailment.[11]
[11](2010) 52 AAR 54, 57 [12].
The employment factors that the applicant alleges contributed to her Adjustment Disorder to a significant degree are:
·the uniform dispute;
·the lanyard dispute; and
·the attendance and coding issues.
I am not satisfied that the dispute over the work uniform, nor the dispute over the lanyard, were causative of the aggravation of the applicant’s Adjustment Disorder. My reasons for this are as follows.
The applicant’s evidence is that, at most, she had two conversations with the Manager about the work uniform. Her evidence was that the Manager was not particularly helpful but nothing indicated that she acted unreasonably in a way that would have impacted adversely on the applicant.
Similarly, the incident in relation to the lanyard was a one-off occurrence and had no consequences for the applicant. Dr Lam-Po-Tang noted that the applicant did not mention the issues regarding the uniform and lanyard when he first saw her in August 2016 and nor did she mention them in his assessment on 12 February 2018 until specifically asked. I accept the opinion of Dr Lam-Po-Tang given in his report dated 1 March 2018 that the discussions and issues regarding the uniform and lanyard requirements were of minor significance in the applicant’s overall psychiatric condition.
With respect to the attendance and coding issues, I accept the opinion of Dr Lam-Po-Tang in his report of 1 March 2018 that these issues and the discussions about them with the Manager contributed to a significant degree to the applicant’s psychiatric symptoms. This opinion is supported by Dr Gunapu and Dr Zsadanyi.
In an assessment on 16 December 2015 by Dr Gunapu, the applicant described her relationship difficulties with the Manager as toxic. Later in July 2016, when the applicant was assessed by Dr Zsadanyi the applicant said that she had become extremely frustrated and irritable towards the Manager who had insisted on strict coding dependent on whether medical advice had been sought and whether or not a medical certificate was pending.
I reject the respondent’s contention that the cause of the aggravation was related to rehabilitation and compensation issues as opposed to employment issues. I accept that there were ongoing issues with respect to compensation and her reduced working hours but the attendance and coding issues between the applicant and the Manager were employment factors that have the required causal connection to the aggravation of the Adjustment Disorder.
Based upon the opinions of the psychiatrists and the facts set out above, I find that the applicant’s Adjustment Disorder was contributed to, to a significant degree, by her employment. I accept the opinion of Dr Lam-Po-Tang in his report dated 17 October 2018 where he says:
In my clinical opinion, Ms Fitzgerald’s adjustment disorder was contributed to, to a significant degree, by employment factors, namely, the cited conflicts between her and various managers within the Department of Human Services.[12]
[12] Exhibit 9, p 7
Consequently, I find that the aggravation of the applicant’s psychiatric injury arose out of, or in the course of, her employment so as to come within the definition of injury in s 5A(1)(c). The applicant’s injury will be compensable under s 14 unless it was suffered as a result of reasonable administrative action taken in a reasonable manner.
Whether the applicant suffered her Adjustment Disorder as a result of reasonable administrative action taken in a reasonable manner?
The issue for determination is whether the exclusionary provision in the definition of injury in s 5A applies, namely whether the Adjustment Disorder is a disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. That issue can be broken up into the following elements:
(a)       Was the Adjustment Disorder suffered as a result of the administrative action?
(b)       Was there administrative action in respect of the employment of the applicant?
(c)       Was it reasonable administrative action?
(d)       Was the administrative action taken in a reasonable manner?
Was the Adjustment Disorder suffered as a result of the administrative action?
The High Court in Comcare v Martin[13] held that an employee has suffered an injury “as a result of” administrative action if the administrative action is a cause in fact of the injury which the employee has suffered. What must be established is a causal connection between the administrative action and the suffering of the disease. The Court said further:
...The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action. The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction.
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.[14]
(citations omitted)
[13] (2016) 258 CLR 467.
[14] Ibid, 479–80 [45]–[48].
I have already found that the applicant’s Adjustment Disorder was “contributed to, to a significant degree” by her employment so as to satisfy the required causal relationship in s 5B and to conclude that the applicant had a disease.

Next I must consider s 5A which requires a further and separate analysis of any causal relationship between the “disease, injury or aggravation” and the administrative action such that in order for the exclusion to apply the applicant’s Adjustment Disorder must result from (or be “suffered as a result of”) the administrative action. As provided for in Comcare v Martin, the administrative action need not be the sole cause, but what must be shown is that without the taking of the administrative action, the applicant would not have suffered the aggravation of her Adjustment Disorder.
The administrative action in this case is the conduct of the Manager directed to the applicant in relation to the attendance and coding issues. The applicant’s Adjustment Disorder was aggravated as a result of this conduct by the Manager. This finding is supported by Dr Lam-Po-Tang who said in his report dated 1 March 2018:
It is my opinion that discussions between Ms Fitzgerald and her managers in relation to her starting times, times of arrival, attendance and lateness were and are a significant contributing factor to her current psychiatric symptoms.
It is my opinion that meetings conducted in relation to some aspects of Ms Fitzgerald’s job performance, in particular, her adherence to processes within Centrelink, such as the completion of her flexi sheet, is a significant contributing factor to her psychiatric symptoms.
It is my opinion that meetings conducted in relation to Ms Fitzgerald’s job performance have also contributed to a significant degree to the onset of Ms Fitzgerald’s psychiatric symptoms.
Ms Fitzgerald refers to coding of leave on a form…, in which there is a disagreement between Ms Fitzgerald and her manager. She reported distress resulting from this issue, referring to undermining of her confidence, and also documenting a number of interactions with other Centrelink employees to address this issue. It is my opinion that this particular issue did significantly contribute to Ms Fitzgerald’s psychiatric symptoms.[15]
[15] Exhibit 8, p 13.
Dr Lam-Po-Tang confirmed his opinion in his later report dated 17 October 2018:
In my clinical opinion, Ms Fitzgerald’s Adjustment Disorder was contributed to, to a significant degree, by employment factors, namely, the cited conflicts between her and various managers within the Department of Human Services.[16]
[16] Exhibit 9, p 7
Dr Lam-Po-Tang further says in his report dated 17 October 2018:
It is my opinion that Ms Fitzgerald would have experienced some degree of psychiatric symptoms even in the absence of the reported workplace conflict. The basis for my opinion is Dr Lawler-Smith’s opinion that Ms Fitzgerald’s pain and other physical symptoms contributed to depressive symptoms.[17]
[17] Ibid.
Dr Lam-Po-Tang does not directly address in his opinion whether the applicant would not have suffered the aggravation of the Adjustment Disorder without the taking of the administrative action. He says that the applicant would still have experienced “some degree of psychiatric symptoms” which could imply that she would not have suffered an aggravation of the Adjustment Disorder in the absence of the Manager’s impugned conduct. Dr Lam-Po-Tang’s opinion can be explained because the applicant is likely still to have suffered a continuation of the psychiatric symptoms from which she was suffering in early to mid-2015.
I consider that the applicant would not have suffered the aggravation of the Adjustment Disorder without the taking of the administrative action by the Manager because there is no other new cause arising in the relevant period that would explain the aggravation of the Adjustment Disorder. In my opinion, the health of the applicant deteriorated and her psychiatric symptoms intensified as a sole result of her dealings with the Manager. In the absence of those dealings it is likely that this deterioration and intensification would not have taken place.
Was there administrative action in respect of the employment of the applicant?
In Commonwealth Bank of Australia v Reeve, Rares and Tracey JJ discussed the scope of “administrative action” and said:
The qualification in this final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be.[18]
[18] (2012) 199 FCR 463, 483 [60].
Further, in Drenth v Comcare, the Full Court said:
...a decision that an employer is not prepared to allow an employee to return to work because of a medical opinion that the employee is then not fit and to require the employee to provide further evidence that he or she is fit, is quintessentially an action that is directed specifically to the employee. Such a decision does not affect him or her because it is some feature of his or her workplace or environment or is otherwise connected to the employee’s employment. Rather, it is a decision about the employment relationship itself. Here, the 30 January decision took Ms Drenth’s employment as a factum and it operated in respect of whatever the duties, incidents, nature and tasks of her employment might have been.[19]
[19] (2012) 128 ALD 1, 6 [22].
The action which I have found caused the aggravation of the Adjustment Disorder was:
(a)The Manager’s request on 12 November 2015 that the applicant provide medical certificates as evidence for her days off otherwise her pay may be impacted.
(b)The discussion at the meeting on 16 November 2015 when the Manager said that she would code the applicant’s leave and that the applicant was to provide a medical certificate as soon as possible and that the applicant was to inform by phone if her leave was compensation related or not.
(c)The discussion at the meeting on 26 November 2015 when the applicant’s tardiness for work was raised.
(d)The Manager’s insistence that she was entitled and would continue to code the applicant’s leave.
(e)The meeting on 8 December 2015 in which the Manager raised the applicant’s recent absences from work and requested medical certificates.
(f)The telephone conversation on 14 December 2015 when the applicant was absent from work and the Manager requested a medical certificate as soon as practicable.
The above action which I have described as the attendance and coding issues was administrative in nature and was directed to the applicant’s employment. It was not action forming part of the everyday duties or tasks that the applicant performed in her employment. I am satisfied that this administrative action was in respect of the employment of the applicant.
Reasonable administrative action?
The issue here is whether it was reasonable administrative action to raise with the applicant her tardiness for work and to request medical certificates and for the Manager to code the applicant’s leave. For the reasons that follow it was reasonable administrative action.
The leave and attendance policy for the DHS provides that managers have a responsibility to monitor attendance and leave patterns and to address situations where an employee’s attendance record shows trends of regular absence or long periods of absence. The policy further provides that managers must be given reasonable notice of any absence. Consistent with this policy, it was reasonable administrative action to raise with the applicant her tardiness for work and to request medical certificates with respect to leave taken.
With respect to coding the applicant’s leave, the policy provided that managers and employees have a shared responsibility to ensure that leave is clearly and accurately recorded in ESS as soon as possible. In addition, the information sheet for personal and carer’s leave provided specific procedures for the recording and retention of suitable evidence provided by employees to support applications for leave. It provided that the supervisor must enter leave for the employee when the employee makes contact to report their absence. If the leave is coded “without evidence” or “pending evidence” then, when the employee provides suitable evidence, the supervisor should amend the entry.
This was the procedure carried out by the Manager. It was reasonable administrative action for the Manager to make an entry in ESS when informed that the applicant was going to be absent. Upon receipt of suitable evidence, by way of a medical certificate, the entry would then be amended. This further procedure was also carried out by the Manager.
Administrative action taken in a reasonable manner?
Whether or not the administrative action was taken in a reasonable manner requires an analysis of the conduct of the Manager. I have set out above my findings of fact with respect to this conduct.
The Manager acted reasonably by raising the issues of tardiness and absence with the applicant and by making entries in ESS. The applicant was wrong to insist that the Manager could not code her leave. The Manager had a duty to monitor her absences from work and to enter details of her leave by way of coding in ESS.
I do not find there to have been any inappropriate or unreasonable conduct by the Manager at or surrounding any of the meetings held on 16 November, 26 November and 8 December 2015. I have rejected the applicant’s allegations of bullying and intimidation or that the Manager raised her voice and publicly admonished her.
In all of these circumstances, the administrative action by the Manager was taken in a reasonable manner.
Is the respondent liable to pay compensation in respect of the Adjustment Disorder?
The respondent is not liable to pay compensation because the exclusion in the s 5A definition of injury applies. It follows that the decision under review will be affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.

..................[sgnd]..................
Associate
Dated: 5 June 2019

Dates of hearing: 15–18 January 2019

Representative for the Applicant Self-represented

Representative for the Respondent Ms S Wright as counsel instructed Comcare

[2019] AATA 1348

5 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Employment Law

Legal Concepts

Causation

Remedies

Procedural Fairness

Statutory Construction

Appeal

Dates of hearing:	15–18 January 2019
Representative for the Applicant	Self-represented
Representative for the Respondent	Ms S Wright as counsel instructed Comcare