FW: Tapscott and Comcare

[2003] AATA 222

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 222

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/62

GENERAL ADMINISTRATIVE  DIVISION

Re:         JUDITH TAPSCOTT

Applicant

And:       COMCARE

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             7 March 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs

Member

COMPENSATION – cerebral vasculitis – whether aggravation of disease – employment not established as contributing

Safety, Rehabilitation and Compensation Act 1988 ss4, 14,16, 19

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

Westgate v Australian Telecommunications Commission (1987) 17 FCR 235

Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36

Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42

Elleissy v Australian Telecommunication Commission (1989) 18 ALD 240

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

REASONS FOR DECISION

7 March 2003  M.J. Carstairs, Member

1.      This is an application by Judith Tapscott (the applicant) for review of a decision of a delegate of Comcare (the respondent) dated 30 November 2000.  The delegate affirmed a determination of the respondent dated 11 September 2000 denying liability to pay compensation for cerebral vasculitis under the Safety, Rehabilitation and Compensation Act 1988 (the Act), because there was insufficient evidence that the disease or aggravation of the disease was work-related.

2.      At the hearing of this matter on 24 and 25 June 2002 and on 14 October 2002 Mr M. Carey of counsel, instructed by Slater & Gordon, solicitors, represented the applicant; and Mr I. Gourlay of counsel, instructed by the Australian Government Solicitor, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T26), together with four exhibits (Exhibits A1-A4) lodged by the applicant and three exhibits (Exhibits R1‑R3) lodged by the respondent.

BACKGROUND

4.      The applicant was born on 14 June 1946.  From 1964 to 1966 she studied medicine at university.  From 1967 to 1970 she taught mathematics and science at a secondary school.  In 1971 she worked as an administrative officer with Telecom.  From 1975 to 1981 she studied Economics, while raising a family, and graduated with Honours in 1981.   From 1981 to 1987 she worked in research and as a tutor.  In 1987 the applicant was employed as an adviser on women’s issues to the South Australian Premier.  From 1988 to 1991 she worked in the South Australian Public Service in managerial project work, mainly involving equity programs.  In 1992 she was a Coordinator of a Flinders University economics program, working with overseas students in Singapore.  From 1993 to 1995 she was a Manager of a youth project for a South Australian TAFE.

5.       In 1995 the applicant joined the Australian National Training Authority (ANTA) as a Senior Project Officer (SPO) where she remained until 2000.  She was employed on one-year contracts, renewable subject to satisfactory performance.

6.      The applicant developed health problems in 1997, suffering from a chronic cough, fatigue and fevers.  She underwent various tests and in 1998 began to experience headaches, pains in her joints and reduced appetite, together with a reduced ability to formulate and recall words..  Tests later disclosed a possible vasculitis.  A neuro-psychological assessment revealed cognitive problems, particularly when she was under pressure.  She was hospitalised in 1998 to enable a thorough assessment to be made.  She returned to work on a graduated basis in September 1998 and subsequently ANTA sought the assistance of the Commonwealth Rehabilitation Service (CRS) to conduct assessments of the applicant’s condition, to assist in performance appraisal interviewing, and to advise on suitable duties.   In about February 1999 the applicant’s health deteriorated and she was unable to work for varying periods.  In mid-1999 she underwent an assessment by a clinical psychologist, but did not seek treatment for stress-related conditions other than through counselling.

7.      On 29 October 1999 the applicant accepted the offer of a further 12-month engagement with ANTA.  On 2 June 2000 the applicant lodged a claim for compensation on the basis of suffering from cerebral vasculitis from approximately 1997.  On 6 September 2000 the applicant’s term of engagement expired, and on 11 September 2000 the respondent denied liability for the applicant’s condition because there was insufficient evidence to establish that the disease or aggravation of the disease was work-related.  On 30 November 2000 the respondent affirmed the decision, and on 19 January 2001 the applicant lodged an application with the Tribunal for review of the decision.   

EVIDENCE

8.      In support of her claim, the applicant prepared a document setting out the course of her illness and its diagnosis and treatment in the period 1997 to 2000 (T17).  The applicant told the Tribunal that when she commenced with ANTA in May 1995 as an SPO she was involved in visiting industry groups and travelling to attend meetings, doing substantial report writing and editing.  She had been diagnosed in early 1998 with vitamin B12 deficiency.  She said that at this time she was unwell, but she was working long hours and at weekends, and considered herself under great stress. She said she was getting serious headaches and was tired and anorexic.  However, she said she did not think that she was really sick as she thought it was psychosomatic and due to the pressure at work.  She thought that taking vitamin B12 would cure her symptoms.

9.      The applicant said she did not talk to her doctors about the pressure of work at that time and she said she did not discuss it with her supervisor.  In her oral evidence she said that she considered that part of the pressure at work was due to Sharon Coates, a Director at ANTA, whom she perceived as being critical of her, and to whom she attributed involvement in adverse reports on her performance.  She said that Ms Coates put her under pressure at a meeting scheduled with CRS in December 1999, demeaned her in the workplace and pressured her by standing over her when she was working.  The applicant said that she saw as vindictive the performance appraisal system that was in place at ANTA and she did not agree that the appraisals were put in place to assist in assessing her capacity.  She said she found the meetings very stressful and after one in December 1999, she suffered a burst blood vessel in her eye.  She said that every time that she thought that she was doing a good job, Ms Coates would come with more complaints about her performance.

10.     The applicant said that she was hospitalised in 1998 but returned to work part‑time in September 1998.  Her medication was changed, and she had disabling symptoms of sleep disturbance and hallucinations as a result of medication.  She also developed pneumonia.  When asked why she had returned to work after her hospitalisation, she said that a friend had telephoned her and said that she should, as otherwise she may be sent to the Commonwealth Medical Officer.  She said that she felt pressured to return.  She said that when she went back to work, ANTA did attempt to adjust the work to take into account her medical condition.  However, she was exhausted by the work.  Despite that, by the end of the year, she was working full-time. The applicant said that her treating doctor, Dr Ellims changed her from the drug methotrexate to cyclophosphamide however she developed a severe case of shingles.  She said that she was feeling unwell with the drugs that she was taking, had disturbed gait, was vomiting, had a tendency to fall or walk into objects and was constantly tired and nauseous.  But she learned to live with it.

11.     Under cross-examination, the applicant acknowledged that she had suffered brain damage as a result of the condition.  She described her brain damage as quite extensive, though she said that at first she had not understood that this had occurred.   She said that she was really quite sick and was blaming herself, and felt like she was letting people down.  She did not agree with the suggestion that her workload at ANTA was reduced by 50% after her illness was diagnosed, nor did she agree that she was assigned easy work.  She acknowledged that she had lost her self-esteem and was distressed over what had happened to her.

12.     The applicant had prepared a document headed Background to the December 16 Interview (T12) in advance of a meeting held on 16 December 1999 connected with performance appraisal. The others at the meeting were Ms Coates and Clare Dennis, Senior Rehabilitation Counsellor with CRS.  In the document at T12 the applicant wrote that she had felt uneasy when she was psychologically tested by Dr P. Dowling (a clinical neuropsychologist to whom she was referred by CRS), as she considered that the testing was being conducted to determine if she was capable of working.  The applicant stated further (T12) that she had experienced a lack of understanding of her condition at ANTA, and that after Dr Dowling’s report (T9) was submitted to ANTA, it was assumed by her employers that she was able to do a normal workload.  She said that she had also begun to recognise the effects of brain damage on cognitive functioning.  She said :

My perception of work is that I need a little more thinking time before tackling more complex tasks.  I am not always able to see a mistake as I would before this happened.

13.     In her oral evidence the applicant said that all the performance appraisals caused her stress and that she had discussed this with Dr Ellims.  She said that when she received an adverse performance appraisal in May 2000 (T15) she was then on sick leave until near the end of July 2000.  She then lodged her claim for compensation, remained at work for a further three weeks and did not return thereafter.  In describing the state of her health now, when no longer working, the applicant said that she has long term brain damage; she will often not recognise people she has just met; arthritic effects have worsened as a result of the use of prednisolone; she has had a spate of serious falls and some fade outs caused by stress.

14.     Ms Coates gave oral evidence that since 1998 she had responsibility for overseeing the work of the Principal Project Officers (PPOs) who in turn supervised the SPOs at ANTA.  Ms Coates said that as a contract employee with ANTA the applicant was never guaranteed employment.  She said that a new focus on performance management was introduced at ANTA in 1999.  Her evidence was that the basis of performance appraisals was to state clear objectives and to guide staff towards improvement.  She said the performance appraisal system was not punitive. 

15.     Ms Coates said that she became aware at a meeting on 10 August with the applicant and Robert Bluer, who, as a PPO, was the applicant’s immediate supervisor, that the applicant perceived interpersonal difficulties with her, a view of which Ms Coates previously had been unaware.  In oral evidence Ms Coates said that she did not have problems with the applicant and considered her witty  and  intelligent and good company.   Exhibit 3 is a copy of an email dated 11 August 2000, setting out Ms Coates' recollections of the 10 August meeting.  In the email Ms Coates stated that at the meeting the applicant expressed concerns about her treatment in  the workplace and about interpersonal difficulties in working to Ms Coates.  Ms Coates had told the applicant at that meeting that she was not her supervisor and that the applicant reported to Mr Bluer.

16.     Ms Coates said that while it was true that the period in 1999/2000 was a time of pressured workloads at ANTA, the applicant was not involved in work of a demanding nature. Ms Coates said that when the applicant was diagnosed with cerebral vasculitis the duties of her position had to change, in part due to the extent of her absences.  She specifically denied the applicant’s assertion that the workload remained unchanged.  Ms Coates said that ANTA was encouraged by the report of Dr Dowling to ensure that performance appraisal and feedback was regular and that clear goals were set.  Ms Coates said that she did not consider that the applicant had pressure on her in her work when ANTA adjusted her workload.  Her supervisors ensured that the time pressure was removed for short-term tasks.  She no longer did the complex work of an SPO, although she continued to be paid at that level.  Ms Coates acknowledged in cross-examination that at that level there was an expectation that she would be an independent worker.

17.     Ms Coates said that the applicant acknowledged at the workplace that she had brain damage from the vasculitis.

18.     Mr G. Yorke, Human Resources Manager at ANTA from 23 February 1998, had provided a letter to the delegate at Comcare dated 27 October 2000 (T24).  In oral evidence he confirmed that the applicant’s workloads were adjusted and that a performance appraisal system was in place though it was ultimately abandoned as the applicant found it too stressful.  He confirmed that workload was reduced for the applicant by fifty per cent.

19.     In oral evidence Mr Yorke said that he was involved with the performance management of the applicant from early 1998, although he was based in Brisbane.  At the time his involvement commenced, he said the applicant was one of several contract employees who had performance issues.  He said that assistance was sought from Ms Dennis, Senior Rehabilitation Counsellor at CRS, as ANTA wished to identify how the applicant could be helped in the work place.  He also said that ANTA was having difficulty obtaining medical information from Dr Ellims, the applicant’s treating medical practitioner.

20.     Mr Yorke acknowledged under cross-examination that the applicant had said that she found the monitoring and appraisal sessions stressful.  He said that for this reason ANTA sought the assistance of Ms Dennis.  He said that workloads were set at a level that was not onerous and the applicant was under the close supervision of Mr Bluer.

21.     In a written report dated 18 March 1999 (T8), Ms J. Stacey, Clinical Neuropsychologist, said that the cognitive effects of the disease included that the applicant would suffer fatigue with mental effort if pressured for time; that she exhibited slower information processing and problem solving skills if time-pressured; and that she was well-adjusted in coping with stress and mental problems.

22.     In a written report dated 15 August 1999 (T9), Dr P. Dowling, Clinical Neuropsychologist, said that the applicant had told him that after her condition was diagnosed and treated in 1999 she was better able to perform her work duties.  From the tests that he carried out, Dr Dowling formed the view that the applicant had mild residual limitations of cognitive functioning and reduced speed in information processing, although Dr Dowling noted that the applicant’s processing rate was still at an average level and she would only experience difficulty when under pressure.

23.     Dr Dowling recommended that with the increased awareness of the applicant’s neurological condition and improvement in her symptoms, it was possible to set productivity goals with agreed processes and objective measures to evaluate achievement of the goals.  He stated that there should be regular opportunity given to the applicant to have feedback on her progress and to have consultation time with her supervisor to develop strategies for problem areas.

24.     In a report dated 24 December 1999 (T12), Ms C. Dennis, Psychologist and Senior Rehabilitation Counsellor at CRS, stated that based on Dr Dowling’s assessments, the applicant did not display marked residual cognitive deficit, although changes in emotional functioning due to the deterioration in her health were likely.

25.     Ms Dennis noted in T12 that Dr Dowling’s recommendation for a performance feedback system had been adopted by ANTA.  Of her attendance at the meeting in December 1999 with the applicant and Ms Coates she said that she observed the applicant to be stressed and angry in the meeting.  Her report noted the applicant’s concerns about the complexity of her work, while also noting, on advice from Ms Coates, that the applicant was undertaking some tasks that were not required of her.  The December 1999 interview was terminated when the applicant became upset and tearful.  It was reported to Ms Dennis subsequently that the applicant suffered a burst blood vessel in her eye after the interview, which Ms Dennis attributed to the stress of the interview.  Ms Dennis concluded:

I would question her current fitness for work because of her emotional state to undertake her role that would implicitly be complex and stressful. Her stated interaction and relationship with some other staff members is also not conducive to her overall wellness.

26.     In a second report dated 9 March 2000 (T14), Ms Dennis stated that she had subsequently consulted Dr Ellims who told her that the applicant’s condition was under control and she was on minimal medication.  She said that Dr Ellims advised that the acute part of the illness had passed, but he indicated that personality and issues of reaction to an illness would have an impact on the applicant’s work performance.

27.     One of the doctors who treated the applicant’s vasculitis was Dr L. Sedal, Consultant Neurologist.  In a written report dated 21 June 2002 (Exhibit A2), Dr Sedal stated that his treatment commenced in December 1998.  He said it was an immune disorder with its principle effects being as a result of cerebral vasculitis, where small blood vessels in the brain become inflamed.   He said that it was likely that other organs were affected including the lungs and homoeopathic system, as well as the joints.  In his oral evidence Dr Sedal said that the condition could be fatal.  Dr Sedal said that in the course of his treatment of the applicant, he came to the view that her disease was an ongoing process, not a once-only reaction to an infection.

28.     In his written report, Dr Sedal said that the condition did not arise from work, but stress in the workplace could aggravate the symptoms, or might accelerate the disease process itself.  As to the first he said that it was widely recognised that stress can cause memory problems, concentration problems and increase fatigue.  In his written report Dr Sedal referred to the fact that in clinical situations emphasis is put upon the psychosocial support of patients.  In his report, he referred to this support being to reduce stress in a range of lifestyle matters that are affected in a case of a severe disease.  In oral evidence, Dr Sedal said that, at a symptomatic level, aggravation would be a short-term. 

29.     In his report, Dr Sedal also said that it was less clear whether stress could aggravate the disease process itself and said that it was not a scientifically proven fact that this was so.  He said that the difficulty was that the low incidence of cerebral vasculitis meant that there was little comparative research.  In oral evidence, he said that he considered that the applicant’s level of stress was such that, without the stress, the disease would not have worsened to the level that it did in 2000.

30.     In oral evidence, Dr Sedal said that he understood from his discussions with the applicant that she felt pressured at work..  From his discussion his understanding was that her work required concentration, analysis and memory.  He said that she had high order cognitive problems but that she was not so diminished by the condition as to lose insight.  Dr Sedal said that at June 2000 he considered that the applicant was intellectually capable of work. Dr Sedal’s view was that stress would make some contribution but that it was hard to quantify.  He said that in forming his view on the effects of stress he could only rely on the information he was given by the applicant and he could put it no higher than to say that the stress was making a contribution.  Dr Sedal said that the applicant was very frightened by the changes that the disease was causing to her.

31.     Under cross‑examination, Dr Sedal said that the course of the applicant’s disease could be traced through three multiple resonance imaging (MRI) scans conducted in August 1998, February 2000 and May 2000.  He said that in the second of these there was marked improvement but the third showed new lesions not previously present.  This was of concern to him. He said that as this as an ongoing disease process, there would be continuing episodes and accumulating damage.   On 29 March 2000 (Exhibit A4), after outlining the results of the then most recent MRI scan,  Dr Sedal wrote to Dr Ellims:

Our feeling was that there was not a major difference between the films, perhaps a little change but certainly no major deterioration and I tried to reassure her about this.  She acknowledges that she is a lot better than during her acute illness…I think the big question in diagnosis and management is whether we are coming to the end of a very severe but monophasic illness or whether we are dealing with an ongoing vasculitis and immune disorder…

I think the other problem is her work.  Of course I only hear her perceptions of the situation, but it sounds as if they have not grasped the fact that she has an ongoing problem and ongoing difficulties and are treating her as a fully able employee and performing frequent performance reviews, which are clearly very stressful to her.  I think it would be much easier for her if they grasp the concept that she currently has disabilities, that she is likely to have ongoing difficulties with her health and that she should be getting the support that other patients with disabilities receive.

32.     The doctor who treated the applicant from January 1998 until December 2000 was Dr P. Ellims, Oncologist and Clinical Haematologist.  In a written report dated 3 May 2001 (Exhibit A1), Dr Ellims stated that the cerebral vasculitis was probably autoimmune in nature.  He said that MRI scans and a blood test in the period he was treating her, showed some improvement in the vasculitis but with continued areas of abnormality.  Dr Ellims said that it was unlikely that the vasculitis was related to her employment.  However he stated that the pressures that she has been under to perform at work have had a negative influence on the cerebral vasculitis in the sense that whenever she came to me complaining of work pressure, there was a deterioration in her cognitive function to my assessment…   .

33.     In oral evidence, Dr Ellims said that he had wanted the applicant to go to hospital when there was difficulty controlling her symptoms, but she did not take his advice, preferring to go back to her job.  In September 1999 she developed shingles as a reaction to the drug cyclophosphamide and was very ill at that time.  He described her shingles as so severe it was like a third degree burn but she refused his suggestion of hospitalisation.

34.     Dr Ellims went on to say, in oral evidence, that it is not known what role stress plays in autoimmune disorders, as in every patient it will be different.   However, Dr Ellims said he considered that the applicant’s work was having a negative effect on the progress of the disease.  Dr Ellims said that based on what the applicant had  told  him of her work situation, she was under extreme pressure.  Under cross‑examination, he acknowledged that he was not aware of the adjustments made to the applicant’s duties at work and he described her work as involving report writing in tight timeframes.  His advice to her had been to leave the job as he considered that it was unlikely that she would return to full cognitive functioning.

35.     In a written report dated 8 August 2000 (T18), Dr A. Webster, Occupational Physician with Heath Services Australia, reported to ANTA, assessing the applicant’s fitness for duty.  After recording the history of the applicant’s condition, Dr Webster stated that the applicant told him that she had ongoing difficulties with Ms Coates, and that after she had a relapse in May 2000, that she experienced increased symptoms of fatigue, balance problems, raised temperatures and confusion.  Dr Webster stated that the applicant had good insight into her illness.  He said that he considered she might experience deterioration at varying times when the activity of her disease increased and that she would have difficulty coping with demanding and pressured situations.  However, he concluded that the applicant would be able to perform the duties of an SPO, if the tasks did not require tight time frames.

CONSIDERATION OF THE ISSUES

36. The liability of the Commonwealth to pay compensation in respect of employees is provided for in s14 of the Safety Rehabilitation and Compensation Act 1988 (the Act), which provides:

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. 

Section 4(1) of the Act defines injury as:

…

(a)a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

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;

37. Section 4(1) of the Act defines disease as:

…

(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.

38.     Ailment is defined as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

39.     It was agreed between the parties that the applicant’s condition of cerebral vasculitis itself was not caused by employment.  Mr Carey submitted however, that cerebral vasculitis was a life-threatening disease, and the applicant was a vulnerable person.  He submitted that ANTA, as a result of receiving the report of Ms Stacey (T8), had knowledge of her vulnerability and of the effect of the disease effects on her cognition, memory, concentration and her tendency to increased mental fatigue.  Mr Carey submitted that ANTA, supported by the report of Dr Dowling in August 1999 (T9), nevertheless assumed that there was no continuing disease process.  Based on this mistaken premise the applicant was expected to continue to work at the level of an SPO.  The employer acted on Dr Dowling’s assumption that the applicant’s abilities were greater than they were.  Mr Carey said the letter of Mr Yorke (T24) was an instance of the employer’s view there was no impediment to her work performance. Mr Carey however submitted that stressors from her employment made a material contribution to the deterioration of the applicant’s condition, resulting in incapacity from at least 11 August 2000.

40.     Mr Carey submitted that the Tribunal should accept Dr Sedal’s evidence that clinical experience suggests that there is a correlation between stress and autoimmune disorders.  At the time when the applicant was suffering deterioration in her condition, Mr Carey said that ANTA was subjecting her to multiple performance reviews that were stressful to her.  He said that there were an excessive number of these reviews, with four conducted in a period of seven months.  He submitted that the evidence from Ms Dennis (T12) and that of Dr Ellims was that as early as December 1999 the process of monitoring was causing stress to the applicant.  Dr Ellims reported that the burst blood vessel after the meeting in December 1999 occurred in response to stress.  Mr Carey submitted further that the applicant, as an employee on contracts could not be mistaken in the view that her continued employment was subject to successful completion of performance appraisals.  The email from Ms Coates  acknowledged the stress in the employment (Exhibit R3).  Mr Carey submitted that the Tribunal is not to consider the question in terms of whether someone was at fault, or that there was a special or unusual factor in the workplace which was the contributing factor (Westgate and Australian Telecommunications Commission (1987) 17 FCR 235).

41. Mr Carey submitted further that there was no evidence that the applicant was going through a grieving process in regard to her loss of mental capacity. He submitted that the Tribunal should find that it was the stressors from the workplace that made a material contribution to her condition, such that from 11 August 2000 she was no longer able to work. He submitted that the evidence of Dr Sedal was that the disease was ongoing and that any further damage from stressors was damage from which she would not recover. He said that it could not be concluded on the evidence that the aggravation was temporary. On this basis the applicant was entitled to compensation under s14, 16 and 19 of the Act.

42.     Mr Gourlay agreed that the underlying condition was not caused by employment, and that the issue was limited to aggravation.  He submitted that contribution in a material degree was required before aggravation was compensable under the Act.  Relying on Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, he submitted that it was necessary that a causal connection be established on the balance of probability and not left merely to conjecture. He also referred the Tribunal to Elleissy v Australian Telecommunication Commission (1989) 18 ALD 240, Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, and Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36.

43.     Mr Gourlay submitted that the evidence of Dr Sedal showed a continuing disease process, fluctuating in severity.  He submitted that the evidence of disease process being ongoing meant that, regardless of whether the applicant was at work, affected by stressors or not, there was a course of the disease process with the potential for continuing damage.  Mr Gourlay submitted that Dr Sedal’s evidence about the effects of stress at work generally, was to be preferred to that of Dr Ellims, as the latter practitioner demonstrated little knowledge of the nature of the applicant’s work.

44.     Mr Gourlay submitted that the applicant was, on the one hand, demanding that her condition be understood and taken into account in the workplace, and on the other hand, accusing the employer of putting her under stress through the performance appraisals used to assist her to cope at work.  He submitted further that in regard to the nature her duties and the amount of work assigned to the applicant the evidence of Ms Coates and Mr Yorke was to be preferred to that of the applicant.   The applicant’s perceptions, he said, were that she was being victimised by the appraisal process and these perceptions were not grounded in fact: Kirkpatrick.  He submitted that work was not more than a background factor and it was not established on the balance of probabilities that there was a causal connection between any worsening of her condition and her work. 

45.     Mr Gourlay submitted that the applicant acknowledged in her oral evidence that she had brain damage and that she grieved for her loss of intellectual function. He submitted that it should not be underestimated that the applicant’s condition was life threatening and that she was stressed by the loss of self-esteem as a result of the permanent, ongoing effects on her mental abilities.   If there was any worsening of the condition, he submitted it was temporary.

46.     In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The question is whether the applicant’s employment with ANTA contributed in a material way to the aggravation of her condition, in the sense indicated in decisions such as Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Westgate and Australian Telecommunications Commission (1987) 17 FCR 235.47.

47.     In Westgate’s case, Davies J said at 240:

…it is sufficient that the employment contributes in a material way to the contraction of a disease, its aggravation, acceleration or recurrence. It is not necessary to establish fault on the part of the employer or any unusual stress or factor or special circumstance in the employment itself…

As Windeyer J pointed out in Federal Broom Co Pty Ltd v Semlitch (supra) at 643, 'all that the statute requires is "a contributing factor" '… It does not matter that the worker's response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence…

48.     In Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42 the Tribunal said at 43:

It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment.

49.     The Tribunal accepts the submission of the parties, and on the basis of the medical evidence finds, that the condition of cerebral vasculitis was not caused by the applicant’s employment with ANTA.  The Tribunal is satisfied on the basis of Dr Sedal’s evidence, supported by Dr Ellims, that the applicant’s condition was an ongoing one, an active disease process, as a result of which she would have periods where the condition would fluctuate in severity.  

50.     The Tribunal accepts the submission of Mr Carey that the matter is not one to be decided by apportioning blame about events that occurred in the workplace.  On the evidence, ANTA sensibly approached its duty to take necessary steps to ensure that the applicant’s medical condition was addressed through adjustments to her workload and by engaging the assistance and professional involvement of CRS.  The Tribunal agrees, however, that even well designed programs may still cause stress to a particular employee.   The applicant will be entitled to show that despite the best efforts and intentions of ANTA in putting the workplace appraisals in place, that the conduct of them caused stress, which led to a worsening of her symptoms or a worsening of the disease process.

51. For purposes of compensation under the Act, the Tribunal must be satisfied that stress would cause an aggravation or exacerbation of the condition, and that if stress was capable of aggravating the condition, it was stress in the workplace that caused an aggravation in this case. The Tribunal notes Dr Sedal’s evidence that stress may aggravate symptoms of a disease and it may aggravate the disease process itself. He said that symptoms of the condition suffered by the applicant would be aggravated by stress. For purposes of compensation under the Act, either the impact of worsening symptoms or a progression of the deterioration of underlying disease would be aggravation within the meaning of s4(1) of the Act.

52.     The Tribunal accepts the evidence of Dr Sedal that stress can exacerbate symptoms such as fatigue.  However his evidence concerning whether stress would worsen the underlying disease was speculative and left the matter on the level of no more than conjecture that stress would worsen the disease process itself.   He said there was no scientific proof of it doing so, nor a basis on which it could be objectively ascertainable given the rarity of the condition.  The Tribunal finds that on the balance of probabilities, the underlying condition was not worsened by workplace stress and that it is more likely that the condition in worsening was taking its natural course.

53.     As to whether stress may worsen symptoms, Dr Sedal referred to the emphasis put in clinical situations upon the psychosocial support of patients.  However, his evidence was that this support was intended to reduce stress in the range of situations that a person with reduced faculties, living with disabling symptoms is going to have to deal: stress at home, financial commitments, general living as well as work.  His evidence was of little assistance in assessing what was the source of stresses in the applicant’s case.   Common sense dictates that, where a disorder affects a person’s mental abilities, stress of dealing with this may come from several sources in aspects of life, home as well as at work.

54.     The impression that the applicant gave of her work to Dr Ellims and Dr Sedal, was that she undertaking a heavy workload and doing complex work, without adjustments being made for her disabling condition. The Tribunal does not accept that this was so.  However, by this impression, she has led both doctors to ascribe greater importance to work as a source of stress than if more accurate information had been given to them upon which they might form their views.  Dr Sedal acknowledged this in his evidence.  Dr Ellims knew very little of the nature of the applicant’s work and the Tribunal therefore placed little weight on his evidence.

55.     The Tribunal had ample opportunity to assess the evidence of the applicant.  The Tribunal concluded that she placed exaggerated emphasis on the behaviours she attributed to Ms Coates that did not stand up to scrutiny when Ms Coates' evidence was taken into account.  The applicant was ready to assign undue importance to the performance appraisals as the cause of her problems.  She did however accept and acknowledge the impact of her disease on her abilities and was honest in acknowledging that she was grieving for her loss of function.  She had a life-threatening disease and seriously disabling symptoms as well as brain damage.  Over a lengthy period of time there was no clear diagnosis.  She had to deal with the disease itself and the effects of medication to treat it.  She had a major adverse reaction to one of the drugs in her treatment program, when she succumbed to shingles.   The applicant had to adjust at different times not only to changes in her processes of cognition but also to physical symptoms including vomiting, loss of balance and general debility.   Her acute symptoms, the loss of her self-esteem, and of crucial abilities, were stresses with her at all times.

56.     The Tribunal accepts that the applicant was upset by performance appraisal processes.  The Tribunal accepts that there is evidence of stress reactions in response to the performance assessments and takes particular account of the burst blood vessels in the eye following the December 1999 meeting. That the assessments were the cause of the stress, however, is not the only conclusion that can be drawn from this evidence.  For any aggravation of symptoms to be compensable, it is necessary that the workplace make a material contribution to aggravation of the condition.  In this case the Tribunal is satisfied that the workplace

was no more than one setting in which the impact of the condition was observable to the applicant.

57.     When the Tribunal takes into account that the applicant had a condition that of its nature was capable of deteriorating, and did so, and that she was aware that her mental processes were affected, and the effects of this on her sense of self, the Tribunal finds that the contribution made by the workplace was not material.  The Tribunal is not satisfied that it is more probable than not that the employment was a contributing factor to worsening of the condition from which she suffered, in either of the senses referred to by Dr Sedal.

58.     In coming to this conclusion the Tribunal considered whether there might have been a temporary aggravation of the condition attributable to the workplace.  However, taking into account all the evidence and particularly that of Dr Sedal that the underlying condition was an ongoing and active disease process, subject to episodic deterioration, the Tribunal is not satisfied that there was here a temporary aggravation of the disease attributable to work.  The Tribunal accepts the submission of the respondent that the workplace was no more than a background factor, in which the effects of her severe disease process played out.  

DECISION

59.     The Tribunal affirms the decision under review. 

I certify that the fifty‑nine [59] preceding paragraphs are a true copy of the reasons for the decision of:

M.J. Carstairs, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  24 June 2002, 14 October 2002

Date of decision:  7 March 2003
Counsel for applicant:                  Mr M. Carey
Solicitor for applicant:                  Slater & Gordon
Counsel for respondent:              Mr I. Gourlay
Solicitor for respondent:              Australian Government Solicitor