HARGREAVES And TELSTRA CORPORATION LIMITED
[2011] AATA 417
•17 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 417
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/1706, 08/4598
GENERAL ADMINISTRATIVE DIVISION ) & 2010/2784 Re DALE LOUISE HARGREAVES Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date17 June 2011
PlaceMelbourne
Decision The Tribunal sets aside the decisions under review and substitutes the following decisions:
Applications 2007/1706 and 2010/2784:
1. Ms Hargreaves suffered incapacity and impairment as a result of injury identified as soft tissue injury and labral tear of left shoulder, bruising and contusion arising out of or in the course of employment with the respondent on 21 August 2006 and again on 9 October 2006, which gives rise to entitlement to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
2. The respondent shall pay to Ms Hargreaves:
(a) The costs of all medical and related treatment expenses incurred in respect of the injury pursuant to s 16 of the SRC Act.
(b) Weekly payments of compensation in respect of incapacity for work for all periods when Ms Hargreaves’ ability to earn was less than the normal weekly earnings pursuant to s 19 of the SRC Act.
3. The Respondent shall pay Ms Hargreaves’ costs and disbursements in respect of these proceedings pursuant to s 67 of the SRC Act.
Application 2008/4598:
1. Ms Hargreaves suffered incapacity and impairment as a result of injury identified as adjustment disorder with anxiety and depression secondary to her left shoulder injury to which her employment contributed to a material degree, first treated on 14 December 2006, which gives rise to entitlement to compensation pursuant to the SRC Act.
2. The respondent shall pay to Ms Hargreaves:
(a) The costs of all medical and related treatment expenses incurred in respect of the injury pursuant to s 16 of the SRC Act.
(b) Weekly payments of compensation in respect of incapacity for work for all periods when Ms Hargreaves’ ability to earn was less than the normal weekly earnings pursuant to s 19 of the SRC Act.
3. The respondent shall pay Ms Hargreaves’ costs and disbursements in respect of these proceedings pursuant to s 67 of the SRC Act.
..............[signed]................................
Senior Member
COMPENSATION – working from home - two falls resulting in injuries - whether arose out of or in the course of employment - adjustment disorder - whether excluded from definition of injury for failure to obtain a benefit
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 7(4), 14(1), 16, 19, 67
Comcare v McCallum [1994] FCA 975
Goward v Commonwealth (1957) 97 CLR 355
Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473
Re Commonwealth Bank of Australia and Wark and Another (1995) 37 ALD 697
Trewin v Comcare [1998] FCA 713
Weaver v Tredegar Iron & Coal Co Limited (1940) 3 All ER 157
REASONS FOR DECISION
17 June 2011 G. D. Friedman, Senior Member
1. Dale Hargreaves commenced employment with the respondent in Brisbane in 1997 as a personal assistant and worked as a contractor before becoming a permanent officer involved in projects and commercial relationships. In 2005 her work included campaign management and reporting, and she worked two days from home each week and three days in the respondent’s city office. On 21 August 2006 she fell down the stairs at home and injured her left shoulder (the first fall). On 9 October 2006 she again fell down the stairs and again injured her shoulder (the second fall), requiring surgery. She later developed depression and anxiety which she claimed was secondary to the physical injuries.
2. Ms Hargreaves accepted a redundancy package in 2007 and has not worked since then. The respondent denied liability for injuries sustained in the first fall (application 2010/2784) and the second fall (application 2007/1706) on the basis that the injuries did not arise out of, or in the course of, her employment. The respondent also denied liability for post-injury stress (application 2008/4598) on the basis that her condition was suffered as a result of a failure by Ms Hargreaves to obtain a benefit (a continuation of approval for her to work from home). Ms Hargreaves seeks review of the decisions.
LEGISLATIVE BACKGROUND
3. The relevant sections of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) that were in effect in 2006 and up to 13 April 2007 are:
14 Compensation for injuries
(1) 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.
4 Interpretation
(1) 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 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), 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.
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such 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.
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 7(4) of the SRC Act provides that the date of injury is taken to be the day on which an employee first sought medical treatment for the disease. Section 16 of the SRC Act provides for the payment of compensation in respect of reasonable medical expenses incurred in relation to an injury, and s 19 of the Act provides for the payment of compensation for incapacity for work resulting from an injury.
ISSUES
Applications 2007/1706 and 2010/2784:
4. There was no dispute that Ms Hargreaves suffered physical injuries, including traumatic injury to her left shoulder, in the first fall and the second fall, and that these injuries constitute an injury (other than a disease) for the purposes of the definition in s 4(1) of the SRC Act. The issues before the Tribunal are whether Ms Hargreaves’ left shoulder (and other) injuries suffered in the first fall and the second fall arose out of, or in the course of, her employment with the respondent for the purposes of s 4(1)(b) of the SRC Act, and, if so, whether she is entitled to compensation for medical expenses and incapacity.
Application 2008/4598:
5. There was no dispute that Ms Hargreaves suffers from a psychiatric ailment to which her employment contributed to a material degree, and which satisfies the incapacity requirement in s 14 of the SRC Act. Dr J Reddan, consultant psychiatrist, and Dr G Apel, psychiatrist, diagnosed an adjustment disorder with depressed and anxious mood. Dr
M Uebergang, forensic & counselling psychologist, diagnosed post-traumatic stress disorder. On the available medical evidence the Tribunal prefers the opinions of the psychiatrists and finds that Ms Hargreaves suffers from an adjustment disorder with anxiety and depressed mood.
6. The issue before the Tribunal is whether the ailment was suffered as a result of a failure by Ms Hargreaves to obtain a benefit in connection with her employment so as to exclude any entitlement to compensation, and whether she is entitled to compensation for medical expenses and incapacity.
DID MS HARGREAVES’ LEFT SHOULDER (AND OTHER) INJURIES SUFFERED IN THE FIRST AND SECOND FALLS ARISE OUT OF, OR IN THE COURSE OF, HER EMPLOYMENT WITH THE RESPONDENT?
7. Ms Hargreaves told the Tribunal that she was born in New Zealand and came to Australia in 1994. She said that she had a number of jobs before commencing with the respondent in Brisbane on 3 August 1997. She began as a Personal Assistant on a contract basis, and progressed to general administration, Executive Assistant and then project work. She became a permanent officer in about 2003 or 2004. She worked for Telstra Country Wide in commercial relationships and strategy, and in August 2005 she was seconded to Telstra Consumer Marketing, which handled most of the respondent’s campaigns. She said that she was working up to 120 hours per week in developing prototypes of reports to make the area transparent and to develop automated report production. Her tasks included managing the Campaign Execution Grid (CED), which involved liaising with stakeholders around Australia, monitoring campaign strategies and preparing reports.
8. Ms Hargreaves told the Tribunal that she had reached an informal agreement with the respondent in about 2005 that she would work from home two days per week and at the city office for three days per week. She said that the respondent had arranged for her to be provided with the necessary equipment (laptop computer, cabling, mobile telephone, internet etc.) and access to the respondent’s computer system at its expense. She said that the nature of her work was such that she could work from any location, although contact with stakeholders required her presence regularly at the city office. Ms Hargreaves emphasised that her supervisor was located in Melbourne and that this arrangement was satisfactory because of the availability of technology for meetings and communications.
9. In respect of the first fall Ms Hargreaves told the Tribunal that in August 2006 she was enjoying her role as campaign manager for the CED, but that her duties required long working hours from home or in the city office, and she was becoming tired because of the workload, strict deadlines and the lack of support staff. She said that she had been suffering from respiratory problems for several months and had been receiving treatment from her general practitioner.
10. Ms Hargreaves explained that on 21 August 2006 she had logged onto the respondent’s computer system and had been working for some hours from her home office, which was situated on the first floor of her townhouse in a Brisbane suburb. She stated that at about 6pm she began coughing violently and decided to fetch some cough mixture from the refrigerator located downstairs in the kitchen. She said that she was dressed in casual clothes and was wearing socks but no shoes. She was holding her chest with her left hand, and her right hand was holding the wooden handrail of the stairs, which consisted of one set of 15 wooden steps leading to a tiled floor on the lower level of the townhouse.
Ms Hargreaves stated that her coughing continued as she reached the top of the stairs and she lost her balance, then fell from the top step for about seven steps. She said that she came to rest after sliding on her back.11. Ms Hargreaves’ son was in the lounge room on the lower floor and heard her cry out as she fell. She said that they both laughed because she felt silly. She felt some pain, especially on her left thigh. She said that she checked for other injuries and then proceeded to the kitchen to collect her cough mixture. Then she went back upstairs, had a shower and went to bed. She did not do any more work that evening, although before the fall she had intended to do so. The next day Ms Hargreaves worked from home as usual and decided that she was not injured, and did not disclose to management that she had been working prior to the fall, and did not lodge an incident report. She had felt no shoulder pain, although there was a large bruise on her left thigh. She said that her decision to fetch some cough mixture was similar to other breaks (cigarette breaks, toilet breaks and meal times) that she took during her normal working routine.
12. Ms Hargreaves stated that two days after the fall she developed pain in her left arm and consulted her general practitioner on 24 August 2006. She was referred for X-rays and an ultrasound, which did not disclose any abnormality, and she continued to work as usual. About a week and a half later she awoke one morning with severe shoulder pain, and took some time off work. Further ultrasound and X-rays on 25 September 2006 revealed thickening subacromial bursa and impingement from 45 degrees. Ms Hargreaves said that she continued to work, and attended physiotherapy and acupuncture for the pain.
13. In respect of the second fall Ms Hargreaves told the Tribunal that on 9 October 2006 at about 8.30am she commenced work at her home office by logging on to the respondent’s computer system and responding to an email from her supervisor. She said that at about 8.40am she left her workstation because her son was leaving for school and that, following a burglary in November 2005, she had been instructed by the respondent to secure her home by locking the front screen door. She explained that as she descended the stairs to lock the door she was trying to clear her throat and was holding her left arm towards her body as it was inflamed and unsupported. At the time she was holding the handrail with her right hand. About 5 or 6 steps from the bottom of the stairs she felt herself beginning to cough, lost her balance and fell, landing on her buttocks on the final step. Her left arm was hyper-extended behind her, and she suffered excruciating pain in her left shoulder. Her son came to her assistance and a friend was called. The friend then called an ambulance which took her to hospital where she was treated with pain medication and was allowed to return home.
14. Ms Hargreaves said that her friend notified her supervisor (Ms I Hollins), who lodged an incident report on 11 October 2006. On 16 October 2006 she attended Mr P Johnstone, consultant orthopaedic surgeon, who performed surgery on her left shoulder on 7 December 2006. She said that she suffered ongoing incapacity and the respondent arranged for rehabilitation assistance and return to work programs.
15. In Hatzimanolis v ANI Corp Ltd (1992) 173 CLR 473 the majority in the High Court of Australia stated at 483-484:
15. …For the purposes of workers' compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work…A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home. …
16. Moreover, Oliver and the cases which follow it show that an interval or interlude in an overall period or episode of work will ordinarily be seen as being part of the course of employment if the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or in a particular way. Indeed, the modern cases show that, absent gross misconduct on the part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment…
16. In the Full Federal Court of Australia decision of Comcare v McCallum [1994] FCA 975 Lockhart J noted that ultimately the cases turn on the particular facts and circumstances of the case:
17. It seems to me to be artificial to fragment the respondent's employment at Young into periods of time when she would be physically present at the visiting service and times when she would be travelling to and from her hotel and the visiting service having morning or afternoon tea or a lunch breaks, staying in the hotel and showering there. The old cases are replete with the making of fine distinctions about such matters as this; but the High Court has established the present law authoritatively in Hatzimanolis. The only sensible and realistic conclusion to draw on the facts of this case is that the injury was sustained by the respondent in an interval or interlude during an overall period or episode of work which was part of the course of her employment.
18. It does not follow that the place where injuries were sustained by the respondent and the circumstances in which they were sustained are irrelevant to the conclusion whether they occurred during the course of her employment. The fact that she was required to stay overnight somewhere in Young and fell whilst in the shower in the hotel where she chose to stay (and for which she was provided with a travel allowance) is what provides the relevant nexus between her injuries and the course of her employment..
17. In Re Commonwealth Bank of Australia and Wark and Another (1995) 37 ALD 697 the Tribunal followed the reasoning in McCallum and held that an injury that occurred during a period of on-call work was suffered in the course of employment. The Tribunal noted at [31]:
31. That is not to say that during the entire on-call period of work, she would always be acting in the course of employment. If, instead of holding herself ready, Ms Wark was scuba diving at Palm Beach, or attending a luncheon at Katoomba, or at the opera, being required to leave her pager off or outside the auditorium, or otherwise engaged so that she could not fulfil her on-call requirements, and as a consequence she was not holding herself ready, then she would not be spending those intervals between periods of actual work in a manner induced or encouraged by the applicant, and hence would not be acting in the course of her employment.
18. In Weaver v Tredegar Iron & Coal Co Limited (1940) 3 All ER 157 Lord Atkin stated at 164:
It is well settled that a man injured while taking refreshment on the premises at a permitted hour, or while otherwise relieving necessities of nature, is in the course of his employment.
19. In Goward v Commonwealth (1957) 97 CLR 355 the majority in the High Court stated in relation to the words arising out of employment at 364:
The contention is based on the conception which the often repeated words of Lord Shaw in Thom v. Sinclair (1917) AC 127 [at 142] describe - "The expression" (arising out of the employment) "in my opinion, applies to the employment as such - to its nature, its conditions, its obligations, and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply"
To this must be added the explanation given by Lord Haldane in Upton v. Great Central Railway Co. (1924) AC 302 [at 306, 308] to the effect that it will suffice if the accident arises out of circumstances the employee has had to encounter because it is within the scope of his employment to do so. (at p364)
20. In respect of the first fall the Tribunal accepts Ms Hargreaves’ evidence that she had been working from home during the day on 21 August 2006 and that she intended to continue working during the night. The Tribunal accepts that her action in commencing to descend the stairs leading from her workstation to go to the refrigerator located downstairs to seek relief from coughing arising from a respiratory condition constitutes a need for an absence from her workstation for necessities of nature such as a toilet break or a meal break.
21. Therefore the Tribunal finds that the injuries sustained in the first fall arose out of
Ms Hargreaves’ employment and constitute an injury (other than a disease) within the meaning of s 4(1) of the SRC Act, and that she is entitled to compensation pursuant to s 14 of the SRC Act.
22. In respect of the second fall the Tribunal accepts Ms Hargreaves’ evidence that she had commenced working from home at about 8.30am on 9 October 2006 when she logged on to the respondent’s computer system and received an email from her supervisor. The Tribunal accepts that Ms Hargreaves had been instructed by a senior officer of the respondent to keep the screen door of her house locked during the day when she was working from home, and that this requirement became part of her obligation or an incident of her employment and had not been altered or rescinded. The Tribunal finds that she had been complying with this instruction when she left her workstation at about 8.40am to lock the screen door when her son was leaving the house to go to school, and that her action was within the scope of her employment.
23. Therefore the Tribunal finds that the injuries sustained in the second fall arose out of her employment and in the course of her employment and constitute an injury (other than a disease) within the meaning of s 4(1) of the SRC Act, and that she is entitled to compensation pursuant to s 14 of the SRC Act.
IS MS HARGREAVES ENTITLED TO COMPENSATION FOR MEDICAL EXPENSES AND INCAPACITY?
24. In a report dated 17 March 2008 Mr Johnstone stated that he first examined
Ms Hargreaves on 16 October 2006 shortly after the second fall and she reported left shoulder pain. He found a …SLAP (Superior Labrum from Anterior to Posterior) tear or labral tear of the glenohumeral joint, or either partial tearing of the rotator cuff with impingement and bursitis. Mr Johnstone reviewed Ms Hargreaves on 27 October 2006 and an MRI revealed a left shoulder girdle strain with type 2 SLAP lesion and minor acromioclavicular arthritis, and a right shoulder girdle soft tissue strain with probable tendonitis and bursitis. He performed arthroscopic surgery to the left shoulder on
7 December 2006, and concluded that the injuries resulted in incapacity and the need for treatment and that they occurred as a result of the falls, although he was unable to specify which of the falls was responsible for the symptoms.25. In a report dated 9 November 2007 Dr P Steadman, orthopaedic surgeon, stated that he examined Ms Hargreaves on 24 September 2007 and diagnosed bilateral subacromial bursitis (inflammation) of the shoulders. He said that she has a SLAP lesion on the left shoulder and concluded that, in the absence of a specific injury such as dislocation of the shoulder, it was unlikely that the first fall caused the SLAP lesion, although under cross-examination he conceded that the injuries sustained in both falls may have had an impact, and that it was impossible to determine which of the falls was more relevant to the subsequent incapacity and the need for treatment such as the surgery performed by
Mr Johnstone.26. In a report dated 30 November 2006 Dr Srinkapaibulaya, general practitioner, stated that he had recorded only minimal shoulder symptoms in the initial consultation on
24 August 2006. He concluded that it was more likely that the symptoms were due to the second fall than the first fall.27. The Tribunal accepts the evidence from Mr Johnstone and the concession by
Dr Steadman about the impact of both falls, and finds that Ms Hargreaves is entitled to compensation for medical expenses pursuant to s 16 of the SRC Act and to compensation for incapacity pursuant to s 19 of the SRC Act arising from the first fall and the second fall.WAS MS HARGREAVES’ PSYCHOLOGICAL CONDITION SUFFERED AS A RESULT OF HER FAILURE TO OBTAIN A BENEFIT?
28. In her application for compensation Ms Hargreaves stated that her post injury stress arose on 1 January 2007 as a consequence of:
…continually being subjected to excessive punitive and discriminatory actions by Telstra as a result of an incident that has led to a potential compensation liability for Telstra. This has resulted in a deterioration of my mental health, to the extent of being diagnosed as suffering from a psychological injury, which included an accidental overdose, requiring hospitalisation and ongoing treatment. Despite several attempts to return to work, this behaviour from Telstra has continued…
29. Ms Hargreaves told the Tribunal that she had enjoyed the convenience of working from home and that it afforded her the opportunity to contact stakeholders across Australia in connection with her duties. However she maintained that her ongoing physical injuries arising from the falls and her depression were not addressed adequately in the return to work plans proposed by the respondent. In particular she said that the insistence by
Ms Hollins on a return to work at the city office, without support by medical practitioners, was unfair and not feasible, as she had a significant disability, including difficulty in dressing herself, and the prevailing medical opinion was that a component of the return to work plans included four hours per day working from home until she was well enough to resume full-time hours.30. Ms Hargreaves told the Tribunal that on 31 October 2006 she consulted a general practitioner (Dr S Bell-Allen) who certified that she was fit for suitable duties which involved working from home on computer and consultancy tasks for 2 to 4 hours per day or as tolerated. She stated that on 20 November 2006 she was visited by a return to work consultant, who raised for the first time the question of a designated office area at her home.
31. Ms Hargreaves explained that the unrealistic demands by the respondent in relation to the proposed return to work plans affected her to such a degree that on 1 December 2006 she was prescribed sleeping tablets and anti-depressant medication. She said that the surgery on her shoulder was performed in December 2006, and that to pay for the surgery she had to borrow the funds from a colleague and seek an advance of her salary, which caused her significant stress. Ms Hargreaves said that after returning to work on
6 January 2007 (from her home office as recommended by her general practitioner),
Ms Hollins wanted her to work in the city office, but that this was difficult because she could not dress herself or carry her laptop because of her physical injuries. Ms Hargreaves emphasised that she lost trust in Ms Hollins because of the unreasonable demands, and she refused to sign any return to work agreement that did not specify that the stairs in her home formed part of her designated work area, as she had been working from home for a number of years on an informal basis, and that her work area conformed with occupational health and safety requirements.32. According to Ms Hargreaves’ evidence Ms Hollins on 17 January 2007 responded by threatening to invoke the misconduct provisions of the respondent’s Performance Improvement Conduct Management Process if she did not return to work in the city office or remain on sick leave. Ms Hargreaves said that this pressure, together with a refusal by
Ms Hollins to agree to her request about the stairs in her home, caused her to be admitted to the mental health ward of a major hospital, where she said she was diagnosed with depression and anxiety. She took two months off work, followed by a return to work for 4 to 5 hours per day in the city office in April 2007 in a different team.33. Ms Hargreaves stated that in October 2007 she was made redundant. In December 2007 she was invited by a group of former employees of the respondent to become a director of a software company but the business did not succeed. She said that she now lives with her parents on a rural property in Victoria and continues to take anti-depressant medication.
34. Dr Reddan stated in her report that Ms Hargreaves had suffered some traumatic events as a teenager but that these did not have a lasting effect on her and she has not previously sought psychiatric or psychological treatment. Dr Reddan referred to pre-existing personality vulnerabilities including dependency and some borderline traits, and said that the adjustment disorder first occurred in early 2007 as the result of a major disagreement with managers about the conduct of her return to work, particularly the decision by the respondent that Ms Hargreaves could no longer work from home. Other issues identified by Dr Reddan were the time taken to determine her claim for compensation arising from the two incidents, and the nature of the return to work program, which Ms Hargreaves believed to be restrictive and punitive.
35. Dr Apel in his report stated that he took a history from Ms Hargreaves of Ms Hollins harassing her after the surgery, including asking her to work from the city office and forcing her to telephone at the start and end of the four-hour day that had been recommended in the return to work plan. Dr Apel said that Ms Hargreaves felt unsupported by the respondent and that in January 2007 her psychological health deteriorated, resulting in her admission to hospital. He stated that Ms Hargreaves was deployed to a different work area and returned to work in April 2007, although she was not permitted to work from home. She found difficulty in completing her work in the allocated four hours per day, causing her added stress, and other work issues added to her anxiety. She was requested to attend a psychiatrist nominated by the respondent, causing her to become depressed. Dr Apel noted that in October 2007 Ms Hargreaves was told that she had been made redundant, which distressed her as the redundancy recognised only five years of her ten years’ service.
36. In respect of Ms Hargreaves’s psychological condition Dr Apel stated that her adjustment disorder occurred in the context of the physical injuries sustained in the two incidents, and was compounded by the refusal of the respondent to accept liability for the shoulder injury on the grounds that the injuries occurred outside the designated work area, even though she had worked from home for a number of years without incident. Dr Apel stated that her psychiatric condition developed in late 2006 primarily over the conflict arising from her hours of work and her desire to continue working from home. He reported pre-existing dependent personality traits which he held one-third responsible for her psychiatric condition, and the other two-thirds were the shoulder injury and management’s response to the injury. Dr Apel concluded that the relationship between Ms Hargreaves and the respondent had worked well until the shoulder injury, and its aftermath damaged the mutual trust to a significant degree.
37. Dr Uebergang stated that Ms Hargreaves had regarded the respondent as not only her employer but her family and social outlet, and had displayed considerable loyalty, credibility and integrity within the organisation. She said that the two falls at home contributed to Ms Hargreaves’s psychological condition, but more significant was
Ms Hargreaves’s view that the company she had considered ethical, honourable and above reproach had acted towards her in a manner that she did not believe possible.
Dr Uebergang said that the incapacity from the psychological condition is dated from both falls through to the months of distress preceding the redundancy. She described behaviour by Ms Hollins towards Ms Hargreaves as bullying, including making adverse comments to other employees about Ms Hargreaves’ work, excluding her from meetings, criticising her work performance and expecting her to work outside the designated four hours per day.38. Dr Uebergang reported that the lack of sleep because of pain following the falls, together with the anxiety arising from Ms Hollins’ reaction, created an intolerable situation which was exacerbated by an adverse drug reaction and a direction from the respondent that she repay the amount advanced for the cost of her surgery, followed by the unexpected redundancy notice.
39. Ms Hollins told the Tribunal that during the relevant period she was Group Manager of the respondent responsible for the Governance and Operations of the Consumer Marketing Program of Work. From April or May 2006 until January 2007 she was the immediate supervisor of Ms Hargreaves, who had joined her team in 2005. Ms Hollins stated that from the outset she had concerns about Ms Hargreaves’ behaviour, her rudeness towards other staff and managers, and her excessive working hours. Ms Hollins said that she had little recollection of the circumstances of the first fall because it occurred at Ms Hargreaves’ home. She said that on 9 October 2006 she was informed of the second fall, and asked Ms Hargreaves to complete an incident report.
40. Ms Hollins stated that as early as 11 October 2006 she advised Ms Hargreaves that work options after the second fall should involve full-time work at the city office rather than at home. She said that she told Ms Hargreaves not to resume working from home while her compensation claim was under consideration. On 31 October 2006 Ms Hargreaves contacted her and was extremely upset because the return to work plan had recommended working at the city office, which Ms Hargreaves considered to be a breach of an earlier agreement allowing her to work from home.
41. In respect of ongoing work arrangements at the time, Ms Hollins said that in a letter dated 17 January 2007 she directed Ms Hargreaves to return to work at the city office from 22 January 2007 because the medical documentation provided no restriction on work location, and the agreement about working from home had been an informal arrangement that was subject to change by management. The letter informed Ms Hargreaves that disciplinary action may be taken in the event of non-compliance. This was followed by a letter dated 24 January 2007 which informed Ms Hargreaves that her broadband internet service provided as part of her employment would cease on 1 March 2007.
42. In oral evidence Ms Hollins agreed that the return to work plan No.6 dated
8 December 2006 had included 2-4 hours per day as tolerated at home not office and both that plan and Plan No 7, signed by Ms Hargreaves on 18 January 2007, listed under the heading ‘Suitable Duties’ to perform suitable duties at her place of residence within medical restrictions and considerations.Ms Hollins stated that she did not consider the requirement that Ms Hargreaves contact her by telephone four times per day to be onerous. She stated that she had followed the proper Human Resources process in developing return to work plans for Ms Hargreaves, but agreed that she did not consult any medical practitioner, as she had been told by the return to work consultant that this had already been done.43. In a written statement dated 25 May 2011 Mr K Roughley said that he was
Ms Hargreaves’ manager from about August 2005 until early 2006 when Ms Hollins became the direct supervisor. Mr Roughley confirmed that he agreed that Ms Hargreaves could work from home two days per week, although at the time he declined to provide a written agreement because circumstances might change, or a different manager might hold different views. He stated that Ms Hargreaves was not closely supervised in relation to her duties or whether she worked from home or in the city office. He expressed the opinion that in late 2006 and early 2007, after the surgery, Ms Hargreaves’ desire to work from home rather than returning to work in the city office was the predominant issue for her.
44. Clinical notes prepared by Dr Bell-Allen on 5 December 2006, prior to the surgery, record Ms Hargreaves as Distressed ++. Crying, Not coping, and the notes of a further consultation on 14 December 2006 record Still not coping. Crying ++. Feels has lost control of life. Long talk. Start Zoloft.
45. In an email to Ms Hollins dated 6 November 2006 Mr Roughley stated that
Ms Hargreaves had advised him that she …hasn’t got a problem returning to work at Anne st once over injury. Mr Roughley also stated that he told Ms Hargreaves that he was continuing to seek the advice of professionals involved and would support her working from home during her period of injury but expected her to return to work at the city office when this period ended.46. In Trewin v Comcare [1998] FCA 713 Heerey J stated:
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.
…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.
47. The Tribunal takes into account Dr Reddan’s evidence that the relevant factor in the development of Ms Hargreaves’ psychiatric condition was the disagreement between
Ms Hargreaves and her managers about the conduct of her return to work and the return to the city office rather than a desire to continue to work from home. The Tribunal also takes into account that the return to work plans Nos. 6 and 7 included a provision for working from home, and the concession by Ms Hollins that no medical advice was sought before a direction was given to Ms Hargreaves to return to full-time work at the city office. This is consistent with Ms Hargreaves’ evidence.48. The Tribunal accepts the evidence from Ms Hargreaves about her distress and ongoing frustration caused by the physical pain suffered in the first fall and the second fall. This is consistent with the opinion of Dr Apel and is reflected in the clinical notes of Dr Bell-Allen in December 2006 following the falls and recorded both before and after the shoulder surgery. The Tribunal also accepts Ms Hargreaves’ evidence about her concern that her injuries and her psychological state were not addressed adequately or appropriately in the management of her return to work plans. In particular the Tribunal accepts that the plans as proposed in December 2006 in conjunction with medical advice included a component of working from home, yet when Ms Hollins directed Ms Hargreaves to return to work at the city office in January 2007 no medical advice to this effect had been sought or received. These were the relevant issues in the dispute that contributed to the development of the psychological condition, rather than any over-riding desire by Ms Hargreaves to continue to work from home.
49. In any event the date of the psychiatric injury was 14 December 2006 when Dr Bell-Allen began to treat her symptoms (s 7(4) of the SRC Act), so Ms Hargreaves had already been suffering from the ailment before the direction in January 2007 to return to full-time work at the city office. Therefore the issues about working from home arising from the direction could not have caused the ailment.
50. For these reasons the Tribunal finds that the psychiatric condition or ailment was caused by issues involving the return to work plans, and was not suffered as a result of a failure by Ms Hargreaves to obtain a benefit in connection with her employment, so the exclusion provision of s 4(1) of the SRC Act does not apply, and she is entitled to compensation pursuant to s 16 and s 19 of the SRC Act.
DECISION
51. The Tribunal sets aside the decisions under review and substitutes the following decisions:
Applications 2007/1706 and 2010/2784:
1. Ms Hargreaves suffered incapacity and impairment as a result of injury identified as soft tissue injury and labral tear of left shoulder, bruising and contusion arising out of or in the course of employment with the respondent on 21 August 2006 and again on 9 October 2006, which gives rise to entitlement to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (the SRC Act).
2. The respondent shall pay to Ms Hargreaves:
(a) The costs of all medical and related treatment expenses incurred in respect of the injury pursuant to s 16 of the SRC Act.
(b) Weekly payments of compensation in respect of incapacity for work for all periods when Ms Hargreaves’ ability to earn was less than the normal weekly earnings pursuant to
s 19 of the SRC Act.3. The Respondent shall pay Ms Hargreaves’ costs and disbursements in respect of these proceedings pursuant to s 67 of the SRC Act.
Application 2008/4598:
1. Ms Hargreaves suffered incapacity and impairment as a result of injury identified as adjustment disorder with anxiety and depression secondary to her left shoulder injury to which her employment contributed to a material degree, first treated on 14 December 2006, which gives rise to entitlement to compensation pursuant to the SRC Act.
2. The respondent shall pay to Ms Hargreaves:
(a) The costs of all medical and related treatment expenses incurred in respect of the injury pursuant to s 16 of the SRC Act.
(b) Weekly payments of compensation in respect of incapacity for work for all periods when Ms Hargreaves’ ability to earn was less than the normal weekly earnings pursuant to
s 19 of the SRC Act.3. The respondent shall pay Ms Hargreaves’ costs and disbursements in respect of these proceedings pursuant to s 67 of the SRC Act.
I certify that the fifty-one [51] preceding paragraphs are a true copy of the reasons for the decision of:
G. D. Friedman, Senior Member
Signed: ………………[signed]…….……………………………….
Kate Conners Associate
Dates of hearing: 7 and 8 March 2011, 6 June 2011
Date of decision: 17 June 2011
Counsel for the applicant: Mr M Carey
Solicitor for the applicant: Slater & Gordon
Counsel for the respondent: Mr B DubéSolicitor for the respondent: Sparke Helmore
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