Havnen and Comcare
[2010] AATA 535
•19 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 535
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/0888
GENERAL ADMINISTRATIVE DIVISION ) Re Leonie Havnen Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member A K Britton
Dr I Alexander, MemberDate19 July 2010
PlaceSydney
Decision The reviewable decision made 20 February 2009 is set aside, and in place of that decision the Tribunal decides:
Comcare is liable to pay compensation in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury, suffered by the Applicant, namely an aggravation of a “depressive disorder”......................[SGD]....................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION — liability — definitions of “disease” and “injury”” — aggravation of disease contributed to by employment — where causative factors include both private and work-related elements
Safety, Rehabilitation and Compensation Act 1988 (Cth) — ss 4, 5A, 5B, 14
Commonwealth Employees’ Compensation Act 1930 (Cth)
Safety, Rehabilitation and Compensation Amendment Bill 2006 (Cth)
Workers Compensation Act 1987 (NSW) — ss 4, 9
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Comcare v Etheridge [2006] FCAFC 27
Wiegand v Comcare (2002) 72 ALD 795
Comcare v Sahu-Khan [2007] FCA 15
REASONS FOR DECISION
19 July 2010 Senior Member A K Britton
Dr I Alexander, Member1. Ms Leonie Havnen has applied to the AAT for review of the decision made by Comcare under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) to refuse to accept liability for an “injury” alleged to have occurred in late April 2008.
2. It is not in issue that Ms Havnen suffered a depressive episode as a result of two incidents that occurred in April 2008 and became incapacitated for work as a consequence. What is in issue is whether Ms Havnen suffered an “injury” within the meaning of the Act for which Comcare is liable. The resolution of this question turns on whether Ms Havnen’s employment with the Department of Defence contributed to her condition to a “significant degree”.
Background
3. Ms Havnen was employed by the Department of Defence as a “SO1 Incident Manager”; a senior civilian position with the Australian Army. She was required, among other things, to manage a small team of human resources personnel. In addition, she played a key role in the Army’s Incident Management System (“AIMS”). AIMS is a system utilised by the Army for reporting, managing and resolving “reportable incidents”. These include incidents involving the injury or death of Army personnel; incidents of political significance that are likely to attract adverse publicity, and incidents of “unacceptable behaviour” involving Army personnel. “Unacceptable behaviour” was defined to mean:
[B]ehaviour that, having regard to the circumstances, would be offensive, belittling, abusive or threatening to another person or adverse to morale, discipline or workplace cohesion, or otherwise is not in the interest of Defence.
4. As incident manager, Ms Havnen was on call 24 hours a day, seven days a week (“restricted duties”). She was the first contact point for any calls from civilian and military personnel regarding “reportable incidents” between the hours of 1600 to 0700 on weekdays and throughout the weekend. In this capacity, she played an integral part in the “Contact Wait Out” system, a procedure developed to respond to and manage reportable incidents. Ms Havnen’s role was to assess each reported incident and, if necessary, notify “up the chain of command” and make recommendations about any action that might be required. In short, she was required to field all calls about reported incidents and provide strategic advice to senior personnel.
5. At all times, Ms Havnen was required to carry with her an Army-issued mobile phone. She was required to notify her supervisor if she was unable to take calls — for example, while flying. Her mobile number was made available to all senior personnel and advertised on the Army’s intranet. She was permitted reasonable personal use of the phone. Ms Havnen was paid a small allowance for being on restricted duties and, in addition, received a minimum of one hour’s pay whenever she took a call.
6. Ms Havnen was on restricted duties at the time of the incidents in question and, on her account, had been so since early 2005.
7. Ms Havnen had been the direct supervisor of Captain B Maxwell up until March 2007. In August of that year, Capt Maxwell was transferred to another position. While Ms Havnen was no longer his direct supervisor, she continued to work closely with him. Her work desk was in close proximity to Capt Maxwell’s.
8. In 2006 Ms Havnen introduced Capt Maxwell to her niece, Ms Remy Perry. Capt Maxwell and Ms Perry subsequently became engaged. On 26 April 2008, the couple held a party at their home to celebrate their engagement. It was attended by Ms Havnen, other relatives of the couple and work colleagues. Capt Maxwell asked Ms Havnen’s children to leave the party shortly after their arrival. Ms Havnen remained at the party and stayed overnight.
9. The day after the party, a Sunday, Ms Havnen went in to her office to attend to some tasks. She was not rostered to work that day, but on restricted duties. While at the office, she rang her niece and asked why her daughter had been asked to leave the party. On her account, she said words to the effect, “You are too good for [Maxwell] you deserve better”. Ten minutes later, Capt Maxwell left the following message on Ms Havnen’s work-issued mobile phone:
Remy just let me know what you said to her. Saying that she should find someone else, the day of our engagement, you are a very sad person. You knew I didn’t want your kids to be there. They came and I stood up for myself and told them to leave. They are disgraceful human beings as what you are being right now. You need to get your gear out of our house. We are storing a lot of your stuff. If, by this afternoon, if that stuff is not taken it will be in the rubbish tip.
You are not to make contact with me ever again. The threats you made about me to my friends last night when you said you were going to try and ruin my career and make life tough for me at work, I will ask them to write a written statement. I am not going to work near you. You are a horrible sad person. You will live in the mess by yourself because you are sad human being. Do not ever call me, you can talk to Remy as much as you want or that side of the family but ah, karma comes around and look at how your life is right now. So for you to try and ruin my engagement party and your behaviour this morning is abhorrent. You’re a horrible sad person.
10. Ms Havnen testified that when she heard the message she was stunned and at a loss to know what had triggered Captain Maxwell’s “nasty and uncharacteristic” behaviour. According to Ms Havnen, she saw the call as a veiled threat to ruin her career and sully her reputation within the workplace. She testified that she interpreted it as a threat that Capt Maxwell was going to call in his “captain colleagues” to destroy her. She said she felt “scared” and shattered by the call.
11. After composing herself, Ms Havnen rang her niece to advise that she would be over shortly to collect her belongings (she had been staying with the couple for a short period before the party). When she arrived, her belongings were on the street. An altercation ensued with Capt Maxwell. Ms Havnen alleged that she and her son were physically and verbally assaulted. She reported the incident to the military and civilian police, the HQ Duty officer and her supervisor, Colonel Burns. Ms Havnen and Capt Maxwell each sought and were granted, interim Apprehended Violence Orders.
12. Ms Havnen said she found the decision to report the incidents to Colonel Burns difficult to make, but claimed that she felt obliged to do so because of the policy directive — “Management of Reportable Incidents”. She also said that because in her position she was constantly encouraging and training others to report all inappropriate conduct by military or civilian personnel, she felt she had no option but to “practice what she preached”.
13. Ms Havnen was assessed by psychiatrists Dr Janelle Miller and Dr Steven Allnutt at the request of Comcare. Dr Miller recorded the following history in a report dated 24 September 2008:
I made a formal complaint about the [phone message left by Capt Maxwell] …He rang on my work phone…I was worried it would impinge on work, I did not know what he was going to do.
14. Dr Allnutt in a report dated 30 September 2008 recorded that Ms Havnen “found the message as having a veiled threat”.
15. The day after the subject incidents, Ms Havnen saw her GP and reported symptoms of heightened anxiety. The GP recorded that she had an “an exacerbation of her depression precipitated by recent domestic events”. She was admitted to St John of God and diagnosed as suffering “a major depression relapse” and discharged three weeks later. She returned to work in June 2008.
16. It is not in issue that the message and the altercation with Captain Maxwell were key and direct factors that caused the depressive episode.
Colonel Burns’ philosophy
17. According to Ms Havnen, the link between her employment and the two incidents need to be considered in the context of, among other things, Colonel Burns’ “Command Philosophy”, a document authored by Col Burns that set out his expectation of members of his Command. In it he extolled members of his Command to:
Be honest, proactive and take responsibility for their actions at all times
Lead by example by accepting personal responsibility for their decisions and actions
Engage in “robust communication” and be an “all informed network”.
18. The philosophy promised to recognise and reward good behaviour, but warned that “the maximum legal penalty” would be applied for inappropriate behaviour. It encouraged the fostering of a family environment in which all members actively look after and support one another.
Injury v Disease
19. By virtue of s 14 of the Act, Comcare will be liable to pay compensation in accordance with that Act in respect of any “injury” suffered by Ms Havnen if it results in impairment or incapacity for work.
20. Section 5A of the Act defines “injury” to mean:
Definition of injury
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
21. “Disease” is defined in s 5B to mean:
Definition of disease
(1) In this Act:
"disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
22. “Ailment" is defined by s 4 to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
23. Different tests of causation apply to a “disease injury” (par (a) of the definition of “injury”) and a “physical or mental injury other than a disease (or aggravation of)” (paras (b) & (c) of the definition of “injury”). It is therefore necessary to properly categorise the alleged injury.
24. Comcare contends that consistent with the approach taken by the Full Court of the Federal Court in Comcare v Etheridge [2006] FCAFC 27, Ms Havnen’s condition should be categorised as a “disease”. In Etheridge, the Full Court considered the meaning of the term “injury” as defined under the Commonwealth Employees’ Compensation Act 1930 (Cth) — “any physical or mental injury and includes an aggravation, acceleration or recurrence of a pre-existing injury”. In the leading judgement, Branson J said at [35] that the definition:
[D]iscloses an intention to put beyond doubt that a mental injury, and also an aggravation, acceleration or recurrence of a pre-existing injury, is an ‘injury’ for the purposes of the Act. However, these kinds of injury aside, the definition does not seek to give the word ‘injury’ a meaning other than that which it bears in common use. In common use, as the Macquarie Dictionary reflects, an injury is a harm sustained. In the context of workers’ compensation legislation an injury has long been understood in Australia to be a sudden or identifiable physiological change including a change internal to the body (see Kennedy Cleaning Services Pty Limited v Petkoska [(2000) 200 CLR 286; [2000] HCA 45] per Gleeson CJ and Kirby J at [35]-[36]).
25. In the passage from Petkoska referred to by Her Honour, Gleeson CJ and Kirby J commented:
[T]he mere fact that a sudden physiological change is in some way connected with an underlying “disease” process does not, of itself, prevent the classification of such a change as an “injury” within the primary statutory provisions that apply to such a case.
26. Their Honours went on to note that the approach taken by the majority in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310:
Require[s] that consideration be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an “injury” in the primary sense of that word. … If the propounded “injury” is distinct from the underlying pathology that constitutes a “disease” that directly or indirectly caused the sudden event to occur, it is unnecessary to proceed to the alternative and additional basis whereby, in such cases, compensation may also be recovered for the disease process if the statutory preconditions are met.
27. Mr Richards for Comcare contends that in this case, as is mostly the case with psychological conditions, there was no identifiable or observable change in pathology and therefore it cannot be characterised as a “mental injury other than a disease.
28. We are not entirely convinced that a mental illness such as a depressive disorder can never, as suggested by Mr Richards, give rise an identifiable or observable change in pathology. Nonetheless we accept that in this case the evidence does not support a finding of a sudden or identifiable physiological change. It follows that the alleged injury must be categorised as a “disease injury”.
statutory framework — causation and disease
29. The Act defines “disease” to mean “an ailment suffered by an employee” or, an “aggravation of that ailment” that was “contributed to, to a significant degree, by the employee’s employment by the Commonwealth”. “Significant degree” is defined to mean “a degree that is substantially more than material”: s 5B(3).
30. Section 5B(2) provides:
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
31. Prior to 13 April 2007, the Act defined “disease” to mean an ailment or an aggravation of an ailment that was “contributed to, in a material degree” [emphasis added] by the subject employment. The Explanatory Memorandum to the Safety, Rehabilitation and Compensation Amendment Bill 2006 which introduced the amended definition of disease, stated that the amendment was necessary because:
Since the enactment of the SRC Act in 1988, “material degree” has been interpreted in court and tribunal decisions so as to erode significantly the extent to which employment must have contributed to the contraction or aggravation of the disease for it to be compensable.
32. The Regulation Impact statement to the Bill stated (at p viii) that the amended definition of “disease” would:
Ensure an effective test of work-relatedness, providing eligibility only for work-related diseases consistent with the intention of the SRC Act and consistent with eligibility in most other State schemes while at the same time minimising the scope for uncertainty and disputation.
This test [a significant contribution] is considered to provide a stronger causal connection between an employee’s employment and the contraction or aggravation of a disease than Option 2 [defining the term “material degree”] and is consistent with the Productivity Commission’s recommendation in its Inquiry Report of a “significant contributing factor” as a minimum benchmark for defining work-related fatalities, injury and disease.
Applying test of causation
33. In Comcare v Sahu-Khan [2007] FCA 15 Finn J examined the definition of “disease” as it was prior to the 2007 amendments. He considered at [16] that to determine whether an ailment or an aggravation of an ailment was “contributed to, in a material degree” by the subject employment, a threshold evaluation was required, namely:
[A]n 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
34. While his Honour’s formulation related to the test of causation that applied prior to the 2007 amendments, it nonetheless provides assistance to the approach to be taken to the application of the amended definition. It seems to us that the application of the amended definition to the facts of this case, poses the following questions:
What factors — including those listed at s 5B(2) of the Act —contributed to the aggravation of Ms Havnen’s depressive disorder?
Are any employment-related?
If so, did they contribute to a degree that is substantially more than material to the aggravation of Ms Havnen’s depressive disorder?
Did Ms Havnen’s employment contribute to, to a significant degree, the disease?
35. It is not in issue that the subject incidents — the call and the subsequent altercation at Capt Maxwell’s home — were the trigger or direct cause of the aggravation of Ms Havnen’s condition. What is disputed is whether the two incidents were work-related.
36. Comcare argues that neither incident occurred “in the course of” Ms Havnen’s employment. Ms Havnen asserts that whenever she was on “restrictive duties” she was “on duty” and therefore both incidents occurred while she was “on duty”. Comcare submits that if, as asserted by Ms Havnen, she was “on duty” whenever she was on “restrictive duties”, she would have been “on duty continuously” for over three years at the time of the subject incidents. Comcare argues that it is implausible that Ms Havnen had been “on duty” for that length of time.
37. Comcare contends that it was the content of the message and not the taking of the call that caused Ms Havnen to become distressed. It further contends that the message and the subsequent altercation related to matters entirely unconnected to Ms Havnen’s employment — namely the relationships between the couple and Ms Havnen; between Capt Maxwell and Ms Havnen’s children; and events that had occurred at the engagement party.
Application of Hatzimanolis
38. Comcare contends that neither incident occurred “in the course of” Ms Havnen’s employment, citing in support Hatzimanolis v ANI Corporation Ltd [1992] HCA 21; (1992) 173 CLR 473.
39. In Hatzimanolis, the High Court formulated the test to be applied in determining whether an employee’s injury could be characterised as occurring “in the course of employment” for the purposes of the Workers Compensation Act 1987 (NSW), ss 4 and 9. (The definition of “injury” in para. (b)(i) of s 4 of the NSW Act is couched in similar but not identical terms to the definition of injury (other than a disease) contained in s 5A(1)(b) of the Act). The High Court held that an injury sustained during an interval in an overall period or episode of work will ordinarily be seen as occurring in the course of employment when the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or engaged in a particular activity and, the injury occurs at that place or during that activity, unless, the employee is guilty of gross misconduct.
40. The appellant worker, Mr Hatzimanolis, had been working in a remote location in Western Australia. He was injured during a sightseeing trip on a Sunday, his usual day off. The trip had been organised by his employer. The High Court held that that the accident occurred “in the course of” Mr Hatzimanolis’ employment. Mason CJ, Deane, Dawson and McHugh JJ said at 484:
[A]n 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, … an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment.
41. Their Honours emphasised at 484 that this approach needs to be considered in the context of:
[T]he general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”.
42. Comcare asserts that the subject incidents do not satisfy either limb of Hatzimanolis, in that they did not occur during an interval in an overall period of work, and were not “authorised, permitted or encouraged” by the Department.
43. In our view, Hatzimanolis is of limited assistance in deciding whether the aggravation of Ms Havnen’s condition was contributed to, to a significant degree, by her employment. As noted, different tests of causation apply to a disease injury and an injury (other than a disease). The former involves a causative element, the latter a temporal element. Even if established that the disease was suffered “in the course of” Ms Havnen’s employment, it does not follow that employment contributed to the aggravation of her condition to “a significant degree”. Conversely, a finding that the disease was not suffered “in the course of” Ms Havnen’s employment, while relevant is not fatal to a finding that employment contributed to her condition to a significant degree.
Identification of contributing factors
44. As a first step to deciding whether Ms Havnen’s condition was contributed to, to a significant degree, by her employment, it is necessary to consider the matters listed in s 5B(2) of the Act.
45. The duration of the employment: At the time of the depressive episode the subject of her claim Ms Havnen had been employed by the Department of Defence for 14 years; three years as an incident manager. The duration of her employment would not appear to be a factor that contributed to the aggravation of her condition.
46. The nature of, and particular tasks involved in, the employment: Ms Havnen’s duties as Incident Manager included taking calls around the clock about incidents or alleged incidents involving civilian and military personnel, and then recommending any remedial action “up the chain of command”. Her duties also required her to liaise and work with public affairs staff, including Capt Maxwell.
47. As suggested by Comcare, Ms Havnen probably anticipated that Capt Maxwell’s call would be about her discussions with her niece that morning and the events of the previous evening. Nonetheless, given the nature of her role and her inability to exclude the possibility that the call might be work-related, in our view she was required as part of her duties to listen to the message. That finding is consistent with Ms Havnen’s understanding of the responsibilities of her position and that of Mr Jeff Wyeth, Director Civilian Personnel Management, who gave evidence in these proceedings.
48. Ms Havnen played a key role in the management of the Army’s “reportable incidents”. We accept her claim that she felt obliged to report both incidents and believed that had she not done so she would be criticised for not “practising what she preached”. We also accept that given the key role she played within AIMS, she felt concerned that her involvement in what she believed constituted a “reportable incident” had the potential to jeopardise her position.
49. Any predisposition of the employee to the ailment or aggravation: MsHavnen was first hospitalised with depression in 2001. She suffered several recurrenct bouts, some requiring hospitalisation, prior to the subject incidents. . There is no evidence and nor is it suggested that Ms Havnen was suffering any depressive symptoms at the time of the subject incidents. The evidence indicates that, despite a number of significant domestic problems — marital breakdown, financial and accommodation problems — Ms Havnen had been ably performing her duties at the time of the subject incidents.
50. The weight of medical evidence is that Ms Havnen was vulnerable to episodes of depression because she had suffered depressive episodes in the past.
51. Any activities of the employee not related to the employment: The parties agree that the subject incidents were significant contributing factors to the onset of Ms Havnen’s condition, but differ on whether they were work-related. It is necessary to determine the proper characterisation of each incident:
52. Message left by Capt Maxwell: We accept the argument made by Comcare that the mere fact that Ms Havnen was obliged, as part of her duties, to take the call from Capt Maxwell does not, of itself, make it “work-related”. Its content must also be taken into account.
53. Objectively viewed, the message had both work and personal elements. While it largely related to matters of a personal nature, the work component was significant. It will be recalled that in that message Capt Maxwell:
Instructed Ms Havnen not to contact him “ever again”
Referred to the alleged threat made “to my friends last night when you said you were going to try and ruin my career and make life tough for me at work”
Stated that he would get his friends to provide a written statement about these alleged threats
Said he would not work near Ms Havnen.
54. Altercation at Capt Maxwell’s home: Objectively viewed, this incident appears to be personal in nature.
55. In our view, it is also necessary to take into account Ms Havnen’s perception of the subject incidents and the events surrounding them. As von Doussa J held in Wiegand v Comcare (2002) 72 ALD 795, even a flawed perception of events may be relevant. In that matter, Mr Wiegand sought compensation for a depressive disorder brought about, he said, by “defamation and victimisation” and “discrimination” in his workplace. At first instance the Tribunal held that:
[A]n incident or state of affairs to which the employee was exposed in employment will only constitute a contributing factor to an aggravation of an ailment if the incident or state of affairs was objectively unreasonable - in other words, that it would justify in the mind of an employee of ordinary disposition and mental health the perception held by the employee making the claim.
56. His Honour found at 796 that the Tribunal had erred, and that what was required was:
[T]hat the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a ‘reality’ test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened
57. His Honour concluded at 797 :
In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. 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.
58. Ms Havnen testified that she believed the message represented, among other things, an implied threat to ruin her career. That claim is consistent with the history given to Drs Miller and Allnutt. While not clearly articulated, as we understand her evidence, Ms Havnen also believed that she was in a vulnerable position because Capt Maxwell was a member of the military, and able to call on his “captain colleagues”. While we accept that Ms Havnen genuinely held those beliefs, this is not to suggest that we accept the factual assumptions on which they are based. We are mindful that the message indicates that Capt Maxwell thought that Ms Havnen had threatened his career, not vice versa.
59. We also accept that Ms Havnen thought that the reporting of the incidents “up the chain of command” had the potential to adversely affect her career.
60. Any other matters affecting the employee's health: None would appear to be relevant.
61. Other factors: Neither party has pointed to any other relevant factors.
Conclusion
62. We find that both employment and non-employment related factors contributed to the onset of Ms Havnen’s depressive episode
63. The non–employment related factors include Ms Havnen’s vulnerability to depression and the personal aspect of the dispute between her and Capt Maxwell. While not relied upon by Comcare, the evidence indicates that at the time of the subject incidents Ms Havnen had been under some stress on account of the breakdown of her marriage and consequent financial and accommodation problems.
64. Ms Havnen’s employment was also a contributing factor in various ways. These include the taking of the call as she was obliged to do; the statement by Capt Maxwell implying, as Ms Havnen perceived it, that he would make life difficult for her at work and possibly ruin her career; Ms Havnen’s belief that Capt Maxwell had the power at least to “make life difficult” at work; her perception that her career was under threat; and, finally, her concern that her superiors might think her unsuited to her position within the Army. In our view, taken together, these objective facts and subjective perceptions were also contributing factors to the aggravation of her condition.
65. While the argument that the hostile conversations between Ms Havnen and Capt Maxwell were “personal” in the sense that they were not work-related is superficially attractive, the conversations having been apparently triggered by personal dislike rather than work-related issues, the reality is that, from that inauspicious beginning, there developed a significant overlap of work and “personal” issues.
66. The argument was not one between strangers, relatives or neighbours who could avoid each other if necessary. It was one between work colleagues. In particular, the working relationship between them became, in Ms Havnen’s mind, central to the message left by Capt Maxwell. She was in this particular employment — that is, an employment with its particular set of standards (as established by Col Burns) — in a position that required her to work with Capt Maxwell. Taken together with the duties of her position — such as the requirement that she answer the telephone when called by Capt Maxwell and deal with the very conduct in which she now found herself embroiled — the necessary link between employment and the aggravation of her condition is established.
67. Being satisfied that employment was a contributing factor to the aggravation of the condition, it is necessary to decide whether it contributed to the condition to a “significant degree” — that is, a degree that is substantially more than material. This requires an evaluation of the role played by employment and non-employment factors. It seems to us that both employment and non-employment factors each contributed to the aggravation of Ms Havnen’s condition to a “significant degree”. The use of the indefinite article “a” in the definition of disease indicates that employment need not be the only factor that contributed to the disease to a significant degree. Here the employment factors were not trivial or slight but, in this situation, critical: Ms Havnen perceived her job as being been threatened by and possibly jeopardised because of her dispute with Capt Maxwell.
68. For these reasons, we are satisfied on the balance of probabilities that Ms Havnen’s employment contributed to a degree that is substantially more than material to the aggravation of her depressive disorder.
Decision
69. The reviewable decision made 20 February 2009 is set aside and in place of that decision the Tribunal decides that Comcare is liable to pay compensation in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury, suffered by the Applicant, namely an aggravation of a “depressive disorder”.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr I Alexander, Member.
Signed: ..................................[SGD].......................................
Associate to Senior Member BrittonDates of Hearing: 1, 15 June 2010
Date of Decision: 19 July 2010
The Applicant was self-represented.
Representative for the Respondent: Mr D Richards
(instructed by Dibbs Barker)
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