GEORGE THOMPSON and COMCARE
[2012] AATA 752
•31 October 2012
[2012] AATA 752
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/0544, 2012/0545, 2012/0844, 2012/1907
Re
GEORGE THOMPSON
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER
Date
31 October 2012
Place
Canberra
The decisions under review are affirmed.
.............................[sgd]...........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
CATCHWORDS
COMPENSATION – Commonwealth Employees – accepted condition of adjustment disorder – whether depressive disorder, due to performance appraisal – whether employee entitled to incapacity payments from a work-related condition – whether liability for work-related condition excluded because the condition was due to reasonable administrative action undertaken in reasonable manner
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331
Comcare v Chenhal (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181
Kioa v West (1985) 159 CLR 550
Kucks v CSR Ltd (1996) 66 IR 182
Re Fox and Comcare (unreported, Member Webb, 5 April 2012)
Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009)
Re Lynch and Comcare (2010) 114 ALD 394
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Swisse Vitamins Pty Ltd v Complaints Resolution Panel [2012] FCA 536
SECONDARY MATERIALS
American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edition, text revision) (DSM IV – TR)
Department of Finance and Deregulation Collective Agreement 2009 – 2011)
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER
1. Mr George Thompson has a claim for workers’ compensation for a condition described as ‘adjustment reaction with mixed emotional features’. Liability for the claim was accepted on 31 March 2010, with date of injury being 24 September 2009.
2. On 24 August 2011, Comcare denied liability for incapacity in the periods 1 – 5 August 2011, and 9 – 10 August 2011, on the basis that this claim related to a new condition, namely, major depressive disorder, recurrent episode. That is matter 2012/0844.
3. The decision was reviewed on 8 February 2012 and it was determined that Mr Thompson was entitled to $399.18 in incapacity payments for the period 1 – 5 August 2011, and $239.51 for the period 8 – 10 August 2011, under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). That is matter 2012/0544.
4. However, on 22 February 2012, following an own motion reconsideration, Comcare revoked the decisions dated 24 August 2011 and 8 February 2012. The Independent Review Officer (IRO) decided that Mr Thompson had no entitlement to incapacity payments for the periods in August 2011 on the ground that his ability to earn meant his entitlement was zero. That is matter 2012/0844.
5. On 17 April 2012, Comcare decided that Mr Thompson was no longer incapacitated by his accepted injury and hence was no longer entitled to compensation for incapacity for work for the period from 8 June 2011 in respect of ‘adjustment reaction with mixed emotional features’, a decision affirmed on review on 9 May 2012. That is matter 2012/1907.
6. Mr Thompson lodged a new claim for workers’ compensation on 29 August 2011. On 19 October 2011, Comcare denied liability under section 14 of the Act for a condition described as ‘major depressive disorder, recurrent episode’. Comcare accepted that Mr Thompson had sustained a psychological injury on 24 June 2011 that was significantly contributed to by his employment. However, liability was denied on the basis that the injury resulted from ‘reasonable administrative action undertaken in a reasonable manner’ (section 5A of the Act). On 8 February 2012, Comcare affirmed the decision of 19 October 2011. That is matter 2012/0545.
7. Mr Thompson sought review by the Tribunal of the decisions. The matters were heard in Canberra on 27-29 August 2012.
BACKGROUND
8. The claim for adjustment disorder which has been accepted under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) section 14, related to alleged bullying Mr Thompson experienced during his employment with the Department of Finance and Deregulation (Agency). Mr Thompson was then working as an Executive Officer Level 1 (EL1) in the Office of Best Practice Regulation (OPBR) in the agency. His work involved preliminary assessments of proposed regulatory changes to decide whether a regulatory impact statement was required.
9. On 24 September 2009, Mr Thompson collapsed at his desk on receipt of an email sent by his supervisor, Ms Ruth Thomson, criticising his prioritisation of work. The date of the injury was 24 September 2009 and Mr Thompson was off work due to that condition until 1 March 2010. On 3 February 2010, Mr Daniel Costin, a psychologist to whom Mr Thompson had been referred by his treating doctor, Dr Somnuk Phonesouk, diagnosed Mr Thompson as having an ‘adjustment disorder with mixed anxiety and depressed mood, acute,’ said to have been caused by ‘workplace bullying’ from his supervisor Ms Thomson’. The diagnosis was confirmed by Dr Chan-Feng Lin, a member of the general medical practice used by Mr Thompson, on 22 February 2010. Dr Lin became Mr Thompson’s usual general practitioner and treated him at all relevant times for the purposes of this application.
10. In March 2010 Mr Thompson returned to a different area of the agency in a different building and with a different supervisor. Although for a period in September 2010 Mr Thompson was again certified wholly unable to work, he recommenced a graduated return to work program on 20 September 2010. In February 2011, he returned to OPBR, and by 24 June 2011, he was working 28.5 hours per week. The Suitable Duties Plan for the purposes of his graduated return to work was developed in conjunction with Ms Jane Miles, Director, Occupational Health & Safety and Mr Thompson’s case manager, Ms Jocelyn Williams, his rehabilitation adviser and the contact with his agency, and Ms Carolyn O’Rourke, his then supervisor.
11. On 24 June 2011, Mr Thompson was scheduled to undertake a performance appraisal session with his then supervisor, Mr Eric Swan, who had been appointed to the position on 16 May 2011. Mr Thompson had been advised about a week earlier that the session was to occur. According to him, Ms Miles had told him that there was an understanding that he was not subject to formal performance appraisal, nor to appraisal as an EL1, until he had returned to full-time work. Accordingly, he said he believed the 'appraisal' would only be a general discussion, not an assessment and that he was only to be assessed according to the duties and for the hours required of him in his graduated return to work plan. Nonetheless, he had prepared documentation listing his achievements over the period since his last assessment as he would have done if it had been a normal performance appraisal session. He said he had done so because his session was to be conducted by Mr Swan who had been his supervisor only since May 2011.
12. A consultant psychiatrist, Dr Allan White, in a report of 8 June 2011, following a consultation with Mr Thompson in Canberra undertaken at the request of Ms Miles, said that Mr Thompson was not suffering symptoms which could be classified as ‘any specific mental illness’. That opinion was affirmed by a consultant psychiatrist, Dr Kai-Kai Toh in a report he produced dated 22 June 2011. Dr Toh's report followed an MRI on Mr Thompson’s brain which had ‘come back as normal’. Dr Toh noted that Mr Thompson had been on Avanza, an anti-depressant, at 15 mg daily for the previous two years. There was evidence that the adult dosage was normally being between 30mg and 60mg daily. Mr Thompson said the higher dosage gave him migraines.
13. Mr Thompson was only provided with a letter summarising Dr White’s recommendations, not with a copy of the June 2011 report. The report had been sent to Dr Lin who, according to Mr Thompson, must have decided not to release it to him. Ms Miles had sent Mr Thompson a letter dated 23 June 2011 which summarised the recommendations in the report. Mr Thompson said he had not seen the full report, nor the recommendations on 24 June 2011 when he had his performance assessment.
14. Mr Thompson was required to attend a second consultation with Dr White on 22 August 2011 at his Newcastle, NSW practice. According to Mr Thompson when he arrived for the consultation, Dr White appeared to be unaware of the purpose of his visit and had to phone Ms Miles to check. Mr Thompson’s evidence was that at the consultation Dr White only asked him what he would like to discuss. So Mr Thompson said he was unhappy with Dr White's June 2011 report, following which Dr White was apologetic, and ordered a taxi for the Thompsons for their return journey to Canberra. Dr White's report, dated 22 August 2011, affirmed that Mr Thompson was not suffering any recognisable mental illness and that he was fit to return to full-time work
15. On 22 June 2011, there was an executive management meeting within the relevant division of the agency to discuss the 12-15 officers who were to be performance appraised. The purpose of the meeting was to ensure consistency in the performance appraisal assessments. Mr Thompson was not aware of the meeting.
16. On 24 June 2011, at the appraisal session with Mr Eric Swan, Mr Thompson was informed that he was to be assessed against the standard duties of an EL1 officer. On three of the seven criteria he was rated as not performing at that level and was assessed as ‘Requires Development’. Mr Swan gave evidence that this rating was ‘in line with the directions from the OBPR executive’. Mr Swan prepared a minute following that meeting in which he noted that Mr Thompson had agreed at the session that his performance was not at the EL1 level, given his 18 years’ experience at that level, but the reason was his current state of health, particularly the effects of his anti-depressant medication.
17. However, Mr Thompson said that after the session he was ‘devastated’ by the news as, prior to the assessment, he said he had been told he was doing fine. Immediately following the session, Mr Thompson visited Dr Lin who offered reassurance but did not change his medication or increase the dosage of his anti-depressant. When asked in evidence why he had not done so, Dr Lin said as Mr Thompson was going on holiday the next day for five to six weeks he would be removed from his work environment and his mental status should improve. However, Dr Lin did provide a certificate that Mr Thompson was unfit for work from 25 June 2011 until 10 August 2011. On his return, Dr Lin certified him again unfit from work until 4 September. However, on 24 August 2011, Dr Lin said Mr Thompson was fit to return to work, with restrictions, from 29 August 2011.
18. Mr Thompson said he had received informal counselling from Ms O’Rourke, his then supervisor, after his return to work in OPBR on 11 February 2011 but claimed in evidence that this related only to ‘minor issues’ with his performance. On 30 March 2011, there was a meeting between Ms Williams, Ms O’Rourke and Mr Thompson, but Mr Thompson said he was asked to leave the meeting when his performance was discussed so he had no knowledge of what was said. A record of a handover meeting between Mr Thompson, Ms O’Rourke and Mr Swan on 4 May 2011, noted that Mr Thompson's ‘performance was satisfactory at this point in time, but he would need to cement this level of performance consistently into the future’. Mr Thompson said in evidence that by June 2011 some of his duties were EL1 duties. He noted that in his section there was no-one below an EL1 classification so there was a spread of difficulty in the work being performed by the three EL1s and the graduate trainees.
19. At the hearing, Mr Thompson also agreed that his return to work plan had ceased on 24 June 2011 when he had signed a Return to Work Plan - Closure document on that day. A comment in the document was that on Mr Thompson’s return from leave he was ‘expected to return to pre-injury hours’, that is, full time work. However, immediately below this statement, there is another comment to the effect that Mr Thompson was to be referred to rehabilitation if he was unable to return to full-time work on his return. In response to questions concerning his understanding at this time, Mr Thompson said he did not see the comments, he just signed the document, and he said he believed the document was only completed because he was going on leave and on his return from leave, his return to work plan was to be reinstated.
20. Mr Thomson’s evidence was that his medical team believed he was not able to return to full-time work on 24 June 2011. He said he was still getting very tired when at work. This was partly due to the Avanza he was taking, which increased his tiredness, and he found that his concentration flagged. That made it difficult when he was working on the complex policy and abstract terms involved in an assessment of a regulatory impact statement. For these reasons he did not consider he was ready to work full-time as at 24 June 2011.
21. Suitable Duties Plan No 6, dated 9 June 2011 for the period until 15 August 2011, did not certify that Mr Thompson was able to return to full-time work. The document was signed by Ms Williams, and forwarded to Ms Miles, Mr Swan and Mr Thompson. The restrictions included hours worked and contained a requirement that Mr Thompson take a ten minute break every hour. Dr Lin said in evidence the 10 minute break was to enable Mr Thompson to refresh his brain and his ability to think. As Mr Thompson had not returned to work in early September Mr Thompson was directed, on 6 September 2011, to do so. He complied with the direction and is currently working 6.5 hours a day, three days a week.
Ms Miles
22. Ms Jane Miles said in oral evidence that, as at 24 June 2011, her understanding was that Mr Thompson was intending to return to full-time hours on his return from leave. She also confirmed that Mr Swan would have seen the medical certificates and the Suitable Duties Plans relating to Mr Thompson, but he had not seen reports by other medical experts. She said she had not told Mr Swan of any restrictions as to types of work Mr Thompson could undertake, as she did not consider he was subject to any such restrictions. She said she would have sent him the letter containing the recommendations of Dr White’s 8 June 2011 report but did not recall when. As she said, she received Dr White’s report on 22nd or 23rd June 2011.
23. She said she had never seen any 'document, record, certificate or report which would indicate that Mr Thompson had restrictions on the type of work he could undertake'. However, she agreed there was an understanding that Mr Thompson would not be assessed against normal EL1 criteria because of his return to work program and that he was to be assessed against duties he was medically certified as fit to perform. She also said that Dr Bertucen’s recommendation that Mr Thompson be relocated and occupy an APS6 level position for a trial period of three months had not been implemented. That was in part because Mr Thompson was reluctant to accept a reduced classification, and the agency could not find a suitable position for him.
MEDICAL EVIDENCE
Dr Lin
24. Dr Lin, in a report to Comcare of 20 August 2011, diagnosed Mr Thompson as having an adjustment disorder with anxiety. He said that difficulties experienced by Mr Thompson at work produced ‘panic attacks, lethargy, anorexia, insomnia, loss of interest, lack of motivation, feelings of anger and frustration, headache and depressed mood’. He reported an improvement in Mr Thompson’s condition since he had recommenced work in February 2010 in a different area and building of the agency. The report noted that Mr Thompson had received a ‘poor performance review’ by his supervisor in September 2010, but the anxiety symptoms this triggered had been resolved. In his opinion, in August 2011 Mr Thompson did not require psychiatric since ‘he does not have a major mental health condition’.
25. However, he noted that Mr Thompson’s ‘main issues have seemed to be difficulty in managing professional relationship with colleagues and supervision’. Dr Lin also said: ‘He can be oversensitive, with negative comments which are of professional levels’. He agreed that Mr Thompson was fit to return to work ‘suitable for his level of competence’ in a different area from 5 September 2011, but only on a graduated return to work program with 10 minute breaks every hour.
26. Dr Lin considered that the symptoms exhibited by Mr Thompson following his performance assessment on 24 June 2011 were an aggravation of the condition he suffered in September 2009. However, in a report dated 14 December 2012, Dr Lin diagnosed anxiety and major depression which he attributed to the incident on 24 June 2011. In evidence to the Tribunal Dr Lin said he agreed with Dr White’s recommendation that as at 24 June 2011, Mr Thompson was fit to return to full-time hours of work. After the events of 24 June 2011, however, Dr Lin said Mr Thompson could not go back to work and face his supervisor as it would ‘cause a relapse of his condition’. Dr Lin could not recall when he received Dr White’s report. He said he had not shown the report to Mr Thompson because he was worried it might upset him.
27. In medical certificates, between 29 March 2010 and 3 March 2011, Dr Lin had indicated that Mr Thompson was ‘fit to return to modified light duties’. He explained that this certification meant Mr Thompson was only able to work limited hours, he should not be under pressure concerning deadlines, and should only undertake a reasonable amount of computer screen work. In his medical certificates dated 24 August 2011 and 19 September 2011, Dr Lin noted under ‘Treatment’ that Mr Thompson was to ‘Return to work in the Department of Finance, duties fit with his current competence, not to return to OBPR’. Dr Lin said this meant he should be subject to limited hours with some limitations on his duties. He was indicating that while ill, Mr Thompson ‘may not be able to perform at the EL1 level’. For example, he might not be able to manage other people and to meet deadlines for projects.
Dr Toh
28. Dr Kai-Kai Toh, a psychiatrist, provided a report dated 22 June 2011. He diagnosed adjustment disorder with anxiety but no major mental disorder and said he did not need to see Mr Thompson again. In oral evidence he said he had seen Mr Thompson 2-3 times. He acknowledged that a 15mg daily dose of Avanza was a low dose but said it could be beneficial in some cases, particularly for people whose weight was between 70-80kg. Mr Thompson’s weight was at the upper end of that category. Dr Toh agreed that 15mg of Avanza could affect someone’s cognitive ability but this was unlikely. In his opinion too, that dosage would not have short or longer term effects on memory, energy, or concentration, and would not impact on Mr Thompson’s ability to fulfil his duties. In his view aspects of Mr Thompson’s behaviour were ‘unusual’ and he was possibly exaggerating his symptoms. His impression was that Mr Thompson’s symptoms would resolve if he was removed from the workplace situation and the outcome was favourable to him.
Dr Westcombe
29. Dr David Westcombe, treating psychiatrist, provided a report dated 17 October 2011 in which he said Mr Thompson was suffering with major depression, symptoms of which had commenced 'at least one month ago’. In a medical certificate on 18 November 2011, he diagnosed ‘mixed anxiety and depression’. A certificate dated 13 January 2012, listed ‘major depression’, a diagnosis repeated in his next certificate of 10 February 2012. In oral evidence he confirmed that his impression was that Mr Thompson was not embellishing his symptoms and he noted that Mr Thompson’s depression had improved markedly.
Dr Bertucen
30. Dr Jeffrey Bertucen, consultant psychiatrist, in a report dated 7 December 2011, diagnosed an adjustment disorder with depressed mood and anxiety throughout 2009. In his view that condition was in remission. In his opinion Mr Thompson had 'a number of maladaptive coping strategies ... from underlying avoidant and histrionic personality traits of long standing'. He found him to be fit to return to work from 3 January 2012 in an alternative location within the agency and at an APS 6 level for a trial period of 3 months before returning him to an EL1 position. However, he noted that if Mr Thompson was directed to return to the OBPR he would inevitably have a relapse of his psychological symptoms. This opinion was based on his belief that Mr Thompson's fear of failure and the likelihood of further unfavourable feedback would impact on his 'damaged and fragile self-esteem'.
31. In a supplementary report dated 20 April 2012, Dr Bertucen said in his opinion Mr Thompson was not suffering a mental illness prior to his unfavourable performance feedback on 24 June 2011. In his view, the effects of Mr Thompson's accepted condition had ceased by early 2010. Immediately after 24 June 2011, Dr Bertucen said Mr Thompson was suffering 'situational depressive symptoms in response to the unfavourable feedback'. In his view that condition, too, had ceased by 7 December 2011.
Dr Hundertmark
32. Dr James Hundertmark, consultant psychiatrist, who assessed Mr Thompson on 27 September 2011, reported on 5 October 2011. He recorded Mr Thompson as saying he was ‘having difficulty with his cognitive functioning ... and is aware of having made mistakes at work. He said that it felt as though his brain was like treacle'. Dr Hundertmark noted short term memory and concentration problems. He diagnosed a 'severe major depressive illness' with suicidal ideation, a condition which was recurrent. The symptoms he recounted were 'diminished interest or pleasure in all or most activities, insomnia, fatigue or loss of energy nearly every day, feelings of worthlessness or excessive inappropriate guilt, diminished ability to think or concentrate and recurrent thoughts of death'. The symptoms were first apparent in March 2009. He said Mr Thompson's current conditions (in September 2011) was not an aggravation of his previous 2009 condition, and was ongoing.
33. He provided a supplementary report dated 16 May 2012, but did not change his diagnosis. He explained the differences between his and Dr Bertucen's report on the basis that by 2 December 2011, when Mr Thompson saw Dr Bertucen, Mr Thompson was on a new and therapeutic anti-depressant and his mental condition had improved. In response to questions, it was Dr Hundertmark's opinion that, in the period 1 January 2011 to 24 June 2011, Mr Thompson was suffering from a major depressive episode, that this continued after 24 June 2011, and was present at the time of his report in May 2012. He said the events of 24 June 2011 led to a new and distinct psychiatric injury, a major depressive illness, which was not an aggravation of his previous condition. In his view the impacts of a major depressive illness 'characteristically affects motivation, energy, memory and concentration ... [and] typically affects administrative and cognitive tasks, including Mr Thompson's standard duties'.
Dr White
34. Dr Allan White, consultant psychiatrist, in his second report on 22 August 2011, concluded that Mr Thompson should not have been diagnosed with adjustment disorder in 2009; that in June 2011 and again in August 2011, Mr Thompson showed ‘no genuine evidence of pervasive psychic disturbance’, and ‘did not present as a mentally ill person’; that Mr Thompson was ‘fit to return to his normal duties’; and that he ‘appears to be unwilling to work rather than unable to work for medical reasons’. In Dr White’s view ‘There is no indication for antidepressants, psychiatric treatment, or psychological counselling’. He also noted in his first, 8 June 2011, report that Mr Thompson could return ‘to any duty appropriate to his age, qualifications, and vocational competence’.
Other witnesses
35. Mr Jason McNamara, Executive Director, OBPR, acknowledged that on 8 June 2011, the day on which Dr White had examined Mr Thompson, after the consultation Mr McNamara had had a short conversation with Dr White at the instigation of the human resources personnel. The conversation had been held because it was proposed to hold the performance appraisal of Mr Thompson on 24 June 2011, and the agency was concerned Dr White might not have provided a written report prior to that date. His understanding from the conversation was that Mr Thompson did not have a mental illness, and should have no difficulties at work, which he could undertake full-time.
36. He agreed that he had an obligation to take other medical opinions relating to Mr Thompson into account, but said he had considered the views of Dr Lin who had certified he was fit for work, albeit with limited hours. He denied that Dr Lin had indicated that Mr Thompson had any restriction on the types of work he could do. In his view, when Mr Thompson returned to OPBR in February 2011, it was on the basis of him doing full duties. There was never a discussion of light duties, or less analytical duties. If there had been, Mr McNamara said the approach to Mr Thompson’s performance would have been different. He did not recall any document which said Mr Thompson was only capable of undertaking limited duties.
37. Mr McNamara said that meetings had been held by managers concerning staffing issues from February 2011. At those meetings it was noted that Mr Thompson had deficiencies in his conceptual and analytical skills and that he was not exercising judgement, relying on the views of others. This was apparent prior to the injury in 2009. He said in terms of his performance assessment, Mr Thompson was assessed as if he was a part-time employee working at the EL1 level. His understanding was that he did not need to take account of Mr Thompson’s ‘personal circumstances’ despite this being in the Certified Agreement as he had been told by the human relations section that Dr White’s report and the information in the return to work plans meant this was no longer necessary.
Mr Swan
38. Mr Eric Swan, manager, OBPR, said he had only been Mr Thompson's supervisor for about six weeks at the time of the performance appraisal. He agreed that Mr Thompson was not happy with the assessment of ‘Requires development’ but said Mr Thompson did not disagree with the assessment, and had put it down to his health problems. Mr Swan acknowledged that he had not seen the assessment of Ms O’Rourke, Mr Thompson's previous supervisor, nor the summary of Dr White’s report prepared by Ms Miles, prior to the session. He said he did seek Ms O’Rourke’s views on his draft assessment before 24 June 2011 and she only made slight changes. His understanding was that following the executive meeting on 22 June 2011, Mr McNamara had decided that Mr Thompson was to be performance appraised and as an EL1. He did not remember if the medical certificates referred to ‘limited duties’. He did note that the list of 8 achievements Mr Thompson had drawn up for presentation to Mr Swan at the performance assessment were duties which would be performed by an EL1 in OBPR. He also said he was not aware that ‘health issues’ was something that was to be taken into account in performance assessment.
ISSUES
Matters 2012/0844; 2012/0544; 2012/1907
39. The issues were:
· Did Mr Thompson suffer from an accepted incapacity from 8 June 2011, which led to him being unable to work from 1-5 August 2011, and 8-10 August 2011?
· If so, what was the correct calculation of Mr Thompson’s entitlement to compensation for incapacity for work from 8 June 2011, including between 1-5 August 2011, and 8-10 August 2011?
Matter 2012/0545
· Did Mr Thompson suffer from an injury which could be described as a ‘major depressive disorder, recurrent episode’?
· If so, what was the date of injury for the claimed condition?
· Did Mr Thompson’s employment contribute to that condition to a significant degree?
· If so, was the condition suffered as a result of 'reasonable administrative action taken in a reasonable manner', which would mean that no liability for compensation?
LEGISLATION
40. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides that Comcare may be liable to pay workers' compensation to an employee who suffers an injury or disease as a result of employment. Section 19 of the Act sets out the circumstances in which compensation is payable for an injury resulting in an incapacity for work. Such an injury must be capable of fulfilling the criteria in section 5A or section 5B of the Act. Section 5A also provides that even if an injury fulfils those criteria, in circumstances in which the injury arose as a result of 'reasonable administrative action taken in a reasonable manner', the injury is not compensable.
CONSIDERATION
Jurisdiction
Claim No 2012/0544
41. The first issue is whether the Tribunal has jurisdiction to consider claim No 2012/0544. That claim relates to a review decision dated 8 February 2012, which reconsidered the decision dated 24 August 2011 (application 2012/0844). It was found on 8 February 2012 that Mr Thompson was entitled to compensation under section 19 of the Act for the relevant periods in August 2011.
42. The Tribunal finds that there is no need for it to reconsider claim 2012/0544, as its effect has been subsumed by Comcare’s own motion reconsideration dated 22 February 2012 (application number 2012/0844). That decision revoked the determination dated 24 August 2011, as it found that the decision dated 8 February 2012 calculated his entitlement incorrectly, and his incapacity payments were zero.
Principal factual issues
43. The first substantive issue is whether Mr Thompson remained incapacitated for work from 8 June 2011 as a result of his accepted September 2009 injury, namely, adjustment disorder with depression (matter 2012/1907). The reviewable decision of 9 May 2012 was that Mr Thompson was no longer suffering from his accepted condition as from that date. To be compensable the psychological injury must be ‘outside the boundaries of normal mental functioning and behaviour’.[1] The opinions of Dr Daniel Costin, psychologist and Dr Zoltan Zsadanyi, consultant psychiatrist, who both provided reports, will not be considered as neither had seen Mr Thompson since July 2010.
[1] Comcare v Mooi (1996) 69 FCR 439 at 444.
44. Dr Lin’s certificate of 22 June 2011 referred to ‘adjustment disorder and depression’, the same condition Mr Thompson had suffered in September 2009. Nonetheless, in oral evidence Dr Lin said he agreed with Dr White and Dr Toh that, on 24 June 2011, Mr Thompson was not suffering a major mental disorder. That was consistent with his certification of Mr Thompson’s fitness for work which by 24 June 2011 was for 28.5 hours per week and his oral evidence that by 24 June 2011, Mr Thompson was fit to return to full-time work.
45. Dr Westcombe, Mr Thompson’s treating psychiatrist, who commenced seeing him in October 2011, diagnosed ‘major depression’. Dr Hundertmark who saw Mr Thompson in September 2011 and reported in October 2011, diagnosed a ‘severe major depressive illness’ which he said had evolved from the accepted 2009 condition and was apparent from 1 January 2011.
46. Dr Bertucen, who first saw Mr Thompson in December 2011, diagnosed situational depressive symptoms arising out of the 24 June 2011 incident, but said this had ceased by December 2011. He also noted that Mr Thompson’s accepted 2009 condition had been in remission since early 2010. Dr White’s view was that Mr Thompson’s September 2009 condition should not have been accepted and, that he was not suffering a mental illness in June 2011.
47. The Tribunal finds that the predominant medical view, including that of the treating doctor, Dr Lin, was that immediately prior to 24 June 2011 Mr Thompson was not suffering a psychological condition which was outside the boundaries of normal mental functioning and behaviour. The only medication Mr Thompson was taking at that time was Avanza at the low dosage of 15mg daily, the usual adult dosage being between 30mg to 60mg. Doctors Lin, Toh, White and Bertucen all denied that he had any major mental disorder at that time. Although that opinion is not shared by Dr Westcombe and Dr Hundertmark, neither had seen Mr Thompson prior to 24 June 2011 and their diagnoses were made in September and October 2011 respectively, some 3 to 4 months after June 2011.
48. In the week immediately preceding 24 June 2011, Mr Thompson had graduated to working 28.5 hours a week and Ms Miles gave evidence that the expectation was that after his five to six week holiday from 25 June 2011 he would be capable of returning to full-time work. His return to work program was closed on 24 June 2011 with the concurrence of Mr Thompson and although by its terms it indicated the possibility that Mr Thompson would not be full-time on his return, the prognosis appeared to be favourable. So on balance, the Tribunal is satisfied that, as at 24 June 2011, Mr Thompson was no longer suffering symptoms from his accepted condition of adjustment disorder.
49. That means that the reviewable decision of Comcare, dated 9 May 2012, that Mr Thompson was no longer entitled to compensation for incapacity for work in respect of his adjustment reactions with mixed emotional features, is affirmed.
Was Mr Thompson suffering a mental illness arising from the events of 24 June 2011?
50. The second substantive issue is whether Mr Thompson suffered an injury arising out of the events of 24 June 2011 (matter 2102/0545). In his workers’ compensation claim for the events of that day Mr Thompson described the injury as an ‘adjustment reaction/disorder with mixed emotional features due to workplace stressors’. Notwithstanding the reference to this diagnosis, which suggests the condition was an aggravation of his accepted September 2009 condition, it was accepted at the hearing that the 24 June 2011 condition was a new condition.
51. Dr Lin issued a medical certificate on 24 June 2011 that Mr Thompson was suffering from ‘adjustment disorder and depression and anxiety’, a recurrent condition. He also certified that Mr Thompson was unfit to work from 25 June 2011 until 10 August 2011.
52. Doctors Westcombe and Hundertmark both diagnosed a ‘major depressive illness’. They differed in that Dr Westcombe attributed the condition to events which had occurred ‘at least one month ago’, while Dr Hundertmark’s view was that Mr Thompson’s major depressive disorder had evolved from his accepted condition. A ‘major depressive illness’ would be outside the boundaries of normal mental functioning and behaviour.[2]
[2] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th edition, text revision) (DSM IV – TR), 369 et seq.
53. Other doctors have denied this diagnosis. Dr Bertucen’s view was that Mr Thompson, after 24 June 2011, was suffering from ‘situational depressive symptoms’, which had ceased by 7 December 2011. He described the condition in his supplementary report of 16 April 2012, as ‘a brief adjustment reaction’, acute.[3] The views of Dr Hundertmark and Dr Westcombe were discussed under the previous heading.
[3] Adjustment disorders are dealt with in DSM IV-TR 679-683.
54. The Tribunal is aware that the diagnoses which are in favour of Mr Thompson being found to have suffered an ‘injury’,[4] being a ‘disease’, namely, those of Doctors Westcombe and Hundertmark were made by psychiatrists, one of whom, Dr Westcombe, was the treating psychiatrist. Dr Bertucen may not have agreed with their diagnoses but he did diagnose an ‘adjustment disorder, acute’, which is also a recognisable mental illness.
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B.
55. The Tribunal also notes that Comcare accepted that Mr Thompson was suffering a mental illness as at 24 June 2011 which, to a significant extent, was work-related. The Tribunal prefers the opinions of these psychiatrists, over those of Dr White. Dr Kai-Kai Toh’s report was made prior to the events on 24 June 2011 and can, accordingly, be discounted. The Tribunal records that Mr Thompson’s evidence was that he experienced periods of significant depression while on holiday. Accordingly the Tribunal finds that on or immediately after 24 June 2011, Mr Thompson was suffering a mental illness which was outside the boundaries of normal mental functioning or behaviour and that this condition, following immediately after the 24 June 2011 performance appraisal was significantly contributed to by his employment.
56. The next issue is whether that condition continued up to and including the end of August 2011. The Tribunal notes that Mr Thompson was certified by Dr Lin to be unfit to work from 24 June until 4 September 2011, later revised to 29 August 2011. Dr Lin gave evidence that after the performance review Mr Thompson’s mental state deteriorated and he was quite distressed, that he was not able to return to work to face his supervisor and would suffer a relapse of his condition if he attempted to do so. Dr Lin’s opinion was that after the events of 24 June 2011, Mr Thompson was not fit for full-time work and his certification of fitness to return to work as from 29 August 2011, was only on the basis of a graduated return, and for duties that fitted his competence.
57. Dr Bertucen considered his condition had resolved by early December 2011 when he saw Mr Thompson. Dr Hundertmark said that Mr Thompson’s condition of major depression continued from 27 September 2011, at the time of his consultation, until the time of his supplementary report in May 2012. Dr Westcombe also considered that Mr Thompson’s condition continued until 2012. However, both Dr Hundertmark and Dr Westcombe only saw Mr Thompson in October and September 2011 respectively. Dr White’s view was that Mr Thompson was not suffering any disabling mental condition as at 22 August 2011, a view he had initially come to on 8 June 2011.
58. In these circumstances the Tribunal finds that Mr Thompson’s condition of major depressive disorder or adjustment disorder, acute, meant he was not fit for work at least until 29 August 2011. The Tribunal prefers the views of the treating practitioner, and of the psychiatrists, Doctors Bertucen, Hundertmark, and Westcombe (the treating psychiatrist) over that of Dr White. The opinion of Dr White was reached prior to the events of 24 June 2011. Further, although that opinion was repeated in August 2011, the Tribunal is not satisfied that there was an adequate assessment made on that day, given the evidence which it accepts concerning Dr White’s confusion about the reasons for Mr Thompson’s appearance at his rooms in August 2011, the length of that consultation, and the length of his supplementary report.
59. That means Mr Thompson’s claim for incapacity payments for the periods 1-5 August and 8-10 August 2011 should be upheld, subject to whether liability is excluded for the condition because it was caused by ‘reasonable administrative action taken in a reasonable manner’.
Reasonable administrative action taken in a reasonable manner’ (sections 5A of the Act)
60. The events of 24 June 2011 arose from a performance assessment conducted by Mr Eric Swan, Mr Thompson’s direct supervisor. A performance appraisal conducted mid-year is described in the policy on the Performance Appraisal System as a ‘formal system’. That assessment was ‘administrative action’ since it was ‘action with respect to the employee as employee and his or her employment relationship with the employer’.[5] Although Mr Thompson suggested in evidence that he believed the discussion with Mr Swan was not a formal performance assessment, the Tribunal is satisfied on the evidence that even an informal performance discussion concerning Mr Thompson’s performance would have fallen within the meaning of ‘administrative action’ and the non-exhaustive examples in section 5A(2)(a), (e) of the Act. Nor can it be excluded from ‘administrative action’ on the basis that it was ‘operational feedback’, namely, something which occurs as part of general ‘discussion or directions concerning the work duties and operational activities of the employee’.[6] Rather, this discussion was taking place within the framework of the formal biannual employment actions, by an employer in relation to a specific employee, and was, accordingly, ‘administrative action’.
[5] Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181, per Gray J at [30]; agreed to by Rares & Tracey JJ at [57].
[6] Re Fox and Comcare (unreported, Member Webb, 5 April 2012) at [25]
61. The principal issues are whether that action was ‘reasonable’ and whether it was taken ‘in a reasonable manner’. What is ‘reasonable’ is a question of fact.[7] Reasonableness is a chameleon-like concept, tailored to the specific circumstances, including in this matter, the criteria relating to Mr Thompson’s employment in the Australian Public Service.[8] As a minimum, to be reasonable the action must be lawful.[9] The test is objective[10] and requires an examination of whether the administrative action is ‘sensible, moderate, … tolerable [and] fair’.[11] The administrative action may be ‘not greatly less nor more than might be expected’[12] in the circumstances.[13] This requires an exercise of judgment about which, in borderline or difficult cases, minds may differ.[14] The tests are not what is correct or preferable as this would substitute the test for merits review for a test of ‘reasonableness’.
[7] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [76].
[8] Re Lynch and Comcare (2010) 114 ALD 394 at [106].
[9] Comcare v Chenhal (1992) 37 FCR 75; Re Lynch and Comcare (2010) 114 ALD 394 at [105].
[10] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [66].
[11] Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009) at [22].
[12] Ibid.
[13] Ibid.
[14] Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331 per French J at [76].
62. Performance appraisal is covered by the Department of Finance and Deregulation Collective Agreement 2009-2011 (Collective Agreement) and includes ‘regular and considered feedback’ on an employee’s performance.[15] Mr Thompson had undertaken performance management assessments every six months and, in addition, in the period under consideration, he had received considerable feedback from Mr O’Rourke, his then supervisor.
[15] Department of Finance and Deregulation Collective Agreement 2009 – 2011) (Collective Agreement) clause 143. See also the ‘Performance Management’ policy at T55.1.
63. The issue is whether his performance should have been assessed against the matrix of requirements applying to an employee at the EL1 level in the agency. That raises the question of what standards of performance applied to him. There is also an issue of whether the matter was predetermined, not allowing for further input and possible change of assessment from an employee.
64. The Collective Agreement states in relation to underperformance:
Finance will deal with underperformance of an employee with regard to the following:
·Working with the employee to restore performance of the employee to an acceptable level;
·The individual circumstances of the employee, including any health issues;
·Natural justice and procedural fairness;
·Learning and development as the focus for improving performance; and
·Performance measures and standards to be clearly defined.[16]
[16] Collective Agreement clause 150.
65. The policy entitled the ‘Performance Appraisal System’ which is contained in the agency’s Operational Plan[17] contains the details of the steps involved in a performance appraisal.[18] The Tribunal is alive to the need not to give legislative status to the terms of the Collective Agreement and its attendant policies.[19] Nonetheless the Tribunal considers it useful to refer to its terms and the related policies in order to identify the context in which the administrative action is to be located, and the matrix of ‘rules’ or principles on which the administrative actions were or should have been based.
[17] Note following the response by Ms Miles to Mr Thompson’s claim for compensation for the 24 June 2011 injury at T55, 273.
[18] T55.2.
[19] Kucks v CSR Ltd (1996) 66 IR 182
‘Working with the employee to restore performance of the employee to an acceptable level’
66. On the evidence, which the Tribunal accepts, Mr Thompson had been on notice since a performance assessment for the period December 2008 to May 2009, before he suffered his accepted injury in September 2009, of the need ‘to develop his brief writing and letter writing skills’. So, although this and subsequent performance assessments, until the one on 24 June 2011, had rated him Fully Effective, the rating did not mean he should have had no concerns about performance.
67. Ms Miles’ evidence was that on Mr Thompson’s return to OBPR, Mr Thompson was ‘advised about the expectations in terms of his performance’ in a meeting on 7 January 2011 between Mr Thompson, Ms Williams, Ms O’Rourke and Mr McNamara. In particular Ms Miles’s evidence was that Mr McNamara made it very explicit at that meeting that, like other EL1s, Mr Thompson would be expected to analyse a range of regulation impact statements in areas with which he would be unfamiliar. She said Mr Thompson had responded that he ‘was agreeable to the standards expected and expressed confidence in his ability to deliver on those outputs’.[20]
[20] Note following covering letter dated 9 September 2011 from Ms Miles to Comcare in relation to Mr Thompson’s claim for compensation.
68. Miss O’Rourke, who was Mr Thompson’s supervisor from 11 February until May 2011, provided a detailed note on feedback she had given Mr Thompson in sessions on 30 March 2011 and 4 May 2011.[21] In essence the deficiencies she identified to him at those sessions included the drafting of advices concerning Regulatory Impact Statements, specifically relating to content, appropriateness and detail, analytical ability, and ability to identify key aspects of a proposal. She had also identified a need for him to improve the accuracy and comprehensiveness of his notes of meetings. He was also advised, according to a covering letter dated 9 September 2011 from Ms Miles to Comcare in relation to Mr Thompson’s claim for compensation, to be more proactive about seeking assistance and feedback. The final session with Ms O’Rourke noted that Mr Thompson had improved, but that he ‘would need to cement the level of performance consistently into the future’. Given the intensive advice and feedback Ms O’Rourke had provided to Mr Thompson from February 2011, it is not likely that Mr Thompson was unaware of these issues with his performance, nor of the standards expected of him in relation to his performance.
[21] Attachment H.
69. So although Ms O’Rourke and others, by way of encouragement had highlighted his achievements and given him positive feedback, that did not mean he was not aware that he needed to improve in areas to reach an appropriate EL1 standard. Indeed, Mr Thompson said at the hearing that he knew what his performance as an EL1 used to be like and he was aware that in 2011 he was not doing as well. In summary, there was no breach by the agency of the requirement that the employee should receive ‘regular and considered feedback’.[22] The Tribunal is satisfied that there was no justification for Mr Thompson’s claim that he had not been warned that there were deficiencies in aspects of his performance or that his performance was only suffering from ‘minor issues’ as he had asserted.
[22] Collective Agreement clause 150.
The individual circumstances of the employee, including any health issues
70. It was contended by counsel for Mr Thompson that his individual circumstances, including his health issues, had not been taken into account in the performance appraisal. Mr Thompson said he had been told he would not be subject to a performance appraisal and was only expecting an informal discussion on 24 June 2011. His explanation for his provision of an ‘achievements’ document prepared for the performance assessment session was that he had provided it because Mr Swan had been his supervisor for only just over a month and hence this document was for his information.
71. The Tribunal is not satisfied that Mr Thompson did not know he was to undergo a regular performance appraisal. He had been notified in advance of the date of his assessment and had apparently prepared in consequence. On balance, the Tribunal accepts that it was reasonable administrative action to hold a performance appraisal for Mr Thompson.
72. The real issue is whether Mr Thompson should have been assessed against full EL1 criteria. Ms Miles agreed there was an understanding that Mr Thompson would not be assessed against normal EL1 criteria because of his return to work program and that he was only to be assessed against the criteria he was medically certified as fit to perform. Mr McNamara also said that had Mr Thompson been medically assessed as unfit to perform certain duties he would have directed this be taken that account in his appraisal. In his view, however, the only medical restrictions relating to Mr Thompson were his hours of work, not his duties.
73. Mr McNamara said he would only take health issues into account for people who were not certified as fit for duty, and that was not the position of Mr Thompson, particularly as by the week of the performance assessment Mr Thompson was working 28.5 hours, and Miss O’Rourke had assessed at the handover in May 2011 that Mr Thompson’s performance was satisfactory. In addition, although Mr Thompson’s evidence was that his limited hours were because he experienced tiredness and his Avanza medication was affecting his concentration and memory, the dosage of that medication was at a minimal level, and Dr Toh’s evidence was that a dosage at that level would not affect concentration or memory. In addition, Mr McNamara’s assessment, based on the certificates provided by Dr Lin, the Suitable Duties Plans, as well as Dr White's 8 June report, was that Mr Thompson was fully fit, albeit only for part-time duties.
74. Medical certificates from Dr Lin prior to 24 June 2011 state that Mr Thompson was only fit for ‘modified light duties’. However, Dr Lin said in oral evidence that he meant by this expression limited hours, no pressure concerning deadlines, and only a reasonable amount of computer screen work. These were not limitations on duties. Even the last two restrictions could be encompassed under the limitation on hours of work. There were no suggestions in the medical certificates up to 24 June 2011 that Mr Thompson should not work in OPBR, and Mr Thompson had resumed work in that division in February 2011. In addition, Dr Lin said in evidence that Mr Thompson was fit to return to full-time hours of work in the week leading up to 24 June 2012. It was not until after 24 June 2011 that Dr Lin’s medical certificates refer to work ‘fit for his current competence’, indicating a limitation on the type of duties he was fit to perform, as well as on his hours.
75. So, in the week prior to the performance appraisal there was evidence that Mr Thompson had increased his hours to 28.5 hours, and it was expected, as indicated by Ms Miles, and more tentatively by Mr Thompson, that after his six week overseas holiday he would be fit to return to full-time employment, the goal of his return to work plan.
76. On that basis the Tribunal finds that on the information available up to the date of the performance appraisal, it was reasonable to assume that Mr Thompson’s health was not a factor which should preclude him being performance assessed as an EL1 in OBPR. Nor is the Tribunal satisfied that there had been any undertaking that he was not to be performance assessed. The principal health limitation known at that time was that he was working restricted hours and needed to take breaks every hour. There were no limitations as to the kinds of duties he could perform. As Mr McNamara said in that context his performance would be assessed against that of a person who was working part-time at level.
Performance measures and standards to be clearly defined
77. Mr Thompson had been advised in the 7 January 2011 meeting that he would be expected to meet the standards of an EL1 in OBPR when he returned to OBPR in January 2011. His list of achievements prepared for the performance appraisal[23] indicated Mr Thompson understood his role to be responding to preliminary assessments, preparing background papers relating to assessments, examining Cabinet submissions in relation to regulatory impact statements and attending meetings. These are all duties of an EL1 in OBPR, in line with the general requirements of an EL1 in the agency.[24] In addition, the duties listed in the Suitable Duties Plans are functions which would be performed by someone at the EL1 level in OPBR. In other words, the performance measures and standards against which Mr Thompson was to be assessed were defined and understood by him and were those of an EL1 in OBPR. There was no indication in any of these documents of any EL1 duties which Mr Thompson was certified unfit to perform. That means there was no deficiency of administrative action in relation to the standards or measures against which Mr Thompson was to be assessed.
[23] Attachment C to the covering letter dated 9 September 2011 from Ms Miles to Comcare in relation to Mr Thompson’s claim for compensation.
[24] T55.2., 280.
78. The upshot is that the performance appraisal of Mr Thompson was administrative action, it was reasonable in that the assessment was made taking into account the limitation on his hours of work due to his health, thus meeting the requirement that the assessment take account of the individual circumstances, including health issues of the person. The assessment was also being made against the duties performed by an EL1 in OPBR, duties such as those listed in Mr Thompson’s achievements document, and in his Suitable Duties Plans. That was reasonable. That leaves for consideration whether the administrative action was taken in a reasonable manner.
‘Reasonable manner’
79. In Re Georges and Telstra Corporation Ltd Dr Campbell addressed the issue of what it means to take action ‘in a reasonable manner’. As he put it:
[T]he fact that the action has to be taken in a reasonable manner in so far as it relates to an employee’s employment, clearly implies that objective consideration of circumstances both leading to and creating the reasons for the administrative action to be undertaken and a consideration of circumstances that may flow as the consequence of such administrative action being taken. In such circumstances, where administrative action to be taken involves consideration of circumstances particular to the individual, implementation in a reasonable manner implies that the particular circumstances of the individual known to the employer and impliedly to the maker of the administrative action be considered. Further the circumstances of the individual that could have become known by simple enquiry should be considered. ...[W]hile the assessment of ‘ in a reasonable manner’ relates to the administrative action contemplated and does involve the possible consideration of a variety of circumstances, the underlying assessment standard must remain an objective assessment of all the material that has been collated or should have been collated. I would also recognise that particular administrative action as pertaining to an individual employee [is] usually taken in accordance with a corporate policy framework and administrative instructions – frameworks and instruction that have been created as a consequence of consultation with staff and others, and often as such provide the context within and the context of a particular administrative action ... taken.[25]
[25] Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009) at [69]
80. There has already been discussion of the ‘circumstances particular to the individual’ and ‘the particular circumstances of the individual known to the employer’. That discussion has been ‘in accordance with a corporate policy framework and administrative instructions’. The next issue is whether that discussion took into account ‘the circumstances of the individual that could have become known by simple enquiry’.
81. Mr McNamara said he had taken into account the discussion he had with Dr White after his 8 June consultation with Mr Thompson and the certificates by Dr Lin and the Suitable Duties Plans for Mr Thompson’s graduated return to work. Mr McNamara had not sought any other information. As Mr McNamara said he had the views of the treating general practitioner whom it could be assumed would be supportive of Mr Thompson and a report from Dr White commissioned by the agency. So he had opposing views by medical experts, including from a psychiatrist, and he believed he was adequately advised. The Tribunal is satisfied that it was not unreasonable for Mr McNamara not to have sought other medical opinions. In support of that finding, Mr McNamara’s understanding was that the purpose of the graduated return to work program was to return Mr Thompson to full-time work in OBPR, that prior to his going on leave in June 2011 Mr Thompson was working 28.5 hours in that week, close to the 37.5 hours for a full-time employee, it was anticipated that he would return to full-time hours on his return from leave. He also took into account that Dr Lin had not certified that Mr Thompson was not fit for duty or had changed the graduated return to work program. In those circumstances, it was not unreasonable for Mr McNamara to rely on the available evidence he had on 22 June 2011 without seeking other views in making a decision that Mr Thompson should be performance assessed as an EL1.
82. Another contention relating to the manner in which the appraisal was managed, was that it was not reasonable for Mr McNamara to have had an oral report from Dr White on 8 June 2011 of which Mr Thompson was unaware at the time of his performance appraisal. It was contended that the fact that he had done so was not reasonable because it was a breach of natural justice in that it had the potential to influence the outcome.
83. Mr McNamara explained that he had spoken with Dr White on the day of the consultation at the suggestion of the human relations section because it was known that the preliminary meeting of the executive in preparation for the performance appraisal was to be held on 22 June 2011 and Dr White’s written report might not then have been received. The Tribunal finds that for Mr McNamara to have spoken with Dr White on 8 June 2011 was not unreasonable in the circumstances.
84. Did the failure to disclose this information to Mr Thompson prior to the performance appraisal mean it was not undertaken in a reasonable manner? When the written report was received – there is no date stamp on the report and Ms Miles evidence was only that it arrived on either 22/23 June 2011 - the report was sent to Dr Lin. Dr Lin said he had no recall of when he received the report. However, since his medical certificates on 22 June 2011 and on 24 June 2011 did not appear to contain any information based on the report, and his clinical notes for Mr Thompson’s visits contain no reference to the report until 10 August 2011, it is unlikely that the report had been sent to Dr Lin earlier than the letter sent to Mr Thompson on 23 June 2011.
85. Dr Lin said he did not disclose the contents to Mr Thompson because he was concerned it might upset him and Mr Thompson’s evidence was that he had never seen the full report. A summary of the recommendations was sent to Mr Thompson by letter from Ms Miles dated 23 June 2011, but the letter had not reached him before the performance appraisal on 24 June 2011. So Mr Thompson was unaware of the recommendations at the time.
86. The issue is whether there was a breach of natural justice in Mr Thompson not having information about the recommendations or content of the report prior to 24 June 2011. That depends on whether the adverse assessments in the report were significant in relation to the assessment of Mr Thompson’s performance. As the majority of the High Court said in Saeed v Minister for Immigration and Citizenship:[26]
The concern of [the natural justice hearing rule] is that procedural fairness be applied in the process of decision-making in circumstances where a person’s rights or interests may be affected by the decision’. … [T]he rule requires that an opportunity to given to a person to deal with adverse information that is credible, relevant and significant to the decision to be made.[27]
[26] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Swisse Vitamins Pty Ltd v Complaints Resolution Panel [2012] FCA 536 at [80] per Tracey J.
[27]Saeed at [2] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Heydon J agreeing in the outcome. See also Kioa v West (1985) 159 CLR 550 at 629 per Brennan J; at 569 per Gibbs CJ; at 582 per Mason J; at 602 per Wilson J, and at 633 per Deane J.
87. The adverse information included that Mr Thompson ‘appears to be unwilling to work to work rather than unable to work for medical reasons’, that there was ‘no justification for [Mr Thompson] receiving Workers Compensation benefits in September 2009, let alone continuing to receive benefits some twenty-one months later’, and that his ‘suboptimal vocational functioning’ was not due to any recognisable mental illness. The issue is whether that information affected the outcome on 22 June 2011 and 24 June 2011. The opinion as to ‘suboptimal vocational functioning’ was adverse, but had been provided to Dr White by the agency.[28] In that event, the comment, which would go directly to Mr Thompson’s assessment, would not have affected the decision–making of Mr McNamara or Mr Swan, since both would already have been aware of that problem. Indeed Mr McNamara stated that the report only ‘reinforced our original belief’.
[28] Dr White’s report, 8 June 2011,T37, 176.
88. The other adverse comments related to suggested malingering, unjustified receipt of workers’ compensation benefits, and absence of any recognisable mental illness. In relation to the comment about malingering and absence of mental illness, Mr McNamara said that in light of Dr White’s report, which confirmed the agency’s existing view, he proceeded on the basis that Mr Thompson was fit to do the work. That information was supported by Dr Lin’s certifications at that time, by the relevant Suitable Duties Plan, by Ms Miles’s assumption that he would be returning to full-time work, and by the fact that Mr Thompson was then working 28.5 hours a week. In other words, whatever the effects of the mental illness he suffered, these appeared to be dissipating, and that any suggestion about malingering appeared to be outdated given the expectation that Mr Thompson would return to work full-time after his leave. In other words the adverse information was either negated by other evidence, or was only confirmatory, not determinative. He also noted, however, that Dr White’s report did not influence the assessment since that was based on his performance at work.
89. The performance appraisal of Mr Swan which found that he ‘Requires Development’ was focused in its comments on vocational, not health or personnel, matters. For example, the ‘Overall Assessment’ referred only to ability to meet deadlines, analytical and conceptual skills, written communication skills and judgment. To that extent, the adverse comments of Dr White although they may have related were either not ‘credible, relevant and significant’ ‘to the decision to be made’,[29] or only confirmed views already reached. In those circumstances, there was no breach of natural justice in the failure to disclose Dr White’s report to Mr Thompson either in full or in summary prior to the performance appraisal on 24 June 2011.
[29] Id at [2] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Heydon J agreeing in the outcome. See also Kioa v West (1985) 159 CLR 550 at 629 per Brennan J; at 569 per Gibbs CJ; at 582 per Mason J; at 602 per Wilson J, and at 633 per Deane J.
90. Another contention in relation to the unreasonable manner of the performance appraisal was that the process did not meet the agency’s policy on performance appraisal. The policy states that the Performance Management System ‘promotes open, two-way feedback’. The applicant’s argument was that the executive management meeting on 22 June 2011 predetermined the outcome in relation to the people to be assessed and this meant Mr Thompson had no opportunity to provide ‘feedback’ which might have changed the assessment.
91. The Tribunal finds that it was not unreasonable for the executive committee to meet in advance of the performance appraisal sessions in order for there to be some degree of consistency in the assessments of officers at the same level. Nor does the Tribunal accept that there is a distinction between ‘an appraisal’ and a ‘ratings’ process. As the Oxford English Dictionary online records, to appraise today includes ‘b. To evaluate (an employee) formally in terms of progress, performance, etc.; to make an appraisal or assessment of’, an apt description of the process which Mr Thompson and others were facing.
92. There remains an issue as to whether Mr Thompson’s ‘feedback’ might have changed the outcome at the assessment. The contention was based on the fact that the executive management meeting discussed in advance all the officers subject to performance and in effect cemented the ratings. Mr McNamara told Mr Swan what to say to Mr Thompson and it was agreed this would not be changed at the performance appraisal. That meant it was not possible that any objection by Mr Thompson could have affected the ratings at the time. However, there was an appeal from the assessment and evidence was given that ratings had been changed in the appeal process.
93. The Tribunal notes that at the session Mr Thompson had not argued against the rating, as indicated by Mr Swan’s minute after the meeting. Indeed he had conceded, according to that minute, that he was not operating at his former level due to his health and medication. That concession was confirmed by Mr Thompson at the hearing. In addition, the policy on performance assessment notes that the process is ‘an appraisal, not a negotiation’ which appears to limit the opportunities for ‘feedback’. In those circumstances, the Tribunal is not satisfied that the process was so unfair as to amount to a breach of procedural fairness.
94. Finally, the Tribunal is not satisfied that Mr Swan did not meet the requirement that ‘before the formal discussion each Manager will seek feedback on the individual’s performance from a range of sources’. Mr Swan said in evidence that he had sought input into his draft from Ms O’Rourke who had not disagreed in substance with the ratings. So he had met that step in the process.
95. In conclusion, the Tribunal is satisfied that:
· The symptoms of Mr Thompson’s accepted injury had resolved on or before 24 June 2011;
· Mr Thompson suffered a new injury, namely, a major depressive illness arising out of his employment, due to the events of 24 June 2011;
· However, the events of 24 June 2011 were ‘reasonable administrative action taken in a reasonable manner’ and as a consequence, there is no liability for the effects of the administrative action on his capacity to work on 24 June 2011 up to and including 29 August 2011 (section 5A(1), (2) of the Act).
96. In summary, that means, Mr Thompson was not entitled to any incapacity payments under section 19 of the Act for the periods 1-5 August 2011, and 8-10 August 2011, as his accepted incapacity had ceased. Nor was he entitled to payment for those periods in August under section 19 in relation to his major depressive illness sustained on 24 June 2011, as the injury was due to reasonable administrative action taken in a reasonable manner. Accordingly, Comcare is not liable to pay compensation for that condition In those circumstances, the outcomes of the decisions under review are affirmed.
I certify that the preceding 96 (ninety six) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Professor Bernard Hughson, Member.
............................[sgd]............................................
Associate
Dated 31 October 2012
Date(s) of hearing
27 - 29 August
Counsel for the Applicant
Clare Carnell
Advocate for the Applicant
Brian Hatch
Solicitors for the Applicant
Brian Hatch Solicitor
Counsel for the Respondent
David Richards
Advocate for the Respondent
Kate Watson
Solicitors for the Respondent
Comcare
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12
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