Graeme Lean and Comcare
[2013] AATA 374
[2013] AATA 374
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/1609
Re
Graeme Lean
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 4 June 2013 Place Brisbane The decision under review is affirmed.
..........................[Sgd]..............................................
Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – INJURY – failure to obtain promotion – whether disease suffered as result of reasonable administrative action taken in reasonable manner – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14
REASONS FOR DECISION
Deputy President P E Hack SC
The applicant, Mr Graeme Lean, worked in the Australian Taxation Office (the ATO) for a number of years. In 2010 he developed a psychological condition described as generalised anxiety disorder. Mr Lean considered that the condition arose out of, or in the course of, his employment with the ATO. He made a claim for compensation but the respondent, Comcare, rejected his claim. Comcare determined that whilst Mr Lean's condition was significantly contributed to by his employment with the ATO, the condition was not compensable because his failure to obtain promotions sought made a significant contribution to the onset of the condition.
Mr Lean seeks a review of Comcare's decision.
For the reasons that follow, I have concluded that the claim was rightly rejected and that the decision should be affirmed. Those reasons are best illustrated by reference to a chronology of events.
Mr Lean was born in 1951. He was employed by the Commonwealth between 1970 and 1987 and was then self-employed for some years. Then until 2005 he was employed by an agency of the Queensland Government. In May 2005 he commenced employment with the ATO. He was then aged 53 years but joined at a fairly low level (APS3) because it was in his interests to re-establish his entitlement to superannuation under a Commonwealth scheme. By January 2008 Mr Lean had been promoted to an APS6 level in a Team Technical position in the ATO Chermside office.
During 2009 the ATO set up a team of officers focusing upon one particular segment of tax payer. Mr Adam Kliska (who was based in Melbourne) was the director of the team, initially on an acting basis. In September 2009 Mr Lean was appointed to an Executive Level 1 (EL1) Team Leader position in Mr Kliska’s section on a temporary basis for three months. In December 2009 the ATO advertised to fill the positions in the new team for a 12-month term. There were four EL1 positions to be filled at Chermside, one as Team Leader (the role Mr Lean was undertaking on an acting basis) and three as Technical Leaders.
Mr Lean applied for the Team Leader position. Mr Kliska was the selection panel. He says that he considered the applications lodged for the position and, by reference to the written applications, determined that four candidates stood out, Mr Lean, Mr P (the eventually successful applicant), and two others. He contacted Mr Cameron Unwin, who held a position as an EL2 at the Chermside office and sought Mr Unwin's input about the four applicants he had identified. A short time after Mr Kliska's e-mail, enclosing the completed applications, Mr Unwin responded to him in these terms,
I'll have a look at the applications in more detail later today and chat on Tuesday, but I’m in the position of knowing the work of the other four candidates you have rated highly. From my knowledge of their income tax, managerial experience and likelihood of respect and acceptance from the teams, my input so far would be to rate them as follows
…
Mr Unwin ranked Mr P first and Mr Lean last. In January 2010 Mr Kliska appointed Mr P to the position. Mr Lean says he was told in February 2010 that his application had not been successful. He returned to his former role that month.
Mr Lean's general practitioner was Dr Mark Goss. Mr Lean attended Dr Goss on 2 March 2010 complaining of “poor sleep as stressed at work”. He saw Dr Goss on 12 March 2010 when Dr Goss noted “says stress levels at work still affecting him” and “finding it difficult to decide what to do”. There was a further attendance on 23 March 2010 when “stress relating to work” was discussed.
In May 2010 the ATO advertised a number of vacancies for EL1 positions. Mr Lean applied and was interviewed. On 4 October 2010 he was notified that he had not been successful and that he had not been rated well in the interview.
Mr Lean attended Dr Goss on 12 October 2010. The clinical notes record,
says feeling exhausted and demotivated as recent r/v[1] at work
says feeling down and admits depression
…
Dr Goss commenced Mr Lean on an anti-depressant medication. It is to be noted that whilst Mr Lean attended Dr Goss (or a colleague in the same practice) between 23 March 2010 and 12 October 2010 there is no attendance with a complaint of “work stress” or suchlike recorded in the notes of any of the five visits during that period.
[1] This appears to be an abbreviation for “review”.
In February 2011 the ATO undertook a further exercise to recruit at EL1 level. Mr Lean again applied.
In early March 2011 Mr Lean was the team leader at an ATO “raid” i.e. a visit to premises without notice to exercise the Commissioner's statutory right to full and free access to all buildings, places, books and documents for the purposes of the Income Tax Assessment Act 1936 (Cth). The day was very long and quite tiring and Mr Lean had some concerns about the safety of officers driving home after such a long day. He subsequently raised his concerns in an e-mail to management of the ATO.
Later in March 2011 Mr Lean was notified that he had not been successful in his February 2011 application for an EL1 position.
Mr Lean saw Dr Goss on two occasions in April 2011 complaining of feeling stressed and overwhelmed at work. The clinical notes of a visit on 5 April 2011 refer to “issues of personality clashes with managment [sic]”. Mr Lean was referred to a psychologist, Mr Ian Kershaw, for counselling. Mr Lean commenced sick leave for one month on 5 April 2011 after the first of these attendances on Dr Goss. From late July 2011 he commenced seeing Dr Angelo De Gioannis, a consultant psychiatrist. His sick leave was extended until August 2011.
Mr Lean returned to work on 15 August 2011. He lodged the present claim for compensation on 26 August 2011. It was refused on 28 October 2011. That decision was affirmed on reconsideration on 28 February 2012. These proceedings were commenced on 26 April 2012.
No lengthy reference to the legislation, the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), is necessary. By virtue of s 14 of the Act, Comcare is liable to pay compensation, in accordance with the Act, in respect of an “injury” suffered by an employee if the injury results in death, incapacity for work or impairment. There is no doubt that Mr Lean was an employee and that the condition suffered by him, generalised anxiety disorder, resulted in incapacity for work. The issue in this case is whether that condition is an injury.
That term is defined in s 5A of the Act as meaning,
(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. [emphasis added]
The term “disease” is then defined in s 5B of the Act as meaning,
an ailment suffered by an employee … that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth…
Comcare concedes that Mr Lean's condition satisfies that definition, the issue is whether the condition is excluded from the definition of injury by the words of exclusion emphasised above, that is, whether Mr Lean’s condition was suffered as a result of reasonable administrative action taken in a reasonable way. The expression “reasonable administrative action” is expanded upon by s 5A(2) in these terms:
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.
Whilst no medical witnesses were called I had the benefit of reports from Dr Nicholas Jetnikoff, a consultant psychiatrist, Dr De Gioannis, Dr Goss and Mr Kershaw.
Dr Jetnikoff saw Mr Lean in July 2011 for the purposes of assessing his fitness for continued employment in the ATO. The history taken by Dr Jetnikoff sets out in considerable detail Mr Lean's complaints about having been denied promotion and his view as to why that was so. It is necessary to set out some matters from Dr Jetnikoff’s report of 10 July 2011. He said[2],
It was clearly evident that he had resentment about some of the issues that have transpired in the previous two years and that he felt that he had missed promotion opportunities despite being adequate on merit….
Summary of Case
Mr Lean presents with six months’ history of decline in his functioning in the form of Generalised Anxiety Disorder and Obstructive Sleep Apnoea. He has had a history of some resentment due to lost job opportunities and this has built up in the context of a long history of anxiety and depression. He also has a long history of chronic fatigue. His symptoms, as they are now, have been present to some degree for 30 years or more but have not led to any functional incapacity in the past. He has a particular vulnerability to feeling inadequate and a lack of promotion has aggravated this feeling. He is frustrated with this and is not assertive with respect to addressing these concerns.
[2] Exhibit 1, page 45.
Dr De Gioannis provided two reports to Comcare, one of 18 August 2011[3] and another of 10 October 2011[4] but the substance of each of them is similar. In the second of them Dr De Gioannis recorded,
[Mr Lean] stated that most of the symptoms he had been suffering from were related to recent conflict at work. In particular he described that during the last 18 months with the ATO in various roles there had been a number of incidents were [sic] he felt discriminated against. Specifically Mr Lean mentioned two incidents where it felt he missed out on promotions due to biased perceptions of him by the management…
[3] Exhibit 1, page 60.
[4] Exhibit 1, page 180.
Dr Goss provided a shorter report of 22 September 2011[5] in which he noted that the stress experienced by Mr Lean was “in response to perceived unfair work performance reports, on a background of chronic depression and anxiety.”
[5] Exhibit 1, page 89.
Mr Kershaw's report[6] refers to Mr Lean having outlined,
details of incidents in the workplace where he disagreed with a workplace procedure which consisted of working long hours and a possible workplace safety incident involving fatigue and high stress levels.
[6] Exhibit 1, page 177.
In a statement lodged in the Tribunal in support of his application Mr Lean attributes the onset of his condition principally to the stress associated with the access visit of early March 2011. Additionally, and to the extent to which it might be concluded that his failure to obtain a promotion in February 2010 contributed to his condition, he contends that whilst that might have amounted to reasonable administrative action it was not undertaken in a reasonable manner. He identifies flaws in the process undertaken by Mr Kliska.
It is understandable that Mr Lean has that view however it is not supported by the medical evidence and, in particular, the contemporaneous documents. As the chronology above demonstrates, Mr Lean sought medical attention for stress complaints in March 2010, October 2010 and April 2011 immediately after failing to obtain a promotion. The histories recorded by the two consultant psychiatrists demonstrate that it was the failure to obtain a promotion that was the pre-eminent complaint made by Mr Lean. Moreover the statement provided by Mr Lean to Comcare makes no reference to any stress arising from the March 2011 access visit only his concerns about driver safety at the end of the day.
The evidence points overwhelmingly to the conclusion that it was Mr Lean’s failure to obtain a promotion to EL1 level that brought about his generalised anxiety disorder. Without more that is sufficient to exclude the condition from the definition of injury. However there remains Mr Lean's claim that the action involved in the refusal of promotion in February 2010 was not undertaken in a reasonable manner. It is understandable that Mr Lean is dissatisfied with that process. On the material available to me it appeared to have considerable shortcomings. In particular Mr Unwin, whose recommendation Mr Kliska accepted, made that recommendation on the stated basis of being “in the position of knowing the work of the other four candidates” and making reference to his “knowledge of their income tax, managerial experience and likelihood of respect and acceptance from the teams”. Yet in his statement prepared for these proceedings Mr Unwin said of Mr P that he did not know him “professionally or personally beyond a vague knowledge”. It is, at least, curious that Mr Unwin rated someone of whom he knew so little above the others in the selection and that he appears to have considerably overstated to Mr Kliska his knowledge of Mr P.
However even if I were to conclude that the actions at that time were not undertaken in a reasonable manner there is no evidence that would satisfy me that the condition suffered by Mr Lean was a consequence of that promotion process as distinct from his failure to obtain promotions on the other two occasions of which he makes no particular complaint. Mr Lean first sought treatment for the condition in October 2010. The Act, by s 7(4), deems the date of first seeking medical treatment as being the day on which an injury, being a disease, is taken to have been sustained. Whilst Mr Lean may have complained about stress in March 2010 there is no evidence that he had by then experienced symptoms of generalised anxiety disorder. On the evidence before me the only conclusion I am able to reach is that those symptoms emerged for the first time no earlier than October 2010 and that they emerged then and subsequently as a consequence of Mr Lean’s failure to obtain a promotion.
In those circumstances the decision under review was correct and will be affirmed.
I certify that the preceding 26 (twenty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC ....................[Sgd]....................................................
Associate
Dated 4 June 2013
Date(s) of hearing 27 & 28 May 2013 Applicant In person Counsel for the Respondent Mr CL Clark Solicitors for the Respondent Australian Government Solicitor
0
0
0