Jones and Comcare
[2007] AATA 1653
•9 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1653
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/25
GENERAL ADMINISTRATIVE DIVISION ) Re ANISSA JONES Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member
Dr M. Miller AO, MemberDate9 August 2007
PlaceCanberra
Decision The decision under review is affirmed. .................signed.............................
Mr S. Webb, Presiding Member
CATCHWORDS
COMPENSATION - pre-existing psychological condition manifest in personal conflict and negative perceptions concerning incidents in the workplace - failure to obtain a transfer materially contributed to aggravate psychological condition - aggravation not an injury - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 14
Comcare v Mooi (1996) 69 FCR 439
Wiegand v Comcare [2002] FCA 1464
Comcare v Sahu- Kahn [2007] FCA 15
Comcare v Canute [2005] FCAFC 262
Kirkpatrick v Commonwealth (1985) 9 FCR 36
Hart v Comcare [2005] FCAFC 16
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION
9 August 2007 Mr S. Webb, Member
Dr M. Miller AO, Member1. Anissa Jones is a teacher. She complained of harassment and victimisation during a temporary placement in a school in 2005. Before taking up the placement she was being treated with anti-depressant medication. She asserted that her psychological condition was aggravated by certain incidents during her employment at the school. She lodged a claim for compensation. The claim was rejected by primary determination and on reconsideration by Comcare. Ms Jones applied for review of the decision to reject her claim for compensation.
2. Three issues were agitated in these proceedings.
(a)Did Ms Jones suffer from a mental ailment during the relevant period of employment?
(b)If so, was the ailment a disease that was contributed to in a material degree by the employment?
(c)If so, was the disease an injury in relation to which she is entitled to compensation?
3. At the outset we are concerned to record that we found Ms Jones’ evidence to be unreliable. We note that Dr Knox reported that she suffered from ‘Dissociative Disorder’.[1] Ms Jones experienced difficulty recalling some of the incidents that occurred in 2005. That may go some way to explaining minor discrepancies in her evidence, in relation to a dinner for “Philippe,” or a school trivia night, for example. However, as it appears to us Ms Jones was articulate and forthcoming in relation to evidence that she considered to be relevant to her case and, in her eagerness to tell her story and to paint a favourable picture, she gave contradictory evidence. We note that Ms Jones purported to clearly recall incidents involving a test paper that was allegedly not provided to her on time, and a folder that could not be found, and various alleged communications that occurred. In her evidence, she was able to elucidate relevant details, but she was less able to recall the details of other events and incidents during the same period, involving conflict with her husband and her own behaviour and medical treatment. We do not rule out Ms Jones’ evidence, nor are we of the opinion that she set out to deliberately mislead or withhold relevant evidence. One must bear in mind the likely diminution of Ms Jones’ memory with the effluxion of time and any adverse effect her mental ailment or related treatments may have had on her memory. Thus, we will proceed cautiously when evaluating her evidence and will not accept her evidence concerning crucial points without independent corroboration.
[1] Exhibit A2.
4. Before addressing the issues, it is desirable to set out the factual context of Ms Jones’ case. The following findings are made in consideration of the materials before the Tribunal and the oral evidence, and are established to our reasonable satisfaction. Ms Jones married in 2002 and has three children (the eldest from a previous relationship). Her husband re-enlisted in the Royal Australian Navy in September 2003. As a result he spent substantial periods away from home, leaving Ms Jones to care for the children in Canberra. It appears that Mr Jones served on HMAS Success from September to December 2004 and was then directed to return to HMAS Harman on shift work. He was directed to attend a training course on HMAS Cerberus from February to April 2005, but was granted compassionate leave in order to address issues with Ms Jones, who, it appears, informed him on or about 10 February 2005 that “she was sick of it all and wanted out of the marriage”.[2] The couple undertook counselling with the Navy Community Service Organisation. Subsequently, Mr Jones was posted to HMAS Manoora from July to December 2005 and was scheduled to go ‘on course’ from 24 October to 6 December 2005.[3] However, as will appear, Ms Jones and her husband were involved in a protracted domestic dispute on 2 and 3 July 2005, and subsequently, Ms Jones attempted suicide on 20 and 22 October 2005.
[2] Exhibit R6, p1.
[3] Exhibit R6, p6.
5. During all relevant periods Ms Jones was employed as a teacher by the ACT Department of Education and Training. Thus she is an ‘employee’ within the meaning of s.5 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). She was employed as a teacher in a temporary placement for the final term of the 2004 school year and was seeking a substantive position. On 14 December 2004 she obtained medical treatment from her General Practitioner, Dr A. Shroot. Dr Shroot noted that she was “tired and stressed – not coping with work and home although relationship OK,”[4] and prescribed anti-depressant medication (20 mg Prozac per day).
[4] Exhibit R3, p2.
6. Subsequently, Ms Jones obtained a term placement as a mathematics teacher at the Telopea Park School, commencing at the end of January 2005. Her (then) good friend, Kate Marshall, was in substantive employment as a mathematics teacher at the school. Prior to taking up her placement, Ms Jones met with Ms Marshall.[5] Ms Jones asserts that Ms Marshall expressed concerns about both of them working together and was critical of Ms Jones. Nevertheless Ms Jones took up her placement at the school. She completed the term placement and was given a second term placement at the school. She undertook professional development activities and participated in a trip to China as part of her employment.
[5] Exhibit T1, at T19.
7. On 1 June 2005 Ms Jones did not attend the school. She consulted Dr Shroot on 2 June 2005, who noted “Incident at work with another teacher. Been victimised now ill…”.[6] Dr Shroot diagnosed ‘work related stress’, referred Ms Jones to counselling, and certified that she was unfit for work.[7] Dr Shroot reviewed Ms Jones on 16 June 2005 and reported:
“She told me that she had been to a counsellor, was trying to sort things out at the school but there was no improvement in the situation and she was still unable to cope with work.”[8]
[6] Exhibit R3, p2.
[7] Exhibit T1, at T4, folio 6.
[8] Exhibit T1, at T16, folio 49.
On 17 June 2005 Ms Jones completed a compensation claim form,[9] which was subsequently lodged with Comcare on 11 July 2005.[10] In her claim, Ms Jones stated that she was first injured in “Term 1, 2005” and first obtained medical treatment on 2 June 2005.[11]
[9] Exhibit T1, at T5, folio 20.
[10] Exhibit T1, at T5, folio 12.
[11] Exhibit T1, at T5, folio 15.
8. Dr Shroot reviewed Ms Jones again on 1 July 2005 and reported that she was “particularly stressed” and “at risk of self harm”.[12] He referred her to Dr T. Sutton (Clinical Psychologist) for a full assessment.[13] On 2 and 3 July 2005 Ms Jones was involved in a violent altercation with her husband and was transported to the Canberra Hospital by Police for assessment. Dr Sutton conducted psychometric testing of Ms Jones on 4 July 2005. He reported that the results “indicated a severe Major Depressive Disorder with heightened suicidal risk” and suggested referral to a psychiatrist.[14] Dr Shroot referred Ms Jones to Dr J. Saboisky (Psychiatrist). No evidence concerning Dr Saboisky’s initial assessment of Ms Jones is before the Tribunal[15] and he was not called to give evidence.
[12] Exhibit T1, at T16, folio 49
[13] Exhibit R3.
[14] Exhibit T1, at T32, folio 138.
[15] Exhibit T1, at T27a, folio 120 refers.
9. On Dr Shroot’s certificates, Ms Jones remained unfit for work until 22 August 2005, when Dr Shroot certified her fit to resume modified duties.[16] She returned to work performing administrative duties on reduced hours. On 20 October 2005, Ms Jones attended the Canberra Hospital having intentionally consumed a large amount of anti-depressant medication. She was discharged on 21 October and again presented on 22 October 2005 having, again, consumed a large amount of anti-depressant and other medication.[17] Subsequently, it appears that Ms Jones’ psychological condition improved and she returned to full duties at a different school in 2006.
[16] Exhibit T1, at T4, folios 7-11 refer.
[17] Exhibit R4.
10. On 7 September 2005, Comcare determined to reject Ms Jones’ claim for compensation.[18] On 11 October 2005, she requested reconsideration of the determination.[19] On 17 January 2006, Comcare decided to affirm the primary determination rejecting Ms Jones’ claim.[20]
[18] Exhibit T1, at T30.
[19] Exhibit T1, at T36.
[20] Exhibit T1, at T49.
Did Ms Jones suffer from a mental ailment during the relevant period of employment?
11. Comcare asserts that Ms Jones has a troubled psychological history but was not suffering from major depression during the period of her employment from 2004. In Comcare’s submission, Ms Jones suffers from personality difficulties[21] or a personality disorder of long standing that was operative prior to her employment by the ACT Department of Education and Training. Comcare says that her personality traits caused Ms Jones to experience psychological symptoms including anxiety and anger, and rendered her exquisitely sensitive to any perceived betrayal or rejection by persons she was close to. She experienced difficulties in her personal relationships, including with her immediate family, as a result. It was these traits, Comcare says, that caused her reaction to Ms Marshall’s criticism on 22 January 2005, and subsequently led her to perceive and interpret otherwise innocuous incidents and events in employment as harassment or victimisation.
[21] Exhibit T1, at T45.
12. To the extent that Comcare asserts that Ms Jones did not suffer from a mental ailment during the period of her employment, we do not agree.
13. The Tribunal must determine whether Ms Jones was injured in compensable circumstances for the purposes of the Act. An injury under the Act includes a disease (being an ‘ailment’ or the aggravation of an ‘ailment’) that was contributed to in a material degree by the employment.[22] ‘Ailment’ is defined to mean, relevantly, ‘any… mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[23] Drummond J considered the meaning of these terms under the Act (then in force) in Comcare v Mooi (1996),[24] and observed that for a mental ailment to be made out the employee must demonstrate that he or she is “in a condition that is outside the boundaries of normal mental functioning and behaviour”.[25] A distinction is to be drawn between
“clinically significant, i.e. abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances.”[26]
[22] Section 4.
[23] Section 4.
[24] 69 FCR 439.
[25] Ibid, at 444.
[26] Ibid.
14. We are reasonably satisfied that Ms Jones suffered from a mental ailment in December 2004 that was ongoing, in all likelihood, from October 2004, and so find. Dr Shroot assessed Ms Jones on 14 December 2004, and noted her stress and difficulty coping.[27] At that time Ms Jones’ husband was away, she was working full time during a busy period at the end of the school year while caring, alone, for her 3 children. It would be reasonable to accept that a person unaffected by mental disease or illness may experience stress in such circumstances. However, Dr Shroot came to a clinical judgement that her symptoms were sufficient to warrant medical treatment with anti-depressant medication. On 16 March 2005, Dr Shroot increased the antidepressant dosage to 40mg of Prozac per day. This treatment regime continued and we find that Ms Jones’ mental condition was stable until June 2005, when she was referred to counselling and, subsequently on 1 July 2005, to Dr Sutton. Dr Shroot reported that Ms Jones “was coping at the start of the school year in 2005 but [after an incident with another teacher] she became sick resulting in an aggravation of her condition to the point where she attempted suicide”.[28] Dr Shroot’s consecutive clinical notes dated 7 October 2004, 14 December 2004 and 16 March 2005 indicate her (then) present psychological presentation. The Doctor’s notes dated 23 March 2005 and 15 April 2005 do not refer to any psychological or other relevant symptoms in her presentation at those dates. However, on 2 June 2005, Dr Shroot noted “Incident at work with other teacher. Been victimised. Now ill.”[29] Ms D. Bentele (Consultant Psychologist) assessed Ms Jones on 29 June 2005 and reported Ms Jones’ psychosocial details, including suicidal thoughts and previous self harm.[30] She reported that Ms Jones completed three self-reported scales designed to measure symptoms and intensity of depression, anxiety and stress and her scores were in the severe to extremely severe range.[31] Dr Sutton’s psychometric testing on 4 July 2005 indicated the likelihood of a severe Major Depressive Disorder with an elevated risk of suicide. Records of the ACT Mental Health Service and the Canberra Hospital, the Australian Federal Police and the Defence Community Organisation[32] reveal that Ms Jones was taken by Police to the Canberra Hospital following a protracted domestic dispute in which she threatened to harm herself and other family members on 2-3 July 2005. The clinical notes record that she was suffering from Borderline Personality Disorder.[33]
[27] Exhibit R3.
[28] Exhibit A2, p1.
[29] Exhibit R3.
[30] Exhibit T1, T15 folios 46-47.
[31] Exhibit T1, T15 folio 47.
[32] Exhibits R4, R5 and R6.
[33] Exhibit R4.
15. We are reasonably satisfied that this evidence indicates that, Ms Jones was suffering from a mental ailment that is outside the boundaries of normal mental functioning and behaviour from at least December 2004, and in all likelihood from October 2004. We so find.
16. We note that there is uncertainty attaching to the specific diagnosis of Ms Jones’ mental ailment. We have referred to Ms Bentele’s and Dr Sutton’s clinical findings concerning depression. We are not able to determine, as a matter of probability, whether Ms Jones truly suffered from a depressive disorder, also diagnosed by Dr W. Knox (Consultant Psychiatrist),[34] or from a personality disorder as diagnosed by Dr W. Glaser (Consultant Psychiatrist).[35] The difficulty determining the correct diagnosis is plainly evident in the reports provided by Dr Knox and Dr Glaser. In either case, it appears that Ms Jones has a long history of behavioural disturbance, manifest in attempted self-harm at the ages of 12 or 13 and 19,[36] and difficulties in her familial relationships over a long period.[37] On 19 June 2007, Dr Shroot referred to the events in 2005 and reported that Ms Jones “suffered from a psychiatric condition for a number of years”.[38]
[34] Exhibit A2.
[35] Exhibit R2.
[36] Exhibit R4.
[37] Exhibits A3, R2 and R5 refer.
[38] Exhibit A1, p1.
17. We are satisfied that it is more likely than not that Ms Jones has a history of psychological or personality problems and suffered from a mental ailment prior to commencing her employment at the Telopea Park School. There are difficulties determining whether her presentation in 2005 is properly described as a Major Depressive Disorder, a Borderline Personality Disorder, or as significant personality difficulties to which Dr Saboisky referred.[39] Dr Knox and Dr Glaser agreed that symptoms of depression may also occur in cases of Borderline Personality Disorder. Our attention was drawn to the diagnostic criteria for Major Depressive Disorder and Borderline Personality Disorder set out in the Diagnostic and Statistical Manual of Mental Disorders.[40] It is probable that Ms Jones was depressed when she was assessed by Ms Bentele and Dr Sutton in 2005. She was not depressed when Dr Knox and Dr Glaser assessed her in 2006 and 2007. In our assessment of the evidence, her behavioural history; her apparent impulsivity; her response to the rejection she perceived by Ms Marshall; her perceptions of undermining and ‘whispers’ at work; her unstable personal relationships; her suicidal behaviour; her rage and difficulty controlling anger; and her dissociative symptoms are consistent with a diagnosis of Borderline Personality Disorder. We so find. For these reasons we prefer and accept Dr Glaser’s assessment.
[39] Exhibit T1, T45 folio 152.
[40] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1995, pp 348-355 and 668-673, respectively.
was the ailment a disease that was contributed to in a material degree by her employment?
18. Ms Jones asserts that she was harassed and victimised by Ms Marshall, and that senior staff at the school did not provide her with support and did not properly act upon her complaints about certain alleged incidents and Ms Marshall’s alleged behaviour.[41] These incidents and occurrences, Ms Jones says, materially contributed to aggravate her psychological symptoms to the extent that she was incapacitated for work from 1 June 2005. Thus, in Ms Jones’ submission, her employment materially contributed to aggravate her previously existing psychological condition. Ms Jones submitted that no serious challenge was brought against the occurrence of the incidents to which she referred in her claim documents,[42] in her statement,[43] and in her oral evidence, and therefore the incidents should be accepted as having occurred. Relying on Wiegand v Comcare [2002],[44] Ms Jones urged us to accept that her perceptions of the incidents, reasonable or not, were operative factors in the aggravation of her previously existing psychological disorder, and that the definition of ‘disease’ is satisfied.
[41] See Exhibit T1, at T6; and Exhibit A4.
[42] Exhibit T1, at T6.
[43] Exhibit A4.
[44] FCA 1464.
19. As will appear, we are not reasonably satisfied on the balance of probabilities that Ms Jones’ case is made out on the evidence.
20. In the circumstances, for Ms Jones’ case to be made out, we must be reasonably satisfied that her employment contributed in a material degree to aggravate her mental ailment. The term ‘in a material degree’ is not given special meaning under the Act. Finn J discussed the meaning of the term in Comcare v Sahu-Kahn [2007].[45] Thus, it can be understood that the term imposes an evaluative threshold below which a causal connection may be disregarded and “requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment.”[46] For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question. It is sufficient that the employment contributes to the ailment in a material degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.
[45] FCA 15 at [13]-[16]; also see Comcare v Canute [2005] FCAFC 262, at [68].
[46] Ibid.
21. In Wiegand v Comcare,[47] von Doussa J addressed issues concerning the contribution of an employee’s perception of an incident in employment to injury, and said:
“If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”[48]
[47] Above n 44.
[48] Ibid, at [31].
Thus, addressing Ms Jones’ submission on this point, if it is accepted that the alleged incidents actually occurred, it must then be established to the reasonable satisfaction standard that the incidents created perceptions in her mind that contributed in a material degree to her mental ailment. One must be careful to distinguish a perception that is caused by an incident in the workplace, that may contribute in a material degree to a mental ailment, from a perception that is caused by a mental ailment that is brought to bear upon an incident in the workplace, in which the workplace incident is an inert focus for the ailment and, once focused upon by a sick mind, the incident may have some role to play in a future manifestation of the ailment, but does not contribute to it ‘in a material degree’ (see Kirkpatrick v Commonwealth (1985)[49]).
[49] 9 FCR 36, at 41.
22. We are reasonably satisfied that the causal factors of Ms Jones’ mental ailment prior to her commencement at the Telopea Park School in 2005 included stress and difficulty coping while her husband was absent (Dr Shroot, Dr Knox); personality traits that rendered her sensitive to perceptions of rejection or betrayal (Dr Saboisky, Dr Knox and Dr Glaser); previous psychological difficulties (Dr Shroot, Dr Knox and Dr Glaser); and relationship difficulties with her husband (Dr Glaser).
23. It is possible that the breakdown in Ms Jones’ personal relationship with Ms Marshall on 22 January 2005 contributed to aggravate her mental ailment at that time. However, this proposition is not supported by the weight of the medical evidence and is not made out. We accept that Ms Jones took offence at remarks made by Ms Marshall on 22 January 2005. Ms Jones and Ms Marshal had been friends for many years, having attended teacher training together and having children of similar ages. In those circumstances, Ms Jones’ response to Ms Marshall’s unexpected criticism on 22 January 2005 was not unusual or indicative of mental illness. There is no evidence that Ms Jones responded to this situation at the time in a manner that was irrational or extreme, nor is there evidence of a temporal or proximate relationship between Ms Jones’ meeting with Ms Marshall on 22 January 2005 and any aggravation of her mental ailment. Taking offence to unexpected criticism is not outside the range of behaviour that a person not affected by mental illness could be expected to exhibit in the circumstances. Ms Jones did not seek medical treatment at that time and there is no evidence that she suffered any proximate incapacity for work. She commenced duties at the Telopea Park School soon thereafter. The evidence is that Ms Jones consulted Dr Shroot on 16 March 2005, and Dr Shroot noted “Had severe depression 2/52 ago” and increased the dosage of anti-depressant medication.[50] Dr Shroot made no reference to any contributing factors at that time.
[50] Exhibit R3.
24. We note that the meeting between Ms Jones and Ms Marshall on 22 January 2005 was a private matter between friends prior to Ms Jones commencing the particular employment placement. Their meeting and the matters they discussed concerning Ms Jones’ impending placement at the Telopea Park School were not in the course of Ms Jones’ employment, nor did they arise from her employment.
25. In our opinion it is more likely than not that the offence Ms Jones took to the comments Ms Marshall made on 22 January 2005 played upon her mind, and throughout the period of her employment at the Telopea Park School, she was in a state of heightened alert for any perceived threat or betrayal in her dealings with Ms Marshall. It appears to us that these factors led Ms Jones to perceive the incidents involving Ms Marshall in the manner she described. We are reasonably satisfied that those perceptions were manifestations caused by the mental ailment that Ms Jones suffered prior to her commencement at the school or her long established personality traits. In December 2005, Dr Saboisky reported that Ms Jones could not come to terms with the rejection she felt by Ms Marshall and noted “significant personality difficulties”.[51] Her inability to come to terms with the rejection she felt in response to her friend’s criticism is a manifestation of her previously existing mental ailment or long established personality traits and is not related to her employment. We note in passing that there is scant evidence concerning the nature or characteristics of Ms Jones’ relationship with Ms Marshall, day-to-day, from February 2005 until Ms Jones left the school, and the evidence before us is ambiguous. Ms Marshall, Mr Kobal, Ms L. Jones and other staff who may have been able to give relevant evidence were not called.
[51] Exhibit T1, at T45, folio 152.
26. The occurrence of the alleged incidents to which Ms Jones has drawn attention[52] was not seriously challenged. However, Ms Jones’ interpretation of each incident was challenged. It is clear enough to us, on the available evidence, that the ‘going shopping’ incident, the ‘derogatory remarks’ incident, the ‘maths test’ incident, the ‘whispers’ campaign and the ‘folder’ incident are not necessarily the malignant events she perceived, but may be amenable to other more innocent explanations. There is insufficient evidence before us to properly test the veracity of these assertions. Nevertheless, the test to be applied does not require us to examine whether Ms Jones’ perceptions of the incidents was either correct or reasonable. If the incidents actually occurred, the test is whether they gave rise to perceptions in Ms Jones’ mind, whether correct or reasonable or not, that materially contributed to aggravate her mental ailment.
[52] Oral evidence; Exhibit T1, at T6; and Exhibit A4.
27. Ms Jones’ submissions concerning the manner in which senior staff at the school dealt with her complaints about these alleged incidents must be addressed. Having carefully examined the evidence, it appears to us more likely than not that Mr Kobal and Ms L. Jones responded to Ms Jones’ complaints concerning the incidents to which she has pointed. It is possible that their responses[53] could have been more timely and possibly more interventionist. However, there is insufficient evidence before us to permit any findings in that regard. We note that if Ms Jones was unhappy with the manner in which her complaints were dealt with at the time, it was open to her to escalate the complaint to the Deputy Principal or the Principal. There is no evidence that she did so.[54] Furthermore, it appears that Ms Jones informed Mr Kobal that the she and Ms Marshall had resolved their differences and difficulties on or about 14 April 2005.[55] Thus, we are reasonably satisfied that Ms Jones’ allegations that senior staff in the school did not provide her with support and did not properly act upon her complaints are not made out.
[53] See Exhibit T1, at T24 and T24a.
[54] Exhibit T1, at T24, folio 65 refers.
[55] Exhibit T1, at T24a, folio 67.
28. We accept that Ms Jones perceived the incidents to which she has pointed involving Ms Marshall in the manner she described. However, these incidents and any effect on her mind were not sufficiently significant for her to mention them to Dr Shroot on 16 March, 23 March or 15 April 2005.[56] Nor is there evidence that Ms Jones complained to her supervisor or to other relevant officers following the reported resolution of her earlier issues concerning Ms Marshall on or about 14 April 2005.[57] In an email communication dated 6 May 2005, Ms Jones informed Mr Kobal that she was involved in “an intensive Uni program with Kate in the 2nd week of the July holidays”.[58] The contemporaneous evidence does not suggest that Ms Jones was experiencing any difficulty in her employment or in her relationship with Ms Marshall at this time.
[56] Exhibit R3.
[57] Exhibit T1, at T24a folio 67.
[58] Exhibit T1, at T24d, folio 92.
29. In Ms Jones’ evidence, “the last straw” was an incident on 31 May 2005, in which Ms Marshall attended a meeting with a folder that Ms Jones had previously been looking for, but could not find. Ms Jones also stated:
“Prior to going off work I considered that the best option was for either me or Kate Marshall to leave Telopea Park School. I had applied for a number of jobs. The job that Kate eventually got I had found advertised. It was at Melba High School. I told Kate about that job. She said that she was not interested in it. I applied for that job. At that stage I did not care whether I got the job or Kate got the job, as long as one of as [sic] got it so that we could be separated…
On Friday, 27 May 2005 I was going to phone the Department about that job amongst other things. Kate apparently already knew by that stage that she had got the job but the protocol was she was not allowed to say anything. Despite that she still let me phone the Department to find out what was going on. The following week I went off work and when I was at home feeling very depressed and sick, Kate Marshall phoned me to tell me that she had got the job. I was rather angry because I considered that she was doing no more than gloating. I was not upset that I did not get the job.”[59]
[59] Exhibit A4, pp4-5.
Ms Jones’ statement that she did not care whether or not she got the job ‘at that stage’ implies that at some later time she did care. The purported focus of her interest in the job was that she and Ms Marshall could be separated. However, when that object was achieved, and Ms Marshall obtained the job, Ms Jones left the school. In her submission, she left the school, unwell, before she knew that Ms Marshall had been successful. However, we are not persuaded to that conclusion by the available evidence, scant as it is. By Ms Jones’ own evidence, Ms Marshall knew the outcome of the selection process on or about 27 May 2005, on which day Ms Jones says that she contacted ‘the Department’ to find out about the job. Furthermore, Ms Jones conceded that she had not obtained an interview for the position. Formal notification concerning Ms Jones’ unsuccessful application was dated 1 June 2005. Ms Jones strongly asserted that Ms Marshall contacted her by telephone on the evening of 1 June 2005, and gloated about obtaining the job. Considering this evidence, we are reasonably satisfied that Ms Jones understood on 27 May 2005 or soon thereafter that she had not obtained the position, even if she did not know at that time who the successful applicant was, and absented herself from the school the following week (with the exception of Tuesday, 31 May 2005).
30. We are reasonably satisfied that Ms Jones’ failure to obtain the position was acting upon her mind from 27 May 2005. If we were to accept Ms Jones’ evidence that her only interest in the Melba High School job was for she and Ms Marshall to be separated, one would expect to find some improvement in Ms Jones’ presentation and her return to the Telopea Park School following Ms Marshall’s appointment to the position. However, that did not occur. Ms Jones left the school and her psychological condition subsequently deteriorated. As can be seen from the medical evidence, Ms Jones consulted Dr Shroot on 2 June 2005 and was certified unfit for work for an extended period thereafter.[60] She was referred to counselling. It appears that her mental ailment deteriorated thereafter in the period to 4 July 2005, when Dr Sutton examined her in response to an urgent referral by Dr Shroot.
[60] Exhibit T1, at T4, folio 6.
31. Ms Jones asserts that she did not return to work on 1 June 2005 because she felt extremely anxious about doing so and vomited in her driveway. By her own account, it was later that day that Ms Marshall informed her that she (Ms Marshall) had got the job, and it was the following day that she consulted Dr Shroot, apparently having been unable to obtain an appointment on 1 June 2005. There is no evidence to corroborate Ms Jones’ account of these events. Mr Jones was not called to give evidence.
32. On the available evidence, we are not persuaded that it was the ‘folder’ incident or the cumulative effect of the incidents to which Ms Jones has drawn attention, that caused her to feel unwell on 1 June 2005. It is possible, but not established on the evidence, to our reasonable satisfaction. In our opinion it is more likely than not that her mental ailment was the cause of her negative perceptions and anxiety at that time.
33. It is relevant to note that Ms Jones communicated with Mr Kobal and Ms L. Jones at the school in ensuing days and weeks.[61] On 2 June 2005, Ms Jones informed her employer that she would be taking 2 weeks leave,[62] but was undecided about what she wanted to do.[63] On 9 June 2005, it appears, Ms Jones planned to return to the school to mark tests and write reports.[64] On 19 June 2005, Ms Jones informed Mr Kobal that she had decided not to write the reports.[65] On 20 June 2005, Ms Jones informed Mr Kobal that she was uncertain whether she would return to the school.[66] On 21 June 2005, Ms Jones stated that she was “starting to doubt whether I should be a teacher” and was hesitant to return to the school.[67] On 1 July 2005, it appears, Ms Jones was expecting to return to the school on limited duties.[68] In the period from 1 July 2005, it appears that Ms Jones’ psychological symptoms deteriorated. Police were involved on 2 and 3 July 2005, and transported Ms Jones to the Canberra Hospital for mental health assessment. The Police report indicates that “she [Ms Jones] stated that she did have ongoing mental health issues and that in the past she had thought of harming herself,” and “over the past couple of weeks her husband had been winding her up.”[69] We note that in his report dated 27 July 2005, Dr Shroot clearly stated that he “believed her story.”[70] Dr Shroot referred Ms Jones to Dr Sutton on 1 July 2005. As can be seen, at that time and in preceding weeks Ms Jones was experiencing difficulties in her relationship with her husband that led to the events of 2 and 3 July 2005 to which we have referred above.[71] .
[61] See Exhibit T1, at T24b and T24d.
[62] Exhibit T1, at T24b folio 69; T24d folio 95. Also see Dr Shroot’s medical certificate, Exhibit T1, at T4, folio 6.
[63] Exhibit T1, at T24b, folio 72.
[64] Exhibit T1, at T24b, folio 73.
[65] Exhibit T1, at T24b folio 79.
[66] Exhibit T1, at T24b, folio 76.
[67] Exhibit T1, at T24b, folio 83.
[68] Exhibit T1, atT24b, folio 87.
[69] Exhibit R5, ‘Psychiatric Incident Report,’ 2 July 2005; and Exhibit R4, ‘ACT Mental Health Services Assessment,’ 3 July 2005, refer.
[70] Exhibit T1, at T16, folio 49.
[71] Exhibit T1, at T15, folio 45 refers.
34. Evaluating the factors operating on her mind and on her mental ailment on and after 2 June 2005, when Dr Shroot certified that she was unfit to return to work, we find that Ms Jones’ ongoing mental ailment and her underlying personality traits were operative factors in her presentation. We are reasonably satisfied that difficulties in her relationship with her husband, who was scheduled to leave home on service at or about this time, were powerful factors acting upon her mental state at that time. Hitherto the incidents to which Ms Jones drew attention concerning Ms Marshall had not, on the contemporaneous medical evidence, caused any deterioration in her mental illness. Ms Jones’ allegations that her complaints were not properly acted upon by senior staff in the school are not made out. Nevertheless, we accept that Ms Jones harboured negative perceptions about these incidents and about Ms Marshall that she could not reconcile. However, Ms Jones has not persuaded us that her negative perceptions were caused by the incidents to which she has referred. There is insufficient reliable evidence to support such a conclusion to the requisite standard of satisfaction.
35. It appears to us more likely than not that Ms Jones’ negative perceptions were the result of her pre-existing mental ailment, or her underlying personality traits, operating in the workplace with Ms Marshall in primary focus. Using the words of von Doussa J in Kirkpatrick v Comcare,[72] the incidents in the workplace were “an inert focus for a neurosis determined by other factors.”[73] We are reasonably satisfied that Ms Jones latched onto the incidents in question, with her mental ailment and her personality traits moulding her perceptions. To the extent that Ms Jones latched onto the incidents in question, it can be said that they played some part in the progress of her ailment. However, we are reasonably satisfied that such a part is not one of causative contribution, but may fairly be described as incidental. We are not persuaded to accept Dr Knox’s evidence concerning the ‘kindling’ effect of Ms Jones’ experiences in employment in relation to the subsequent deterioration of her mental state, and prefer Dr Glaser’s analysis. Dr Glaser identifies personality difficulties underlying Ms Jones’ presentation and complaints that are, in our opinion, more consistent with the evidence before us concerning her history of behavioural and psychological difficulties. Dr Glaser’s opinion is also more consistent with the evidence concerning Ms Jones’ activities and performance in employment at the time, and with her contemporaneous medical records.
[72] Above n 49.
[73] Ibid, at 41.
36. The evidence is that Ms Jones performed her duties as a teacher satisfactorily until 31 May 2005[74] and participated in an employment-related trip to China at the end of Term 1, 2005. Furthermore, she successfully undertook external studies towards a Masters degree, and had some dealing with Ms Marshall in that regard. By Ms Jones’ own account, she and Ms Marshall met and “sorted things out” in April 2005, prior to the commencement of Term 2. There is no evidence of Ms Jones making a complaint or raising concerns with her supervisor, Mr T. Kobal, or the Staff Services Officer at the school, Ms L. Jones, prior to leaving the school on 31 May 2005.
[74] Exhibit T1, at T24, folio 65.
37. In that context, we are reasonably satisfied that if the incidents in question contributed, individually or in combination, in any measure to aggravate Ms Jones’ mental ailment, the contribution was not in a degree that is material, that is, it was not sufficiently significant to rise above the evaluative threshold to which Finn J referred in Comcare v Sahu-Kahn,[75] when considered in relation to other factors that were acting upon her condition at the time. We so find.
[75] Above n 45.
38. Thus, we are reasonably satisfied that Ms Jones’ employment did not contribute in a material degree to cause or aggravate her mental ailment, and so find.
39. That being so, it is not strictly necessary to consider the third issue agitated before us. However, we recognise that this is a difficult case. To avoid any uncertainty, we feel compelled to say that, even if we had decided differently and found that the incidents to which Ms Jones has drawn attention, or work related stress more generally, did contribute in a material degree to aggravate her mental ailment, the matter would not resolve in her favour.
40. The simple fact is that Ms Jones first sought medical treatment in relation to her alleged injury on 2 June 2005 after she discovered that Ms Marshall had been selected for appointment to the Melba High School position, and she had not. Ms Jones says that she was unable to attend school on 1 June 2005 as a result of work related stress that preceded and was unrelated to the outcome of the selection process. However, the reasons for Ms Jones’ absence from work on 30 May 2005 and 1 June 2005 remain opaque. Ms Jones suggested that she was so stressed about going to work that she vomited in her driveway on 1 June 2005. Her evidence on that point stands alone without corroboration. No reason was given for her absence on 30 May 2005. In our opinion, it is more likely than not that if there was a ‘last straw’ that caused her absence as a result of ‘stress’, it was the outcome of the Melba High School selection process. Thus, even if we accepted Ms Jones’ uncorroborated evidence that her absence from work on those days was attributed to work related stress, the outcome of the Melba High School selection process would be an operative factor that must be properly taken into account in addition to the other operative factors that we have found were acting upon her mental state at the time.
41. Under the Act, ‘injury’ is defined to exclude a disease or aggravation of a disease that results from a failure to obtain a promotion or a transfer in connection with the relevant employment: Section 4.[76] In the case of a disease or an aggravation of a disease, an employee is taken to have sustained an ‘injury’ on the day when he or she first sought medical treatment for the disease, or on the day when the disease first resulted in incapacity for work: subsection 7(4).
[76] See also Hart v Comcare [2005] FCAFC 16; and Trewin v Comcare (1998) 84 FCR 171.
42. It follows, therefore, that the date of Ms Jones’ claimed injury was either 1 June 2005 or 2 June 2005. In either case, if we accepted that Ms Jones suffered incapacity for work on 1 June 2005 as a result of work related stress (whether relating to the combined effect of the incidents in question or to the ‘last straw’ to which Ms Jones referred in her evidence), we have found that her failure to obtain a promotion was an operative factor in the period immediately preceding the date of her claimed injury and must, therefore, take that factor properly into account. In those circumstances, applying the definition of ‘injury’ and following Hart v Comcare,[77] Ms Jones’ alleged injury would be excluded from the definition of ‘injury’ under the Act, and she would therefore not be entitled to compensation.
[77] Ibid.
43. It follows that the decision under review is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: …………Jane Gribble……………………..
AssociateDate of Hearing 23, 24 July 2007
Date of Decision 9 August 2007
Counsel for the Applicant Stuart Pilkinton
Solicitor for the Applicant Brian Hatch
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Amber Beck
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