Hill and Comcare - [2002] AATA 421

DECISION AND REASONS FOR DECISION [2002] AATA 421

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/238

GENERAL ADMINISTRATIVE DIVISION       )
           Re      IAN JAMES HILL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member WJF Purcell Dr JTB Linn (Member)

Date31 May 2002
PlaceAdelaide

Decision THE TRIBUNAL sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to the applicant in respect of his total incapacity for work as a result of his acute anxiety reaction. THE TRIBUNAL orders that the respondent will pay the applicant's costs of these proceedings, as agreed between the parties or in default of agreement, as taxed by a Registrar of the Tribunal.

(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
COMPENSATION – "acute anxiety reaction" – whether applicant's acute anxiety and/or depression was contributed to by his employment at the Australian Bureau of Statistics – major conflict with colleague – whether applicant is totally incapacitated for work or whether his resignation was an exercise of choice
Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

31 May 2002 Senior Member WJF Purcell Dr JTB Linn (Member)

This is an application for review of a decision of an Independent Review Officer of the respondent (Comcare) dated 14 September 1998, which affirmed a determination of 22 July 1997, to cease liability in respect of the applicant's "acute anxiety reaction". The decision was reaffirmed on 12 April 1999 after receipt of a report by Dr Burvill, Psychiatrist, of 1 March 1999.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with exhibits tendered by the parties. The applicant, who was represented by Mr Britton of Counsel, gave oral evidence, and called Dr Czechowicz, his treating Psychiatrist, Dr Holmwood, his treating General Practitioner, and Ms Evans, Psychologist, as witnesses. Mr Apps appeared as Counsel for Comcare, which called Drs Burvill, Koopowitz and Davis, Psychiatrists, Mr Gardner, former Regional Director of the Bureau of Statistics, and Mr Niedorfer, Assistant Director and the applicant's immediate superior, as witnesses.
The applicant is 47 years of age. He graduated from Adelaide University in 1976 with a Bachelor of Science Degree in physics and applied mathematics. He joined the Australian Bureau of Statistics (the Bureau) in 1978, where he remained until his resignation nearly 20 years later, on 11 July 1997. He was employed in various positions within the Bureau, until he secured for the South Australian Branch the National Headquarters of the Small Area Population Unit (the Unit). He was appointed head of the Unit in early 1994. The position involved supervision of 4 other employees, 2 clerical assistants, a university graduate, and his Deputy Manager, Ms Natasha Radcliffe.
The applicant and Ms Radcliffe had worked together since the end of 1992. She was a university graduate also. At the beginning of 1993 the results of the recent national census had to be analysed, and the applicant sought further assistance. A third person joined the group for the next 6 to 9 months, until by 1994 the emphasis on a National Unit required further staffing, and the National Unit was established, based in Adelaide.
On the applicant's evidence, he and Ms Radcliffe (who is 15 years his junior) had worked well as a team, and their qualifications were complimentary. In January/February 1995 however, there were pressures to meet deadlines for projects, misunderstandings and delays in finalising staff positions; and on a Friday in February 1995 when the applicant was engaged in concluding a telephone conversation with an interstate colleague, Ms Radcliffe said words to the effect that the applicant should not speak to anyone in that manner. Further discussion took place in the following week, and the applicant says that he thought that an upcoming 4 day staff team building meeting at Mylor, commencing on Sunday 19 March 1995, would provide a forum to work out any problems and to "clear the air". The applicant was disappointed therefore, to find that when he arrived at Mylor, Ms Radcliffe and the other three female staff members avoided him. Nothing was resolved. He had a three hour conversation with Ms Radcliffe on the Monday afternoon, during which she informed him that she and the other staff members were frightened of him, and did not like his management style.
On the evidence, the impasse between the applicant and Ms Radcliffe did not improve over the ensuing months. On 6 June 1995 they had a disagreement about a work procedure, and after a lengthy discussion about their working relationship, both approached their supervisor, Mr Niedorfer, and sought a mediation session. The mediation took place on 14 July 1995, but the applicant considered it unsuccessful, as he says that he could not think clearly. He was striving to understand how the conflict had arisen.
The applicant commenced recreation leave one week later, on 21 July 1995; and whilst on leave he wrote a lengthy letter to Ms Radcliffe dated 4 August 1995 which detailed his feelings of distress about unresolved issues. He asked her to apologise for the part she played in their conflict, and to tell him that she was committed to the Unit. The letter however, did not resolve the conflict. Ms Radcliffe complained to Mr Niedorfer, who in turn reprimanded the applicant and told him not to contact Ms Radcliffe for any reason. Mr Niedorfer referred the applicant to the Staff Counsellor, Ms Bassett, who in turn suggested that he consult his treating General Practitioner, Dr Holmwood. On 11 August 1995 Dr Holmwood certified that the applicant was suffering from an acute anxiety reaction caused by stress at work, due to a major conflict with a colleague. He stated that the applicant was totally incapacitated for work from 11 August 1995 to 1 September 1995.
On 21 August 1995 the applicant lodged a claim for compensation for "stress", and attended his first consultation with Mr Giles, Psychologist, on 23 August 1995. Dr Holmwood certified the applicant as fit to return to alternate duties, and the applicant returned to work on 26 August 1995. Mr Niedorfer, the Assistant Director and the applicant's immediate supervisor, noted on 28 August 1995 that there appeared to be considerable unresolved matters still between the applicant and Ms Radcliffe; and that from his observations the applicant was barely in a fit state to perform any work at that time. Mr Niedorfer stated that he was confident that the cause of this was strongly related to the applicant's inability to resolve matters with Ms Radcliffe. He considered the applicant was reacting to his inability to cope with the current situation and he supported the applicant's claim for compensation. [T8/21]
Mr Giles recommended that the applicant's management responsibilities be restructured and that Ms Radcliffe be relocated to another workgroup. Ms Radcliffe was placed in another section, the Statistical Services Section, and the applicant continued to work in the Bureau, but did not return to the Unit until 3 November 1995. The Unit had 3 new staff members. It was envisaged by Dr Smith, of Australian Government Health Services (AGHS), that new support arrangements and a management training program would be put in place. By this time the applicant was receiving treatment from Ms Evans, Psychologist, and was becoming even more depressed and anxious, as he continued to be banned from communicating with Ms Radcliffe in any way.
On 22 December 1995, Ms Radcliffe lodged a 14 page formal grievance against the applicant, pursuant to section 84 of the Public Service Act 1977, alleging discrimination and victimisation. The document was provided to the applicant in January 1996, and he provided several sets of responses totalling more than 100 pages.
A formal hearing of the grievance took place on 26 and 27 February 1996. The applicant gave evidence at the hearing and was provided with further documents. It appears from the report of Ms Evans of 28 May 1996 [T23/47] that the investigations continued until 17 March 1996. On the applicant's evidence, the main findings of the Grievance Committee were that Ms Radcliffe construed as harassment, actions that the applicant had not intended to be harassment. They were both told to have counselling, and neither was to interfere with the other's work.
The applicant was referred to Dr Davis, Psychiatrist, for assessment and treatment. Dr Davis interviewed him on 22 May 1996, 5 June 1996 and 25 June 1996, and reported on 5 September 1996, in part, as follows:
"…
On specific enquiry, Mr. Hill described an increase in feelings of anxiety and depression from the start of 1995. His symptoms reached a peak at the time of his stress leave last year and then again following the grievance appeal early in 1996. Symptoms were related as a constant feeling of tension, restlessness and agitation, a feeling of being out of control of his emotional state, mounting depression characterized as despair, sadness and pointlessness, a decrease in concentration, an erratic sleep pattern and obsessional thoughts with the themes of wanting to turn back time to a period when he and his colleague were working well together, the thought that he had been misunderstood and wronged, and the desire to have his colleague listen to his point of view and perspective. Mr. Hill explained that with the passage of time and the realisation that the dispute was worsening, he became increasingly frustrated that his colleague would not give him a chance to explain his actions. These obsessions came to dominate his mental life and led to marked subjective distress and impairment in his occupational, family and social functioning. Finally Mr. Hill developed suicidal ideas which led [to] Ms. Evans recommending referral for psychiatric assessment and possibly medication treatment.
On further questioning, Mr. Hill admitted having strong feelings for his former colleague, which although present for a long period of time, he had only admitted to himself in recent months. He found it increasingly difficult to shift thoughts of his colleague out of his mind. He told me that he had not expressed to his colleague his feelings for her at a personal level, but was driven by a desire for respect and positive regard.
…
At Mr Hill's first appointment I made a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. I was particularly concerned about his obsessions and suicidal thoughts. I started him on the antidepressant Paroxetine and at his second consultation, he reported it had been arranged for him to transfer to the ABS department in Melbourne where he could continue working at his same work, but in a different setting. He was positive about this move, but keen to maintain his treatment contacts.
At his third interview, Mr. Hill explained that he was beginning to feel better. His ruminations about the work dispute were less. He was much less worried about his circumstances in general. He was still feeling positive about his move to Melbourne in July and had noticed a stabilisation of his vegetative functions. He was tolerating the new antidepressant and overall, he felt more positive in outlook. This was despite encountering his colleague in the lift at work and his colleague subsequently asking for Police protection.
At his last appointment, he stated that he had a better grasp of his feelings for his colleague and recognized the bizarre nature of his perceived involvement with her previously. I attributed this change to a combination of the treatments previously provided and the early effect of the antidepressant medication.
…
2.In attempting to understand the onset and perpetuation of Mr. Hill's psychiatric condition, I would emphasize a number of interacting factors. These include:-
The way in which the Small Area Population unit was initially set up.
The responsibilities and duties given to Mr. Hill from the outset.
His lack of supervisory and management skills.
His personality and clashes of personality of staff within the unit.
An apparent inadequate system for conflict resolution in the early stages of the staff conflict.
It appears that working relationships within the Small Area Population Unit, were problematic from the outset. In my opinion, Mr. Hill's disorder in August, 1995 and his continued psychiatric disability, were materially contributed to by the employment events of 1995. Mr. Hill's feelings for his former work colleague, recently admitted to, were not addressed until they became part of the central symptom in his disorder.
3.I would expect the effects of Mr. Hill's employment on his condition to be temporary. There were some positive signs apparent during my brief contact with Mr. Hill. He was feeling brighter in spirits and anticipating the move to Melbourne to be a positive one. He began to recognize that his pre-occupation with gaining his former colleague's approval and respect, was exaggerated, out of perspective and abnormal and made appropriate comments about not having any contact in the future. Although concerned about longer term work options, he was quite prepared to refocus his thoughts on his work in Melbourne. Finally, he appeared to have an initial positive response to his antidepressant medication. I expect that if there is further improvement in his mental state and if there is a satisfactory work arrangement negotiated for the medium and longer term future, then I believe he will make a full recovery from his psychiatric disorder. Given the above, I believe that Mr. Hill will recover within a six month period.
…"
[T25/55-58]
Ms Evans saw the applicant on two occasions, when he returned for short visits to Adelaide. The first was in September 1996, and the second in October 1996. She reported to Comcare on 9 October 1996, that when she saw the applicant on 14 September 1996, he was relaxed, positive, physically fit and healthy. He had lost the weight he gained during the months he was experiencing depression in Adelaide. He is a marathon runner, and had resumed running regularly, and this had a beneficial effect on his health. Her report reads, in part, as follows:
"…
Ian also reported that he had been informed that on his return, his Unit would be re-located and he would now be in close proximity to Ms Natasha Radcliffe which he acknowledged would have obvious consequences on his return to work plan on Monday 16th December, 1996.
In response to your specific questions:
1.Has Mr Hill recovered fully or partially from the work related condition. If partially, please specify the degree of recovery and your expectations for further recovery?
It is my opinion that Mr Hill has recovered significantly to the point where I would support his return to the Adelaide Office on Monday 16th December, 1996. However, due to the particular circumstances where he will now be expected to work in close proximity with Ms Natasha Radcliffe, I would anticipate some difficulties which may lead to a recurrence of his former condition unless very careful planning with specific protocols are put into place for achieving a successful return to work.
I am not prepared to state that he is fully recovered until Mr Hill is back in the workplace for several months and coping well with the situation.
…
It is unrealistic to expect Mr Hill to return to work on the 16th December, 1996, without careful preparation considering the unusual circumstances which have arisen.
I have had discussions with Janice Bassett and she reports that Ms Radcliffe is now prepared to put the past behind her and make a genuine effort to co-operate with Management and to behave in a professional manner in relationship to Mr Hill. I have expressed to Janice Bassett that I would need to feel confident that in fact Ms Radcliffe is in fact genuine in her desire to put the past behind her and to maintain a professional attitude towards Mr Hill.
I have recommended to Janice Bassett that it would be essential for a meeting to take place prior to Ian returning permanently to Adelaide to establish clear protocols for professional behaviour for both Ms Radcliffe and Mr Hill so there is no room for misunderstandings to occur.
I have recommended that Janice Bassett, the Manager, Gary Niedorfer and an independent mediatior [sic] be present at the meeting to discuss the protocols set down by Management in relation to:-
a)        day to day interactions
b)        seating arrangements
c)        section meetings
d)        training sessions including, team building sessions
e)        sharing of kitchen facilities
f)        answering phone calls in the other persons absence
g)social functions – morning teas, luches [sic], Christmas functions etc.
The attendance by Mr Hill and Ms Radcliffe and acceptance of these rules at a meeting would be essential for a sucessful [sic] harmonious working environment.
Janice Bassett, Ian's Rehabilitation Consultant has stated that she believes Natasha Radcliffe has progressed to the point whre [sic] she was prepared to resume a professional relationship with Ian Hill without prior restrictions in place. She believes that both parties have advanced enough for a reasonable discussion to take place. However, a refusal to participate in such a meeting would indicate either naivety or a lack of sincerity in making the arrangements work.
If this meeting does not take place it would be very difficult to predict the outcomes or success of the return to work programme for Ian Hill.
Ms Radcliffe has remained in the work environment and has had sustained contact with her colleagues.
Mr Hill has been removed from the workplace over an extended period of time with only limited contact with his colleagues.
…"
[T27/61-63]
Dr Davis was provided with a copy of Ms Evans' report and saw the applicant on 4 November 1996. He reported to Ms Bassett on 20 November 1996 that the applicant's depression and anxiety had settled, although he was apprehensive now about his return to Adelaide, because he would be in close working proximity to Ms Radcliffe. He felt disappointed that the Bureau had refused to conduct a meeting of involved parties prior to his return. Dr Davis stated also:
"… For Mr. Hill's part he has built up an expectation about what would be in his own best interests for his return to work and this includes a prior meeting to densensitize him to contact with Ms. Radcliffe in the work place. For my own part, I believe that this would be a useful exercise and could be seen as a test of Mr. Hill's emotional resilience before he returns to full time work in Adelaide under the scrutiny of his peers, all of whom will be aware of the nature of the protracted conflict at work. In the absence of this meeting, I certainly think it is important for there to be clear guidelines from management to the individual workers about expected behaviour, in both formal and informal ways at work. I believe that an agreement to adhere to these protocols will be essential for Mr. Hill's successful reintegration in the Adelaide office. …"
[T29/69-70]
No face-to-face meeting was organised, and the applicant returned to work in Adelaide, in the Unit, on 16 December 1996. Both he and Ms Radcliffe were on the same floor of the building, but there was to be no communication between them. Within a few days of his return, the applicant sent Ms Radcliffe an e-mail, for which he was reprimanded, and on 9 January 1997 he wrote Ms Radcliffe a letter which led to the holding of a case conference at Comcare, without Ms Radcliffe's attendance. Subsequently she was transferred to another floor in the building.

On about Saturday 14 February 1997, the applicant noticed a box alongside Ms Radcliffe's former desk in the Unit. He opened the box and found that it contained documents relating to Ms Radcliffe's 1995 grievance complaint, together with additional documents. The applicant photocopied the contents, but it was not until some time later, on 27 May 1997, that he sent Ms Radcliffe an e-mail to the effect that he had found the box, and that they should forget their differences.
On 24 February 1997 Ms Bassett wrote to Dr Davis regarding his upcoming appointment with the applicant on 26 February 1997. Ms Bassett stated that the appointment had been made by the Bureau in early February 1997 after discussions with management, Ms Evans and Comcare. All were concerned that the applicant was not coping with the situation at work, and was at a crisis point, pre-occupied and focussed on one outcome, which was communication with Ms Radcliffe. Ms Bassett stated that the applicant had taken little time off work, but given the current situation, management considered that this might change or that he might tender his resignation.
Dr Davis saw the applicant as arranged on 26 February 1997 and again subsequently on 13 March 1997. He reported on 8 April 1997 that the applicant believed the work dispute had been mishandled by the Bureau, that he had been hoping for an outcome which involved a direct meeting with Ms Radcliffe. When this was not the result, the applicant believed he should resign from the Bureau. He was continuing to hold out hope that by lodging his own grievance, there would be an opportunity to have mediation and have Ms Radcliffe answer the questions he believed were outstanding. Dr Davis reported, in part, as follows:
"…
The main features of Mr. Hill's mental state were inflexibility of thinking and a total preoccupation with certain thoughts namely the injustice he believes he experienced in the workplace, his anger with Ms. Radcliffe for refusing to meet him personally and addressing their differences directly following his return from Melbourne, his anger with management for allowing Ms. Radcliffe to "get away with" not meeting him and the implied assumption that Ms. Radcliffe was the victim in their longrunning work dispute, and his desire for clearing his name and re-establishing the former quality of working relationship with members of the Small Area Population Unit. There were secondary symptoms of depression and anxiety. The clinical picture was a complex one and did not neatly satisfy criteria for a psychiatric illness according to classificatory schemes e.g. DSM-IV. Nevertheless I made a diagnosis of Adjustment Disorder With Depressed Mood. Mr. Hill has had major difficulties in esteem and self confidence. His efforts to reverse the perceived injustice, attempts to clear his name and his desire to discuss matters with Ms. Radcliffe directly stem from a drive to re-establish a working relationship of several years ago when Mr. Hill's sense of self worth, esteem and belief in himself were at a peak. It was at that time that he first felt understood and appreciated within his sphere of endeavour and influence. I do not believe that Mr. Hill suffers from a Personality Disorder but clearly personality factors are important contributors to his current predicament.
…
Given the complexity of the claim, the personalities involved and the duration of the dispute I have grave doubts as to whether Mr. Hill will recover completely from his condition. If Mr. Hill lodges a grievance and there is an investigation into the matter I believe that Mr. Hill will not be satisfied until he has an opportunity to discuss directly with Ms. Radcliffe their differences of opinion. In Mr. Hill's eyes the injustice experienced has been so great that without full redress he will not be able to continue to work in the same environment or department. Even if Mr. Hill and Ms. Radcliffe are able to adequately resolve their differences I have doubts that the working environment will satisfactorily cater to both sets of professional and personal needs in the future.
At the time I saw Mr. Hill I assessed him as being barely fit for work and in view of his symptoms I would have supported his request for time off work.
As mentioned above I believe the prognosis is not a good one. It largely rests on Mr. Hill's ability in spite of his emotional condition to accept that the problems may never be adequately resolved and the need to be able to move on with his work and personal life.
With reference to the workplace, regardless of the psychological motivation driving Mr. Hill's difficulties, I believe that the focus should continue to be on putting the dispute behind the group, focusing on future work roles, accepting that answers will never be available to everybody's satisfaction and if necessary a permanent transfer of personnel to other sections or departments.…"
[T30/73-74]
On 27 May 1997 the applicant forwarded an e-mail to Ms Radcliffe regarding the box of documents, and advised her that he had notified management that there was a pending complaint about her negligence in leaving the box, whilst she had moved to another area.
On 28 May 1997 Comcare wrote to the applicant advising that in light of Dr Davis' reports of 20 November 1996 and 8 April 1997, it appeared from the currently available evidence that any ongoing symptoms of anxiety/depression he might continue to exhibit, and his ongoing need for medical treatment, were as a consequence of his basic personality traits and his pre-occupation with Ms Radcliffe, rather than because of the work he was required to perform. The delegate advised also that it was her intention to make a finding that compensation was no longer payable in respect of the accepted condition.
On Monday 2 June 1997 without any advice to the applicant by management, Ms Radcliffe returned to her former desk in the Unit. The applicant wrote on the same day to the Comcare delegate, in part, as follows:
"…
My condition is stress of a psychological nature and as such is invisible. Nevertheless it is very real and continues to affect my ability to do my job. It is the environment I have to work in which is affecting me. This includes the continual presence of Ms Radcliffe, not only at the ABS which covers two floors of the Commonwealth Centre, but also at times in the section I work in. It is a completely untenable situation. Further, I must report to the same manager and director who allowed the conflict situation to continue unchecked in the first place.
When I returned to Adelaide in December 1996 and Ms Radcliffe and I were in close proximity my attempts at civil communication with her failed. She refused to acknowledge my presence in any way and management would not assist. It was as if I was the "invisible man". It was very distressing for me and I could not do my work. My requests to resolve the matter with her are not a personal interest in her per se, but to achieve a stress free work place for me.
You seek to justify termination of compensation on the basis that my apparent ongoing need for medical treatment is because of my personality traits and because of my preoccupation with Ms Radcliffe. I claim that my continual need for treatment is due to factors outside my control and I attach a detailed statement to support my position.
…
I have established that in my view management did not implement the recommendations of the grievance report and my transfer to Victoria the way they were intended. Worse was to come. They failed to ensure I had a stress free environment on my return from Melbourne by not putting into place clear protocols of behaviour for Ms Radcliffe and myself which were clearly recommended by both Dr Davis and Ms Evans. I therefore was left to cope for myself and with the support from Ms Evans I wrote a letter to Ms Radcliffe on 9 January 1997. This led to a case conference at Comcare at which both Ms Evans and Dr Brogan attended. My behaviour was described as "bizarre" and it was recommended that I see Dr Davis again.
Soon after that meeting I was very distressed that there was no positive outcome for me. As I could see no future for myself at the ABS I decided to resign. I was talked into staying by Ms Janice Bassett, my case manager at a lengthy meeting and she wrote me a letter which summarised my situation fairly well. I was also talked into seeing Dr Davis with the aim of taking extended sick leave. However, Ms Bassett wrote him a letter (Attachment 1) which was vastly different from the one she had written to me and which claimed that protocols for my return had been put in place. That session with Dr Davis was very distressing for me and I had to go home from work later in the afternoon.
After that Ms Evans recommended that I give Dr Davis a copy of Ms Radcliffe's grievance, which I did. At a follow up session with him he was more understanding of my situation and wrote the report referred to in the Comcare letter of 28 May 1997.
Summary
To summarise, I have provided evidence that my condition is a short term one with a six month recovery period once the source of stress is removed. The nature of the source of the stress is well understood and has been accepted by Comcare as a legitimate, work-related phenomenon. It is also clear that the source of the stress is outside my control but within control of ABS management and other parties, such as Comcare and rehabilitation providers.
For my part, I have made repeated attempts to resolve the situation for myself but these have been thwarted by the actions of Ms Radcliffe (eg her grievance) or ABS management (the interstate transfer) or have been described as bizarre (letter to Ms Radcliffe of 9 January 1997).
ABS management made fundamental mistakes in failing to provide Dr Brogan with a correct impression of me and their handling of the 6 June 1996 incident which led to a complaint to police. So they were then forced to manage a situation which should never have developed in the first place and so it continued and they could not set protocols in place for my return from interstate. They then have the gall to inform Dr Davis that protocols were set in place.
This is the environment in which I have to work, with the same manager and director who let the conflict which led to my Comcare claim continue for months without intervention. Ms Radcliffe has now returned to her former desk in my section this day, 2 June 1997. I was not informed of her move. It is simply dreadful for me!"
[T33/78-84]
On 1 July 1997 the applicant was notified by Mr Glendenning, the Bureau's Director Corporate Services, that his complaint had been investigated, and that the investigation found that there was no act of negligence in Ms Radcliffe leaving the box under a desk whilst she was temporarily absent from the area, and that there was no evidence to support the allegation that a document had been illegally obtained. The recommendations arising from the investigation were that both complaints be dismissed. Mr Glendenning stated also, that the investigating officer was concerned by the applicant's behaviour in confiscating material belonging to another officer, and believed that he might have acted unethically, and due to poor judgment conducted himself in a manner contrary to the usual standard of conduct expected of Bureau officers. Formal counselling had been recommended, which Mr Glendenning stated would be undertaken.
On 2 July 1997 the applicant sent Ms Radcliffe an e-mail stating that he had no hard feelings against her over the incident; that all he ever wanted was to understand her as a person, so that he could adjust his ways. He stated finally, that now they were working in close proximity to each other it was once again "impossible for me to function normally. I urge you to reconsider your attitude towards me, please.". [T59/17]
On 3 July 1997 Mr Niedorfer conducted the counselling session, which canvassed the issues of the applicant's behaviour being an invasion of privacy, unethical, and in these respects contrary to the Bureau's standards. Mr Niedorfer provided the applicant with a written direction in the following terms:
"In view of the recent investigation undertaken by ABS management you are hereby directed not [to] initiate nor to have any direct contact with Ms Radcliffe either at work or after hours and that to do so may lead to disciplinary action. In addition, you are also directed to not access nor interfere with any personal property owned by Ms Radcliffe and to do so may also lead to disciplinary action."
[T61/19]
On 4 July 1997 the applicant forwarded to Mr Glendenning an e-mail, in response to the formal counselling session, which reads, in part, as follows:
"…
That was the essence of my complaint. Given those circumstances the findings that I invaded Ms Radcliffe's privacy, that the confiscation was inappropriate, the use of the contents unethical and my behaviour contrary to the standards of the APS are invalid and in fact, a nonsense.
To put it another way, as a result of her negligence I discover that Ms Radcliffe has herself behaved unethically. It has to be negligence on her part, otherwise I would never have discovered the offending document. There is no other way to describe it. I decide to complain. To substantiate the complaint I need to refer to the contents of the box. I am told that to do so was unethical. Therefore I am effectively told that my complaint was unethical. To cover up for this adsurd [sic] situation the investigation had no choice but to find no case of negligence. Before it could do that it had to ensure no evidence could be submitted. The whole process was nothing but bullying tactics and my rights to natural justice were denied.
Because the investigation set itself up to find no case of negligence it has effectively condoned the right of Ms Radcliffe to store highly sensitive material pertaining to me under someone else's desk. There can be no other conclusion.
Therefore the finding that there was no negligence is a joke and underlines management's contempt for my situation. For nearly two years now I have been undergoing psychological counselling for a reactive condition which will not cease until its cause is removed. The cause is a combination of Ms Radcliffe's behaviour towards me and management's support of her behaviour. As such I feel trapped, persecuted and harrassed [sic]. To be exposed to the contents of the box merely added to my distress.
…"
[T63/21]
On 9 July 1997 the applicant forwarded a facsimile to Ms Evans stating that he had made a decision about his future, and requesting that she ring him at home. On 11 July 1997 the applicant forwarded an e-mail to Mr Glendenning in the following terms:
"I wish to resign from the Australian Public Service from close of business today, 11 July 1997. I cannot continue to perform my duties under the oppressive environment in which I am forced to work and for the sake of my health I have no alternative but to resign.
Please arrange for your staff to contact me at home regarding the formalities."
[T65/24]
Mr Glendenning referred the e-mail to Mr Gardner, the then Regional Director for the South Australian Office of the Bureau, who spoke to the applicant, and queried whether he understood that once a resignation was accepted it was binding on both parties. The applicant indicated that he understood, and Mr Gardner recommended that the resignation be accepted. The applicant has not re-entered the Australian Public Service, nor has he been engaged in any paid employment since 11 July 1997.
On 22 July 1997, Comcare determined that from close of business on 22 July 1997 the Commonwealth had no further liability for the applicant's claim. On 22 August 1997 the applicant's solicitors applied for a reconsideration of the determination. On 14 September 1998 an Independent Review Officer affirmed the determination. By agreement between the parties a further report was obtained from Dr Burvill, Psychiatrist, dated 1 March 1999. On 12 April 1999 an Independent Review Officer decided that the reviewable decision of 14 September 1998 should stand. The applicant has applied to this Tribunal for review of the decision.
The applicant submits that he has suffered, and continues to suffer, from acute anxiety and/or depression, which is contributed to, in a material degree, by his employment with the Commonwealth. His anxiety and/or depression did not cease at any time subsequent to its acceptance by Comcare as a compensable condition, and the condition is continuing. The applicant is totally incapacitated for work as a result of his compensable condition, and continues to be eligible for payments of compensation.
Comcare maintains that the applicant, following his transfer to Melbourne, recovered from his acute anxiety reaction, and at the time of his resignation, he had recovered from the acute anxiety reaction, and that the resignation was the result of an exercise of choice rather than incapacity for work and thereby constituted a voluntary withdrawal of labour.
We have outlined the parties' submissions in a brief and general way which does not purport to be a summary of each and every aspect of their carefully prepared arguments, all aspects of which we have taken into account in our deliberations.
We heard lengthy oral testimony from the applicant, who we consider did his best to outline in detail the very complex history of this matter. He impressed us as a dedicated, competent, conscientious employee who had performed complex and difficult work for some 14 years until he was required to be supervisor of Ms Radcliffe, who it appears was a highly intelligent, efficient and much younger work mate. The applicant had no training in management skills. He was a loner, used to being employed in a more singular workplace. Although on the evidence, he and Ms Radcliffe worked well together initially, the relationship of "mentor/student" could not last forever; and it would appear that by January/February 1995 the "student" had become aware of the mentor's flaws and frailties, and had in effect, "outgrown" him. To the applicant this was an entirely new and confusing experience, which he interpreted as disloyalty and alienation. The breakdown of the relationship was a situation which was novel also for management. We gained the strong impression that management failed to "manage" the situation quickly and decisively initially, and brought in then, professional help to treat the symptoms, but failed to accept the advice of persons such as Ms Evans and Dr Davis, as to the early resolution of the matter.
Comcare called Messrs Gardner and Niedorfer as witnesses. We accept them as witnesses of truth. The remaining witnesses were medical practitioners and Ms Evans, Psychologist. All of these witnesses, in our view, were objective, suitably qualified, and competent witnesses; but we prefer the evidence of Drs Czechowicz, Koopowitz, Holmwood and Ms Evans, in any area of dispute in the medical evidence.
The applicant gave evidence that it was as a result of considerable effort on his own, and Ms Radcliffe's part, that the South Australian Unit became the national base. His staff increased from 2 to 4 and the logistics of compiling the information was difficult and time consuming. He said that he was bewildered by Ms Radcliffe's behaviour. He could not understand why she turned against him in early 1995, and that he sought persistently to discuss the problem with her, but to no avail. He said in evidence that he was devastated in January 1996 when he became aware that she had lodged a formal grievance against him. By the middle of the year he was so distressed that he accepted with alacrity the possibility of spending 6 months in Melbourne, away from the tensions in Adelaide. He commenced the medication, Paroxetine, prescribed by Dr Davis, on 6 June 1996, but after some time in Melbourne he felt sufficiently recovered to cease the medication. In addition he disliked the side effects of the drug.

The applicant said in evidence that with the support of Dr Davis and Ms Evans, he trusted that their recommended protocols would be put in place before his return. These were not implemented, and by the time he found the documents in the box, in February 1997, he felt that he could not continue working at the Bureau. Ms Bassett talked him out of resigning, as did Ms Evans, who suggested he seek treatment from Dr Davis. He says that he saw Dr Holmwood, and took 1 weeks leave. On his return he confronted Mr Radcliffe with the documents and lodged his complaint. After hearing the result of the investigation of the complaint, he was so distressed by the whole business, Ms Radcliffe's behaviour towards him, and management's lack of support, that he thought the situation was hopeless. He discussed his thoughts with Ms Evans and with his wife. His wife was not at all happy at the prospect of his resigning, as she was not in employment; and Ms Evans also pointed out other possibilities, such as compensation leave, and thus removal from the office area. The applicant said that he felt he could not go on living, if he stayed at the Bureau. He had feelings of hopelessness, despair, no confidence in management and he could not see how he could continue to function in that office – he had to resign.
The applicant gave evidence that at no time were there any complaints from management, as to his work performance. Despite the stressors in the workplace, he carried out all his duties to his own and management's satisfaction. Subsequent to his resignation he lost interest in his main sporting activity, long distance running. He and his wife separated under the same roof in November 1997; and he has lived more recently in rental accommodation. He says that he cannot return to the work he was performing at the Bureau. The memories would flood back. He could not cope with that. Although he has undertaken several administrative roles in athletics groups in a volunteer capacity, none of these have lasted very long, either because he tires after a few days, or he comes into conflict with other officials in relation to minor matters.
The applicant called Ms Evans who has been his treating psychologist since 15 November 1995. In her first report of 28 May 1996 [T23/46] she stated that in her opinion the applicant suffered reactive depression and an anxiety disorder with obsessive symptoms (DSM IV diagnosis) and that his "state of depression and anxiety is directly related to ongoing stress as a result of the lack of resolution of the conflict between Mr Hill and his former colleague Ms Natasha Radcliffe over a period of twelve (12) months in the work place". The main stressor was a ban on communication, which Ms Radcliffe placed upon him, at her request. The applicant's condition has been exacerbated by a grievance appeal based on harassment, lodged by Ms Radcliffe in December 1995. Ms Evans considered that there should be a move away from the current environment for 6-12 months, when she would expect Mr Hill to recover completely from the employment related conditions. She recommended that he be transferred interstate, and that he would be capable of performing his current duties.
Ms Evans gave evidence that she recommended to management, prior to the applicant's return in December 1996, that he and Ms Radcliffe should work separately. Management, on the other hand, decided that they should work in close proximity; and management also did not implement the protocols she and Dr Davis had recommended. She said that it was her opinion that if the protocols had been put in place, this would have made a difference. In her view Ms Radcliffe did not react professionally; she ignored the applicant and would not co-operate in any way. Ms Evans said that in her opinion, management did not do enough to rectify the situation – it basically failed in its duty of care to the applicant. Management "cerebralized" things that were sympathetic to the situation, but did not know what to do, and most of the time did nothing.
Ms Evans gave evidence of her conversations with the applicant in the months leading up to July 1997. She said that his condition was deteriorating, that he was in an irrational state of mind. The effect of the events between February and July 1997, was such that by 11 July 1997, the applicant was not capable of making rational decisions. She said that when she had a telephone conversation with the applicant on 4 July 1997, he was saying that for the sake of his health he would have to resign, and Ms Evans suggested time off work and treatment by Dr Davis. On 9 July 1997 he said that he would have to go out of the Bureau to save his life. Ms Evans talked also that evening to the applicant's wife, who appeared very distressed and stated that the applicant was not thinking rationally.
Ms Evans has remained in contact with the applicant, since she moved to Queensland in mid 2000. She continues to have telephone conversations with him, and sees him personally, when she visits Adelaide on a regular basis, to see her family. She reported on 2 April 2001 [T75/60] that the applicant continues to suffer from an ongoing psychiatric injury, and that he has not been fit for work at the Bureau since his resignation. She reiterated in her oral evidence, her previously reported view, that the applicant had no choice but to remove himself from the Bureau, at the time of his resignation.
Dr Czechowicz, who has been the applicant's treating psychiatrist since 21 October 2000, gave evidence of his diagnosis of obsessive compulsive personality disorder, to which workplace matters have contributed. He said that when he last saw the applicant, on 27 July 2001, he considered the applicant grossly impaired and unfit for the work he had been performing at the Bureau, without rehabilitation and treatment. Dr Czechowicz said in evidence, that the applicant has a rigid personality, with limited emotional insight. It is a severe condition wherein such people have a "machine-like" approach, unable to tolerate anger in themselves. The stress of the situation makes the person much more rigid, and they eventually "crack" – which turns to depression, and they become psychotic and out of control. The applicant suffers a psychiatric disorder that he does not realise he has. He does not believe he is sick, and this makes treatment of his condition much more difficult.
Dr Czechowicz gave evidence that although the applicant's letter of resignation would have been rational (as he is a stickler for form) it is Dr Czechowicz's opinion, that on 11 July 1997 it is highly likely that the applicant was psychotic. He was under much stress, and his thinking was impaired. He would not have known the consequences of the letter; the consequences would have been misinterpreted. He was in Dr Czechowicz's words "committing social suicide".
Dr Koopowicz, Psychiatrist, at the request of Dr Long of AGHS, interviewed the applicant for about 6 hours over 3 appointment sessions between 17 May 2001 and 7 June 2001. He interviewed the applicant's wife also for a period of 1 hour. His detailed report of 4 July 2001, includes the following comments and assessments:
"… he was mentally ill at the time of his resignation.
…
We have seen … the integrated interaction between the environmental stressors and his personality and how this interaction has manifest itself in his cognition, emotions and behaviour. The sum total of this has been the development of what we perceive to be a psychiatric illness.
…
… a preoccupation became an overvalued idea, and developed into a fixed delusion. …
… as distressing as the conflict at work must have been for both parties, and regardless of blame, Mr Hill's subsequent reaction has been out of proportion to that which could have been realistically expected, even with his personality profile.
From the available evidence it is clear that, by July 1997, he was permanently and totally incapacitated by his illness. He was no longer using the logic and rational thought that had served him so well in the past. He has shown no evidence of recovery.
…"
[T77/103-105]
In Dr Koopowitz's view the closest DSM IV diagnosis is that of Delusional Disorder Persecutory Type, complicated by Narcissistic and Obsessional Compulsive Personality Traits. He said in evidence that as at 11 July 1997, the applicant's resignation was "a life saving measure".
Dr Holmwood, General Practitioner, gave evidence that he saw the applicant on five to six occasions, between August and 15 September 1995; and when he saw the applicant on 15 September 1995, he seemed pre-occupied with minutiae – he felt that he could not supervise and train staff, and do his own work. His supervisory duties were a problem, as he was unable to distance himself. Dr Holmwood recommended a return to work on modified duties. Dr Holmwood saw him again the following year in November 1996 immediately before his return to work in Adelaide, he seemed well, and recovering from his condition. Dr Holmwood did not see the applicant again, until 17 February 1997, when he noted that the applicant had ongoing problems with depression and anxiety, and would probably cease work with the Bureau. Dr Holmwood reported on 22 February 2001 [Exhibit A2] that in his opinion, the applicant was suffering a mental disorder at the time of his resignation; and that when he reviewed him in November and December 2000, he considered that the applicant had suffered an ongoing mental disorder since the resignation, and had been unfit for work at the Bureau, under the conditions to which he was subjected, at the time of his finishing work.
Comcare called Dr Davis, who gave evidence that when he saw the applicant on 29 July 1997 (2 weeks after his resignation) the applicant told him that management's reaction to the box incident was the final straw – once again management had come down on Ms Radcliffe's side, and the applicant believed it to be in the best interests of his health, to resign. This followed the continued theme of their discussions, that the applicant's prime concern was the manner in which the whole intractable dispute had been handled. Dr Davis concluded that the applicant decided to resign because he had a diminishing sense that justice would be done to his satisfaction, and that he was thus in an untenable position, in continuing to work in the same environment. Dr Davis did not believe that the applicant's decision was based on any psychiatric illness factors.
Dr Davis said in evidence, however, that when he saw the applicant on 13 March 1997, he had grave doubts about the applicant's prognosis, with the depression/anxiety starting to come back again. He assessed the applicant as "barely fit for work", in view of his symptoms; but the applicant would not take time off work. He was conscientious, and would be letting the team down if he took time off. Dr Davis said that in his opinion, the applicant's depression would have increased as a result of Ms Radcliffe's returning to her old desk, without the applicant's prior knowledge, on 2 June 1997.
Comcare called Dr Burvill, Psychiatrist, who examined the applicant at Comcare's request on 19 November 1998. He was provided at that time with the entire compensation claim file. He reported on 1 March 1999 [T52/424] that he considered that the file revealed continued evidence of the applicant's unrelenting sense of grievance and his conviction that an apology was due to him, and his pursuit of vindication in the circumstances. The applicant's history, viewed in the overall, is one of the frequently seen reactions of persons with strongly obsessional traits in their personality suffering a narcissistic injury or a blow to the pride or to their capacity to control a situation, or having control of a situation removed from them. He did not consider that the applicant suffered from any psychiatric condition, but presented with intense emotional disquiet and pre-occupation with the matters in hand.
Dr Burvill said in evidence that if in the applicant's case he was faced with a change and he has a high level of inflexibility – this can lead to elevated mood, anger, despair – a person comes to a crisis and the way he handles it is driven by his personality traits and he can be badly affected. The applicant's pre-occupation with the detail of the history of these incidents showed lack of insight that anything could be other than as he represented it. In relation to the box of documents, the applicant was not getting his way; he could not stand adverse comment and he resigned in emotional protest – this Dr Burvill described as the strongest expression of personality – "he took his football home". In Dr Burvill's view, management should have separated the applicant and Ms Radcliffe completely if that were feasible. Management was aware of the problem, and it was reasonable to expect that management would do something to remedy that situation, but by the time the applicant returned in December 1996, the problem had not been addressed; although he acknowledged that as the Bureau occupied only 1½ floors in the building, this would be difficult.
Dr Burvill gave evidence also of his understanding that at the time of his resignation, the applicant was continuing to do a good job; this he said brought in anger and frustration, as opposed to depression, and in Dr Burvill's view, the applicant resigned not because of depression, but in pique.
Mr Gardner, the former Regional Director, said in evidence that the applicant's attitude and work output was excellent; that the only issue was his management of staff. Mr Gardner said also that he was not involved in meetings upon the applicant's return from Melbourne, nor was he aware that Ms Radcliffe had returned to her old desk on 2 June 1997. He said also that the whole issue was the most difficult that he had dealt with – with two competent, committed people with expertise in the same field – she wanted no contact, he wanted contact. Management sought internal and external counsellors for advice and assistance. The issue was taking its toll on others as well.
Mr Niedorfer, Assistant Director of the Bureau, was the applicant's immediate supervisor and had close involvement in the history of events. He gave evidence that it was he who gave the applicant a written direction, on 24 August 1995, that he was to have no contact with Ms Radcliffe. The applicant when he returned from Melbourne wanted to resolve the conflict, to have Ms Radcliffe with him in the Unit. She, on the other hand, wanted no contact; she had lodged a compensation claim in 1996 and was under the care of two psychiatrists. Management discussed at length the dilemma. The Unit only existed because of the applicant; and it was decided that he would remain located in the Unit, when he returned from Melbourne, while Ms Radcliffe was moved to another unit, on the 6th floor for 4 to 5 months.
Mr Niedorfer said in evidence that the applicant requested that a detailed protocol be implemented regarding contact between himself, Ms Radcliffe, and managing the fact that they were working in the same area. Mr Niedorfer and Mr Palmer (another member of the management team) decided that the normal code of conduct should apply, and that the parties would behave in a sensible manner, and the applicant could come to Mr Niedorfer with any problems. Mr Niedorfer recalled that on 2 June 1997 the applicant came to him, distressed because he had not been told beforehand that Ms Radcliffe would be returning, at her own request, to the 7th floor, and to her old desk, on that day. The applicant went into some detail as to why he could not work with Ms Radcliffe in the near vicinity. Ms Radcliffe had requested the move to a higher classification in another unit – "the culture unit" - and Mr Palmer had agreed to that request. She was 10 metres away from the applicant, in his sight, and he had been directed not to speak to her. Mr Niedorfer said he realised there could be problems, and he and the applicant discussed possible solutions, such as moving desks to obtain another perspective. The applicant said that this would not help.
Mr Niedorfer said in evidence that during the discussions on 2 June 1997 the box incident was raised; and on 3 June 1997 Mr Niedorfer gave the applicant the written direction to return the copies of the documents. There was a further discussion on 13 June 1997 when the applicant said that he was coping better than he had in the previous week, but that rotating the desk would not work, with Ms Radcliffe nearby. There was a further meeting on 3 July 1997 when he was formally counselled. He agreed that his behaviour had been inappropriate and that he would make an appointment with Ms McGuire, the Staff Counsellor. Mr Niedorfer went on recreation leave on 4 July 1997, and by the time he returned on 14 July 1997 the applicant had resigned.
Mr Niedorfer gave evidence that he noted a change in the applicant's behaviour and work performance, from mid 1995 onwards. The applicant had been an exemplary worker with a high reputation, and very prompt with his responses to Central Office, meticulous in his work and attention to detail. On every occasion that increments in salary were under review, Mr Niedorfer had recommended them for the applicant. Another increment report was due late June/early July 1997, and Mr Niedorfer was not prepared to recommend that the increment be paid. He considered that although the applicant's own project work with the Unit was satisfactory, he was doing less than required in his interaction with Central Office. Mr Niedorfer regarded management training as an urgent priority; the applicant was erratic, could not be relied upon to be at work, he simply walked away from time to time, walked around the block, disappeared, walked around wearing headphones; he was withdrawn, moody, and aggressive. With his staff he had become remote, no longer outgoing, he was not advising staff how to proceed to the next step in the process, which was causing tensions, making it difficult for staff to take problems to him. In general terms the applicant was acting strangely, and out of character.
Mr Niedorfer said, in evidence, that this was the most difficult situation he had been called upon to manage. There would be staff meetings where both the applicant and Ms Radcliffe would attend, but would not communicate with each other. Mr Niedorfer said that he was not going to exclude either of them. He did not know the solution. By mid 1997 it was not possible to compulsorily transfer either of them as each had a compensation claim and grievances against the other. It was very difficult. When he returned to work on 14 July 1997 and found that the applicant had resigned, he provided a replacement officer. Mr Niedorfer said that the applicant was a loss to the Unit, but management had put in a huge amount of effort to resolve the difficulties, and now that the applicant had resigned, it was Mr Niedorfer's responsibility to get the Unit running efficiently without him.
We have examined the whole of the evidence carefully and in detail and we have taken into account the parties' submissions. We consider that the applicant suffered an injury, which could be described as obsessive compulsive personality disorder, as diagnosed by Dr Czechowicz, adjustment disorder with depressed mood, as diagnosed by Dr Davis, or delusional disorder persecutory type, as diagnosed by Dr Koopowitz. Mr Niedorfer noted on 28 August 1995 that the injury had affected the applicant's working ability, and that he was barely able to perform any work at that time. As we have stated earlier in these Reasons for Decision, we consider, in effect, that management failed to "manage" this novel situation quickly and decisively, and thus the problem continued to fester, until eventually, some 2 years later on 11 July 1997, the applicant resigned. We accept the evidence of Dr Czechowicz that it is highly likely that the applicant was psychotic at that time, Dr Koopowitz's evidence that, in his view, the applicant was mentally ill at the time of his resignation which was "a life saving measure", and Dr Holmwood's opinion that the applicant was suffering a mental disorder at the time of his resignation. We accept also, Ms Evans' view that by 11 July 1997 the applicant was not capable of making rational decisions, and Mr Niedorfer's evidence as to the deterioration in the applicant's work performance and behaviour.

We are satisfied, on the evidence, and find as a fact, that the applicant's accepted condition of "acute anxiety reaction" arose out of his employment with the Bureau of Statistics, and was contributed to, in a material degree, by that employment. We are satisfied also, that the applicant continues to suffer from that condition, and to be totally incapacitated for work. Comcare is liable therefore to pay compensation to the applicant in respect of his injury.
For these reasons the Tribunal sets aside the decision under review and substitutes a decision that Comcare is liable to pay to the applicant compensation in respect of his total incapacity for work as a result of his "acute anxiety reaction", and orders that Comcare will pay the applicant's costs of these proceedings, as agreed between the parties or in default of agreement, as taxed by a Registrar of the Tribunal.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell and Dr JTB Linn (Member)
Signed:         .....................................................................................
  Associate
Dates of Hearing  22-26 October 2001, 4 December 2001
Date of Decision  31 May 2002
Counsel for the Applicant        Mr Britton
Solicitor for the Applicant         Lieschke & Weatherill
Counsel for the Respondent    Mr Apps
Solicitor for the Respondent    Thomson Playford