GSBX and Comcare (Compensation)

[2016] AATA 404

GSBX and Comcare (Compensation) [2016] AATA 404 (17 June 2016)

ReviewNumber:       2015/0299

Division	GENERAL DIVISION
File Number	2015/0299
Re	GSBX
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Senior Member J F Toohey
Date	17 June 2016
Place	Sydney

The Tribunal sets aside the decision under review and substitutes for it the decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act1988 to compensate the applicant for the injury that is the subject of these proceedings.

...........................[sgd].............................................

Senior Member J F Toohey

Catchwords

COMPENSATION – psychological condition – aggravation – whether employment contributed to a significant degree – whether reasonable administrative action – decision under review set aside

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B(1), 5B(2), 5B(3), 14

Cases

Comcare v Mooi 69 (1996) FCR 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Dean v Australian Postal Corporation and Another [2010] FCA 680
Hart v Comcare [2005] FCAFC 16

Wiegand v Comcare Australia [2002] FCA 1464

REASONS FOR DECISION

Senior Member J F Toohey

17 June 2016

BACKGROUND

1. GSBX has been employed by the Department of Human Services (DHS) since March 2006.  In 2012, while on maternity leave, she sustained a triple fracture of the ring finger on her left hand.  Three K-wires were inserted into her finger in June 2012 and removed on 6 August 2012, delaying her return to work by several weeks. 

2. GSBX returned to work on restricted duties at the Parramatta office of the DHS on 9 August 2012.  A rehabilitation provider was assigned to help with her return to work.  These proceedings concern events which GSBX claims occurred after her return to work, in particular from around November 2012 to February 2013.

3. GSBX ceased work at the Parramatta office in February 2013 and did not work again until December 2013 when she worked at the Merrylands office of the DHS for approximately three months.  She has not worked since February 2014.

4. On 27 March 2014, GSBX claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for anxiety and depression which she said commenced on approximately 1 November 2012.   She claimed her injury was the result of harassment and unfair treatment by her managers when she did not recover from her finger injury as anticipated. 

5. Comcare contends that GSBX’s employment did not contribute, to a significant degree, to her condition.  In particular, Comcare contends that GSBX suffers from borderline personality disorder, an effect of which Comcare says is her altered perception of events.  In the alternative, Comcare contends that, to the extent, if any, that her employment had a bearing on her condition, it was the result of reasonable administrative action, taken in a reasonable manner, in respect of her employment.

6. The question for determination in these proceedings is whether Comcare is liable under s 14 of the SRC Act to compensate GSBX for anxiety and depression.

   LEGISLATION

7. By s 14 of the SRC Act, Comcare is liable to compensate an employee for an injury that results in incapacity, impairment or death.

8. Section 5A of the SRC Act provides that injury for the purpose of the SRC Act means:

   (1)       (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.

9. Subsection 5B(1) provides that disease for the purposes of the Act 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.

10. Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development), and aggravation includes acceleration or recurrence: s 4.

11. Significant degree means a degree that is substantially more than material: subsection 5B(3).

12. In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment, account may be taken of: the duration of the employment; the nature of, and particular tasks involved in, the employment; any predisposition of the employee to the ailment or aggravation; any activities of the employee not related to the employment; any other matters affecting the employee's health: subsection 5B(2).

    DIAGNOSIS

13. GSBX suffered trauma as a child which has led her to suffer psychological symptoms intermittently over many years.  She has apparently functioned without any major difficulty and has been psychologically stable over the years.  She has had counselling at different times but had not seen a psychiatrist or had medication prescribed for her condition until around late 2012 or early 2013.  She says, and there is nothing to suggest otherwise, that she never had problems with her supervisors and had received above average performance reviews.

14. It is not in dispute, and I am satisfied, that GSBX suffers from a condition which is “outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi (1996) 69 FCR 439 at 444. Her treating doctors and those who assessed for the purposes of these proceedings have varying views about the diagnosis of her condition.

15. In other circumstances, little might turn on the precise diagnosis of GSBX’s condition.  In this case, however, Comcare contends that the medical evidence supports the conclusion that she suffers from borderline personality disorder, a result of which is that her perception of events at work was altered and does not reflect what actually occurred. 

    Dr Whetton

16. Dr Peter Whetton, psychiatrist, saw GSBX for assessment on 14 May 2015.  He provided a written report and gave oral evidence.

17. Dr Whetton thought GSBX had “resolving symptoms of a major depressive disorder” when he saw her.  Although she told him she had a “previous history of borderline personality disorder”, Dr Whetton said he did not detect evidence of the condition in her.  However, he said, a diagnosis of borderline personality disorder usually has to be made over time and in consultation with other treating health professionals and, possibly, family members; it is not a diagnosis he would make on the basis of one interview.

18. Dr Whetton gave evidence that borderline personality disorder does not necessarily cast doubt on a person’s recollection of past events and many people live “perfectly normal” lives with it and have accurate recall.  That said, at times of crisis, a person with the disorder may become depressed, over-sensitive and over-reactive and have difficulty trusting others; at such times, a person’s perceptions may be altered insofar as she or he could be prone to misinterpreting a well-intentioned comment, and could be hyper-sensitive to criticism and take matters to heart that would not affect a more robust person.   

    Dr Hong

19. Dr Michael Hong, a psychiatrist who saw GSBX for assessment on 5 May 2015, provided a written report and gave oral evidence.

20. In Dr Hong’s opinion, GSBX met the criteria for borderline personality disorder which, he said, is typically associated with “interpersonal hyper-sensitivity and distorted thinking around trust issues”.  He thought she had suffered from the condition in the past but she did not exhibit “significant features” when he saw her.  He thought she had suffered an “adjustment disorder with anxiety and depression symptoms intermittently throughout her life, partly related to early childhood trauma and borderline personality disorder”.  

21. At the time that he saw her, Dr Hong thought GSBX had suffered “an adjustment disorder in the context of her borderline personality disorder and the workplace issues” which was currently in remission.  His evidence about the contribution of workplace issues to her condition is considered below.

    Other medical opinions

22. On 21 March 2013, GSBX’s general practitioner, Dr Siraj Sira, referred her to psychologist, Carol Manns.  Dr Sira noted that she presented with “mixed anxiety and depression on a background of depression and eating disorder”.  On 26 May 2013, Ms Manns made a provisional diagnosis of “generalised anxiety disorder, social phobia, dysthymia” and noted that GSBX’s “anxiety and depression remain at a moderate level”.

23. On 16 July 2013, Dr Anna Popova, consultant psychiatrist, reported to Dr Sira that, in her opinion, GSBX was suffering from borderline personality disorder and “currently Major Depression”.

24. Dr Anne-Marie Rees, consultant psychiatrist, saw GSBX for assessment in October 2013, on 9 April 2014 and 19 September 2014.  In April 2014, Dr Rees diagnosed borderline personality disorder with “ongoing problems with anxiety and depression, although this was improving and has worsened again recently”.  In September 2014, Dr Rees said that, in her opinion, GSBX suffered from “depression which is major depression of chronic type on the background of borderline personality disorder”.  Dr Rees noted that her diagnosis was the same, or in keeping with, diagnoses by other doctors.

25. On 5 February 2015, Dr Deepa Malik, consultant psychiatrist, saw GSBX for assessment.  He reported to Dr Sira that she described “a long history of depressive symptoms, which became worse when she had problems at work”.  Dr Malik noted an “impression” of depression and borderline personality traits.

    Consideration

26. It is clear from the medical evidence that GSBX’s psychological condition is complex and long-standing.  I accept Dr Whetton’s opinion that a diagnosis of borderline personality disorder requires more than one interview.  However, as I understand his evidence, he did not discount the possibility of that diagnosis; rather, that it would ordinarily require more time.  In any event,  Dr Rees, who saw GSBX several times, concluded that she had borderline personality disorder     

27. For GSBX, it is submitted that a diagnosis of major depression or adjustment disorder may be more appropriate than borderline personality disorder.  Given that a number of the doctors arrived at mixed diagnoses, it may be that both are appropriate.

28. I am reasonably satisfied, taking into account the number of psychiatrists and others who diagnosed borderline personality disorder, that GSBX suffers from that condition (now in remission).  I am satisfied that she had suffered it for some time before the events complained of.  I am satisfied that she suffered from anxiety and depression around the time of the events complained of.

29. Dr Whetton and Dr Hong both agreed that borderline personality disorder may affect a person’s perceptions.  However, as I understand their evidence, neither said that altered perception is a necessary feature of borderline personality disorder.  Dr Whetton’s evidence was that perceptions may be altered at times of crisis when a person could also be hypersensitive to criticism.  Dr Hong said the condition is “typically associated” with interpersonal hypersensitivity and distorted thinking around trust issues.  Theirs is the only evidence concerning the effect of borderline personality disorder on perceptions.

30. For the reasons that follow, I am satisfied that, even if GSBX’s perceptions are sometimes altered by reason of her borderline personality disorder, they were not so altered in relation to the events in dispute that they do not reflect reality.  If they were altered at all, I am satisfied it made no material difference to what actually occurred.

31. Also for the reasons that follow, I am satisfied that GSBX’s employment contributed, to a significant degree, to the development or aggravation of her condition.

    DID GSBX’S EMPLOYMENT CONTRIBUTE TO A SIGNIFICANT DEGREE TO HER INJURY?

32. For GSBX, it is submitted that, regardless of which diagnosis is accepted, the Tribunal can be satisfied that the necessary causal connection to her employment is made out on the evidence.  It is submitted that, if she has long-standing borderline personality disorder, that condition was aggravated by the events that occurred between the time she returned to work and when she stopped work in February 2013; alternatively, that she suffered a condition which arose out of, or in the course of, her employment.

    Dr Sira’s records

33. Dr Sira’s clinical records show that GSBX saw him from time to time for a range of conditions including the injury to her hand.  On 8 November 2012, he noted that the swelling and pain in her finger was improving.  Up until that date, there does not appear to be any record of her seeing him for a psychological condition.  On that date, his notes show:

    stressed recently

    worse after partner getting new job, working a lot more
    busy mornings trying to get children ready for school and meet deadlines
    shouting at kids
    small things effecting (sic) mood
    crying a lot more
    traumatic childhood
    seeing cousnellor (sic)
    low mood at times, decreased appetite
    sleep normal
    thoughts of self harm in the past but none recent
    social anxiety, sweating + mainly at social gatherings
    ? related to the past

34. The notes show Dr Sira queried whether GSBX had early anxiety and depression and post-traumatic stress disorder.

35. GSBX saw Dr Sira several times over the next three months for what appear, from his notes, to be physical conditions.  On 28 February 2013, he noted “stress at work” and “wants to take time off and address (sic) the medical conditions”.  He gave her a medical certificate and noted “counselling”.  GSBX was off work until December 2013.

36. On 21 March 2013, Dr Sira noted:

    Anxious, low mood, decreased appetite, snapping, weight loss, nervous, waking up multiple times at night and checking on children.  Taking time in the mornings to have a clear mind to start with that day… Frustration about finger injury – slow progress.  Counselling not helping much. No thoughts of self harm but has had it in the past and also eating disorder. Anxious about planning B’day party, riding a bike. Has started smoking again.

37. On 23 April 2013, Dr Sira noted “finger improving; wants to try to work next week”.  On 30 April 2013, he noted that GSBX was “feeling very anxious, snapping”; she felt the medication was not working and she was worried about going back to work.  On 10 July 2013, he noted (among other things) “discussed issues and work possibly being the major precipitating factor; to consider working elsewhere; has almost made up mind to resign”.

38. Comcare contends that Dr Sira’s notes show there was “a rapid alteration” in GSBX’s symptoms around November 2012 (the date of injury nominated in her claim form) that had nothing to do with her employment but, rather, with family and other matters.  Comcare contends that GSBX has, in retrospect, attributed that rapid change to her employment, and that her altered perception due to borderline personality disorder is the likely explanation.

39. I am not persuaded that the evidence supports that contention.  For the reasons that follow, I am satisfied that GSBX’s employment contributed, to a significant degree, to an aggravation of her borderline personality disorder; alternatively that it caused, or contributed, to a significant degree, to her anxiety and depression. 

    Events at work from August 2012 to February 2013

40. GSBX returned to work on 9 August 2012.  Her injured finger was strapped and supported in a splint which she could remove for short periods.  On the day of her return, Annette Dwyer, a rehabilitation provider, conducted an Initial Needs Assessment and interviewed GSBX, her immediate supervisor Donna Goldsmith, and her manager Karen Carey. 

41. Ms Dwyer’s report dated 16 August 2012 is before the Tribunal.  It notes that GSBX had been certified fit for suitable duties but restricted to answering phone calls and logging in for no more than 15 minutes every hour.  It notes that “[n]ormal duties for GSBX comprised phone based work with constant use of the computer in conjunction with the phone calls” but, given her restriction, that Ms Goldsmith and Ms Carey were not confident that alternate duties could be found in that work area.  Ms Dwyer reports that, after further discussion, Ms Carey had advised her that GSBX would perform “PBS mail duties” for the 45 minutes that she was unable to perform phone-based work each hour, and it was agreed that a workstation assessment would be conducted and her duties assessed so as to reduce the risk of any further injury.  Ms Dwyer notes that she had discussed the matter with Dr Sira who had said the duties identified seemed suitable.

42. Ms Carey had been GSBX’s manager during a brief acting period but they had not had direct dealings previously.  GSBX claims Ms Carey was “great at first” but changed when her rehabilitation took longer than anticipated, and treated her differently from other staff.  She claims in particular that: she was moved to a desk close to Ms Goldsmith where she felt uncomfortable under Ms Goldsmith’s scrutiny; she was not allowed to have certain software installed on her computer; she was refused leave to undertake a motorcycle riding course; and she was not given suitable duties in accordance with her medical restrictions.

    GSBX’s workstation

43. On her return to work, GSBX asked for a workstation where there would not be constant traffic behind her because it makes her uncomfortable.  Her request was accommodated for a short time before, she says, she was moved close to Ms Goldsmith where she felt Ms Goldsmith was “constantly scrutinising” her work; she was told no other places were available for her even though she says she could see ten or more that would have been available.

44. Before the Tribunal, Ms Goldsmith and Ms Carey both agreed that GSBX’s request to move from her first workstation was reasonable.  There is some dispute as to which workstations she was subsequently allocated but Ms Goldsmith said no other workstation was available at the time, and all team coaches and leaders sit with “visibility over most of the team”.  Ms Goldsmith and Ms Carey both gave evidence that GSBX did not raise concerns about her later workstation with either of them.

45. I accept that GSBX felt uncomfortable being seated where she felt she was being observed but I accept the evidence of Ms Goldsmith and Ms Carey that other work stations were not available and that staff are ordinarily seated close to their supervisors.  As I understand her evidence, GSBX raises the issue of her work station in these proceedings by way of background to later events rather than to attribute any particular significance to it.

    Computer software

46. In about October 2012, GSBX asked to have ‘Workpace’, a software program that reminds the worker to take a break after a certain number of keystrokes, installed on her computer.  Ms Carey gave evidence that, as GSBX was not working continuously because of the restrictions, she did not think the program would have been of benefit to her but she explored the option and was advised that was not available to be installed in their work area. 

47. GSBX disputes this and says she was using the program before going on maternity leave, and several other staff in the area were using it.  She says Ms Dwyer had advised that it was to be installed for her.  GSBX says she found Ms Carey’s response frustrating but it was “otherwise insignificant”.  Given this evidence, I do not propose to deal with this matter further.

    The rehabilitation provider

1. Although she thought well of Ms Dwyer at first, in November 2012, GSBX became upset and refused to work with her, and another rehabilitation provider was appointed in her place.  The cause of the upset was GSBX’s view that Ms Dwyer had misrepresented her circumstances to her doctors in an attempt to get her back to full duties work before she was able.

2. Ms Carey gave evidence that, because GSBX was restricted to 15 minutes on the phone and computer each hour, it was necessary to identify other work that she could do for the balance of the hour.  She identified sorting mail as a suitable duty and “the best we could do in the circumstances” because the other work in the area involved “keying”, that is, use of a keyboard.  In an email on 13 August 2013 to Ms Goldsmith, Ms Carey confirmed that Ms Dwyer had spoken with GSBX’s doctor and he had agreed she could perform those duties.

3. On 12 September 2012, Ms Goldsmith copied Ms Carey into an email in which she recounted a conversation in which GSBX said her she had spoken with Ms Dwyer the previous week and told her she was not happy with her “trying to tell her Dr what she should be doing at work”.  Ms Goldsmith wrote that she explained that Ms Dwyer’s role was to help a return to pre-injury duties but GSBX had said she was “not going to be pushed or told as to when this would happen if she was still was in pain”.

4. Ms Carey gave evidence that she formed the impression that GSBX did not like Ms Dwyer because she asked questions of her doctor about what duties were suitable for her. In Ms Carey’s view, Ms Dwyer was “one of the most gentle and caring of the rehabilitation providers” used by DHS and she was surprised at GSBX’s attitude.

5. GSBX denies any animosity towards Ms Dwyer whom she says she “quite liked”.  She says had she been copied into Ms Goldsmith’s email, she could have corrected the misconception about her feelings towards Ms Dwyer; what she objected to was Ms Dwyer “misrepresenting” her circumstances to her doctors and she felt Ms Dwyer was trying to dictate to Dr Sira when her hours should be increasing.

6. The evidence shows that GSBX’s concern was not without foundation.  In a fax dated 31 October 2012 to Dr Sira, Ms Dwyer explained her role and said she had been in touch with Dr Alex Kubitsky, who performed the surgery on her hand, and GSBX’s hand therapist, Katrina.  Ms Dwyer wrote:

   Dr Kubitsky stated on 24th October 2012 that he felt [GSBX] was fit to return to pre-injury duties, which he was aware include keyboard based work in conjunction with telephone calls for 7.5 hours per day.

7. Ms Dwyer wrote that the hand therapist also felt GSBX was fit for pre-injury duties and, on this basis, it would seem appropriate for her keyboard work to be increased with a view to pre-injury keyboard based work “at her next review in 2 weeks”.

8. The basis for Ms Dwyer’s statements is not clear.  They appear at odds with a Sickness Certificate written on 14 November 2012 under Dr Kubitsky’s direction certifying GSBX “unable to undertake normal occupational duties” from that date until 14 December 2012 and her altered duties should exclude:

   20 minutes/hour – unable to type so patient can do exercises/splint

9. Ms Dwyer’s statements also appear to be at odds with certificates written by Dr Sira on 3 October 2012 showing GSBX could answer calls and log in for 15 minutes each hour, on 18 October 2012 that she could perform those duties for 20 minutes each hour, and on 2 November 2012 and throughout December 2012 that she could perform them for 30 minutes each hour.

10. It may be that Ms Dwyer misunderstood the doctor’s advice and it may be that GSBX overreacted to Ms Dwyer’s advice to her employer.  However, given the medical certificates, I am satisfied that there was a real basis for her belief that Ms Dwyer had misrepresented the doctor’s opinion.  I accept that she found the apparent misrepresentation distressing.  I do not accept that her perception of events was altered by her psychological condition.  If it was altered at all, it does not change the fact that Ms Dwyer’s report does not appear to have been supported by the medical opinions. 

    Whether suitable work was not made available

11. GSBX says she would look for other duties once she had completed her allocated tasks.  On one occasion, when she asked one of the other staff members if there was additional work and if she could help with certain tasks, her colleague told her that Ms Goldsmith had instructed she was not to be given anything if she came looking for work.  This incident led to heated words between Ms Goldsmith and GSBX for which GSBX later apologised.

12. Ms Goldsmith and Ms Carey acknowledge they gave this instruction and say they did not want GSBX undertaking duties that were not in her work plan unless she was medically cleared to do so.  I accept their evidence.

13. Ms Carey and Ms Goldsmith deny that their attitude towards GSBX changed over time.  Ms Carey says she tried her best to accommodate her and provide her with suitable duties.  However, it is apparent, from their evidence, that both Ms Carey and Ms Goldsmith found GSBX’s slow recovery frustrating.  Ms Carey gave evidence that, from around September 2012, there was “limited progress regarding improvement” in GSBX’s condition or her capacity to undertake additional duties and there was “also some uncertainty” about what her restrictions actually were at various times because of “different information being conveyed” by GSBX, her doctor and Ms Dwyer.  

14. On 18 January 2013, Dr Sira provided a certificate stating that GSBX “has been adviced (sic) suitable duties such as customer service and answering calls and log in for 35 mins every hour, exercise 20 mins (but other non typing duties can be performed), rest from typing for 5 mins from 16/1/2013 to 15/2/2013”.

15. On 25 January 2013, Ms Carey told GSBX that the mail duties she was undertaking were no longer available and suitable alternate duties could not be identified.  Ms Carey gave evidence that, because there was a reduction in the work of the mail room and staff there needed to be kept busy, there was no longer any mail work available for GSBX. 

16. On 29 January 2013, Dr Sira provided a medical certificate stating “… slow recovery and has been adviced (sic) minimal keying during work hours from 30/1/2013 to 31/2/2013 (sic) inclusive”.  (According to GSBX the certificate was intended to be for two days only, to 31 January 2013).  An email from Ms Carey on 30 January 2013 shows that she had spoken to the People Services section who had advised that GSBX would be required to take 25 minutes personal leave each hour and that the situation would be reviewed if her doctor provided an updated medical certificate.

17. An email dated 4 February 2013 from Ms Carey to the People Services section shows that she had spoken with GSBX the previous week and “suggested she speak to her GP to see if he would allow her to do minimal keying during [the remaining 25 minutes each hour].  Ms Carey noted that he was not willing to do so but changed her certificate to “minimal key for the whole day”.  The email shows Ms Carey advised GSBX that she could no longer provide her with work “on a continuing basis as the work was usually done by other staff”.

18. By email dated 11 February 3013, GSBX advised Ms Carey that, given her advice that there were “no duties available to me with minimal keying (refunds)” she had no choice but to take personal leave and hope that she could resume duties after a few weeks.

19. GSBX maintains there was work available that she could have done, within the restrictions placed on her, but Ms Carey refused to give it to her.  She maintains there were “many boxes around the floor” that had “secondary refunds and safety net payments” waiting to be processed, work that she could have done but was not allowed to because Ms Carey said it was “for people with recognised conditions”.  GSBX maintains there was never a time when the boxes were not “lying around” waiting to be processed.  She says that work was performed by others on restricted duties and there was no reason she could not have done it as well.

20. Ms Carey says she did not give GSBX additional duties because her medical certificates were vague and lacked detail, and she did not want to give her work beyond her restrictions.  The certificates appear reasonably clear to me but to the extent, if at all, that they lacked detail, it should not have been difficult to seek clarification from Dr Sira, for example by asking whether GSBX could perform identified duties and for how long.  Giving evidence, Ms Carey acknowledged that, had her doctor specifically authorised particular duties, she could have given them to GSBX.

21. On 17 December 2012, Dr Matthew Paul, an occupational physician, saw GSBX for assessment.  He reported to DHS that she was fit for her usual hours but should avoid:

    keyboarding and mousing with her left hand for 30 minutes of every hour while she was utilising the finger strap and the flexion strap and for 10 minutes following removal of the flexion strap.  During this time she could perform light activity such as mail sorting which does not require repetitive manual activity with her left hand or prolonged gripping. 

    Dr Paul went on to specify a graduated return to full duties without modifications which he thought likely to be after the next six to eight weeks.  His assessment may have been optimistic but it was quite clear.  Ms Carey acknowledged in evidence that his assessment did not conflict with Dr Sira’s and that it was “clearer”.

22. Ms Carey’s reasons why GSBX could not do the processing work in the boxes were not clear.  Giving evidence, she acknowledged that the boxes were “everywhere” and the work was building up.  However, she said, she could not be satisfied it was safe to give GSBX that work because, for example, the boxes could be heavy, but she acknowledged in evidence that others on return to work programs, including those with neck and shoulder injuries, were given that work.  Ms Carey maintained there was keying work involved but GSBX disputes that and Ms Goldsmith’s evidence supported her.  Ms Goldsmith gave evidence that there was minimal if any keyboard work involved and what there was could be done with the right hand only.  When pressed, Ms Carey acknowledged that only a small number of the prescriptions in the boxes for processing involved keyboard work.  

23. I accept the evidence of GSBX and Ms Goldsmith that the work in the boxes involved little if any keying and that GSBX could have managed those duties within the restrictions in her medical certificates. 

24. I accept that GSBX’s slow recovery may well have caused some difficulty in managing the work of Ms Carey’s and Ms Goldsmith’s area.  However, there is nothing to suggest that she was malingering or had a negative attitude towards her work; Ms Carey acknowledges that she was looking for work to keep herself occupied.  Ms Carey and Ms Goldsmith were evidently frustrated at what they considered her slow recovery despite the serious nature of her injury and continuing certificates from Dr Sira.  For example, Ms Goldsmith stated that GSBX’s “approach impacted negatively on her rehabilitation and she made very little progress over time” and she felt GSBX was “quite high maintenance in terms of her various issues and request”.  It appears to me that their frustration affected their willingness to accommodate GSBX.

    The motorcycle incident

25. Sometime early in 2013, GSBX asked for leave to attend a two-day motorcycle riding course.  As far as she recalls, the course was run over two non-consecutive half-days.  She gave evidence that she is an experienced rider and wanted to undertake the course because she and her partner planned to do a long distance ride; she was able to use the clutch with her left hand when practising at home but she felt anxious about riding on the road and so wanted to do the course; the injury to her left hand would cause her no difficulty manoeuvring a motorbike.

26. When she asked Ms Goldsmith about taking leave, Ms Goldsmith said she would talk to Ms Carey.  GSBX claims that, subsequently, Ms Goldsmith relayed to her a comment by Ms Carey to the effect “so she can ride a bike, but can’t do her job”.  Ms Carey denies making the comment and Ms Goldsmith denies relaying it. 

27. It is possible that GSBX misunderstood what Ms Carey was alleged to have said but, in any event, Ms Carey acknowledges she was “not comfortable” approving GSBX’s leave to undertake the course.  She gave evidence that she was concerned about GSBX’s ability to ride a motorcycle and that she might be at risk of further injury which could impede her recovery and her return to work even further, and, because she did not know whether GSBX’s doctor had approved her to do the course, she declined her request.  GSBX was required to take unpaid personal leave to do the course.  Ms Carey acknowledges that GSBX was upset about her decision.  

28. It is not clear why Ms Carey thought a medical certificate certifying fitness to undertake the motorcycle course was relevant to her decision whether to grant GSBX leave.  Before the Tribunal, Ms Carey acknowledged it is not usual practice, and she would not require a certificate from a worker who, for example, wanted to take leave to undertake a potentially risky sport or pastime.  Ms Goldsmith agreed that it is not usual to ask for a medical certificate before approving leave. 

29. Ms Carey and Ms Goldsmith both said GSBX’s request for leave was made within the eight weeks usually required to manage staff and workload.  I accept that it could well have been quite reasonable to refuse the request for that reason, but a medical certificate would not have assisted.  I accept that Ms Carey took her responsibilities as manager seriously but, in my view, she tended towards inflexibility where GSBX was concerned.

30. In the circumstances, Ms Carey’s decision to refuse GSBX leave was not in accordance with usual practice and was without apparent foundation, and it was not reasonable.

    Medical evidence

31. In her reports Dr Popova described GSBX’s reported symptoms which, she said, “occurred in the context of a conflict at her workplace” and she noted that GSBX was to see someone “about the stressor at work”.  Dr Popova did not offer an opinion as to the relationship between stress and her employment.  Dr Rees reported that GSBX had presented with onset of anxiety and depression late in 2012 in the context of her perception that she was treated unfairly in the workplace related to the management of her fractured finger injury.

32. Dr Whetton gave evidence that events occurring within the workplace caused the onset of major depressive disorder, against the background of reported borderline personality disorder.  As he was not present at the time, he could not say whether GSBX overreacted to events at work but, from the history she gave him, her employment contributed.

33. Dr Hong gave evidence that GSBX’s borderline personality disorder was “predominantly constitutional” and that both it and workplace issues contributed to her adjustment disorder.  He thought, on the information he had, that the workplace issues “seem like overall a minor contribution” but said he was not an expert in assessing industrial issues.  He agreed there was no known event that led to the flare-up of GSBX’s condition other than the workplace issues although he had read of “competing non-work factors”.  He agreed that, assuming she had borderline personality disorder, it would make her more vulnerable to work events and that it was reasonable to assume that the work events, including her perceptions of them, were “the primary driver”.

    Consideration

34. Ms Carey and Ms Goldsmith deny acting with any “animus” towards GSBX and I accept their evidence about that.  However, both their written statements and their oral evidence evidenced a degree of frustration with GSBX’s slow recovery.  They were both surprised at how long her injury was taking to resolve despite neither having any medical qualifications and despite continuing medical certificates restricting her duties. 

35. I accept that factors outside GSBX’s employment were a source of stress around November 2012.  However, I am satisfied that her employment contributed to a significant degree to her condition. 

36. In Wiegand v Comcare Australia [2002] FCA 1464, von Doussa J said at [27]:

    If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material to agree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled

37. It is possible that GSBX was sensitive about events at work and it is possible that her perception of things said and done was affected by her borderline personality disorder.  However, I am satisfied, on the information before me, that the incidents she complained of actually occurred.  I am satisfied that the weight of the medical evidence supports the conclusion that the workplace stress was a contributing factor, to a significant degree, to the extent that they created a perception in her mind, I am satisfied that the perception caused her condition, or contributed to a significant degree, to the aggravation of her condition (and see Dean v Australian Postal Corporation and Another [2010] FCA 680).

38. I am satisfied on the information before me that GSBX’s employment contributed to a significant degree, to an aggravation of her borderline personality disorder that manifested itself over the period November 2012 to February 2013. 

    REASONABLE ADMINISTRATIVE ACTION?

39. By subsection 5A(1), injury for the purpose of the SRC Act 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.

40. Subsection 5A(2) provides that, for the purposes of subsection (1), reasonable administrative action includes, but is not limited to:

    (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.

41. Hart v Comcare [2005] FCAFC 16 established the principle that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of the causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury.

42. Comcare contends that each of the matters complained of by GSBX constitutes reasonable administrative action within the meaning of s 5A, namely anything reasonable done in connection with GSBX’s failure to obtain a benefit in connection with her employment, and that each was “taken in a reasonable manner”.

43. The decision to allocate GSBX to a particular work station and the decision concerning installation of computer software are operational matters and not within the meaning of reasonable administrative action.  Each is “something outside the actual employment, or job, that the employee was required to perform”, a “matter that was in respect of, but apart from, ordinary duties or tasks of the employment or job itself””    Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 per Rares and Tracey JJ said, at [62]-[63].

44. I find that the decisions that there were no suitable duties for GSBX and to refuse her request for leave were administrative action within the meaning of that expression as set out in Reeve (above), that is, “action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer”: per Gray J at [33].  For GSBX it is submitted that neither is reasonable administrative action within the meaning of subsection 5A(2) but, even if they were, that neither was undertaken in a reasonable manner.

1. I accept that submission.  It would not have been difficult to ascertain from GSBX’s doctor whether she could undertake specific duties such as the processing work in the boxes.  None of the reasons given to GSBX as to why there were no suitable duties for her makes good sense.  Had information be sought from her doctor and had she been given the opportunity to try that work, it may well have been reasonable to refuse those duties further if her doctors did not support her or if she could not manage them.  As it was, neither happened.  In these circumstances, I am not satisfied that the action was undertaken in a reasonable manner. 

2. The decision to refuse GSBX’s leave to undertake the motorcycle course was not undertaken in reasonable manner.  It was not for reasons of the efficient management of the office.  It was not in accordance with usual practice and was without apparent foundation.

   Conclusion

3. For these reasons, I am satisfied that GSBX’s employment, contributed to a significant degree, to her psychological injury.  Insofar as any reasonable administrative action contributed to her injury, I am not satisfied that it was taken in a reasonable manner.

4. The Tribunal sets aside the decision under review and substitutes for it the decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act1988 to compensate the applicant for the injury that is the subject of these proceedings.

I certify that the preceding 95 (ninety -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

.........................[sgd]...............................................

Associate

Dated 17 June 2016

Date(s) of hearing	4 & 5 April 2016
Counsel for the Applicant	Mr L Grey
Solicitors for the Applicant	Mr N Gabbedy, Pappas J- Attorney
Counsel for the Respondent	Ms R M Henderson
Solicitors for the Respondent	Mr S Marris, Sparke Helmore