Gibson and Comcare (Compensation)
[2021] AATA 1183
•7 May 2021
Gibson and Comcare (Compensation) [2021] AATA 1183 (7 May 2021)
Division:GENERAL DIVISION
File Number(s): 2019/1543
Re:Stuart Gibson
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:7 May 2021
Place:Sydney
The reviewable decision is set aside, and the matter remitted to Comcare for consequential orders. The respondent is to pay the costs reasonably incurred by the claimant in connection with this proceeding as provided by s 67(2) of the Act.
...........................[sgd].............................................
Deputy President B W Rayment OAM QC
CATCHWORDS
WORKERS’ COMPENSATION – anxiety and depression – whether applicant suffered an injury or disease – whether injury or disease suffered in the relevant period – where date of index injury assessed retrospectively – where expert medical evidence conflicting – where disease in the relevant period found – whether disease arose out of or in the course of employment – whether employment contributed to disease to a significant degree – whether disease suffered as a result of reasonable administrative action taken in a reasonable manner – reviewable decision set aside and remitted – cost order
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467
Comcare v ZZRP [2019] FCA 952
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463REASONS FOR DECISION
Deputy President B W Rayment OAM QC
7 May 2021
Mr Gibson has worked for the Australian Tax Office (ATO) since approximately 2000. His level was that of an APS5 prior to July 2016. At that time, he was put on temporary higher duties, and for twelve months worked in Penrith at the APS6 level, which terminated at the end of June 2017, when he returned to Parramatta in his former role at the APS5 level.
During 2018 he consulted an ear, nose and throat (ENT) specialist who suggested he had a mood disorder and suggested on-referral to a psychologist. ln July 2018 he consulted a psychiatrist, Dr Brent Thomas, who diagnosed him as suffering from severe major depression with anxiety and panic attacks, together with significant pain secondary to his arthritis and a previous shoulder injury. Dr Thomas described his symptoms as very pronounced. He was concerned about suicidal ideation and the doctor at first wished to have him admitted to St John of God Hospital at Richmond. Instead, medication was administered, which led to significant improvement in his condition.
In 2018, Mr Gibson was having difficulties with his then team leader. Dr Thomas sought to reduce those difficulties by recommending that a proposed performance review be postponed for twelve months, a recommendation which Mr Gibson’s employers did not act upon.
Mr Gibson had not, before 2018, been informed by any medical professional that he may be suffering from any psychiatric condition, and did not in 2017 appreciate that fact, if it was so.
In 2018, Mr Gibson made a worker’s compensation claim against Comcare, nominating as the relevant period during which he acquired the condition the first six months of calendar year 2017. The claim was explained in evidence to relate to the costs of treatment, including that provided by Dr Thomas, and the cost of medication prescribed for him. For some time at least, he worked reduced hours for the ATO. This review is not intended to deal with any question of quantum, or incapacity.
When these proceedings were pending, consideration was given by Mr Gibson’s advisers to making a different claim, apparently relating to events which occurred in his employment in 2018, but although an adjournment was granted to enable that claim to be brought forward, and to enable a reviewable decision about it to be made and, if unsuccessful, to enable a further application for review to be made to the Tribunal, it was evidently decided not to take that course and this review has been concerned only with a claim founded upon the period of the first six months of 2017.
That poses the following questions, on each of which Mr Gibson must succeed in order to obtain a favourable decision from the Tribunal:
(a)Did Mr Gibson suffer from an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in the first six months of 2017, namely a disease, that arose out of or in the course of his employment by the Commonwealth, and was contributed to, to a significant degree by his employment: see sections 5A and 5B of the Act.
The logical starting point in considering issue (a) is to ask whether a disease was suffered or acquired in the relevant period of six months.
(b)If so, was the disease suffered as a result of reasonable administrative action taken in a reasonable manner, within the meaning of s 5A of the Act.
Opening this review, Mr Pattenden of counsel who appeared for the applicant, did not pin his client’s case to the exact disease suffered by Mr Gibson as later diagnosed by Dr Thomas. The reason for that submission may be because Dr Cocks and Dr Thomas did not agree about the precise diagnosis of Mr Gibson’s condition.
Much of the time spent during the hearing in the contest between the parties to this proceeding related to the first sub-issue, whether a disease was suffered in the relevant period. A contemporary diagnosis of a psychiatric condition was not made in 2017 and the fact that Mr Gibson himself did not recognise the fact that he was suffering from any non-physical ailment at the relevant time has to be kept in mind.
I heard from Mr Gibson, who was cross-examined, and from his partner, a lady who also worked for the same employer as Mr Gibson, although in a different section. She gave largely unchallenged evidence about changes she noticed in him in the relevant period. The applicant’s father was alive at the time and I heard evidence from Mr Gibson about what his father said concerning Mr Gibson.
Some contemporaneous medical records exist, and the evidence from the medical specialists about their significance was in conflict.
Mr Gibson gave evidence about his dealings with Mr Miller, his immediate superior during most of the relevant period. Mr Miller was called by the respondent, and his evidence impinged upon what I have called the two sub-issues in issue (a) as well as to issue (b).
I heard from Dr Thomas, and from two medico-legal witnesses, one called by the applicant and the other called by the respondent.
ISSUE (a)
The Disease Sub-issue
The Lay Evidence
I start with the lay evidence. Mr Gibson’s statement dated May 2019 explains that during 2017 he suffered from headaches and dizziness, and in May 2017 a collapse, which led to his being hospitalised overnight (mainly for investigation in the first instance). He says that he came to understand what had happened to him in 2017 during consultations he had in 2018 with an ENT specialist, a psychologist and later Dr Thomas, and that it was only in hindsight with the benefit of that advice that he attributed his (2017) ‘burnout and anxiety and depression’ to his employment, and made a claim for workers compensation.
Mr Gibson’s statement of July 2020 gives relevant background. His twelve-month period of acting in higher duties involved him moving to the Penrith office, where his partner also worked. In the first six months, he was supervised by Paul Robinson. In the second six months he was supervised by Anthony Miller, who did his supervision remotely from Melbourne. One difference between the two periods was that in the first six months, he did not accrue more than the maximum amount of flex time, but in the second six months his flex balance increased from 25 hours 24 minutes to 72 hours 41 minutes. The point made by Mr Gibson was that he worked longer hours when he reported to Mr Miller than he had worked when he reported to Mr Robinson. He said that under Mr Miller, all three staff members in the Penrith office were at or above the maximum flex balance.
He said that he felt he was unable to approach Mr Miller for days off on flex time. He said that when his father visited him, he asked to be allowed to work closer to the standard working day of 7 hours 21 minutes but this ‘never eventuated’.
He said that in May 2017 his father
expressed his concern to me during this visit about the effect that work was having on my mood, my personal life and relationship with my partner Lisa. He could see what I could not, that I was starting to withdraw socially. Dad also worked out from what my partner Lisa Delmar told him about me not sleeping that there were bigger issues and that I was not likely to start recovering whilst I was working for the ATO.
He next notes that on 15 and 16 May 2017 he was given sick leave due to headaches and dizziness and added: ‘I suffered with fatigue and insomnia’.
He next recounted the collapse of 19 May, pain he suffered on the night before his collapse and the fact that on the day before his left leg was 'corked’ when he was at the office. He said that the hospital could not determine the cause of his collapse and ‘put it down as a viral illness’.
Upon his discharge he was again put on sick leave from 19 May until 28 May.
In October 2017 he was diagnosed with seronegative arthritis by a rheumatologist.
In the last two paragraphs of his statement he said:
In hindsight I recognize that I was under a lot of stress and was experiencing increasing anxiety in the first 6 months of 2017, trying to deal with added work responsibility whilst trying to cope with increasingly disabling physical and undiagnosed psychological symptoms. I did not cope well in the second half of 2017 as I had undiagnosed and untreated symptoms of fatigue, pain, insomnia and anxiety with unexplained headaches.
In hindsight I not surprisingly ran up performance issues without understanding that I had developed a chronic psychological illness that needed active, professional intervention and treatment.
I have made efforts (perhaps without complete success) to limit my account of oral evidence of Mr Gibson, which follows, to that which relates to the disease sub-issue rather than other issues.
The daily routine in the relevant period was that Mr Miller would ring one of the team members in Penrith and then that call would be connected to all three Penrith team members. He said that of the other two staff members one was at the APS6 level, and the other was at least initially at the APS 4 level.
Mr Gibson said that during the six months when Mr Miller was in charge, he never arranged for flex time to be taken, contrary to the usual practice with which Mr Gibson was familiar. When Mr Robinson was in charge, he kept on top of the taking of flex time to keep its total down.
Mr Gibson said that when he started at Penrith, he would ride his bike to work. It was closer to his home. He found that while Mr Miller was in charge, he was too tired to do so, so he ceased to ride his bike to work.
After evidence about the riding of the bike was led objection was taken to it under s 66 of the Act. I would have given leave for the evidence to be given, if necessary, but I informed the parties later in the hearing that I did not think that the evidence about the bike riding was in substance a new matter, since the fact that the applicant was tired during the relevant period had been exposed in statements served before the hearing began. In any event the objection was not taken before the relevant evidence was given. Moreover, I allowed the evidence provisionally in the first instance, in case the respondent wished to assert any prejudice, and none was put forward.
Mr Gibson said that Mr Robinson knew that the applicant’s two work colleagues had five years’ experience with the job, and that Mr Gibson was new to it, and so Mr Robinson gave him a lot more support than Mr Miller did.
Mr Gibson said that he coped poorly with the work from the time Mr Miller took over, and that this was one reason why he had to work longer hours. He said he thinks he struggled with everything. He said that when he got home, he was feeling less like doing things at home, and was trying to recover when he got home.
Mr Gibson mentioned that with Mr Miller’s approval, and previously with Mr Robinson’s approval, he left work early to play golf, using flex time for that purpose.
During his oral evidence, Mr Gibson agreed with counsel for the respondent, Ms Patterson, that Mr Miller expressed concerns to him that his performance was lacking.
He also said that while it was not expressly requested, it was implied to him by Mr Miller that he should stay at work and finish work that he was asked to do. He denied that Mr Miller suggested to him that instead of working longer hours, he reminded Mr Gibson to go home.
He said that the occasions when he waited for his partner to finish work so they could go home together were a minority of days. Only very occasionally did he work longer hours so they could go home together.
Ms Patterson also put to the applicant that he had been suffering from headaches and dizziness in 2015. Mr Gibson recalled being prescribed medication for migraine, although the date was not confirmed by him. However, he said in re-examination that to his recollection the only time over the twelve months ending in June 2017 when he had headaches and dizziness was just before his collapse in May 2017.
Turning next to Lisa Delmar’s written evidence, it is I think true to say that it was, in substance, not the subject of cross-examination and I accept it. The statement was a short one and I set it out in full:
We began our relationship just more than 10 years ago. Given this time together, I make the following comments and observations about Stuart in the period before and after his collapse in our bathroom on Friday May 2017 - starting from about 1 January 2017.
In recognition of his skills- beyond his Parramatta Australian Taxation Office (ATO) role, Stuart was approached to work temporarily in a different role at ATO Penrith. I was glad to hear of this recognition and that he would be closer to home working at ATO Penrith.
A pattern developed with impacts for Stuart (and me). Although he had less travel time to the Penrith office, Stuart was leaving home before me and returning home by car after me. I also worked in Penrith and t made my way to Penrith and home by public transport most of the time.
Stuart's workdays were long principally because of resource shortages. Soon after starting. because his work area was short staffed it needed the staff on hand to perform more than normal work volumes. This meant Stuart would action those base and extra work volumes and return home most often with dark circles under his eyes and red eyes. He looked and sounded extremely tired from his work which relied heavily on viewing data on computer monitors. As it was a national role, Stuart often had to liaise with counterparts in other ATO sites, for example in Victoria and in Western Australia whose time zone was up to 3 hours behind Sydney. These factors delayed Stuart's ability to finish earlier or closer to the standard 7-hour 21-minute workday.
Stuart worked more than 9 hours in one day several times per week. He had told me he was over the normal allowable 'flex balance' threshold of around 36 hours. He said he had a balance of around 70 hours. This balance represented his working about 9 days extra assuming the 7-hour 21-minute workday.
His pattern of late arrival times home directly from work, along with his tired and red and dark circled eyes areas persisted after his work and over the weekends and never seemed to clear. Stuart was often abrupt in that he gave short, non-conversational replies to my questions about 'how his day was' or how he was feeling that day. Stuart had headaches and often appeared tense in his body, visibly around his shoulders and back. Stuart lost the sunny manner he would usually have at home.
As the months continued, Stuart lacked energy and interest in leisure time activities which could have been as simple as going for a drive for a change of scenery 1-2 hours from home.
Stuart did not always sleep through the night and became withdrawn and quiet. By 'quiet' I mean he was not talking as much at home as usual and tending to withdraw into himself. This meant we did very little talking or being with friends and family and we increasingly stayed at home. The frustration this caused me, particularly as the weekends passed without real shared time was climbing up to mid May 2017 and after. For example, when we would talk with his father and future step-mother by video chat my frustration would 'spill over' and I would tell them we had another weekend at home'. It was not unlike the isolated times many Australians are enduring at this very time - trying to stay home by choice in a non-mandatory lockdown - to avoid 'COVID-19' in the community. The key difference was I felt I had no choice as Stuart was not keen to be out and about in the world with friends - or even just with me - to travel out of our local area for the day or a few hours. Over that 6-month period we did not go to the movies, take more than 1 short drive away from home overnight or attend entertainment venues purely for the sake of enjoyment. We rarely ate outside of home or at restaurants to treat ourselves, only doing so when an occasion warranted it - i.e. Stuart's father's birthday.
This pattern continued for months - Stuart going to work, corning home to eat and sleep, then working again with little to no relaxation. On Friday morning, 19 May 2017, the cycle changed when I heard a loud noise in our bathroom. I was in the kitchen about to make breakfast. When l entered the bathroom, I found Stuart trying to get back up off the floor. He had fallen and was trying to support himself to stand by holding onto the cupboard. He found he could not stand as he did not have the strength. I supported him and assisted him back to bed.
Because he was affected mostly on one side of his body, I immediately called a health phone-line and then an ambulance. The first ambulance officers were not sure what the health issue was. Their shift was ending so they called a second ambulance team hoping they could determine the health issue.
They too were not sure and took him to hospital for assessment and care. It did not appear to be a stroke but by the time he was in the hospital bed, most joints in both sides of his body were swelling. This was causing pain and making movement of his limbs very difficult. The reason for the swelling was not determined during his hospitalisation.
After his collapse - Stuart had one week's sick leave. For the first few days at home he was regaining his strength walking. He returned to work on Monday 29 May 2017 after attending a GP consultation in the morning to receive pathology results. One result showed a high reading in his liver but later testing dismissed any liver issue. Stuart went to an interview for the role he had been performing on the same day - Monday 29 May 2017. Given he was performing the role he had reason to feel confident in his ability to do the job. He never mentioned receiving any negative feedback on his performance. Stuart told me that he felt the interview did not go well because he was not able to readily answer questions. I felt he still had not fully recovered and should have had more time off work.
Stuart tried to find out in June and early July what exact health issue caused his Friday 19 May 2017 collapse. We went through a busy June and July leading up to our family gathering for the very beautiful occasion of his widowed father's marriage. Stuart did not have a medical answer for the cause of his collapse until an ENT specialist suggested he had a mood disorder and psychiatrist Dr Brett Thomas advised that it was probably largely a psychological condition.
The cross-examination of the applicant by the respondent stressed the fact that events occurred in 2018 which had a significant and adverse impact on the applicant, and no attempt was made on behalf of the applicant to diminish the significance of those matters, such that it appeared to me that those matters were common ground throughout the hearing.
There was also evidence that Mr Gibson, with the consent of his employer, went to golf on Wednesdays, which he found enjoyable and beneficial, and when for a time in 2018 he was prohibited from doing so, that was one source of his agitation.
Another matter which should be mentioned is that when Mr Gibson’s mother died in 2010 he went through a period of depression, for which his general practitioner prescribed medication. Both sides led evidence which I accept, to the effect that one bout of depression might predispose a patient to a later bout of depression.
The Medical Evidence
Dr Thomas was, from July 2018, Mr Gibson’s treating psychiatrist. As with the other psychiatrists who gave evidence, he is appropriately qualified.
He did not examine Mr Gibson during the relevant period. He has expressed a view about Mr Gibson’s condition in June 2017 based mainly upon Mr Gibson’s own statements to him. His written statement expressly refers to the statement of Mr Gibson dated July 2020 which I have summarised in [15]-[22] of these reasons. He also adds a remark referring to the fact that seronegative arthritis may cause depression, and similarly that it may be caused by depression. In other words, if seronegative arthritis was to blame for his hospitalisation in May 2017, that may have been caused by pre-existing depression.
He explained at Tr 70:
In your opinion, are you able to express an opinion as to any relationship between his employment in the period of, say, January 2017 leading up to when he collapses on 19 May 2017 and his psychological condition?---From the information I have provided to me by Mr Gibson and also from his partner, the deterioration was – started early in 2017, around about January, February and he just continued to deteriorate. So I can understand why, yes, it might be taken to have been associated with and in fact caused by problems with stress in the workplace.
At Tr 72, he was asked in summary:
So am I correct in understanding your opinion is that at least as of May 2017 when Mr Gibson at least collapsed at presented to the Nepean Hospital he was suffering with his psychological condition to some degree?---Yes, yes, that’s my opinion.
Dr Thomas was aware that his account of what happened a year before he met Mr Gibson was not certain. Some of his answers in chief and in cross-examination stressed the difficulty he faced in expressing a view about the earlier stages of a condition which he saw in full bloom only in 2018. Nevertheless, he spoke to both Mr Gibson and his partner about the previous year’s events and applied his expertise when expressing his opinion to the Tribunal based upon their accounts. When I heard their evidence this year, I was impressed with their veracity.
Again, the cross-examination by the respondent sought and obtained from Dr Thomas evidence supporting the proposition that the events of 2018 had a significant and adverse effect on Mr Gibson at the time of the diagnosis by Dr Thomas.
The medico-legal evidence called from Dr Bhattacharayya followed a consultation with Mr Gibson in June 2019. The only conclusion expressed in the report was of a general nature. She said: ‘There appears to have been a significant contribution to the disorder which arose from employment factors which Mr Gibson claimed was from operational factors associated with his then employment’. The report relates to 2017 and 2018, rather than to the period relevant to this review, the first six months of 2017. In chief Dr Bhattacharayya was asked to accept that while working in higher duties, Mr Gibson had to work longer hours, and that it was observed by his supervisor, particularly from February 2017, that he was struggling to perform those functions, and that his partner observed him become withdrawn at home. She answered in the affirmative a question whether those factors were symptomatic of suffering a psychological condition prior to the collapse (in May 2017).
As with Dr Thomas, Dr Bhattacharayya was cross-examined about the fact that the events of 2018 significantly and adversely affected Mr Gibson at the time he was diagnosed by Dr Thomas, (and the other medical professionals, the ENT specialist, and the psychologist).
The respondent called Dr Cocks, who wrote reports in August 2019 and January 2021. He first assessed Mr Gibson in August 2019, some two years after the relevant period. He examined such medical reports as existed, the 2019 and 2020 statements of Mr Gibson, and the 2020 statement of Ms Delmar. In his report dated 30 January 2021, Dr Cocks expressed the following opinions:
In my opinion, the medical documentation does not reflect Mr Gibson's claim that he was suffering from psychological symptoms during the period of January 2017 to late June 2017 in relation to work place stress. As outlined in my original report, Mr Gibson was assessed by his General Practitioner, Dr Achuthan, on 17 occasions between 25 May 2017 and 5 March 2018. In all of these consultations there is no mention of psychiatric or psychological difficulties suffered by Mr Gibson in that period. The discharge paperwork from Nepean Hospital confirms that Mr Gibson was admitted on 19 May 2017 and discharged on 20 May 2017. It is stated that Mr Gibson presented with Migratory Polyarthralgia, likely due to a viral illness. I have reviewed the medical file in relation to this admission and I could not find any evidence of Mr Gibson or his treating team raising concerns for his mental health during that admission.
In my opinion, there are both work and non-work related factors that have contributed to the onset and perpetuation of Mr Gibson's Adjustment Disorder with depressed mood and anxiety. In my opinion, having assessed Mr Gibson, considered his account and the material provided, there is no consistent evidence suggesting that work was a significant contributor to the claimed condition between January and June 2017.
Asked in chief to say why he found it significant that the general practitioner’s notes from 2017 to March 2018 contained no reference to any concern with stress in the workplace, he said at Tr 146-7:
Can you tell the tribunal what you consider to be the significance, if any, of the GP file not reflecting concerns about stress in the workplace?---Well, generally, when patients present with mental health related difficulties, you know, they disclose them to their primary care physician. And it’s very common for patients to discuss mental health related concerns they may have with their general practitioner. In Mr Gibson’s case, he has demonstrated, in the medical evidence, that he is capable of meeting with primary care physicians and specialist physicians and discussing his medical issues with them. I think it is significant that there was an absence of discussion, documentation, with his general practitioner throughout 2017. Clearly, that’s definite in March 2018, when his mental health deteriorates and I think that is important because it gives some sense of timeline as to when Mr Gibson was suffering from (indistinct) difficulties.
Asked to comment on Ms Delmar’s statement which I have set out above he said:
I just wanted to ask you whether anything that you read in Ms Delmar’s statement caused you to change the opinions you expressed in your reports?---Ms Delmar’s statement, which I’ve read and I appreciate her concerns for Mr Gibson, although having considered her statement in the context of the extensive medical information in this matter that’s been provided, it does not alter my opinion.
The importance which Dr Cocks put upon the absence of records by medical professionals to the effects of workplace stress in 2017 appears clearly enough from those answers. Dr Thomas had two reasons for not giving over-much importance to the general practitioner’s records, which he expressed at Tr 70-71 as follows:
Some GPs are very good at general medicine and not very good at psychiatry … two, someone with a lot of involvement in sport, as Mr Gibson seems to be involved in, can sometimes dismiss symptoms of depression and anxiety and not present with them, not until they get extremely sort of incapacitating, as in the case with Mr Gibson.
The cross-examination elicited that tiredness, being withdrawn socially, both at home and in the social environment, interaction with people that might be abrupt, headaches, disturbance in sleep, including waking and thinking about work, a decline in cognitive ability were all consistent with the person suffering from a psychological condition such as Mr Gibson was found to suffer from in 2018.
Despite those concessions, Dr Cocks remained of the view, based upon the absence of contemporaneous medical records, that Mr Gibson did not suffer from a disease in 2017, or rather that there was no evidence that he did so.
Mr Miller’s evidence did support the view that he considered Mr Gibson to be slow in doing the work he was given to do, probably because of what he thought was a lack of cognitive ability to do work at the higher APS 6 level.
Discussion
If the applicant had put his case on the period one year after the relevant period, the “disease” sub-issue would have comfortably succeeded.
The main psychiatric contest is as between Dr Thomas and Dr Cocks as to the relevant period. Dr Cocks depended mainly on the medical records in failing to support the hypothesis which Dr Thomas advanced, albeit with hesitation.
The inferences to be drawn from the absence in the general practitioners’ notes of reference to any psychiatric condition are in my opinion less clear than was suggested by Dr Cocks. One important consideration is that the applicant stated that he was unaware of any psychiatric concern about himself in 2017. I accept his evidence in that respect. That fact would explain why he said nothing about it to the various general practitioners. Those practitioners may well not have probed to discover whether any psychiatric symptoms were present, but rather dealt with such physical ailments as were brought to their attention. For example, if symptoms mentioned in [51] above had been brought to the attention of general practitioners, the steps taken by the general practitioners may well have included a referral to a psychiatrist in 2017. The Nepean hospital notes seem to be concerned with the investigation of Mr Gibson’s physical condition, and although the hospital probably had staff with psychiatric training, Mr Gibson’s complaints in May 2017 would have been unlikely to flag the matter at that time.
Concessions made by Dr Cocks noted in [51] above are as to their consistency with the condition diagnosed in 2018, and do not involve that a hypothetical examiner in 2017 would, based upon those facts, have diagnosed any particular psychiatric condition. On the other hand, depression (but not panic attacks) might have been diagnosed at that time, and in the light of what Dr Thomas diagnosed in 2018, albeit in a different context of stress in the employment of Mr Gibson, the retrospective hypothesis advanced in evidence by Dr Thomas becomes more likely.
I think that the late father of Mr Gibson, who obviously knew him well, may well have analysed the situation well, in the passage I have set out from Mr Gibson’s evidence in [17] above. His remarks are also supported by the statement of Ms Delmar.
Not without some hesitation, I find myself satisfied that the disease sub-issue should be found in favour of Mr Gibson.
The Causation Sub-issue
I turn to consider the balance of the issues arising under issue (a). The disease arose in the course of Commonwealth employment. It also arose out of the employment, in that the employment instructions led Mr Gibson to work long hours, and he was likely also stressed by adverse comments about his performance made by Mr Miller.
The question whether the disease was contributed to, to significant degree, by Mr Gibson’s employment by the Commonwealth, especially in the light of s 5B(3) of the Act, raises the questions discussed by Flick J in Comcare v ZZRP [2019] FCA 952 at [10]-[15]. The causation test is whether the disease was “contributed to, to a substantial degree” as explicated in sub-sections (2) and (3) of s 5B of the Act, rather than, for example, any common sense test as described occasionally in the authorities: see Comcare v Martin [2016] HCA 43; (2016) 258 CLR 467 at 479 per French CJ, Bell, Keane and Nettle JJ.
Section 5B provides as follows:
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Among the matters with may be taken into account are those mentioned in paragraphs (a) – (e ) of s 5B(2). In this case, the employment in 2017 and previously, have been discussed generally. Before the one year’s higher duties starting in July 2016 the applicant had been an analyst working in quality assurance at the APS5 level for some years. During the year including the six months in question, he was temporarily placed on higher duties in a different section of the ATO called Enterprise Work Management (EWM) which was concerned with the planning area for debt management within the ATO nationally. The EWM planned recruitment including outsourcing, to ensure enough employees or contractors were available to handle the work, taking phone calls, issuing summonses and the like.
I have discussed Mr Robinson’s Role. When he ceased to supervise Mr Gibson, for about one month one of his fellow staff members took over as the supervisor in an acting role and in the second half of January 2017 Mr Miller took over the role as EL1, supervising the three staff members employed in EWM at Penrith, including Mr Gibson. His role included interacting with other ATO staff in Australia, by phone or email and occasionally by video conference. Mr Gibson was tasked with various matters from time to time, including during Mr Miller’s time. The tasks were sometimes difficult for him, and during Mr Miller’s time led to him spending longer hours at work, with the consequence that his flex time progressively mounted up. One example of those tasks mentioned by Mr Gibson related to the use of an Excel planning sheet.
The prior history of Mr Gibson included, as mentioned earlier, depression at the death of his mother in 2010, for which he was prescribed medication by his general practitioner.
The activities of Mr Gibson included golf on Wednesday, and some tabulation work done usually over an hour or so on Thursdays, because he had an office in the social club. During cross-examination he denied suggestions that more time was spent on tabulation, except when he caught up after his absence for hospitalisation and sick leave in May 2017.
Section 5B(3) was introduced by amendment to tighten the requirements for diseases in circumstances of multi-factorial causation. A degree which is substantially more than material will no doubt be present in a variety of cases. The sole cause will always satisfy the test, a major cause will often satisfy the test. A trivial cause will not satisfy the test.
In the present case, it seems to me that for this applicant, the only qualification which is appropriately made to the proposition that the employment was the sole cause of his disease is that the applicant had a prior case of depression in 2010, which predisposed him to suffer that disease later. It may also be said that someone with more aptitude for his employment would not have found the employment so stressful and tiring, and that others would have performed his tasks in less time, but those matters do not show that for Mr Gibson himself, the employment contributed to his acquiring the disease to a degree substantially more than material. Some more minor possible causes were suggested by the respondent, such as the possibility of the applicant’s partner having her own depressive illness (about which she did not give evidence), and the worsening of some of his partner’s family members’ dementia. However, the applicant did not suggest that those matters significantly distressed him and they are part of the vicissitudes of ordinary life, rather than something that was significantly likely to have caused his depression.
I find myself satisfied that the causation sub-issue should be found in favour of Mr Gibson.
ISSUE (b)
Section 5A provides as follows:
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5A(2)(f) may be relevant to the disappointment felt by the applicant when he learned in June 2017 that he would not be put permanently on higher duties. However, that disappointment was not part of the causal circumstances which led to the disease, summarised in [51] above. Those circumstances arose by or in May 2017.
In Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463, in the course of discussing s 5A(1) of the Act, Rares and Tracey JJ said:
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee's employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee's employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person's employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists — the person's employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at [72]-[73] per Dowsett J, with whom Spender J agreed. An analogy, although taken from a different statutory context, can be seen from the facts in Commonwealth v Rutledge (1964) 111 CLR 1. Thereafter working in her job for over four years, an employee, who was latently susceptible to developing paranoia, was required to perform new duties that involved her spying on fellow employees. Within two weeks the employee developed into an active psychotic. As Menzies J put it (at 11):
“ … it is sufficient, however, if the spying which was her employment for the time being, had in its nature something to aggravate a pre-existing condition of latent paranoia or to accelerate a change from that condition into that of active psychosis. Here I think the evidence did have the requisite generality.”
(Emphasis added.)
Here, Mr Reeve's employment included the tasks of attending the teleconferences and dealing with the consequences, results and outcomes of the customer surveys. Thus, the teleconferences, customer surveys and their uses were not administrative action taken in respect of his employment — they were part and parcel of his employment.
The non-exhaustive list of examples of “reasonable administrative action” in s 5A(2) could not confine the meaning of that expression as used in s 5A(1). So much follows from the chapeau to s 5A(2) that contained the words “without limiting” in referring to the expression “reasonable administrative action”: Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J with whom Barwick CJ at 674 and Aickin J at 680 agreed. Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee's performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee's employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1). Likewise, s 5A(2)(e) and (f) provided that this expression included anything reasonably done in connection with either any of the actions in s 5A(2)(a) to (d) or the employee's failure to obtain a different position or to obtain or retain a benefit in connection with his or her employment.
Each instance referred to in s 5A(2), however, concerned something outside the actual employment, or job, that the employee was required to perform. An appraisal involved reviewing how the employee performed his or her employment and so can be seen readily to fit into action taken “in respect of the employee's employment”. Each of the instances in s 5A(2) was of a matter that was in respect of, but apart from, ordinary duties or tasks of the employee's employment or job itself.
Those statements show, in my opinion, that the tasks, hours and workload committed to Mr Gibson, during Mr Miller’s time as his supervisor, were not reasonable administrative action taken in respect of the employee’s employment.
I should add that if it matters, I would resolve the conflict between Mr Miller and Mr Gibson, as to whether Mr Miller recommended that he leave earlier, in favour of Mr Gibson. I would prefer his evidence on the point not only because I generally accept Mr Gibson as a witness of truth but because I found some of Mr Miller’s evidence to involve deflection of any criticism of him as a supervisor. On the other hand, it should be said in his favour that in part by reason of his remoteness from the Penrith offices, he may not have been aware of the details of the effect that his tasking of Mr Gibson had upon him.
CONCLUSION
For all of those reasons I would resolve issues (a) and (b) in favour of Mr Gibson. The reviewable decision will accordingly be set aside, and the matter will be remitted to Comcare for consequential orders.
The respondent is to pay the costs reasonably incurred by the claimant in connection with this proceeding as provided by s 67(2) of the Act.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
........................[sgd]...............................................
Associate
Dated: 7 May 2021
Date(s) of hearing: 8, 9 and 10 March 2021 Date final submissions received: 7 April 2021 Counsel for the Applicant: Mr K Pattenden Solicitors for the Applicant: Mr D Lander, Lander & Co Counsel for the Respondent: Ms S Patterson Solicitors for the Respondent: Mr B O'Brien, Moray & Agnew Laywers
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