Hardy and Comcare
[2010] AATA 342
•10 May 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 342
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2006/24 &
GENERAL ADMINISTRATIVE DIVISION ) T2006/67 Re ANGELINE DEBORAH HARDY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date10 May 2010
PlaceHobart
Decision 1. The Tribunal affirms the decision dated 29 November 2005 which ceased liability for the applicant's condition of cervical back strain and aggravation of pre-existing degenerative changes in L5-S1 disc.
2. The Tribunal sets aside the decision of 18 October 2005 ceasing liability for payment of compensation for stress and anxiety and in place of that decision decides:
(a) THAT the respondent is liable for the condition of severe stress and anxiety from which the applicant has been suffering since 23 November 1994.
(b) THAT the matter be remitted to the respondent for reconsideration in accordance with this decision
(c) THAT liberty to apply within 14 days in relation to the costs of the proceedings be reserved.
(d) THAT in the absence of any such application, the respondent is to pay the applicant's costs of and incidental to the proceedings with respect to the stress and anxiety determination.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
COMPENSATION - Commonwealth employee - whether employee continues to suffer symptoms from compensable back injury - pre-existing degenerative changes - claim for severe anxiety and stress condition - whether Commonwealth employment made a material contribution to severe anxiety and stress condition - whether back injury and severe anxiety and stress condition contributed to development of fibromyalgia - whether severe anxiety and stress condition was a result of failure to obtain a promotion, transfer or benefit within the exception to the definition of injury in the Safety, Rehabilitation and Compensation Act (1988) Commonwealth; held that employee no longer suffers the effects of the work related back injury - that employment made a material contribution to the severe anxiety and stress condition - that the identified contributing employment factors did not constitute either failures to obtain a promotion, transfer or benefit within the exception provisions; decision discontinuing liability for the back injury affirmed; decision ceasing liability for the stress and anxiety condition set aside
Safety, Rehabilitation and Compensation Act 1998, ss 4(1), 14(1), 16, 19, 29
Comcare v Mooi (1996) 69 FCR 439
Carpenter v Comcare [2010] AATA 62
Trewin v Comcare [1998] FCA 713
Golds v Comcare [1999] FCA 1481
Comcare v Sahu-Kahan [2007] FCA 15
Comcare v Canute [2005] FCAFC 262
Wiegand v Comcare [2002] FCA 1464
Hart v Comcare [2005] FCAFC 16
Hillier v Comcare [2009] AATA 188
Federal Broom Company Pty Ltd v Semlitch [1964] 110 CLR
Fellowes v Military Rehabilitation and Compensation Commission [2008] 103 ALD 552
Nicklason v Comcare [1999] AATA 736
REASONS FOR DECISION
10 May 2010 Ms A F Cunningham (Senior Member) 1. During the course of her employment with the Commonwealth Government in the Department of Transport, the applicant, Angeline Hardy, suffered an injury to her back and a severe stress and anxiety condition. Liability for the back injury was accepted on 16 December 1993. The claim for compensation in respect of severe stress and anxiety was accepted by the respondent on 23 November 1994. Compensation was paid pursuant to the provisions of the Safety, Rehabilitation and Compensation Act 1998 (the SRC Act) until 18 October 2005 when the respondent determined to cease liability for the stress and anxiety condition. The respondent's decision to cease liability for payment of the back condition was made on 29 November 2005.
2. Following Ms Hardy's request for a reconsideration, both determinations were affirmed. In its determination of 18 October 2005 with respect to the stress and anxiety claim, the Comcare delegate stated that she accepted the opinion of Dr Sale and found that at the current time Ms Hardy does not suffer from an "injury" for the purposes of the SRC Act and is therefore not currently entitled to compensation pursuant to section 16 and 19 of the SRC Act.
3. Ms Hardy seeks a review of these decisions by the AAT.
Issues Before The Tribunal
4. Both claims, namely for back injury and severe anxiety and stress arise from events/circumstances that occurred during the course of Ms Hardy's employment with the Department of Transport. The issues for the Tribunal to determine are:
·whether the applicant continues to suffer symptoms from the back injury sustained in1993 in the course of her employment
·whether Ms Hardy's employment with the Department of Transport made a material contribution to her severe anxiety and stress condition within the meaning of the SRC Act.
·whether Ms Hardy's severe anxiety and stress condition is a result of her failure to obtain a promotion, transfer or benefit within the exception of the definition of injury in section 4(1) of the SRC Act.
5. The respondent contends that Ms Hardy had ceased to suffer from the effects of her compensable back condition on or before 29 November 2005 and that any condition from which she now suffers is due to factors not related to her employment with the Commonwealth. The respondent maintains that Ms Hardy suffered a temporary aggravation of her pre-existing degenerative changes to L5 to S1 disc.
6. Mr Browne submitted on behalf of Ms Hardy that her back and anxiety/stress conditions are interrelated and that the effects are ongoing such that Ms Hardy is permanently incapacitated for work and entitled to compensation with respect to each injury.
The Legislation
7. Comcare's liability pay compensation arises pursuant to section 14(1) of the SRC Act which reads as follows:
"Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment".
8. Liability to pay compensation was accepted by the respondent prior to the changes to the definition of injury which were enacted in April 2007.
9. The definition of injury under the Act as then in force was contained in section 4(1) of the SRC Act which provided as follows:
"injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the ... 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 ... employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment".
10. Disease was defined in subsection 4(1) as:
"disease means;
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation".
11. The word ailment as used in sub-paragraph (a) of the definition of disease is defined in section 4(1) to mean:
"Any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development".
The Back Condition
12. Comcare accepted liability for "cervical back strain and aggravation of pre-existing degenerative changes in L5 to S1 disc" on 16 December 1993 but ceased liability for the purposes of section 16, 19 and 29 of the SRC Act in a determination dated 29 November 2005. Ms Hardy's claim form described the injury as "lower back pain" with the words "upper and" having been inserted outside of the relevant particulars box by an unknown third party. Ms Hardy confirmed that the claim was only with respect to her lower back and did not relate to cervical back strain.
13. The circumstances that gave rise to the claim were not disputed and arose from two separate incidents which occurred in the course of Ms Hardy's employment. The first incident was pain experienced by Ms Hardy as the result of sitting in a cramped seating position on an aircraft flight from Canberra to Hobart on 6 August 1993. The second incident occurred on 6 September 1993 when Ms Hardy injured her back lifting a divider screen at work.
14. Ms Hardy first received medical treatment for her back when she consulted her general practitioner, Dr Wnekowski on 10 or 11 November 1993. On 10 November 1993 Dr Wnekowski's notes report:
"C/o numbness and pins and needles
-- onset this am.
Yesterday had LBP and numbness R leg.
O/E PERL/no neck stiffness
...
Sensation R upper limbs
...
-- CT Brain Scan - phoned NAD".
15. On 11 November 1993 Dr Wnekowski reported that Ms Hardy:
"Felt a bit fuzzy today but basically ok".
Her blood pressure was recorded as 110/80. It was further reported that she had pain in her lumbar spine which started after a plane trip on 6 August 1993 as a result of not being able to stretch her legs out, that she experienced pain when she got out and then the word "cleared" is written. Dr Wnekowski further reported that shortly after that, on 6 September 1993, Ms Hardy had lifted a heavy screen at work and got immediate pain in her lumbar spine, down her back and the back of her legs and then the word "cleared" is written. The notes also record:
"Now had it 1/52 or so. O trigger this time. Pins and needles (R) calf and buttock initially - now gone. Bad when sitting, driving, o marked lumbar lordosis -- pelvic tilt physio".
16. On 19 November 1993 Dr Wnekowski reported:
"Much better. Now realises Workers' Comp. Plane trip 6/8/93 - work-related travel".
17. In a letter to Comcare dated 24 March 1995, Dr Wnekowski reported that:
"both the stress claim and back claim are totally inter-related - as her stress goes up so does the back pain".
18. Ms Hardy was referred to Dr Colin Hooker, Consultant Orthopaedic Surgeon for a medical assessment and report. Dr Hooker reported on 5 July 1995 that Ms Hardy:
"Has experienced a wide range of musculo-skeletal symptoms affecting principally her spine but, variably, her limbs on the basis of aggravation of early degenerative change in various parts by superimposed posture or injury.
The spine has been such, and has extended over such a prolonged period that, coupled with the stresses of Mrs Hardy's work and her work environment, she has developed in my opinion, significant superimposed psychological or functional factors. This statement is not indicated to convey that there is other than genuine symptoms being experienced. The developments alluded to, in my opinion, are on the basis of Mrs Hardy's own individual response to prolonged pain coupled with the stresses of her work environment".
19. Further in the same report Dr Hooker states:
"The physical condition and the stress aspect are not separate and unrelated conditions but, as an orthopaedic surgeon, I am unable to offer an expert opinion on the stress aspect as this would have to be reported on by a psychiatrist or psychologist".
20. In a report from Mr Alexander Bartram, consultant orthopaedic surgeon on 15 November 1995 he opined that:
"There is no orthopaedic injury which is of significance at the present time and I do not consider that massage therapy is justified".
He further stated that:
"There is no orthopaedic reason why Mrs Hardy should be restricted as to hours of work at the present time".
Mr Bartram considered that Ms Hardy's work capacity was better answered by her psychologist as he believed that a great deal of her present disability was due to factors other than orthopaedic.
21. In a report of Dr Tim Stewart, occupational physician, on 27 June 1996 he noted that an MRI scan of her lumbo sacral spine performed on 9 March 1994 showed mild disc bulging of the lumbo sacral disc which was probably within normal limits. A CT scan performed of her lumbar spine on 2 March 1995 showed some minor degenerative changes in the lumbar facet joints but no evidence of disc prolapse or bulging. It was Dr Stewart's opinion that:
"Mrs Hardy has made a full recovery from any physical problems associated with her back. She does not appear to have any significant disease or injury which entitles her to receive workers' compensation payments. She does experience low back pain, but a substantial proportion of the working population experience low back pain and Mrs Hardy is no different".
22. Dr Peter Stevenson, Consultant Physician, examined Ms Hardy on 15 March 2005 and prepared a report dated 20 March 2005 and gave oral evidence before the Tribunal. In Dr Stevenson's report he stated:
"It is possible she had non-specific lumbar strain or episode of discomfort in 1993. There is no current musculo skeletal injury. This has been the consensus of examiners since 1995/96.
This has been very clearly a psychiatric condition recently been diagnosed as major depression and panic disorder. The history given is one of severe chronic anxiety.
There is widespread musculo skeletal pain. I fully agree with Ms Clifford that this does not represent musculo skeletal pathology; it is a tension symptom of anxiety; it has been entrenched by grossly excessive passive manipulation for many years"
23. Dr Stevenson further reported that:
"There is clearly no probability that the cervical or lumbar strain is still active. There is no current musculo skeletal injury suffered by the employee due to Commonwealth employment ... physical pain is a common somatic symptom of depression and anxiety.
Further at paragraph 3.2:
"Muscle pain to Commonwealth employment was minor and non-specific, not representing major trauma. It would be self limiting. Her pain now reflects depression, anxiety and indefensibly excessive passive manipulation. I share Dr Stewart's concern about intensive psychological input without psychiatric referral".
24. Dr Stevenson was cross-examined by Mr Browne regarding Dr Hilton Francis' diagnoses of Ms Hardy's condition of fibromyalgia. Dr Stevenson stated that fibromyalgia is not a pathological diagnosis but a classification of widespread medically inexplicable pain. He agreed that Ms Hardy's condition could be classified in terms of fibromyalgia. Dr Stevenson described how anxiety and stress can lower a person's threshold for the experience of pain and that lots of pain occurs without pathology.
25. Dr Stevenson stated that in general fibromyalgia is not regarded as a reactive or traumatic condition and whilst trauma may be a temporary aggravant, it is not regarded as a cause of fibromyalgia. Dr Stevenson went on to state that in his opinion there are strong grounds for excluding Ms Hardy's back condition as a cause of her pain condition as there was no major back injury or gross trauma. Dr Stevenson noted that:
"Non-specific back pain is a ubiquitous human predicament. It's not a cause of fibromyalgia".
He had earlier stated that emotional stress, either personal or due to extraordinary occupational or preoccupation can be strongly associated with non-specific or medically explicable pain.
26. After seeing Ms Hardy in October 2005, Dr Hilton Francis, Consultant Rheumatologist, wrote to Dr Hampton, Ms Hardy's then treating general practitioner on 18 October 2005. In his letter Dr Francis stated that Ms Hardy had:
"developed the secondary altered pain state of fibromyalgia and I do not think she has any significant injury in the neck and shoulder girdles".
27. In his evidence before the Tribunal Dr Francis affirmed his diagnosis of fibromyalgia. Tendered in evidence was a fact sheet for fibromyalgia which was produced in consultation with and approved by Arthritis Victoria Incorporating Osteoporosis Victoria. The fact sheet stated that the cause or causes of fibromyalgia are not known and listed common symptoms as including any of the following:
·Fatigue and exhaustion
·Pain - this may present in a variety of ways (such as aching, burning, throbbing or stabbing) and may be generalised or in one area
·Sleep disturbance
·Headaches
·Slowed mental processing
·Stiffness, usually worse in the mornings
28. The fact sheet goes on to state:
"Fibromyalgia seems to make the body's pain perception system oversensitive to pain. The body may even interpret pain from things that would not normally cause pain.
In effect, the central nervous system of the body changes its response pattern so that the body interprets even small things as being painful. This is not something that a person has conscious control over. It is the result of internal body mechanisms that are not yet fully understood.
Some of the suggested theories for this altered pain threshold include:
·Prior physical trauma
·Severe illness
·Viral infection (although no associated virus has been identified)
·Emotional trauma
·Abnormal changes in brain chemistry or in the central nervous system
·Hereditary factors
·Changes in blood flow in the muscles or parts of the brain".
29. In Ms Hardy's case Dr Francis opined that on the basis of the history provided to him, the development of her fibromyalgia was a two step process with the first step being her back pain and step two, the development of fibromyalgia.
30. Under cross-examination by Mr Hobbs with reference to the medical history notes of Dr Wnekowski and in particular her examination of Ms Hardy on 11 November 1993, Dr Francis agreed that it may be difficult to connect the plane trip episode with the development of Ms Hardy's fibromyalgia. Mr Hobbs in particular referred to references in Dr Wnekowski's notes that the pain symptoms had cleared following the plane trip and the moving of the screen.
31. Nevertheless Dr Francis said there was no debate about Ms Hardy's diagnosis of fibromyalgia and that for approximately two percent of the population fibromyalgia can occur in people without obvious triggers. He also agreed that other factors such as anxiety and depression can be a catalyst for fibromyalgia. Whilst he stated that on their own, stresses and anxieties may not usually be sufficient, this would depend on the extent and nature of those stresses.
The Anxiety Condition
32. Comcare's original acceptance of liability for severe anxiety and stress was made on 23 November 1994. On 18 October 2005 Comcare determined that Ms Hardy did not suffer from an injury within the meaning of the SRC Act. The determination was based on acceptance of an opinion provided by Dr Ian Sale, Psychiatrist, contained in a report dated 25 February 2005 that Ms Hardy's psychiatric condition was not caused by her employment.
33. In Dr Sale's opinion Ms Hardy suffers from a somatoform disorder with depressive symptoms. He agreed that her condition is chronic. Dr Sale did not disagree with Professor Saxby Pridmore's identification of Ms Hardy's condition as depression, panic disorder, agrophobia and associated depersonalisation. Dr Colm Moore assessed Ms Hardy on 24 July 2006 and after taking a very detailed history of her complaint formed the opinion that she was suffering from depression and anxiety related to her work place difficulties. In his report of 20 March 2009, Dr Peter Farnbach, Consultant Psychiatrist said that:
"Broadly speaking, my opinion below concurs with the opinion of Dr Moore".
34. There was general agreement between the medical specialists that Ms Hardy suffers a severe anxiety and stress condition. What remains in contention was whether it was caused by her work place.
35. Dr Sale opined:
"... that Ms Hardy's difficulties are likely arising out of a constitutionally determined condition, perhaps arising out of events in childhood, namely sexual abuse. As her problems developed, they had an influence upon her work situation, and problems at work were regarded as causal. However, I suspect it is the other way around, ie problems at work were probably more likely a consequence of her problems and the affect that this had upon her capacity to cope with various situations and her interaction with others. The only other contributory factor I would identify is the effect of treatment itself. She has had a great deal of largely passive treatment that has probably confirmed her perception of invalidity".
36. There were several medical witnesses who were called on behalf of Ms Hardy who did not agree with Dr Sale's conclusions and opined that her psychiatric condition was the result of a series of work place incidents and stresses.
37. Peter Farnbach, Consultant Psychiatrist, gave evidence at the hearing. He assessed Ms Hardy and provided a report in March 2009. Dr Farnbach did not consider that the sexual abuse that Ms Hardy suffered as a child was causative of her current symptoms. Whilst he had not doubt that Ms Hardy's history of sexual abuse had undoubtedly predisposed her and made her more vulnerable to the development of depression, in his opinion the precipitants of her current problem on the basis of the history she had provided, were the described work place issues.
38. Dr Farnbach had the benefit of Dr Colm Moore's psychiatric report who took a very detailed history of Ms Hardy's complaint as well as her history of sexual abuse. Dr Sale on the other hand did not consider that it was appropriate to obtain a history of the sexual abuse from Ms Hardy. He was unaware of the details and the nature of the sexual abuse and the fact that Ms Hardy had gone on to develop a relationship with her father in later years. Dr Farnbach considered that this was a relevant feature as well as the fact that in Ms Hardy's mind she had been able to resolve issues between her father and herself. Dr Farnbach noted that Ms Hardy had had a lengthy history of successful working relationships with people in authority prior to her current problems and that in his mind her psychological injuries commenced with her difficulties with Mr Mitchell.
39. Dr Farnbach commented that Ms Hardy's account of the events in the work place was "tenable from a psychiatric point of view". Ms Hardy's consultation with Dr Farnbach continued for some one and a half hours. He noted that her account of events and work place difficulties was "internally consistent" and he had no reason to doubt its truth. Dr Farnbach disagreed with Dr Sale's opinion that Ms Hardy's problems at work were more likely a consequence of the events of her childhood which he considered a speculative assessment. The Tribunal prefers the opinion of Dr Farnbach who took account of the nature of the sexual abuse, Ms Hardy's consequent relationship with her father and the detailed history of her work place issues. In Dr Farnbach's view any related problems from the childhood sexual abuse would have presented much earlier and there would have been evidence of a long history of work place related issues commencing in her early twenties. He would have expected to have seen a consistent history of difficulties with supervisors, colleagues, patchy work history, frequent days off work and a number of minor complaints which contrasts with Ms Hardy's work place history as relayed to him.
40. There is no evidence of any previous history of psychiatric illness. On the history provided to Dr Farnbach he considered that the precipitants for her current problems appear to be the work place issues that she described to him. He considered that her history of sexual abuse had undoubtedly predisposed her and made her more vulnerable to the development of depression. He believed that:
"The focus of her symptoms is her work place difficulties rather than her experience of having been sexually abused".
41. Christine Clifford, Clinical Psychologist, first saw Ms Hardy in 1994 and continued to treat her over the following 16 years, still seeing her occasionally. In her written statement she described Ms Hardy when she first met her:
"... as a very functional woman. This means that she was capable in the work place. She was a single parent with two children, but running a home and managing the challenges of life. .... Today, Debbie Hardy is an extremely different person and demonstrates few, if any, of those characteristics that I observed in 1990(4)".
42. In her report to Comcare dated 15 January 1996 Dr Clifford stated that Ms Hardy did not have any pre-existing psychological or psychiatric condition known to her. Further that previous events in her life had:
"... certainly not impacted on her mental health in any long term way".
43. Dr Clifford was well positioned to draw the conclusions that she had for she had spent between 10 and 15 sessions each of one hour's duration discussing issues such as her childhood sexual abuse. In her letter to Roger Joseph, CPSU of 30 August 1996, she stated:
"It is certainly true that Debbie has a personality style which places her in the position of needing to get things right in order for her to feel comfortable. This is presumably something that she has always felt and the fact that she has no prior psychological or psychiatric history suggests that other events before the work-related events at the Department of Transport had not acted as a catalyst in the way that the Department of Transport did.
In addition, as mentioned by Dr Stewart, Debbie has a past history of sexual abuse. One of the results of such a situation can be a low tolerance of authority figures, particularly when they can be seen to be saying one thing and meaning another. Again it is probably the case that this reduced tolerance had been present for quite some time (since early teenage years) however the events at the Department of Transport have been a catalyst which has caused these emotions to run high in a way that had not happened before.
Thus although Debbie Hardy had some disturbing past events in her life and has a fairly concrete thinking style it was not these factors alone which caused her problems. The problems arose as a result of restructuring changes at her work place which amounted to nothing, and a number of other matters which were not handled according to procedural guidelines, in particular a complaint against Debbie which was not handled properly. According to Debbie this was further added to by the appointment of a supervisor who was hostile and punitive towards Debbie. ..."
44. In her letter responding to Comcare's decision of 18 October 2005, Dr Clifford noted that Comcare had relied on Dr Sale's report who had excluded work place bullying as a contributory factor in Ms Hardy's condition on the basis of a one hour interview and the reading of selected documents. Dr Clifford commented that such an approach is not consistent with the well established understanding of human health and disease which is multifactorial in nature. In Ms Hardy's case there were a number of contributory factors but nevertheless she had worked very successfully in a range of occupations for over ten years. Dr Clifford stated:
"Her experience of work place bullying at the Department of Transport was the catalyst for her ensuing mental health issues. Nothing about this situation has changed since that time".
45. Dr Sale appeared to largely rely on the contents of Dr Clifford's reports in reaching his conclusions regarding the likely causative factors of Ms Hardy's current symptoms. He did not have a detailed history of the nature of the childhood abuse experienced by Ms Hardy nor was he appraised of the detailed nature of the work place issues. In his opinion they were not significant enough to be causative of her current symptoms. On the other hand Drs Farnbach and Clifford had a detailed history of Ms Hardy's childhood sexual abuse and work place issues and were thus in a better position to assess causation.
46. Ms Hardy's treating general practitioner, Dr Krystyna Wnekowski, considered that Ms Hardy's anxiety and stress condition was work place related. The medical practitioners who gave evidence on behalf of Ms Hardy were all of the opinion that her severe stress and anxiety condition was related to work place issues which will be discussed in more detail later in this decision. The Tribunal prefers their evidence to the opinion of Dr Sale who opined that her stress condition was more likely related to her childhood sexual abuse experiences. Drs Farnbach and Clifford were of the opinion, which the Tribunal accepts, that these experiences were likely to have predisposed Ms Hardy and made her more vulnerable to the development of her condition as a result of the work place difficulties that she experienced.
Injury
47. The definition of injury in section 4(1) of the SRC Act contemplates a disease or an injury which includes a mental injury. Mr Browne submitted that the Tribunal could find that Ms Hardy's condition constituted an injury simplicita within the meaning of the definition rather than a disease which must be contributed to in a material degree by the employment.
48. The authorities however have consistently treated stress and anxiety conditions as falling within the definition of disease. (Comcare v Mooi (1996) 69 FCR 439, Carpenter v Comcare [2010] AATA 62, Trewin v Comcare [1998] FCA 713, Golds v Comcare [1999] FCA 1481 and Comcare v Canute [2005] FCAFC 262).
49. The change in terminology as introduced in the 1988 Act was discussed by Finn J in Comcare v Sahu-Kahan [2007] FCA 15. At paragraph 16 His Honour concluded that the definition of disease:
“(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.”
50. As the Full Court of the Federal Court noted in Comcare and Canute (2005) when considering the introduction of the term "material degree" in the 1988 Act at paragraph 68:
"On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a "but for" test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be "more than a mere contributing factor" and, as such, the comments of the Court in Treloar must be assessed in this light".
51. Whether the threshold is met is a question of fact to be determined on the evidence before the Tribunal.
52. In her Claim for Rehabilitation and Compensation completed on 9 November 1994 (T4) Ms Hardy listed a number of work-related incidents in response to question 23 which asked for a detailed description of the events which contributed to the claimant's injury/illness.
53. It is appropriate to consider and discuss the details surrounding some of these incidents in detail. It is contended by the respondent that some of them fall within the exemption provisions of the definition of injury in that they constitute a failure to obtain either a promotion, transfer or benefit.
54. There seems to be little dispute as to the nature of the various incidents listed by Ms Hardy apart from some of the circumstances involving her interactions with her former manager, Vicki Buchanan.
55. In considering whether such work-place incidents contributed to the employee's condition, the Tribunal must be satisfied that the incidents or state of affairs did in fact occur. The Tribunal is not required to assess the reasonableness of the employee's reaction or response in the context of being satisfied of a material contribution. As von Doussa J held in Wiegand v Comcare [2002] FCA 1464 at paragraph 31:
"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 degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled".
Work Place Issues
56. In Ms Hardy's statement of evidence she describes her early work history which commenced in March 1984 as a clerical assistant with the Department of Veterans' Affairs as a clerical assistant. In October 1984 Ms Hardy transferred to the Department of Transport as a claims assessor. She continued to work with the Tasmanian Freight Equalisation Scheme (TFES) which was interrupted with periods of paid and unpaid maternity leave. In late 1991 the staff in the TFES were informed that an organisational review would be conducted by a review team and a report was presented in May 1992. Following input from staff and further reports, changes to the TFES structure were officially notified in March 1993. As a result of the restructure Ms Hardy's permanent position of claims supervisor became an ASO5 OIC claims processing officer. The ASO3 senior assessor position was redesignated as a senior assessor ASO4 position which became Ms Hardy's permanent position. She had previously been in the position of an ASO claims supervisor.
57. Ms Hardy's supervisor involved her in the review team issues which she found stressful. She was concerned that due processes were not properly followed.
58. Ms Hardy reported that she first experienced difficulties within the work-place between 1990/91 associated with her supervision responsibilities and in particular with two particularly difficult staff members, Mr Gerry Halton and Mr Steven Mitchell. Mr Halton subsequently transferred to a position in Canberra. Mr Mitchell was resisting changes to his position which was proposed to be integrated into the claims assessing area. Ms Hardy reports that she had received little training and not much senior management support from Canberra. Her only supervisory training was to attend a course of some two days which she did not see as adequate training to deal with these two staff members. She was also expected to implement quite considerable organisation changes at a management level but had received no managerial training.
59. Ms Hardy found the supervision of Mr Steven Mitchell particularly difficult. Tendered in evidence was a photocopy of a cartoon character (Calvin of Calvin and Hobbs) which had appeared on Mr Mitchell's divider screen at his desk. The heading of the poster stated "Every Day Of My Life I'm Forced To Add Another Name To The List Of People Who Piss Me Off". Under the hearing "Permanent List" the name "Debbie" appeared seven times followed by "Pol Pot". Under the "List for Today" was the name "Debbie". Ms Hardy saw the poster and felt offended and humiliated. She chose not to say anything but rather hide her hurt and continue to supervise Mr Mitchell without reference to the poster.
60. Ms Hardy reported that in 1991 she was required to take on the functions and responsibilities for a new computer system without being given any training in system management or analysis. She was expected to rectify many of the problems that resulted from implementation of changes arising from the audit report in 1988. She felt under considerable pressure as supervisor and being expected to perform her duties as a full-time ADP officer. She was required to interview and train staff to a reasonable level of productivity within a short period of time. She frequently took work home and went into the office on weekends. She became increasingly tired and frustrated and felt unsupported by management. She began to suffer increasingly from headaches, throat infections, nausea and anxiety attacks. In her claims form she noted that she suffered severe migraines, panic attacks, chest pains and indigestion.
61. It was put to Ms Hardy that she was angry about not being appointed to the restructured ASO5 position which covered the duties that she had previously been performing. Ms Hardy did not agree that she was necessarily angry about the outcome but said that she was resentful about the lack of due process. The ASO5 was not advertised and Chris Healer was appointed to the position. Ms Hardy commented that the processes surrounding the restructuring program were stressful and lengthy and did result in a degree of hostility.
selection panel
62. Following the review of the TFES, Ms Hardy was nominated as a member of the selection panel together with Chris Healer (Chair of the Panel) and one other person to determine the newly created ASO3 assessor positions.
63. On 24 May 1993 Mr Mitchell wrote to Mr Healer requesting Ms Hardy's removal from the panel and made allegations about her supervision of him. In her claim form Ms Hardy stated:
"I was removed from a selection panel because I was accused of victimisation, harassment and bias. I was not given the opportunity to refute these allegations and felt unjustly treated. After pursuing these matters with Geoff Luther, AS, and others, I was told that I was over-reacting and that I should forget it. I felt my feelings were ignored and I felt humiliated and degraded.
I did not feel that senior management dealt satisfactorily with this situation and matters were left unresolved".
64. After seeing a copy of the letter written by Mr Mitchell Ms Hardy requested that the matter be investigated and that she be given the opportunity to refute the allegations. In removing her from the selection panel Ms Hardy felt as if the allegations against her had been accepted without Mr Mitchell being required to substantiate them. Ms Hardy said that her request was never actioned and she felt most upset about the allegations. She was angry at the lack of support received from the department.
childcare costs
65. In early September 1993 Vicki Buchanan commenced her duties as manager TFES. In her claim form Ms Hardy refers to a customer service course at the Pines Resort, Seven Mile Beach which involved an overnight stay. At the time, November 1993, Ms Hardy was a single mother of two children and objected to the requirement to stay overnight because of the personal and financial costs. Ms Hardy said that Ms Buchanan had called her into her office to advise that she had organised to pay her childcare costs out of petty cash. Ms Hardy queried how this was possible when she had not been able to have previous childcare costs reimbursed for her trip to Canberra. Despite her protests that it would be easier for her to simply attend the course during the day, she found Ms Buchanan unsympathetic, uncaring and rigid. Ms Hardy was concerned that Ms Buchanan was able to ignore departmental procedures in order to force her overnight attendance at the course. She was advised not to seek reimbursement for previous childcare costs and keep this payment quiet because it might get Ms Buchanan into trouble.
66. Ms Hardy was asked in cross-examination whether the department's failure to reimburse her for childcare contributed to her stress condition. Ms Hardy replied that she never submitted a claim for reimbursement for childcare costs but it was the fact that Ms Buchanan was able to go against departmental policy by covering her costs from petty cash that was the issue.
management issues
67. In the Davidson Trahaire Conflict Resolution Assessment prepared by Maureen Eadie Consultant Psychologist on 24 July 1995:
Ms Eadie notes: "Ms Hardy appears to have had great difficulty dealing with her manager, Ms Vicki Buchanan's implementation of management practices. Ms Hardy felt when Ms Buchanan was dealing with her she didn't apply or follow established guidelines or procedures as discussed below and this caused Mrs Hardy to feel singled out".
68. Ms Eadie went on to comment about the case management of Ms Hardy's back injury stating that:
"Ms Hardy indicates Ms Buchanan appeared to have little appreciation for her situation and felt she would not listen to what was recommended about advice on rehabilitation matters but would rather oppose the health professional's point of view. Ms Hardy reports Ms Buchanan often questioned the credibility of the professionals who were assisting her, leaving Ms Hardy feeling intimidated.
It should be noted that Mr Roger Joseph, CPSU Officer, indicated his concerns at Ms Buchanan's approach to this matter and had been aware of Ms Buchanan's style having the effect of marginalising two other Comcare cases previously.
Ms Hardy indicates Ms Buchanan also tried to enforce controls on her over issues such as changing her attendance outside of the guidelines and petty matters such as eating in the office. Ms Buchanan requested that Ms Hardy not eat breakfast at her desk, however, this advice did not apply to any other staff member eating breakfast or other meals at their desk".
These comments reflect the evidence given by Ms Hardy and Mr Roger Joseph who was called to give evidence at the hearing.
69. Ms Hardy stated that between January 1994 and May 1994 regular meetings were held in relation to her back injury and her "case management". Ms Hardy stated that Ms Buchanan continually questioned the credibility of her treating medical professionals. Ms Hardy said that she felt intimidated by Ms Buchanan's attitude which was often patronising and implied that Ms Hardy was avoiding work. Ms Hardy maintained that she was doing her best to continue working despite the pain, lack of sleep and the fact that she was a sole parent without family support.
70. She recalled a "dressing down" by Ms Buchanan in February 1994 when Ms Buchanan informed her that she had an "attitude problem". She was told never to question Ms Buchanan's decisions or her conduct in the downgrading of the ADP position.
71. Ms Hardy returned to work in September 1994 after a period of absence of approximately six weeks on workers' compensation and recreation leave. On her return she was informed that she was to be moved into a parallel position and that her position would be filled by another full-time staff member. A meeting was subsequently held with Mr Joseph, Mr Healer and Ms Buchanan to discuss Ms Hardy's position. It was agreed that Ms Hardy would not be moved to the parallel position. It was during this meeting that Ms Buchanan raised the issue of Ms Hardy's image in eating breakfast at her desk. Ms Hardy felt that she was being singled out and victimised as she had observed other staff members also eating breakfast at their desks.
72. Ms Hardy referred to another occasion when she was away on workers' compensation leave in early 1994 when audit consultants were reviewing the Freight Equalisation Payment system. Although she was not the relevant ADP officer at the time, Ms Buchanan demanded that she provide the advice sought by the accountants. Although she had not been appointed to the position, she was aggrieved that Ms Buchanan demanded that she go into work on the basis that she was the only person in the office who could discuss the computer processing system with the auditors.
73. Another incident referred to in Ms Hardy's claim form was attendance at a WGA course on 10 November 1993 which she says she was prevented from attending. During her evidence to the Tribunal Ms Hardy said that she had no recollection of the course except that it was a computer course for claims assessment. In Ms Buchanan's statement she noted that Ms Hardy already possessed many of the requisite skills and she selected another person as a "back-up".
74. In Ms Hardy's claim form under the heading "Final Result" she states that despite trying to do her best to deal with everything she could no longer continue to deal with the personal attacks and found that she was withdrawing from contributing to the work-place. She was in fear of being reprimanded for her normal behaviour and decided to leave the office because she was no longer able to function at work or elsewhere. Her psychologist had advised her doctor that she should not continue to work in that environment.
75. In the 1990's Roger Joseph was employed as an Industrial Officer with the CPSU. Mr Joseph was contacted by Ms Hardy in November 1993 when she claimed to have been harassed in the work-place by Vicki Buchanan. Mr Joseph submitted two written statements and gave oral evidence at the hearing. Mr Joseph said Ms Buchanan had raised the issue of Ms Hardy eating her breakfast at her desk at the end of a meeting convened to discuss other issues. He considered the comment was directed towards Ms Hardy's image, was totally unnecessary and caused Ms Hardy distress.
76. In his statement Mr Joseph commented that Ms Buchanan's management style involved playing favourites and creating hierarchies in the office with those at the bottom of the hierarchy being more vulnerable to Ms Buchanan's exploitation. He said that Ms Buchanan treated Ms Hardy in this way which indicated a lack of respect. Mr Joseph said Ms Buchanan did not pay him much respect either and addressed him in a patronising manner. He also understood that Ms Buchanan had made comments about Ms Hardy's dress style.
77. Mr Joseph said that he had convened a number of meetings with Ms Hardy in relation to her removal from the selection panel and this was when she first showed signs of real distress. Her distress continued for the time that Mr Joseph was the Industrial Officer.
78. Also tendered in evidence was a statement from Ian Tibballs who was Manager of the TFES and responsible for supervising Ms Hardy for a period of time. A supervisor's statement prepared by Mr Tibballs on 8 November 1994 was included in the T Documents. Mr Tibballs did not attend to give evidence at the hearing and his whereabouts were not known. In his statement of 8 November 1994 he commented that the removal of Ms Hardy from the selection panel "was the turning point" in Ms Hardy's attitude.
"Ms Hardy felt that she had not been fairly treated. In her view management had handled the situation ineffectively and it was at this point that she began to show signs of stress (she told me about back problems and indigestion). These signs began to appear after I was no longer Manager TFES".
79. Mr Tibballs stated that it was after this time that Ms Hardy's:
"commitment and enthusiasm towards work declined markedly. The signs of stress that I observed were that she was less focused and not as committed to her work. She no longer came in early or stayed late. Her work ethic changed and her commitment changed. I particularly noticed that she was now avoiding making decisions, particularly in relation to supervision. I believe that she became less communicative and this was part of her change in commitments".
temporary positions
80. In late 1993 Ms Hardy submitted an expression of interest for a temporary ADP Officer (ASO6) position. The position was only for a few weeks over Christmas and was to be acted at an ASO4 level meaning that the duties of the job at the ASO6 level would not be performed. Ms Hardy said that she applied for the temporary position because she had performed the same duties when the office restructure was first implemented. Ms Buchanan decided to fill the position with two officers, an ASO2 and an ASO3. When asked by Ms Hardy as to why she had chosen these two officers who were at a lower level and had no training for the position, Ms Buchanan replied that it was "staff development". Ms Hardy said that whilst she was disappointed, she was not greatly distressed in not being appointed because the position was only for a few weeks. Her main concern was that her expression of interest had not been considered fairly by Ms Buchanan. She said that she could not understand how these two people would be receiving career development when it was not proposed to provide them with any training for the roles. Ms Hardy disputed that there was any benefit for her in being appointed to the position as she had already performed the duties at the ASO6 level, the position was for a few weeks only and paid at her current ASO4 level.
81. In late January 1994 the ADP position was again advertised as a temporary vacancy for less than three months. With encouragement from Rachel van Dorsser, Ms Hardy's Rehabilitation Consultant, she submitted an application after a meeting held with Ms Buchanan and Ms van Dorsser. Ms Hardy's application was unsuccessful and she felt aggrieved by the process as no interview was held and her supervisor was not asked to provide a report. She was unaware of the makeup of the selection panel, or even if there was one.
82. Whilst Ms Hardy did not see the appointment as a promotion, she again felt that she had been denied a fair decision. She was experiencing back and other pain at the time and was attending her GP who reported on 18 February 1994:
"Tearful ++. Didn't get job applied for - someone else.
Rachel has organised counselling, long history of hard work and other people getting the promotion".
83. Ms Hardy had no recollection of this appointment and said that she could not recall the conversation with her GP. She said that she may have been distressed when she went to see her, perhaps due to her problems with pain and other difficulties which are also recorded in the progress notes.
84. After questioning Ms Buchanan as to why she had not been selected for the position, Ms Hardy requested a written job assessment summary. Ms Buchanan provided, what in Ms Hardy's opinion was an ineligible handwritten assessment. She did not become aware until 2005 after reading the statement of Ms Buchanan that the appointment decision had been made solely by Ms Buchanan. She was not able to lodge an appeal as the position was temporary but she felt that Ms Buchanan was biased against her. Ms Hardy also felt that she was being punished for not having accepted a temporary transfer to Canberra in December 1993. She had felt pressurised by Ms Buchanan to accept the transfer. After initially considering the transfer she decided to refuse it mainly due to her back injury and the recommendation of her case manager. Ms Hardy reported that Ms Buchanan was clearly annoyed and irritated when Ms Hardy produced a doctor's certificate to say that she could not fly.
Vicki Buchanan's Evidence
85. It was Ms Hardy's evidence that she:
"felt bullied and intimidated by Ms Buchanan from pretty much the first day in the office".
Ms Hardy said that she got on well with her former manager, Ian Tibballs, but disliked Ms Buchanan's management style for her decisions were often made without consultation. Ms Buchanan objected to Ms Hardy questioning her about her failure to follow proper process and procedures. Ms Hardy said that she felt intimidated and that issues between herself and Ms Buchanan became very "personal".
86. In her evidence to the Tribunal Ms Buchanan consistently maintained that her objective was to support Ms Hardy, particularly in a return to work program. Ms Buchanan said that she was aware of issues within the work-place when she commenced her role as Manager of TFES in September 1993. She had been appraised of the situation where Ms Hardy had been moved from the selection panel at the request of Mr Mitchell, however she had not seen the letter written by Mr Mitchell requesting Ms Hardy's removal. When it was shown to her during the course of her cross-examination she agreed that the letter could have been written in anger, in a way it was vitriolic, that some of the comments were hurtful and could be seen as an attack. Ms Buchanan also agreed after being shown the poster that Mr Mitchell had on his desk that its contents were abusive and not appropriate.
87. Ms Buchanan said that all she knew when she commenced her position was that "there had been issues" and that she did not have the sense that Ms Hardy was highly stressed. Despite her knowledge of the issue between Ms Hardy and Mr Mitchell, Ms Buchanan considered that Ms Hardy should attend an overnight team building exercise at the Pines Resort, Seven Mile Beach at which Mr Mitchell would also be a participant. When Ms Hardy objected on the basis of personal difficulties in having two children to care for, Ms Buchanan offered to pay her childcare costs out of petty cash. Ms Buchanan accepted under cross-examination that it was the inconsistency between the procedures for payment of childcare costs that troubled Ms Hardy. She also agreed after having seen the letter written by Mr Mitchell that there may have been issues about them being required to be together for an overnight stay at the Pines Resort.
88. In a statement written by Ms Buchanan dated 3 November 1994 regarding Ms Hardy's stress claim, she consistently stated that she considered Ms Hardy's failure to be appointed to the temporary ADP positions and a number of other issues constituted "a career disappointment situation". With respect to the temporary position for three or four weeks over the Christmas period Ms Buchanan said that Ms Hardy was not seriously considered for the position as it was expected that she would be working in Canberra during that period.
89. It was Ms Buchanan's evidence that when the position was advertised for a three month period the following year, she was advised by the Canberra office that Ms Hardy should not be considered for the position because she was on workers' compensation at the time. Regardless of this advice Ms Buchanan said that she nevertheless considered Ms Hardy for the position but decided not to appoint her. She agreed that Ms Hardy had queried the selection process and that she had given her a copy of her handwritten notes. She never informed Ms Hardy that she had been told not to consider her for the position.
90. Ms Buchanan maintained that she took an active role in managing Ms Hardy's workers' compensation claim. She considered that she had the necessary skills to do so from her position as State Manager for Comcare. She agreed that she had a discussion with Ms Hardy about her doctor and advised her to get a second opinion. Ms Buchanan admitted that early on she had been sceptical about Ms Hardy's back problem. Despite Ms Buchanan's statement that it was not her role to contact Comcare with respect to Ms Hardy's workers' compensation claim, tendered in evidence was a copy of a Comcare file note addressed to "Rosemary" dated 8 August 1994 recording details of a phone call from Vicki Buchanan stating as follows:
"Re : Incapacity to 26.8.94
1. I received a phone call from Vick Buchanan.
2. Claimants GP has certified her unfit for 3/52.
3. I have been requested to ensure that the GP is contacted and requested to supplement the certificate with information as to how the:-
- Employment;
- Pre-existing degenerative condition;
- Present incapacity;
relate.
4. Please write and ask pertinent 'q's' and forward any relevant reports to the GP and direct the doctor to the appropriate parts of evidence".
91. When a copy of the file note was presented to Ms Buchanan she said that she had no recollection of the conversation with Rosemary Bezzant. Subsequent to the file note a letter was written from Rosemary Bezzant to Dr Wnekowski in similar terms to the details of the file note.
92. Although Ms Buchanan claimed that her objective was to support Ms Hardy through her workers' compensation claim, she said that she had not seen any of Ms Hardy's medical certificates.
93. Of relevance is a certificate dated 20 September 1994 which states:
"Sress symptoms - migraine headaches 15 and 16/9/94, nausea, stress and anxiety, insomnia, trouble concentrating, depressed and tearful. This has been building up for some time but the final triggers were the events of 12/9/94 - changes to her work as regards graded return to full employment"
94. When Ms Hardy returned to work she was informed that her position had been restructured. A meeting was convened with Ms Buchanan and Mr Joseph at the end of which Ms Buchanan reprimanded Ms Hardy for eating her breakfast in the office.
Consideration
95. Despite Ms Buchanan's claims of being supportive to Ms Hardy with respect to her health issues, her actions were not recognised in this way by Ms Hardy. As von Doussa J noted in Wiegand v Comcare it is the perception of the employee that is relevant and whether the perception, however unreasonable, contributed to the injury in a material degree.
96. Ms Hardy gave her evidence in a considered and forthright manner. She was naturally upset on several occasions and requested a number of breaks to regain her composure. Despite her obvious distress her evidence under cross-examination remained consistent and credible. When she was unable to recall a particular matter, she said so. She did not attempt to fabricate her evidence to support her cause.
97. Although on several occasions it was put to Ms Hardy in cross-examination that she was angry and distressed at not being appointed to the temporary positions or receiving support or appropriate responses from the department, she maintained that her distress resulted from the fact that due process had not been followed. Her evidence in this regard was supported by other witnesses who gave evidence as related above.
98. The first issue for consideration is Comcare's determination that the effects of Ms Hardy's back injury sustained in 1993 ceased on or before 29 November 2005. It is contended by the respondent that the evidence supports a finding that any work-related symptoms attributable to the incidents on 6 August and 6 September 1993 were temporary in nature and did not result in any continuing incapacity.
99. Mr Hobbs referred to the medical evidence which opined that these incidents were likely to have aggravated her underlying degenerative condition and to subsequent medical reports which suggest that by 1995/1996 Ms Hardy had made a full recovery from the physical problems associated with her back injury. Mr Hobbs also referred to the general practitioner's Progress Notes which indicate that Ms Hardy did not consult her doctor with respect to the back injury until 11 November 1993 which was three months after the first incident and two months after the second incident. Further, that the notes report that the pain had "cleared" between the two incidents and following the second incident on 6 September 1993. Whilst Ms Hardy had reported having pain for a week when she consulted her doctor on 11 November, there was no reported trigger for the pain. Subsequent records in the Progress Notes, namely on 27 January 1995 note that her pain had "flared after moving house". On 20 June 1997 it is reported: "lumbar spine depends on activity level ok unless aggravates it with driving, gardening, sitting long periods" and that on 5 September 1997 she had experienced pain from sweeping, that she stacked 3 tonnes of wood and that her back had been sore since.
100. One way for Ms Hardy to sustain a compensable claim for her back injury is to satisfy the Tribunal on the balance of probabilities that she sustained a permanent aggravation to her underlying disc degeneration which contributed to her current condition. There is simply no medical evidence of a permanent worsening of her underlying degeneration. The medical specialists have opined that the aggravation was temporary and that she has no ongoing orthopaedic injury.
101. Mr Browne relied on Dr Francis' evidence that Ms Hardy's back condition constituted step one of a two step process in the development of her diagnosed condition of fibromyalgia. Dr Francis expressed his opinion on the basis of the history relayed to him by Ms Hardy. He was not informed of the contents of Dr Wnekowski's Progress Notes which record that the pain had cleared following the work-related incidents. He agreed that it would be difficult to causally relate the fibromyalgia to the plane incident on the basis of the history contained in the GP's notes. Whilst he had considered that Ms Hardy's back pain had been a contributing factor to the fibromyalgic symptoms, Dr Francis said in his evidence that although he is not an expert in the field of psychological disturbances, the literature recognises that stress can be a predictor of fibromyalgia. He noted that the literature reports psychological symptoms and anxiety as a contributing factor which in some instances can be the starting point.
102. Dr Francis agreed that Ms Hardy does not suffer from a back injury and that any symptoms relating to her back injury had ceased. He stated in his report dated 24 March 2009:
"This lady has fibromyalgia that has nothing to do with any back injury. It was not caused by work incidents or conditions arising out of her work in the Commonwealth. Having said this, stress will aggravate pain and disturb the sleep pattern and may have some impact on the global outcome.
Your client does not suffer pain from a consequence of any injury".
103. Ms Hardy claims that the effects of her back injury have been ongoing and only "cleared" to the extent of allowing her to "get on with things". However on the basis of the medical evidence, I cannot be satisfied that she sustained any ongoing aggravation of her underlying disc degeneration as a result of the work place injuries that was in any way causative of her condition of fibromyalgia. I accept the evidence that the aggravation was temporary and had no long term impact on Ms Hardy's underlying condition. I am accordingly not satisfied on the balance of probabilities that Mr Hardy's back injury contributed to her condition of fibromyalgia.
104. On the basis of Dr Francis' evidence, it is reasonable to conclude that Ms Hardy's severe stress and anxiety could be causative of her condition of fibromyalgia. As Dr Francis noted, it would depend on the extent and the nature of the stresses.
105. The word "material" as it appears in section 4 of the definition of injury was considered by Finn J in Comcare and Sahu-Kahn. He considered that the Shorter Oxford English Dictionary definition of the word "materially" which means: "in a material degree; substantially, considerably", captures the essence of what the legislation is conveying. At paragraph 16 Finn J said that the section 4 definition:
"(i) requires a stronger causal relationship between the employment and the ailment, and the ailment etc suffered than that exacted by the 1971 Act".
(ii) 'in a material degree' requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment etc in question ("the threshold evaluation").
(iii) whether this will be so in the given case will be a matter of fact and degree".
106. There was evidence that Ms Hardy first showed signs of stress in the work place arising from matters involving Mr Mitchell. A number of subsequent incidents and in particular Ms Buchanan's management style compounded and increased Ms Hardy's stress levels. As previously found I do not accept the opinion of Dr Sale that Ms Hardy's stress and anxiety condition is the result of childhood sexual abuse or issues related to the death of her father. Whilst the childhood sexual abuse may have predisposed Ms Hardy and made her more vulnerable to the effects of the work place incidents, it was not causative of her condition.
107. The principle that in considering liability for compensation, Comcare must take the employee as it finds him or her, that is with any pre-existing vulnerability to injury was relevant to the circumstances of the applicant in Carpenter and Comcare. In considering the principle DP Jarvis referred to such cases as Wiegand v Comcare, Federal Broom Company Pty Ltd v Semlitch [1964] 110 CLR and Fellowes v Military Rehabilitation and Compensation Commission [2008] 103 ALD 552. Whilst the death of Ms Hardy's father was referred to in the Davidson Trahaire Report, no health professionals considered that it was causative of Ms Hardy's anxiety and stress condition, but that she had in fact resolved past issues with her father.
108. For the reasons outlined above under the heading Anxiety Condition, I accept the evidence of those medical practitioners who considered that Ms Hardy's anxiety and stress condition was work place related. I am satisfied that those work place factors that Ms Hardy identified in the annexure to paragraph 23 of her claim form were the substantial causes of her condition and thus contributed in a material degree as the term is used in section 4.
Exception Provisions to Definition of Injury
109. On the basis of the Full Federal Court's decision in Hart v Comcare [2005] FCAFC 16 it was submitted by Mr Hobbs that if the Tribunal is satisfied that any one of the contributing factors constituted a failure to obtain a promotion or benefit, the "injury" would not be compensable pursuant to section 4(1). The respondent identified the following employment factors as falling within the exception provisions of the definition of injury:
·obtain a transfer to Canberra, and/or
·a promotion, and/or
·a benefit in the form of written advice that childcare costs would be covered by her department
·a benefit in the form of a failure to obtain a perceived satisfactory resolution to a dispute about membership of a selection panel.
The respondent subsequently applied to delete the words "to Canberra" from the first factor and at the hearing advised that this factor was no longer relied upon as falling within the exemption.
110. For a disease to fall within the exemption provision of section 4(1)(c) it must be suffered by an employee "as a result of" a failure to obtain a promotion or benefit in connection with employment. The fact that the wording does not include a requirement that there be a material connection between the disease and the accepted event was considered by DP Jarvis in Carpenter v Comcare. In that decision DP Jarvis referred to the Full Federal Court's decision in Hart v Comcare noting that it had been unnecessary to consider the issue as the Tribunal had found that the failure to obtain the promotion had made a material contribution to the applicant's condition. DP Jarvis considered that a requirement of "a material contribution" should be implied in the exceptions to the definition of injury to ensure consistency between the definitions, for:
"otherwise the exceptions to the definition would be wider than the primary requirements of the definition of "disease", which is a subset of "injury". This would be incongruous, and would not, I think, accord with Parliament's intention. I accordingly conclude that on the proper interpretation of the definition of "injury" that definition only arises where the excepted events contribute in a material way to the disease in respect of which compensation is claimed". (Paragraph 104)
111. The various work place issues referred to by Ms Hardy in the attachment to her claim form have been discussed above in the course of this decision. The remaining issue for consideration is whether any of those issues constitute either a "promotion" or "benefit" within the meaning of the injury exceptions and if so, whether they made a material contribution to Ms Hardy's condition.
112. The "promotions" relied upon by the respondent are the temporary positions referred to in paragraphs 81 to 85 of this decision. The phrase "failure to obtain a promotion, transfer or benefit" was considered by Cooper J in Golds v Comcare [1999] FCA 1481. After considering a passage of Heerey J in Trewin v Comcare [998] FCA 713, Cooper J said at paragraph 42:
"I agree with these observations. The phrase "failure ... to obtain a promotion, transfer or benefit in connection with ... employment" must be read in the context of Commonwealth employment, which involves the creation of positions within a classified hierarchy. A promotion in this context means no more than to advance to a higher position in the bureaucratic structure. It is not necessary that the phrase be limited to a failure to be promoted to a specific position for which the person was an applicant".
113. Neither of the temporary positions for which Ms Hardy had lodged an expression of interest and was ultimately unsuccessful involved a "promotion" within this context. The first temporary position was advertised as an ASO6 position and was to be acted at an ASO4 level meaning that the ASO6 level duties would not be performed. The remuneration was to be at the ASO4 level. The positions were only temporary and would not ultimately have resulted in a "promotion" for Ms Hardy. She had already performed the duties at an ASO6 level and there was no evidence of any resulting benefit to her. Nor was there any evidence that the position was a prerequisite for any other position or that Ms Hardy would be advantaged by learning any new or additional skills.
114. I accept Ms Hardy's evidence that her stress did not result from her being passed over for the positions but resulted from the manner in which the positions were filled by Ms Buchanan. Dr Farnbach in his report stated:
"I also note that Ms Hardy's psychiatric condition has been attributed to her failure to achieve a promotion and her removal from the above described panel. The contributions that these have made to Ms Hardy's clinical state is due to her perception of bias and discrimination, rather than the failure to achieve a promotion per se".
115. In closing submissions Mr Hobbs submitted that the restructuring of Ms Hardy's position as claims supervisor and the lack of opportunity to apply for the upgraded ASO5 position was another event that constituted a failure to obtain a promotion or a benefit. Mr Hobbs referred to the statement of Ms Eadie in the Davidson Trahaire report which reads:
"Ms Hardy was affected by losing her ASO4 position as Claims Supervisor and not given any opportunity to apply for the position when it was upgraded to an ASO5 ... Ms Hardy moved into what she considered to be a subordinate ASO4 position, leaving her feeling she had been demoted, her work devalued and with no challenge in her new role".
116. Mr Browne objected to this submission on the basis that this issue had not been identified as a discreet factor in the respondent's correspondence as falling within the exemption provision. Both parties were given the opportunity to make written submissions regarding the objection. Mr Browne contended that had this issue been separately identified, he would have led additional evidence either in chief or by way of cross-examination.
117. Mr Browne submitted that with respect to any claimed disqualifying factors, Comcare carries an evidential onus and referred the Tribunal to Hillier v Comcare [2009] AATA 188 at paragraph 4 where the Tribunal stated:
"Further, the coincidence of work-caused injury and onset of symptoms raises a presumption of related causation. Such an inference is open to us unless it is disturbed by evidence adduced by Comcare to the contrary (Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164"
118. In his responding written submissions Mr Hobbs disputed the contention that the applicant had not been given adequate notice of the issue and contended that the evidence regarding the restructured claims supervisor position was available well in advance of the hearing and relevant exhibits had been tendered.
119. The applicant's objection to the respondent's reliance on this as a discreet disqualifying factor is understandable when it had not been previously identified as such despite a Tribunal requirement for the respondent to provide particulars of the disqualifying events. There was evidence however regarding this issue and Ms Hardy was cross-examined about the TFES review process and the restructured positions. I accept that had this issue been previously identified by the respondent as a discreet disqualifying factor, Mr Browne may have chosen to lead additional evidence. For the reasons that follow however, I do not consider that the applicant is prejudiced by any failure to afford Mr Browne the opportunity to lead additional evidence.
120. Consistent with my obligation to arrive at the correct or preferable decision, I am obliged to consider the relevant evidence presented in relation to this issue. The respondent has referred to Maureen Eadie's reference in the Davidson Trahaire Report at paragraph 3 of page 5 which reads:
"Ms Hardy was affected by losing her ASO4 position as Claims Supervisor and not given any opportunity to apply for the position when it was upgraded to an ASO5, as this was filled automatically. Ms Hardy moved into what she considered to be a subordinate ASO4 position, leaving her feeling she had been demoted, her work devalued and with no challenge in her new role".
121. In an undated vocational assessment report prepared by Julian Watchorn and Dr Marie-Louise Craske of the Psychology Clinic University of Tasmania, it was reported:
"Prior to her back injury in August 1993, Debbie's work position was upgraded, but unfortunately for Debbie, someone else was put into that position. As a result, Debbie was demoted. She stated that she felt a lot of resentment and suffered a great deal of stress as a result of her treatment during this time. Debbie still expresses very strong feelings about that event".
122. It was further reported by B Boyer in a memorandum of a meeting that he held with Ms Hardy on 7 February 1996:
"TFES review, she is bitter about the outcome and perceived lack of career path stating that she saw deals being done to accommodate the surplus admin people. In particular the creation of an ASO5 in the structure and filling by surplus officers denied her a chance at promotion. We spoke through this and I believe we came to an understanding that it was appropriate for the department to accommodate surplus staff within reason in some circumstances. The denial of a career path was carried through to a recent vacancy at the ASO5 level which she felt she could not go for because of all the unresolved difficulties she had with the area:
123. I was also referred to the Progress Notes of Dr Wnekowski dated 18 February 1994 which were referred to in paragraph 82 above. This reference however is to a position that Ms Hardy had applied for, which could not have been the ASO5 position.
124. Whilst these references suggest that Ms Hardy was disappointed and indeed stressed about the restructuring of her position, the oral evidence presented at the hearing did not confirm such stress and disappointment. None of the authors of the reports were available for cross-examination. The evidence given by the witnesses at the hearing was that Ms Hardy was affected by the processes surrounding the restructuring of the TFES rather than her failure to be appointed to any particular position. The evidence was that Ms Hardy was not given an opportunity to apply for the restructured position to which Mr Healer was appointed. There is no independent medical opinion upon which I could be satisfied on the balance of probabilities that Ms Hardy's failure to be appointed to this position, which is conceded would have amounted to a promotion, contributed in a material degree to her anxiety and stress condition.
125. I am guided by the comments of the Full Court in Hart v Comcare where it said at paragraph 26:
"... The events which surround a promotion process may, conceivably, be such as to cause serious injury, mental or physical. Injury as a result thereof could be quite distinct from any injury suffered as a result of a failure to obtain a promotion. However, equally, distress at or with the process of assessing the candidates for promotion may, as a matter of fact, be suffered as a result of failure to obtain the promotion. It is possible to envisage circumstances where someone who would have had no, or limited, criticism of the events surrounding a promotion process had he or she achieved the promotion, becomes aggrieved by those processes to the extent of suffering psychological harm following a failure to obtain the promotion. In such circumstances, there may be factual issues, including medical issues, as to what was the role of the events in the procedure and of the failure to obtain the promotion. However, we do not think that it can be concluded, as a matter of construction of the definition, that events concerned with the process of evaluation of the promotion application are necessarily bound up with the decision as to the promotion and any failure to obtain the promotion".
126. I consider that it were the events surrounding the restructuring program rather than Ms Hardy's failure to be appointed to the restructured ASO5 position that contributed to her distress. For these reasons I reject the respondent's submission that Ms Hardy's failure to be promoted to the restructured ASO5 position constituted a disqualifying factor under section 4.
127. Mr Hobbs submitted that in the event the Tribunal did not accept the respondent's contention that Ms Hardy's failure to be appointed to the two temporary positions amounted to promotions, it is open for the Tribunal to accept that they constituted a failure to obtain a "benefit" within the meaning of section 4(1).
128. Mr Hobbs referred the Tribunal to the Federal Court's decision in Trewin v Comcare which considered whether a failure to obtain a permanent position constituted a benefit even where the benefit could be characterised as a right. At pages 6-7 Heerey J stated:
"The question then arises whether the Tribunal erred in treating permanency as a "benefit" in connection with her employment. Obviously permanency was something desirable, good or beneficial from the applicant's point of view. But it was argued that permanency for her was not a benefit but a right arising from a memorandum of understanding between the Department of Defence and the Public Sector Union made in April 1993 in relation to the management of excess staffing situations. Clause 8(o) of that Agreement states:
"The Department will ensure that excess and potentially excess officers receive priority for placement in vacant positions; that is, on the basis of suitability to perform the duties of a position within a reasonable period of time rather than through the normal merit competition process. Excess and potentially excess officers will be considered for vacancies in anticipation and isolation from other non-excess and non-potentially excess officers."
In my opinion the term "benefit" in s 4 is not restricted to something which is a matter of charity or gratuity. The Macquarie Dictionary gives two relevant meanings for the noun "benefit":
"1. an act of kindness.
2. anything that is for the good of a person or thing."
To some extent the meanings overlap, with the latter being broader.
I think that the word is used in s 4 in the latter sense, which does not necessarily exclude something obtained as a matter of right. An example of this usage is in the term "medical benefit", which means a payment to which an insured person is entitled as a matter of contractual right.
Moreover the concept of "failure ... to obtain a promotion, transfer or benefit in connection with ... employment" has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be deduced from the exception to the definition of "injury" in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable.
In the passage already quoted the Tribunal held that the exception applied because the obtaining of a permanent position was "not a right". But the question whether permanency, in the circumstances of the applicant's employment in September 1995, could be characterised as a right, was not relevant. For the reasons mentioned, a benefit (or promotion or transfer) to which an employee is entitled as a matter of right - in the sense of something being legally or administratively enforceable - is nonetheless within the exception".
129. Mr Hobbs also relied on this decision to support the respondent's argument that Ms Hardy's failure to obtain reimbursement of childcare costs and a satisfactory resolution of the selection panel issue could constitute a benefit within this meaning.
130. Another case of relevance is a decision of Deputy President Blow in Nicklason v Comcare [1999] AATA 736. In that case it was submitted by the respondent that the applicant's failure to retain his employment at the time of restructuring constituted a failure to obtain a benefit. Deputy President Blow disagreed with the respondent's contention and considered that the abolition of the applicant's position and his retrenchment constituted detriments rather than benefits within the meaning of section 4. Deputy President Blow considered that this interpretation was consistent with the established principle that workers' compensation legislation is beneficial legislation.
131. The conclusion of Heerey J in the Trewin v Comcare decision was that a benefit (or promotion or transfer) to which an employee is entitled as a matter of right - in the sense of something being legally or administratively enforceable falls within the exception provisions of section 4. In my view such a conclusion cannot be equated to Ms Hardy's failure to obtain a satisfactory outcome with respect to the manner in which she was removed from the selection panel. There was no evidence that she was entitled as of right to a particular course of action in the form of a grievance hearing or the like.
132. There is insufficient evidence in any event upon which I could conclude that the lack of a satisfactory resolution of this issue contributed in a material degree to Ms Hardy's anxiety and stress condition.
133. The other factor that the respondent contends constituted a benefit which materially contributed to Ms Hardy's condition was her failure to be reimbursed for her childcare costs.
134. As noted earlier in the decision it was Ms Hardy's evidence that she had never submitted a claim for reimbursement of childcare costs as it was her understanding that there was no departmental policy that provided for reimbursement. Her distress arose from the manner in which Ms Buchanan was able to cover her childcare costs for the Pines Resort Retreat from petty cash on this occasion. It is hard to conceive how Ms Hardy's failure to be reimbursed her childcare costs could constitute a failure to receive a benefit in this instance. It is arguable that the failure to be reimbursed constituted a detriment rather than a failure to receive a benefit as there was certainly no legal right to have her costs reimbursed.
135. Nor in my view, could the term "benefit" in this context be referrable to Ms Hardy's failure to be appointed to the two temporary positions referred to above. There simply was no evidence that such appointments would have amounted to a benefit for her. Both positions were to be acted at the ASO4 level, meaning that there would be no increase in salary. Ms Hardy had acted in the position at the ASO6 level on a previous occasion and there was no evidence that she would acquire any new skills. The positions were not a pre-requisite for any other positions. In any event I do not accept that Ms Hardy's failure to be appointed to these positions materially contributed to her anxiety and stress condition.
136. The final issue raised by the respondent as a background circumstance, concerned her failure to receive approval to attend the WGA Course. There was an absence of evidence as to how attendance at this course would have benefited Ms Hardy, and there is no evidence that denying her attendance in any way materially contributed to her anxiety and stress condition.
Decision
137. I have been greatly assisted by the detailed medical evidence that was presented in the course of this hearing. After a considered examination of all of the identified workplace issues, I am satisfied for the reasons stated above that they materially contributed to Ms Hardy's severe stress and anxiety condition. The respondent has failed to satisfy me that any one of these work place issues falls within the exception provisions of the definition of "injury" in section 4(1) of the SRC Act such as to disentitle Ms Hardy to compensation pursuant to section 14(1). I accordingly determine that Comcare's decision to cease liability for payment of compensation with respect to the stress and anxiety condition should be set aside.
138. For the reasons outlined above however, I am not satisfied that Ms Hardy continues to suffer symptoms from the work related back injury and accordingly affirm Comcare's decision of 29 November 2005.
138. The decision of 18 October 2005 ceasing liability for payment of compensation for stress and anxiety is set aside and in place of that decision it is ordered:
(a) THAT the respondent is liable for the condition of severe stress and anxiety from which the applicant has been suffering since 23 November 1994.
(b) THAT the matter be remitted to the respondent for reconsideration in accordance with this decision
(c) THAT liberty to apply within 14 days in relation to the costs of the proceedings be reserved.
(d) THAT in the absence of any such application, the respondent is to pay the applicant's costs of and incidental to the proceedings with respect to the stress and anxiety determination.
I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: ............................
R Hunt (Administrative Assistant)Date/s of Hearing 15, 16, 17, 18, 19, 22, 23, 24, 25, 26 February 2010. Further written submissions filed 15 March 2010
Date of Decision 10 May 2010
Counsel for the Applicant Mr Roland Browne
Solicitor for the Applicant Fitzgerald & Browne Lawyers
Counsel for the Respondent Mr Craig Hobbs
Solicitor for the Respondent Ms Naomi Richards, Australian Government Solicitor
11
0