Hollis and Comcare (Compensation)
[2019] AATA 772
•29 April 2019
Hollis and Comcare (Compensation) [2019] AATA 772 (29 April 2019)
Division:GENERAL DIVISION
File Number(s): 2014/4105
Re:Janelle Hollis
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:29 April 2019
Place:Sydney
The decision under review, being the decision of Comcare dated 30 May 2014, is set aside.
The matter is remitted to Comcare for reconsideration with a direction that it is liable to compensate Ms Hollis in respect of the injury, being a major depressive disorder, which she suffered on 11 September 2012.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Comcare shall pay the costs incurred by Ms Hollis in these proceedings.
...............................[sgd].........................................
Deputy President J W Constance
CATCHWORDS
WORKERS' COMPENSATION - application for review of decision affirming determination that Respondent not liable to compensate Applicant in respect of claimed injury - whether Applicant suffered "ailment" or "aggravation of such an ailment" - major depressive disorder - whether ailment "contributed to, to a significant degree" by Applicant's employment - whether “disease … suffered as a result of … administrative action taken … in respect of the [Applicant’s] employment” - disease suffered prior to alleged administrative actions - whether injury resulted in “incapacity for work, or impairment” - decision under review set aside and remitted
PRACTICE AND PROCEDURE - proceedings on remittal from Federal Court - where order remitting matter unqualified and unambiguous - whether decision under review to be reconsidered on the merits - unqualified order remitting matter ordinarily to be taken as invitation to Tribunal to begin again statutory task of review
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin (2016) 258 CLR 467
Hollis and Comcare [2017] AATA 49
Hollis v Comcare [2017] FCA 558
Kaluza v Repatriation Commission [2011] FCAFC 97
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518Peacock v Repatriation Commission [2007] FCAFC 156
REASONS FOR DECISION
Deputy President J W Constance
29 April 2019
INTRODUCTION
Ms Hollis commenced employment with the Department of Education, Employment and Workplace Relations (the Department) in 2009.
During 2012 and 2013, Ms Hollis was working in the Department’s regional office in Newcastle, New South Wales.
In October 2013, Ms Hollis made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of anxiety and depression she says was contributed to, to a significant degree, by her employment by the Department. She claims that she suffered an injury in accordance with the Act “over a period of time in 2012.”[1]
[1] Exhibit RR14 at 8.
By decision dated 30 May 2014 (the reviewable decision), Comcare affirmed an earlier decision denying liability to compensate Ms Hollis. Ms Hollis has applied to the Tribunal for review of the reviewable decision.
For the reasons which follow, the reviewable decision will be set aside and the matter will be remitted to Comcare for reconsideration with a direction that it is liable to compensate Ms Hollis in respect of the injury, being a major depressive disorder, which she suffered in 2012.
RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 5A(2) provides:
For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(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.
(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;
(a)the nature of, and particular tasks involved in, the employment;
(b)any predisposition of the employee to the ailment or aggravation;
(c)any activities of the employee not related to the employment;
(d)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“Impairment” is also defined in subsection 4(1):
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
PROCEEDINGS ON REMITTAL
Ms Hollis’s application to the Tribunal was first decided in January 2017. On that occasion the Tribunal set aside the reviewable decision. Although it decided that Ms Hollis had suffered a compensable injury, the Tribunal determined that from September 2013 her ongoing depressive condition was a result of reasonable administrative action. In accordance with subsection 5A(1) of the Act referred to above, compensation is not payable in those circumstances. Ms Hollis appealed this decision to the Federal Court.[2]
[2] Hollis v Comcare [2017] FCA 558.
On appeal the Federal Court ordered, in part:
1. The appeal be allowed.
2. The decision of the Administrative Appeals Tribunal dated 24 January 2017 be set aside.
3. The matter be remitted for rehearing according to law before a differently constituted tribunal.
4. Unless the Tribunal otherwise orders or the parties agree, except for additional medical evidence, the rehearing be conducted on the evidence adduced in the previous hearing.
On 27 June 2017, the Tribunal directed that the parties file and serve any further evidence on which they intended to rely at the hearing of the remitted application.
By agreement between the parties, Ms Hollis gave evidence at the hearing before me. The other witnesses called to give evidence were the medical experts to whom I will refer later in these reasons. The transcript of the previous hearing was taken into evidence by consent.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of Ms Hollis. She provided a statement dated 28 March 2014[3] and two undated statements lodged in the Tribunal on 8 September 2015[4] and 8 October 2015[5]. Ms Hollis gave oral evidence at both hearings.
[3] Exhibit AA5.
[4] Exhibit AA8.
[5] Exhibit AA9.
Employment prior to October 2012
Ms Hollis commenced employment with the Department in February 2009 as a contract manager at the APS6 level for Employment Services and Indigenous Programs. In April of the same year she transferred to the Northern Territory as an Assistant Director (EL1 level). In this role she worked on a number of major projects and strategic planning. In 2009 she received the Secretary’s Excellence Award and in the 2009-2010 assessment period her performance appraisal rating was “outstanding”. Her performance appraisal rating for 2010-2011 was “’good’ at the executive level”.[6]
[6] Exhibit AA8 at [3].
In October 2010, Ms Hollis took leave to return to New South Wales (where she had previously resided) to assist her son who was experiencing health problems. Following her return, she took an extended period of leave and applied for various positions to enable her to stay with her son.
In January 2012, Ms Hollis was told that there was a position available for her at the APS5 level in the Indigenous Education and Employment Branch (IEEB). She took up the position in February 2012, although her reduction to the APS5 level did not occur until 6 August 2012. This meant that for the first five months in the IEEB she remained at the EL1 level.
Ms Hollis was extremely happy with this appointment as her experience and passion were in this area. Her supervisor was Mr Bissett. Two of her colleagues were Ms Bate and Ms Pearce.
Between February 2012 and early September 2012, Ms Hollis was subjected to behaviour of Ms Bate and Ms Pearce which she described as intimidating and demeaning.
In her statement filed on 8 September 2015,[7] Ms Hollis described the environment in which she worked from February 2012 until 11 September 2012 as follows:
[7] Exhibit AA8.
Ms Bate and Ms Pearce shared the position of Mr Bissett whilst he was on leave. They did not include me in teleconferences, meetings or visits to providers. When I requested work, they ignored me. I requested work from my colleagues, Bryan Saunders and Ron Powell instead. They gave me bits and pieces of preparing claims for payments to be sent to the State Office for processing. Having previously worked in high volume workload areas in the Northern Territory and Skills Australia, I was finding it difficult to adjust to a meagre workload of process work. I used my time to learn about the region and the business of the unit in the region. I found Mr Powell to be of like mind, he was a wealth of knowledge in community’s background and we formed a genuine friendship. I showed Ron how to use the Employment Services System. Several times, Ron and Bryan told Ms Bate and Ms Pearce how I had helped them with the system. Despite this, I was still subjected to the same alienation and ostracism from the two women. They would constantly talk over the top of me, ignore me and make comments such as ‘get used to it’ when I inquired as to why reminders for reports were not followed up. I would send them emails of messages I took while I was the only one in the office and they would not respond to the provider, meaning I was the one left to explain to the provider why nothing had been done. I found this conduct to be unacceptable, particularly when the stakeholders were significant employers like Rio Tinto in the Hunter Valley.
Other instances of alienation includes comments such as ‘put her in the boot’ when Ron suggested I attend the community visit and disputing me in front of staff and visitors when I gave information to Lake Macquarie City Council about the opportunity to retender for the Indigenous Youth Connections Project which was to be opened again in June 2012. A further occasion was when Mr Bissett asked me to stay back and mind the fort whilst the rest of the team attended information sessions for the program, Indigenous Youth Connections. I recall Mr Taylor inquiring as to why I was always the one left in the office. Other staff members made similar comments. On one occasion, Mr Taylor inquired as to where the rest of the team were. I didn’t know, but a colleague in another team called out that they were all in a teleconference. This embarrassed me and exemplified how I was excluded from the team. On one occasion where I attended a meeting with providers with Ms Bate, she placed me in a very confronting situation where she discussed other provider’s [sic] financial situations and requested the services of the provider for her own business.
…
On 23 July, Ms Pearce met with me and proceeded to write in her diary a list of the projects that she had. I asked her why she was giving me work now, when I had been asking for work for months. She ignored me and continued to write in her diary. It was clear that the projects Mrs Pearce had listed were those of Bryan Saunders since he left in May. Mr Saunders had handed over all his work to Mr Powell before he left. I offered to help Ron out and he was grateful but annoyed that I had not been given a share of the work by the two supervisors.
From this time, Ms Bate made requests for me to mail letters for her and Ms Pearce requested that I make appointments for her. Mr Powell had complained to Mr Bissett about the women treating me as their personal secretary a number of times, however it continued. There was constant snickering between them. I found it humiliating and was constantly on guard. Mr Powell made a point of saying that he had no problem working with me and said he had spoken to Mr Bissett about the way the two women were treating me. He mentioned the day that Mr Bissett and Ms Pearce were standing by the window whispering when there was no one else in ear shot other than myself sitting at my desk. I left the other rather than sit there feeling excluded. I wanted to point out to them that there were plenty of private areas to have discussions.
Daniel Jack commenced in the team in August 2012, with Ms Pearce being assigned as his supervisor. Daniel and I formed a friendship as Dan knew friends of mine in Darwin. Daniel was allocated Bryan Saunders region in the Newcastle Region Office Directory before he had commenced and he was provided with business cards, a mobile phone and orientation visits to the communities on commencement. I was never provided with any of this, and I still had no allocation of a region in the directory. Mr Bissett and the two supervisors made no attempt to rectify this issue, when the email was sent around for any changes to be made. I found it to be another form of exclusion and ostracism.
The week beginning September 3 2012, was a week of constant intimidation and demeaning behaviour direction toward both myself and Mr Powell. Mr Powell, Mr Bissett and I travelled to the mid North Coast for the community festivals. This was my first travel with the team for work purposes. On return to the office, there were mocking comments from both Ms Bate and Ms Pearce about how they had done some of the grants register, so that Ron and I didn’t have to stress out so much about it. This was not said in a nice way. As a result of this, Ron took the next two days off. It was clear that he was upset at the niggling, demeaning manner the women engaged in.
On 6 September 2012, I was supposed to have travelled to the Valley with Ms Bate for a meeting, however Ms Pearce went with her instead. On the morning of 7 September, when I started work, Ms Pearce, Ms Bate and Mr Bissett were standing at the window. Daniel was on the other side of the work station petition [sic]. Ms Bate called out to me ‘what’s all the white shit over the car?’ I asked if she was speaking to me. She replied ‘yes, what is the white shit all over the car, it is in a disgusting state, what did you do to it?’ Ms Pearce was grinning with pleasure. Mr Bissett did nothing to intervene. I replied that I had no idea what she was talking about and left the office area and went to the toilet area to calm down.
Not long after, Ms Bate instructed Daniel to wash all the vehicles. She sent an office wide email about the washing of the cars and how they were in a disgusting state. I felt that this was a totally unnecessary action and the sole purpose was aimed at humiliating me after the previous accusations were made. I made a comment to her as to who the last person was to use the vehicle after I had returned it on Wednesday. In fact, it was Ms Bate and Ms Pearce who used the car to travel to the mine site where it would have gotten covered in mine dust. What followed throughout that day were emails that could have easily occurred through normal office conversation. It seemed that I received more emails from these two women on that day than I had received the entire time I had been in the team. An email was sent to me to ‘find a file on Ron’s desk.’ I found it so silly to send an email when she could have simply found it herself or asked me verbally. There was an implied direction in sending an email. The other emails sent on this day included attending training in the Employment Services System which I had been helping both Ron and Daniel with, and who had both commented that I was the one who knew the most about it. Yet Ms Pearce was insisted that I be trained as an APS 5. Mr Powell was not required to attend the training. The final straw was an email sent from Ms Pearce to Ms Bate with a flyer attached. It was for an Aboriginal and Non Aboriginal Women’s Day in Port Stephens. Ms Bate then sent an email to me and copied in Mr Bissett requesting that I book a car. I was about to respond that it didn’t appear to be work related when Ms Pearce replied in the same email trail which showed she had been blind copied into the email. This demonstrated to me that the intention was not to be inclusive but more to humiliate and have a laugh at my expense. I felt I needed to get out of the office before I exploded and said what I really thought about their behaviour. Mr Bissett followed me out of the office. I turned to him and said “I do not have to put up with this and I am not going to any longer.” I left the office.
I accept this evidence.
On 11 September 2012, Ms Hollis consulted her general practitioner, Dr Himmelhoch. The clinical note of this consultation reads as follows:
1. feels isolated at work
has been in a team, but not given any work there.
last month officially moved to work in this team
says she has been sent emails
feels she has been bullied by two of the women in the office
also believes their behaviour is unethical
is angry at the treatment she has received
feels she cannot return to her old position
advised she needs to contact her superiors with her concerns re her colleagues
to put it in writing
believes her antidepressants are working
rev in 2 weeks
Reason for visit:
acute dsitress
Actions:
Medical Certificate given from 10/09/2012 until 21/09/2012.
Dose of Citalopram 20mg Tablet changed from ½ Daily for 6 days then 1 daily to 1 Daily.[8]
[8] Exhibit RR8 (errors in original).
On 13 September 2012, while she was on sick leave, Ms Hollis met with her supervisor, Mr Bissett. The meeting was held away from the office in which they worked.
Ms Hollis described her conversation with Mr Bissett at the meeting as follows:
We met in the park and I told him that I could no longer take the demeaning behaviour and I was ready to resign. I went through all the incidents of where I felt excluded and ostracised. He agreed that there was a problem, and it hadn’t just happened to me. He said that I shouldn’t resign and if I intended to make a case for bullying, I should ensure that I have records of it. He agreed that my skills were valuable and said that he would make sure that there was work available for me. He said to let him know, if they continued their behaviour towards me. I felt that he supported me.[9]
[9] Exhibit AA8.
The Individual Performance Appraisal Discussion (IPAD) in March 2013
As part of the Department’s normal appraisal process, a meeting took place on 15 March 2013 between Ms Hollis and Mr Bissett. During the meeting, Mr Bissett advised Ms Hollis of his ratings of her performance at the APS5 level.
Ms Hollis told Mr Bissett that she did not agree with his ratings and was shocked by them, particularly as Mr Bissett had recently confirmed her suitability for an EL1 position, two levels above APS5 in the Australian Public Service classification framework. Mr Bissett gave two reasons for the ratings – her “concerns regarding Mr Saunders” and “tensions in the team”, the latter referring to her relationship with Ms Bate and Ms Pearce. The reference to “Mr Saunders” was a reference to Ms Hollis’s management of the Department’s Mission Australia Surface Coal Operations Project, and in particular a claim in relation to conduct of a former employee of the Department which she believed to be unethical. Management of this project formed part of the duties assigned to Ms Hollis in October 2012.
Proposed transfer to Job Services Australia position
On 27 August 2013, Ms Hollis returned to work after having taken six weeks’ leave. She resumed on a return to work plan. Contrary to what was provided in the plan, Ms Hollis was told that she would be working with Job Services Australia, a program then administered by the Department. This move had not been discussed with Ms Hollis previously. Several meetings took place concerning Ms Hollis’s return to work plan which she found distressing.[10]
[10] See Exhibit AA8 at [38]-[43].
Code of Conduct inquiry
On 13 September 2013, Ms Hollis was informed there would be an inquiry into allegations that on several occasions she had improperly accessed records in relation to her son’s applications for employment, and that on one occasion she had improperly accessed records concerning the former employee referred to as “Mr Saunders”. Ms Hollis readily admitted these allegations. She had accessed her son’s records out of concern for his welfare. She accessed records relating to the former employee prior to a meeting with the Regional Manager to discuss the former employee’s position. She wanted to be sure she “had [her] facts straight”.[11]
[11] Exhibit RR15 at 149.
Termination of Ms Hollis’s employment by the Department
As a result of the inquiry, Ms Hollis was notified by email on 24 December 2013 that her employment with the Department would be terminated. Following an unsuccessful appeal from that decision, her employment was formally terminated on 24 January 2014.
THE ISSUES
The following issues arise for determination in this application:
(1)Did Ms Hollis suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If yes, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Department?
(3)If yes, was the “disease … suffered as a result … of administrative action … taken … in respect of [Ms Hollis’s] employment”?
a.If yes, was the administrative action “reasonable” and was it “taken in a reasonable manner”?
(4)If no, did the injury result in “incapacity for work, or impairment”?
MEDICAL EVIDENCE
Dr Allnutt, Senior Consultant Forensic Psychiatrist
Dr Allnutt assessed Ms Hollis in January 2015 and July 2017 at the request of her solicitors. He provided reports dated 27 January 2015[12] and 4 September 2017[13]. He gave evidence at the Tribunal hearings in December 2015 and March 2018.
[12] Exhibit AA1.
[13] Exhibit AA15.
On 27 January 2015, Dr Allnutt reported that Ms Hollis manifested “a constellation of anxiety and depressive symptoms”. The depressive symptoms were characterised by:
·depressed mood with disturbed sleep;
·reduced appetite;
·reduced energy;
·poor concentration;
·poor self-esteem;
·loss of confidence in decision-making;
·loss of pleasure in activities;
·suicidal ideation; and
·reduced energy and motivation.
Her anxiety symptoms were characterised by concern and anxiety about her current circumstances.
When Dr Allnutt gave evidence before the Tribunal in December 2015, he said that the major depressive disorder suffered by Ms Hollis “was fully established by the time she began to take leave in September 2012”.[14]
[14] Exhibit RR15 at 223.
Dr Allnut further deposed that, in January 2015, Ms Hollis “continued to complain of a number of depressive type symptoms” which were indicative of a psychiatric condition. In Dr Allnutt’s opinion, at the time he assessed Ms Hollis, she was unfit for work and required further recovery from her depression. She needed treatment from both a psychologist and a psychiatrist and possibly ongoing anti-depressant medication.[15]
[15] Exhibit RR15 at 224-225.
Following his further assessment of Ms Hollis on 12 July 2017, Dr Allnutt reported, in part:
Around the time she took on her position in November 2011 she had consulted with her general practitioner because she was depressed, was having sleep disturbance and was feeling anxious about her son, waking up at night and worrying. It is likely that she was suffered, on balance, symptoms of a chronic adjustment disorder at this stage. By this time, she had a psychological condition outside the boundaries of normal mental functioning and behaviour.
My impression is that when she started in February 2012 (with IEEB) “the pressure was off” and she was grateful for the new position and did not have to take leave. She was still anxious about her son and continued to experience broken sleep. It is likely that she continued to have chronic adjustment disorder at this stage but with some improvement.
In the context of the new position (IEEB) after February 2012 she described a build-up of events related to her perception of a difficult workplace environment and atmosphere, feeling bullied and ostracised by peers, and during that period she experienced a gradual deterioration in her mood.
Mental conditions often emerge gradually and it is sometimes difficult to say exactly when a syndrome of symptoms has reached the threshold of a diagnosable psychiatric condition (particularly in retrospect). The position I adopt is that by February 2012 she was experiencing symptoms of depression and anxiety (probably consistent with a chronic adjustment disorder or early symptoms of a developing major depressive condition) and that her condition deteriorated from then on, with the emergence of a major depressive episode between February 2012 to September 2012. So that by September 2012 she would be diagnosed a major depressive episode because by then the diagnostic threshold had been met. Chronic adjustment disorder and major depression lie on the same spectrum.
After the [Mr Saunders] incident, she took intermittent leave from November 2012 to mid-January 2013 reducing work time and continued with the antidepressant and there was improvement in her mental state, likely due to reduced stress and increased medication.
After May 2013, there was a deterioration in her mental state and major depressive disorder continued by the time she left work in December 2013. Overall, my view is that while there were fluctuations in her mental state after September 2012, but symptoms of depression and anxiety persisted with varied severity and therefore had varied impact on her functioning in that time.
When Dr Allnutt assessed Ms Hollis in July 2017 she had not returned to employment. She was taking the anti-depressant medication Citalopram (40mg daily) prescribed by Dr Himmelhoch. Her prescription of this medication was increased from 20mg daily to 40mg daily in October 2013. She was not seeing a mental health professional.[16]
[16] Exhibit AA15 at 2.
Her symptoms reported to Dr Allnutt in July 2017 were as follows:
She said her mood was low and her sleep was fluctuating; sometimes she slept too much and at other times she could not sleep. She had problems most of the time with sleep. Her appetite was poor and she needed to make herself eat, but she thought her weight had stabilised. Her energy levels were poor and she described herself as “exhausted”. She moved from topic to topic. She said she used to be able to multitask and now she could not. She did Sudoku but lost focus after five to 10 minutes and had poor memory when following conversations. However, she could take instructions. She was not confident in her decision-making and second-guessed herself. She did things and then lost concentration, and described herself as “hopeless”.[17]
[17] Exhibit AA15 at 6.
Dr Lee, Consultant Medico-Legal Psychiatrist
Dr Lee assessed Ms Hollis in November 2017 at the request of the solicitors for Comcare. He provided reports dated 22 November 2017[18] and 14 March 2018[19]. He gave evidence at the hearing before me in March 2018.
[18] Exhibit RR10.
[19] Exhibit RR11.
In the opinion of Dr Lee, Ms Hollis displayed:
dysfunctional personality traits characterised by a rigid preoccupation with her personal issues which interfered with her employment perspectives … Facing ongoing stress, she inappropriately displaced her need to set limits into the workplace, and inappropriately scrutinised her colleague’s behaviour at the IEEB, leading to discord and conflict, and became inordinately fixated on Saunders as evidenced by the fact that she could not give up the overvalued idea that her colleagues, in not agreeing with her views, were themselves corrupt.[20]
[20] Exhibit RR10 at 17.
Dr Lee went on to characterise the hallmarks of Ms Hollis’s personality thus:
self-centredness, rigidity, difficulty accepting others’ opinions, a tendency to be self-referential and to engender conflict … She probably lacks insight, and tends to blame others for her shortcomings. In my opinion, its aetiology is constitutional, together with experiences in childhood …[21]
[21] Exhibit R10 at 18.
Dr Lee did not consider that Ms Hollis suffered a persistent major depressive disorder as, in his opinion, she did not report a persistent depressive mood. He referred to Dr Himmelhoch’s records indicating that Ms Hollis had good and bad days, and acknowledged that at times in the past she may have had an adjustment disorder or major depressive episodes in the context of her dysfunctional personality traits.
In assessing Ms Hollis, Dr Lee conducted the Minnesota Multiphasic Personality Inventory (MMPI-2 & MMPI-2-RF). He reported that “she did not reply to 18 out of 567 questions, which markedly limits the interpretability of the profile. Defensiveness, confusion, carelessness and indecision are potential reasons.”[22]
[22] Exhibit RR10 at 12.
Following receipt of a copy of the report of Dr McMahon referred to below, Dr Lee provided a supplementary report of 14 March 2018.[23] He did not agree with the criticisms of his earlier report made by Dr McMahon, and provide detailed reasons in support.
[23] Exhibit RR11.
Dr McMahon, Clinical Psychologist
Dr McMahon provided a report dated 31 January 2018[24] at the request of Ms Hollis’s solicitors. He did not consult with Ms Hollis but reviewed the reports of Dr Allnutt, dated 17 September 2017, and Dr Lee, dated 22 November 2017, as well as the raw data of the MMPI-2 test administered by Dr Lee.
[24] Exhibit AA14.
In relation to the testing carried out by Dr Lee, Dr McMahon reported, in part:
What is noteworthy is that there are 18-omitted responses. That is the Cannot Say (?) Scale is markedly elevated … In this way the measure has not been administered appropriately. Dr Lee acknowledges this limitation at point 34 in his report of 22nd November 2017.
…
In my opinion, overall, Dr Lee’s use of the MMPI-2 revealed an incomplete administration, incomplete reporting of data and limited appreciation of the validity scales, in particular that moderate elevations no [sic] not indicate invalid profiles in disturbed persons, and some erroneous reporting of results.
When he gave evidence, Dr McMahon said that if a person omits responses to the questions asked the reasons for this need to be investigated.
Dr De Saxe, Psychiatrist
Dr De Saxe assessed Ms Hollis in November 2014 at the request of the solicitors for Comcare. He provided a report dated 3 December 2014[25] and gave evidence.
[25] Exhibit RR02.
Dr De Saxe reported that at the time he assessed Ms Hollis she complained of depressed mood, low energy, previous sleep impairment (which had improved since she ceased working) and intrusive recollections of events at the Department. She was taking the anti-depressant Citalopram at a dosage of 40mg daily.
Dr De Saxe reported further:
Diagnosis
1. Having assessed the applicant and considered the materials provided to you, what condition(s), if any, do you consider that she suffers (or suffered)?
My opinion is that Ms Hollis has suffered major depression or in DSM-V terminology, Persistent Depressive Disorder.
2. When did the applicant first suffer this condition?
In the clinical notes of Dr Himmelhoch that you have provided, note is first made of a GP mental health care plan on 27/06/2011.
Hence my opinion is that Ms Hollis had suffered symptoms of anxiety and possibly of depression prior to this date.
3. Please describe the aetiology and history of the condition.
The aetiology of a Persistent Depressive Disorder is usually multifactorial.
However it appears that in the years leading up to 2010 she was functioning well, working in the Northern Territory and enjoying her work.
…
… [in relation] to her move to Newcastle and change of employment location, she began to experience stress in relation to two women who worked in the Newcastle office, who appeared not to accept her and led her to feel constantly as though she were an unwelcome outsider and that she was at a level lower than they were.
Thereafter, the issue concerning Mr Saunders arose in 2012, at which point she felt that her complaints about the matter were not adequately dealt with.
Then she did not achieve a promotion that she applied for, after acting in a more senior position for a short period of time.
She was then moved into the position at Job Services Australia.
It appears that at this point in time her depression intensified as she felt ostracised and pushed aside and as she put it, “shamed and as if I'd been punished for speaking up”.
…
Her condition deteriorated until she was treated with anti-depressants by Dr Himmelhoch, her GP, and was also referred to psychologist, Ellen Smith, in 2013.
Since leaving work, her mood has improved somewhat and her sleep is better.
Nevertheless her mood remains labile and this was evident at interview when, as I have noted, on several occasions she had difficulty containing her emotions.
In the opinion of Dr De Saxe, the condition suffered by Ms Hollis was significantly contributed to by her employment with the Department. He did not consider that “her condition constituted an aggravation of a pre-existing condition, continuation of a pre-existing condition or that employment was merely the context in which the pre-existing condition had effect.”[26] And at the time of his assessment of Ms Hollis, more than 12 months after she ceased working in the Department, he considered that she continued to suffer the effects of the condition.
[26] Exhibit RR2 at 11.
THE ARGUMENT ON BEHALF OF MS HOLLIS
Counsel for Ms Hollis argued that when Ms Hollis joined the IEEB in February 2012, she was “anxious about her son and somewhat down about his condition”[27], but was otherwise well. However, as a result of the behaviour of her two colleagues, by September 2012 she was suffering from a major depressive disorder from which she has not recovered. It was further argued that none of the administrative actions relied upon by Comcare met the requirements of the Act to exclude its liability to compensate Ms Hollis.
[27] Exhibit AA1 at 3.
COMCARE’S ARGUMENT
In their Outline of Submissions of the Respondent dated 28 June 2018, the solicitors for Comcare argued, in part:
2.5. The Applicant, as the evidence discloses, had pre-existing symptoms relevantly indistinguishable from those she later related to work events. But if periods of incapacity such as she suffered in 2012 and 2013, are due alone to the fluctuating effects of such an earlier extant ailment, she cannot access compensation, because it is an ailment that on any view was not caused by work.
2.6. She would be entitled to compensation, notwithstanding a pre-existing ailment, if:
a. That ailment were significantly contributed to by (non-excluded) work events such that it could properly be said to have been aggravated; and
b. The compensable consequence (for example, a period of incapacity) resulted from that aggravation (as distinct from the pre-existing ailment itself).
2.7. That may appear to assist the Applicant as to the brief period of time between 10 September and 21 September 2012 when she was off work due to the aggravation of her ailment by employment stressors that the Tribunal on the first occasion found do not answer the statutory threshold for exclusion due to [reasonable administrative action]. However that is of no substantial assistance to the balance of her claim, for two reasons.
2.8. The first is that the best view of the evidence is that any such aggravation was of confined effect and did not result in further (later) periods of incapacity so as to found s 14 liability for those periods. Rather, those later periods of incapacity resulted from a significant deterioration in the Applicant’s mental health and were due to the later work events that the Applicant had complained of that had immediately preceded those periods of incapacity. That the aggravation suffered in September 2012 was confined in its effect being evidenced by the fact that the Applicant did not seek treatment from her General Practitioner between 11 September 2012 and 23 May 2013.
2.9. The second reason is that in respect of periods of incapacity after September 2012, the Applicant faces the considerable hurdle that the events immediately preceding the incapacity periods (i.e. the events from which the incapacity resulted, or without the occurrence of which incapacity would not have ensued) are events attracting the [reasonable administrative action] exclusionary provisions in s 5A.
(Footnotes omitted.)
Comcare relied upon four separate incidents, each of which it was said amounted to reasonable administrative action within the meaning of the Act:
·the March 2013 IPAD assessment (referred to as RAA 3 in the Tribunal’s decision of January 2017);
·Ms Hollis’s transfer to a position in Job Services Australia (RAA 4);
·the Code of Conduct inquiry (RAA 5);
·the termination of Ms Hollis’s employment in January 2014 (RAA 6).
It was put that each of the actions met the test set out by the High Court in Comcare v Martin.[28] As a result, Ms Hollis is not entitled to compensation in respect of any injury suffered as a result of these incidents.
[28] (2016) 258 CLR 467.
As part of the submissions, Comcare adopted the following reasoning of the Tribunal in the 2017 decision:
… Ms Hollis was, as a result of the matters related to the investigation, removed from her temporary EPO role, deprived of ESS access, and moved to another less demanding role in providing administrative support for the RSA manager. These were wholesale changes in her circumstances and starkly contrasted with the position she had expected to be in following her return to work in late August 2013, and after taking up the temporary EPO position. Ms Hollis’s own statement was that the code of conduct investigation “knocked me around big time”. The submission is inconsistent with the significant distress Ms Hollis reported to Dr Himmelhoch on 23 September 2013, and the contemporaneous reduction in her work capacity. It also does not pay due regard to her complaints that she felt vulnerable, alone and victimised. In the totality of those circumstances, the aggravation of Ms Hollis’s depressive condition following the reduction in her employment role, and the initiation of the code of conduct investigation, was a result of administrative action and was not within the concept of “injury” for the purposes of SRC Act 5A(1). After that time, Ms Hollis’s ongoing depressive ailment was the result of a combination of events, and principally the matters to which I have referred as RAA 3, 4 and 5.[29]
(Emphasis added.)
[29] Hollis and Comcare [2017] AATA 49 at [169].
CONSIDERATION
The solicitors for Comcare argued strongly that, with one exception, I should make findings of fact in accordance with the findings of the Tribunal in the 2017 decision:
Whilst the decision of the Tribunal on the first occasion is not binding upon this Tribunal, the factual analysis it employed was a bona fide exercise of the function of the Tribunal to determine the truth between contested versions of the evidence. Importantly, not only are its efforts in that regard available for this Tribunal to adopt under the terms of the remittal, they should now be adopted as the preferable view of the facts, particularly where that Tribunal exhaustively analysed why it preferred the evidence it did, and had the substantial advantage of hearing from all the relevant witnesses.
(Footnote omitted.)
I do not accept this submission. The Federal Court remitted the matter “for rehearing according to law before a differently constituted tribunal”. This is a clear indication that, as the Tribunal constituted to hear the matter, I must exercise my own judgement in determining the relevant facts and I must reach my own conclusions as to the application of the law to those facts.
It is well accepted that an unqualified order of a court remitting a matter to a tribunal of fact to be determined according to law is ordinarily to be taken as an invitation to the tribunal to begin again its statutory task of review. In Minister for Immigration and Multicultural Affairs v Wang,[30] Gleeson CJ described the effect of such an order:
… The Full Court ordered that the decision of the tribunal be set aside, and the matter be remitted to the tribunal to be determined in accordance with law.
The consequence of that order was that the tribunal, in dealing with the remitted matter, would be obliged to determine, in light of the circumstances existing at the date of such new determination, and of the information before the tribunal at that time, all questions of fact and law relevant to the [claim] …
[30] (2003) 215 CLR 518 at [6]-[7]; Gummow and Hayne JJ relevantly agreeing at [67].
In Peacock v Repatriation Commission,[31] the Full Court of the Federal Court said, in relation to an order of the Federal Court that “the matter be remitted to the Tribunal for further consideration in accordance with law”:
… What was remitted was the whole matter … Once the prior decision of the Tribunal was set aside, in the absence of some express limitation, it was then for the Tribunal rehearing the matter to determine all questions of fact and law relevant to the applicant’s claim. The task of the Tribunal remained the task of reconsidering the merits of the decision [under review].
[31] [2007] FCAFC 156 at [6].
Following the reasoning in Wang and Peacock, the Full Court of the Federal Court in Kaluza v Repatriation Commission said:[32]
Ordinarily orders made by a court will be taken at their face value rather than being construed in context having regard to their purpose and object. It would be, as the Full Court noted in Peacock, a rare case where it was otherwise. There is nothing ‘rare’ about this remittal. It is and was open to the Court partially to remit a matter but in this case that was not done. Her Honour was not asked partially to remit the case. Cases on judicial review frequently refer to two or more claims. It is common for a large number of issues to be agitated on judicial review but it may only be one of those in which there is success and remittal. It cannot be said that a decision-maker exercising executive power is confined to considering only those issues in respect of which a point of law was made out. This is particularly so in the context of s 44 of the AAT Act which is restricted to appeal on an error of law.
… In light of the statements in Wang, in our view, unless there is some qualification in the remittal order, there is nothing ambiguous about the order. The entire case is remitted …
[32] [2011] FCAFC 97 at [37]-38].
Having listened to and observed Ms Hollis give evidence, I am satisfied that she was an honest witness who gave her evidence to the best of her recollection. I have carefully considered the transcript of the earlier proceedings, and in particular the transcript of her cross-examination, and I see no reason to change my assessment of her.
Issue 1: Did Ms Hollis suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
I accept the evidence of Ms Hollis as to the conduct of Ms Bate and Ms Pearce between February 2012 and 12 September 2012. I am satisfied that she was treated badly in her workplace by the two women with whom she was working and that she was affected by this treatment in the manner she described.
Neither Ms Bate nor Ms Pearce provided a statement or gave evidence. The evidence of other co-workers did not contradict Ms Hollis’s evidence in this regard.
Mr Bissett held an EL1 position within the IEEB at the relevant time. He provided statements dated 29 June 2015 and 11 December 2015[33] and gave evidence. Although he worked within the Branch with Ms Hollis, Ms Bate and Ms Pearce and was Ms Hollis’s supervisor, he did not deny that the incidents complained of by Ms Hollis occurred.
[33] Exhibits RR3 and RR4 respectively.
As to the medical evidence, I prefer the diagnosis of Ms Hollis’s condition made by Dr Allnutt to that of Dr Lee.
Dr Allnutt expressed his opinions and the reasoning behind them clearly. For the reasons set out above, I am satisfied of the facts on which Dr Allnutt based his diagnosis. His diagnosis was consistent with Ms Hollis having been able to perform her duties at a high level prior to joining the IEEB, notwithstanding her concerns for her son. Prior to giving evidence in December 2015, Dr Allnutt had considered the clinical notes of Dr Himmelhoch, Ms Hollis’s general practitioner. These notes covered consultations from June 2011 onwards.[34]
[34] Exhibit RR15 at 223.
In December 2015, Dr Allnutt gave evidence that:
… She may have had something like an adjustment disorder by February 2012. But she denied – she endorsed some symptoms but denied others by that date and insufficient [sic] for me to diagnose a major depressive episode by February 2012. Then her history is that she’s exposed to a work environment that she perceived as hostile, ostracising, discriminating and difficult. Whether or not that was the case is not a psychiatric determination. That’s a fact for determination. If it’s determined by the court that that was factual, and that she did experience that to the extent that the court would regard it as inappropriate, or consistent with the legal definition of bullying or harassment, then it would be reasonable for me to hold a view, I think, that that’s an added significant stressor, and that there was an ongoing deterioration of her mental state, with the emergence of a major depressive episode at some time before September 2012, but fully formed by September 2012, based on the information she provided to me.
On the other hand, Dr Lee did not satisfactorily explain how Ms Hollis was able to retain her employment and perform at the level she did prior to 2012 with the serious dysfunctional personality traits he described. I accept the evidence of Dr McMahon as to the limitations of the MMPI-2 test administered by Dr Lee. Dr McMahon impressed me as a witness who had considered the material before him carefully, and expressed opinions based on that material clearly.
I also take into account that Dr Lee relied in part on a report that Ms Hollis came from an abusive family of origin, despite being told by her that she had a good childhood.[35] He did not obtain from Ms Hollis any history of problems in her childhood.[36] On the basis of the evidence of Ms Hollis, I am satisfied that this assumption by Dr Lee has no factual basis.
[35] Exhibit RR10 at 1.
[36] Transcript, 16 March 2018, at 101.
Further, in his report of 22 November 2017, Dr Lee mistakenly recorded that Ms Hollis’s “psychological problems probably started at the beginning of April 2013”[37] rather than April 2012. The latter date is consistent with Ms Hollis’s major depressive disorder developing when she was working in the IEEB.
[37] Exhibit RR10 at 2, 8 and 20, where the April 2013 date is relied upon by Dr Lee. See also Transcript, 16 March 2018 at 107-108.
The diagnosis made by Dr Allnutt is supported by Dr De Saxe, who was of the view that Ms Hollis suffered a depressive condition to which her employment with the Department made a significant contribution. Dr De Saxe did not make reference to Ms Hollis having dysfunctional personality traits.
On the basis of the evidence of Ms Hollis, Dr Allnutt and Dr McMahon, I am satisfied that between February 2012 and 12 September 2012 Ms Hollis suffered a major depressive disorder. I am satisfied further that this condition is a mental disorder and therefore an “ailment” within the meaning of subsection 4(1) of the Act.
Issue 2: Was the ailment “contributed to, to a significant degree” by Ms Hollis’s employment by the Department?
On the basis of the evidence of Dr Allnutt, to which I have referred in determining the previous issue, I am satisfied that Ms Hollis’s employment by the Department contributed to her ailment to a significant degree.
Dr Allnutt accepted that when Ms Hollis commenced employment in the IEEB it was likely she was suffering from an adjustment disorder, but expressed the opinion that it was the conduct of her colleagues which caused her to suffer a major depressive disorder by 12 September 2012. Ms Hollis therefore suffered a “disease” within the meaning of subsection 5B(1) of the Act.
I am satisfied that Ms Hollis first sought medical treatment for the condition on 11 September 2012.
Issue 3: Was the “disease … suffered as a result of … administrative action taken … in respect of [Ms Hollis’s] employment”?
On the basis of the evidence of Dr Allnutt, I have found that Ms Hollis suffered from a major depressive disorder no later than 12 September 2012 and that she continued to suffer this condition at least until 12 July 2017, the date of Dr Allnutt’s second assessment.
As each of the actions relied upon by Comcare occurred after 12 September 2012, I am satisfied that the disease was not suffered as a result of any of the actions alleged. It is therefore unnecessary for me to determine whether any of those actions constituted “reasonable administrative action” and whether they were “taken in a reasonable manner”.
Issue 4: Did the injury result in “incapacity for work, or impairment”?
The injury suffered by Ms Hollis resulted in impairment
Ms Hollis described her mental state in September 2012 as feeling demoralised and anxious, lacking confidence and having low self-esteem.
Dr Allnutt recorded in detail Ms Hollis’s depressive symptoms, as set out in paragraph 33 of these reasons. I am satisfied that the symptoms suffered by Ms Hollis in September 2012 indicated a malfunction of her mental processes. On this basis, I am satisfied that the injury she suffered resulted in “impairment” as defined in subsection 4(1) of the Act.
On the basis of the evidence of Dr Allnutt, I am satisfied the impairment of Ms Hollis continued from September 2012 until sometime after she was assessed by Dr Allnutt in July 2017. I do not have sufficient evidence to determine whether, at any time or from time to time, Ms Hollis ceased to suffer impairment caused by the injury suffered in 2012. It may be that she continues to suffer impairment at present. This is a matter for Comcare to determine on remittal when deciding the compensation payable under sections 16, 19 and 27 of the Act.
I note that in January 2015, Dr Allnutt considered that Ms Hollis needed further medical treatment and medication. I note also that in July 2017 Ms Hollis continued to take the anti-depressant drug Citalopram, at a dosage of 40 mg daily, as prescribed by Dr Himmelhoch in October 2013. Prior to October 2013, Ms Hollis had been taking the drug at the rate of 20 mg daily.
The injury suffered by Ms Hollis resulted in incapacity for work
Although strictly unnecessary for me to decide, given my finding in paragraph 80, I am also satisfied that for two weeks after 12 September 2012 Ms Hollis was unfit for work as a result of the injury she suffered. The solicitors for Comcare argued that this period of incapacity was “inconsequential”.[38] I do not accept that submission. The period of incapacity is sufficient to meet the requirements of subsection 14(1) of the Act. I note that the finding that Ms Hollis was incapacitated during this period was the only finding of the previous Tribunal which Comcare urged me not to accept.
[38] Outline of Submissions of the Respondent at 8.
I have reached the conclusion set out in the preceding paragraph on the basis of the evidence of Ms Hollis and the clinical notes of Dr Himmelhoch.[39] The note of Ms Hollis’s consultation with Dr Himmelhoch on 11 September 2012, extracted at paragraph 23 above, is particularly instructive.
[39] Exhibit RR8.
On the basis of the evidence of Dr Allnutt, I am satisfied that Ms Hollis was further incapacitated for work from 24 January 2014, being the date her employment by the Department was terminated, until sometime after she was assessed by him in January 2015. At that time, Dr Allnutt assessed Ms Hollis as unfit for work. She may continue to be so incapacitated. Again, this is a matter for Comcare to determine in accordance with section 19 of the Act.
CONCLUSION
The reviewable decision of Comcare dated 30 May 2014, denying liability to pay compensation to Ms Hollis in respect of a claimed injury of depressive disorder, will be set aside.
The matter will be remitted to Comcare for reconsideration with a direction that it is liable to compensate Ms Hollis in respect of the injury, being a major depressive disorder, which she suffered on 11 September 2012.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Comcare shall pay the costs incurred by Ms Hollis in these proceedings.
I certify that the preceding 88 (eighty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
........................................................................
Associate
Dated: 29 April 2019
Date(s) of hearing: 13 December 2017, 15 and 16 March 2018 Date final submissions received: 22 July 2018 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: CommComp Lawyers Solicitors for the Respondent: Lehmann Snell Lawyers
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