FLETCHER Applicant And TELSTRA CORPORATION LIMITED

[2010] AATA 258

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 258

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2798

GENERAL ADMINISTRATIVE DIVISION		)
Re		JENNIFER FLETCHER

Applicant

And TELSTRA CORPORATION LIMITED

Respondent

DECISION

Tribunal Deputy President P E Hack SC

Date14 April 2010 

PlaceBrisbane

Decision The decision is affirmed. 

...............Signed...............

Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – entitlement to compensation – employment related injury, disability or disease – condition not an “injury” – not contributed to a significant degree by employment – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B

REASONS FOR DECISION

14 April 2010  Deputy President P E Hack SC    

1. The applicant, Ms Jennifer Fletcher, was a long-term employee of then respondent, Telstra Corporation Limited. In late 2008 Ms Fletcher commenced suffering from an anxiety state that incapacitated her. She claimed compensation from Telstra but her claim was rejected.

2. Ms Fletcher seeks a review of the decision to reject her claim.

3. Ms Fletcher commenced employment with Telstra in 1994 in the capacity of customer service consultant. She was employed for many years on a permanent evening shift. During 2007 Telstra determined to close down the after hours call centre and to merge the operators from that centre, including Ms Fletcher, into its major customer call centre in Brisbane. It seems fair to say that Ms Fletcher was unhappy about the proposed change. I assume that other employees, in a similar position, were also unhappy. The employees made representations to Telstra seeking redundancy pay. Eventually Telstra agreed to pay the employees a lump sum to compensate for the loss of allowances that night shift employees had been entitled to. The changes proposed involved Ms Fletcher being required to have a wider range of knowledge of Telstra’s products and services, and the capacity to sell them, than she had been required to have in the after hours call centre.

4. In early September 2007, and prior to the introduction of the changes, Ms Fletcher was involved in a motor vehicle accident quite unrelated to her work. She suffered “whiplash” type injuries. She returned to work briefly but then was off work on either sick leave or annual leave to the end of the year. She returned to work on a limited basis on 2 January 2008. Her medical advice at the time was that she ought to return to work less than full-time. Telstra arranged for Ms Fletcher to be seen by Ms Alison Mowat, a physiotherapist employed by Health Services Australia as a rehabilitation consultant. Ms Mowat met with Ms Fletcher for a period in excess of two hours on 3 January 2008 and prepared the first of a series of “return to work” programmes designed to assist Ms Fletcher with a gradual return to full-time work. There are aspects of that meeting that are controversial and they are dealt with below.

5. Despite the help of Ms Mowat, and another physiotherapist who succeeded her in assisting Ms Fletcher’s return to work, Ms Fletcher was never able to return to work on a full-time basis. She was unable to make the recovery from her injury that would ordinarily have been expected of someone with whiplash type injuries. That was no doubt stressful to her. In March 2008 Ms Fletcher experienced an anxiety attack. In that same month Dr Saul Geffen, a rehabilitation medicine specialist, diagnosed her as suffering from depression and prescribed medication. In April 2008 she underwent a CT scan which revealed a C6/7 disc protrusion which Dr Scott Campbell, a consultant neurosurgeon, attributes to the motor vehicle accident. Dr Campbell saw Ms Fletcher in November 2008 and his report details the continuing pain and discomfort experienced by Ms Fletcher that interfered with her day-to-day activities.

6. It would appear that Ms Fletcher continued to experience difficulty in coping with her work at Telstra. A number of systems required to be used by Ms Fletcher had altered on her return to work in early 2008 and she says that that caused her great difficulty which was exacerbated by her not receiving adequate training. Ms Fletcher was particularly aggrieved by the fact the she was singled out as one of only three people in her team that had not achieved a particular sales goal. That meant that her name and those of the two fellow workers were recorded on a white board as not having achieved that result. She was, she said, humiliated by this. The notation was removed once her supervisor became aware that Ms Fletcher was offended by the sign.

7. On 10 November 2008 Ms Fletcher lodged a claim for compensation for a condition that she described as “anxiety state leading to panic attacks”, a condition that she said had commenced on 4 March 2008. Ms Fletcher was seen by a consultant psychiatrist, Dr Catherine Oelrichs in late January 2009. Dr Oelrichs diagnosed her as suffering from generalised anxiety disorder and panic disorder which she attributed to “pressure to return to full-time hours in relation to her physical condition” intermingled with “other stressors with which Ms Fletcher has had difficulty coping”.

8. On 10 February 2009 Telstra (by its insurer) determined to refuse Ms Fletcher’s claim. That decision was affirmed on reconsideration on 16 April 2009.

9. There are numerous reports of psychiatrists in evidence before me. Dr Andrew Nielsen, who has been treating Ms Fletcher since December 2008, reported in March 2009 in these terms:

   “It is my opinion that her psychiatric conditions were caused by physical pain in her neck. Her neck pain was exacerbated by her returning to work too rapidly and more rapidly than the treating physiotherapist recommended and, therefore, unreasonable management action.”

10. Dr Andrew Byth, another consultant psychiatrist, reported in August 2009 that Ms Fletcher’s condition was one of adjustment disorder with anxiety and depressed mood and that that condition “was caused by her difficulty coping with pain, insomnia and restriction of physical activity from her injuries in the [motor vehicle accident].” A further psychiatrist, Dr Karen Chau, reported in September 2009 that Ms Fletcher’s symptoms “were partly due to chronic pain and the accident and partly due to feeling helpless and that she was underperforming at work as a result”.

11. Liability to pay compensation is dependant upon a finding that the employee suffers from an injury, as the term is defined in the Safety, Rehabilitation and Compensation Act 1988 (Cth). The term is defined in s 5A of that Act as meaning, relevantly, “a disease suffered by an employee”, but it does not include a disease “suffered as a result of reasonable management action taken in a reasonable manner in respect of the employee’s employment”. In turn, “disease” is defined in s 5B of the Act in this way:

“(1)In this Act:

disease means:

(a)an ailment suffered by an employee; or

(b)an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken 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.

This subsection does not limit the matters that may be taken into account.

(3)In this Act:

significant degree means a degree that is substantially more than material.”

An ailment is “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

1. Mr Clark, counsel for Telstra, accepted, correctly in my view, that however Ms Fletcher’s condition be described the issue was whether it was a disease (rather than an injury). He submitted that it did not answer the statutory description of injury for two reasons - because it was not contributed to, to a significant degree, by Ms Fletcher’s employment by Telstra and because, to the extent that it might be found to have been contributed to by that employment, it was the result of reasonable management action taken in a reasonable manner.

2. Consideration of the question whether Ms Fletcher’s condition was contributed to, to a significant degree, by her employment requires further consideration of the complaints that Ms Fletcher makes about her workplace in the period following her resumption of work in January 2008. The starting point is the meeting with Ms Mowat on 3 January 2008. Ms Fletcher and Ms Mowat have differing recollections of that meeting. First, Ms Fletcher says that she provided to Ms Mowat a handwritten note, prepared by her treating physiotherapist, which suggested a graduated return to work starting a one hour per day and increasing to four hours per day. Ms Fletcher says that that document was provided to Ms Mowat along with a medical certificate from Dr Hin Khoo, her general practitioner, which recommended that Ms Fletcher follow the programme suggested by her physiotherapist. Ms Mowat recalls receiving the medical certificate and has a copy of it on her file but she does not recall being given the physiotherapist’s note and has no copy of it on her file. The other controversy concerns the way in which the return to work programme was devised. Ms Fletcher says that she felt that she had no choice but to do as Ms Mowat suggested; Ms Mowat says that the initial programme was the product of co-operative discussion.

3. The issue regarding the physiotherapist’s note is of no particular importance but the other issue has greater significance because it is part of Ms Fletcher’s case that she was required by Telstra to return to work at a rate that was faster than her medical condition allowed. In each of these matters I must say that I prefer the recollections of Ms Mowat, aided as they were by detailed contemporaneous notes and by reference to her practice as a professional in her field. While I am far from convinced that the note from the treating physiotherapist was inconsistent with the programme designed by Ms Mowat I find it inconceivable that Ms Mowat would have gone against the advice of a treating professional. Her evidence satisfies me that Ms Fletcher’s return to work programme was prepared in the course of discussions between Ms Fletcher and Ms Mowat and that Ms Mowat made it clear, at all times, that Ms Fletcher’s participation in the programme was voluntary.

4. That that was the case, and must have been recognised by Ms Fletcher as being the case, emerges clearly from the alterations that Ms Fletcher made to subsequent return to work programmes prepared by Ms Mowat. Moreover, once Ms Fletcher gave permission for her treating general practitioner to be consulted about the return to work programmes they were sent to, and in some cases signed off by, her treating general practitioner. The rehabilitation file contains detailed case notes throughout the period from January 2008 to early November 2008[1]. Perusal of those notes shows that Ms Mowat, and Ms Braunberger who replaced her in March 2009, were at pains to encourage Ms Fletcher, in her own interests, to keep to a settled return to work programme but accepted, as commonly occurred, that Ms Fletcher was able to work to her own pace and limitations.

   [1]    Exhibit 12, pp. 9 – 43.

5. Ms Fletcher complained, as well, about the introduction by Telstra of new systems of work and the inadequacy of her training with the new systems. That led, in turn, to an increasing number of aggressive customers, unhappy with what Ms Fletcher saw as declining standards of service.

6. So far as the training was concerned it is the case that there were occasions when Ms Fletcher missed scheduled training because of absences from work or the inability to do training outside her normal hours. But the evidence of her team leader at the time, Ms Kerri Murphy, and the call centre manager, Mr Darren Pope, satisfies me that she was provided with alternate training including one on one training where required. If, as Ms Fletcher says, there was an increase in customer aggression that appears not to have featured in any contemporaneous complaint. 

7. There is no doubt that Ms Fletcher imposed high standards upon herself and took pride in her ability to provide excellent service to her customers. Her injuries interfered with her capacity to do so. But I gained the distinct impression that Ms Fletcher was very much resistant to the changes introduced in late 2007 and early 2008 and perceived them, as well, as interfering with her capacity to provide that level of service. Ms Fletcher’s evidence was, I suspect, the result of reconstruction, not unusual in these circumstances allied with a general reluctance to cope with change. In my view it was very much her physical limitations, arising from the motor vehicle accident, which caused her difficulties in coping with her work. There was, perhaps, an element of unfamiliarity with the new systems that contributed to the overall stressful environment in which Ms Fletcher was living but I am not satisfied that matters related to her employment played anywhere near as significant a role as she has persuaded herself to believe.

8. That conclusion brings into play the criteria in s 5B (2) of the Safety, Rehabilitation and Compensation Act that may be taken into account in determining the issue of contribution “to a significant degree”. Of those matters those in paragraphs (c) and (d) seem to me to have particular significance here. All of the psychiatrists except Dr Oelrichs made reference to “chronic pain” (or similar expressions) as causing, or contributing to, her psychiatric ailment. But to the extent that all of the psychiatrists point to employment matters as contributing to that ailment those conclusions were informed by Ms Fletcher’s history which I regard as being unreliable. Thus while Dr Oelrichs regarded the “pressure to return to full-time hours” as one of the stressors I am not satisfied that there ever was such pressure. The same is true of Dr Nielson’s reference to a return to work more rapidly than the treating physiotherapist recommended. The medical evidence then suggests that matters outside employment were the significant contributors to Ms Fletcher’s condition, not her employment. 

9. I am then not satisfied that the matters of which Ms Fletcher complains about her employment contributed, to a significant degree, to her ailment and thus not satisfied that Ms Fletcher suffered an injury as that term is used in the Act.

10. That conclusion is sufficient to dispose of the matter on the basis that the decision under review ought to be affirmed. I would add, in any event, that I would have been satisfied that Telstra’s actions were reasonable, and were taken in a reasonable manner in respect of Ms Fletcher’s employment. I leave for another day the question whether actions such as were taken here are “administrative” actions.  

    I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

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

    Dates of Hearing  11-12 March 2010
    Date of Decision  14 April 2010
    Applicant  Self-represented 
    Counsel for the Respondent     Mr CJ Clark 
    Solicitor for the Respondent     DLA Phillips Fox