JQWK and Comcare
[2013] AATA 830
[2013] AATA 830
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/4797, 2012/1470, 2013/1463
Re
JQWK
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 22 November 2013 Place Melbourne The Tribunal affirms the decisions under review.
.........................[sgd]...............................................
Regina Perton, Member
COMPENSATION – whether injury result of earlier claim – whether condition caused or aggravated through employment – whether employment contributed to a significant degree – whether condition permanent
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 24, 70, 71
Kilpatrick v Commonwealth (1985) 9 FCR 40
TMLP and Comcare [2010] AATA 218
Wiegand v Comcare Australia [2002] FCA 1501
REASONS FOR DECISION
Regina Perton, Member
22 November 2013
JQWK is a former public servant who has been superannuated from the public service due to her medical condition. She is not happy at being forced to leave the workforce. JQWK believes her ongoing medical condition has been caused, or aggravated, by inappropriate treatment by her employer well before the decision on superannuation.
JQWK presently has three cases before the Tribunal. The first is for aggravation of her medical condition by various workplace incidents, particularly revelation to Comcare of certain private details held by her employer (2011/4797). She lodged the first claim with this Tribunal on 13 April 2011. The initial decision-maker and the subsequent review officer rejected her claim for compensation on the basis that the condition had not been contributed to, in a significant degree, by her employment.
JQWK lodged her second claim with this Tribunal on 26 March 2012 for permanent impairment as a result of the aggravation or injury (2012/1470). The third claim relates to the reimbursement of medical and other expenses that have arisen due to the aggravation or injury (2013/1463)
JQWK has previously sought review by this Tribunal and some issues raised in her previous appeal are relevant to current proceedings. In March 2010 the Tribunal, differently constituted, affirmed a decision by Comcare concerning a workplace injury (TMLP and Comcare [2010] AATA 218). In an oral decision, the Tribunal determined that JQWK suffered from a personality disorder rather than a psychological condition:
…
I find that there was not a psychological condition outside the boundaries of normal mental functioning as required under the [Safety, Rehabilitation and Compensation Act 1988] and I find that in those circumstances there was no ailment in relation to a psychological condition and, as such, there could be no injury. And, consequently, as there was no injury, Ms TMLP cannot succeed in her application for compensation and, consequently, given my findings in relation to the first of the issues, there is no need for me to consider the other issues such as contribution, if any, by her employment, and the question of reasonable administrative action.
Because even if I were to find that those matters were made out, the fact that there is no injury under the Act would preclude her from succeeding in her application and, on that basis, I affirm the decision under review.
The events that have resulted in the current applications before the Tribunal have to be classified as to whether they were components of the previous decision made by the Tribunal or have arisen as separate subsequent issues and events. Comcare has submitted that the events that were part of the 2010 Tribunal decision cannot be revisited. The Tribunal agrees with this interpretation.
JQWK has cited a particular event as being a major trigger for the aggravation of her medical condition. This was an inspection of her employing agency’s human resources file which confirmed that her employer had passed on certain information to Comcare in relation to her earlier claim despite her notice to the management that she wished to vet what was being sent. There were other related incidents that JQWK considered to be further breaches of privacy, bullying or harassment.
Given JQWK has concerns about her privacy, the Tribunal has made a confidentiality order in this matter. To enhance her privacy, the Tribunal has not named the agency or witnesses.
ABOUT THE CLAIMS
In a comprehensive statement dated 4 April 2013 with supplementary attachments, JQWK outlined in detail the events that took place in her workplace which she believes have caused and/or exacerbated her health issues. JQWK worked for the agency from April 1997 until March 2012.
…
2.On 5 June 2008 I lodged a Comcare workers’ compensation claim (for 4.5 days leave) with my employer …, for a workplace bullying incident that occurred in March 2008. I did not sign the Comcare claim form, however provided an edited version due to my privacy concerns so as to make it quite clear I wanted my privacy protected. At no stage did I ever sign an authority for the release of my medical information…
3.During the course of preparing that aforementioned claim, which had already been decided by….management, I was subjected to further work place bullying, harassment, victimisation and repeated breaches of my privacy by …management, which were separate and subsequent allegations and formed the basis of this claim dated 4 April 2011 currently before the AAT. The more I spoke up about bullying and privacy breaches, the more I was punished as documented and evidenced in my log list of bullying, harassment and victimisation by …management…
4.On numerous occasions I strenuously opposed the disclosure of my private / sensitive information being disclosed by ….management…
5.On the 11 June 2008 during a counselling session recommended by…[the agency’s regional HR Manager] failed to inform me of my appeal rights. Instead I was threatened to not pursue matters. In a very stern voice…the HR Manager said “you can pursue the matter externally…, but if you do let me tell you I will drag up everything from the past…”
6.On 16 July 2008 I emailed Ms C… [a different HR person] and stated the following in my email “Under no circumstances is a copy of the outcome letter or Dr T…’s report or other personal information to be provided to any staff member or any other person. If this happens without my consent, I will seek legal advice”.
7.On 31 July 2008 without my knowledge or consent, the HR manager compiled a 32 page employer statement and faxed it to Comcare. This employer statement contained 21 pages of irrelevant and very private and sensitive medical information such as details of a sexual harassment complaint from eight years prior, Preemployment sensitive medical information dating back to 20 years ago, FOI information, voluntary redundancy enquiry etc. The HR manager had not sent Comcare the files in its entirety but retyped desired portions of particular medical and investigation reports…
8.When compiling the employer statement for Comcare, the HR manager did not include crucial relevant information such as: copies from the 2003 AAT decision which resulted in a successful application for myself, medical certificates from the 2002 Comcare claim relating to unfair rotation of duties (which was similar to my 2008 Comcare claim), the apology letter I received in relation to the sexual Harassment, the work performance report which reflected favourably towards me and in particular the witness statement relating to the bullying incident. ...
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10.Approximately 17 September 2008 I received two bundles of documentation from Comcare. This documentation were copies provided to Comcare by the HR manager….On 19 September 2008 I….requested to view this documentation in work time given the volume of documentation. Approximately 19 September 2008… [JQWK’s manager] granted me 30 minutes per day work time for two days to view the Documentation.
11.Approximately 22 September 2008 when I viewed the documentation received from Comcare I discovered that the HR manager had breached my privacy on two occasions, on 31 July 2008 and on 22 August 2008. The HR manager had disclosed a vast volume of irrelevant private and sensitive medical information via 21 pages. I felt upset, humiliated and embarrassed by the disclosure of this private information. I also felt frightened because the HR manager had also disclose (sic) my living arrangements which was documented in Dr T’s medical report. I felt it was evident that the HR manager had deliberately disregarded my Comcare authority form specifically expressing my privacy concerns…
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13.On 25 September 2008 I also consulted my general practitioner…after having discovered that my private/sensitive information and living arrangements had been disclosed by [the agency]. I felt a great deal of stress due to the nature of the sensitive medical and private information disclose (sic) without my consent…
In early May 2010, JQWK was given permission by her team leader to view her file at another of the agency’s offices during work time:
46…. On 13 May 2010, whilst viewing my personal files, I discovered that in May 2009…management had again breached my privacy. I felt these privacy breaches placed me at risk of identity theft in addition to feeling more hurt, fear, embarrassment and humiliation…
JQWK described the documents that had been disclosed to Comcare about which she had a concern. These included her birth certificate, her Australian citizenship form, her signature and her tax file number.
JQWK provided dates and details of the correspondence that were created in relation to the content of the material sent by the agency to Comcare. She also provided details of her complaints to the agency’s CEO, the Privacy Commissioner and the Commonwealth Ombudsman. The agency undertook an investigation as to whether some of the material sent to Comcare should never have been sent. JQWK is unhappy about the length of time it took for the investigation and the lack of response to many of her emails to the agency’s management. There was also a dispute about whether or when JQWK might see the outcome of the investigations but she eventually did. This however added to the distress she was experiencing.
On 15 July 2011 the Acting National Manager of the agency’s Workplace Relations Branch wrote to JQWK:
I am writing to you in regards to the release of information to Comcare in 2008 in relation to your compensation claim. Some of this information was irrelevant to your claim, which has resulted in a breach of your privacy.
… [The agency] understands that you have been distressed by the events that resulted in the breach of your privacy. I would like to apologise and express my regret, on behalf of the Department…for any hurt and distress you have suffered in relation to the events that occurred.
In November 2011 the agency’s management allowed JQWK to view the agency’s files again and it was then that she discovered an email that the HR manager had sent to seven other managers within the agency. JQWK was concerned that the email disclosed to those managers that JQWK had lodged complaints with the Human Rights and Equal Opportunity Commission (HREOC) and agency’s CEO and that the email also contained offensive comments about me in that it painted me in a false light. She was concerned that this was further victimisation and that it breached the agency’s guideline that it will treat all complaints of harassment/bullying or unlawful discrimination confidentially.
JQWK stated, in paragraph 104 of her statement, her employment was terminated as from 14 March 2012 on the grounds of inability to perform duties because of physical or mental incapacity which is a ground for termination of employment under the relevant legislation.
Some months after she stopped working for the agency, JQWK received its acknowledgement that as a result of her complaints, the agency had implemented changes to its procedures to minimise the prospect of similar situations arising again in relation to privacy disputes and the timely handling of subsequent complaints that may arise.
In her oral evidence, JQWK highlighted some of the matters raised in her statement and attached documents.
JQWK asked that the HR manager be required to give evidence. The HR manager, who has now retired from the agency, stated that she had provided the information that was held about JQWK in good faith following a request from Comcare to do so pursuant to section 71 of the SRC Act. She acknowledged that in retrospect, some of the material was irrelevant to the claim but at that time, she believed that she was required to supply the information the agency held about JQWK.
In relation to an email sent to a number of managers seeking to move JQWK from her current location in the agency to another, the HR manager said that she had advised them that JQWK had lodged complaints so that they knew why she was seeking to relocate JQWK rather than for any sinister reason.
LEGISLATION
Sections 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provide:
5A Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
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.
(2)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.
5B Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(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;
(bthe nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
Ailment is defined in section 4 of the SRC Act to mean:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 14 of the SRC Act provides:
14Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
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Section 24 of the SRC Act refers to compensation for permanent impairment:
Compensation for injuries resulting in permanent impairment
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
...
Sections 70 and 71 of the SRC Act set out the powers of Comcare when it undertakes its functions, which include determining individual claims made (set out in section 69).
70 Powers
Comcare has the power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.
…
71. Power to obtain information from Departments and authorities
(1) Without limiting the generality of section 70, Comcare may, by notice in writing, require the principal officer of an Entity, a Commonwealth authority or a licensed corporation to give Comcare, within such period as is specified in the notice, such documents or information (or both) as are specified in the notice, being documents or information in the possession, custody or control of the Entity or authority that are relevant to a claim made by, or in relation to, an Employee of the Entity or authority or that relate to the performance of functions or the exercise of powers by the principal officer under Part III.
(2) A principal officer to whom a notice is given shall comply with the notice without delay...
JQWK’S MEDICAL CONDITIONS
The state of JQWK’s health before, at the time of, and after the workplace incidents that she believes triggered her ill-health and which she believes is now permanent, is relevant to the decision-making in this matter. JQWK and Comcare tendered a number of medical reports as well as the clinical notes of JQWK’s then general practitioner, Dr S.
In a report to JQWK’s employer dated 25 March 2009, Dr G gave her opinion of JQWK’s condition. The report sought by the agency to assess JQWK’s fitness for continued work at the agency, contributed to the decision-making in JQWK’s previous AAT application cited above. After examination, Dr G provided the following diagnosis and prognosis:
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DIAGNOSIS
JQWK seems intelligent, articulate and neither depressed nor clinically overtly anxious. I believe that she has a paranoid personality, to the extent that it could be difficult for others to work with her.
There were no features of psychosis. Her sensitivity or suspiciousness is probably part of her personality.
PROGNOSIS:
JQWK’s sensitivity, suspiciousness and/or paranoid personality traits are unlikely to change. She works in a complex, multi-layered organisation which possibly or probably requires high levels of efficiency and teamwork. In my opinion JQWK’s tendency to lodge complaints and be unable to compromise is likely to continue. If anything, this behaviour could escalate or increase rather than otherwise she gets older and she accumulates grievances.
She is totally and permanently disabled for working in any multi-layered organisation or with complex teams.
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In a further report dated 2 April 2009, Dr G stated:
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The way in which JQWK responds to her workmates, her supervisors, and the… organisation is not likely to change or improve in the foreseeable future. On the basis of information provided and my own observations when interviewing JQWK I am assuming (rightly or wrongly) that when she is not preoccupied with any perceived persecution or wrong doing, she can effectively carry out her duties.
My reason for declaring her “totally and permanently disabled for work in the organisation” is based on track her (sic) record, the complaints she has made about multiple issues and my own observations of her sensitivity and/or “paranoia”. It is possible that she might at some stage find alternative work, probably not in a large organisation, which she can do on a part or full time basis.
....
In a report dated 8 March 2011, addressed to JQWK’s employer, Dr F, consultant psychiatrist, stated:
Presenting complaints
JQWK told me that her difficulties began on 18 March 2008. She said that on that day she was being bullied by a male colleague. She told me that he was “… trying to bully me to do particular work” and “He exploded and stood over me and I thought he was going to hit me”.
JQWK told me that she put in a complaint about the incident and there was an internal investigation which was unsatisfactory because in her view the investigation wasn’t impartial…
JQWK described a number of workplace difficulties dating from 2000. She said that in the Year 2000 she was sexually harassed by a male both verbally and she alleges that he put messages on computers. She said that in 2003 she was subject to some difficult unfair rostering - she said her then supervisor let the others rotate but not her. She said that she took two weeks off, and was refused pay for this two weeks - JQWK told me that she took this to the AAT, and it was eventually found in her favour.
JQWK told me that in 2005 the above team leader accused her of “ripping off…[the agency] by 2 minutes”. She said there was an altercation about this which resulted in her supervisor abusing her in the car park.
JQWK told me that after the March 2008 incident she was “on and off” work for approximately 18 months. She said that she has put in a range of complaints about a variety of issues (privacy breaches etc) and is now occupied full time outside of work on her case. She said that her study at home looks like a “lawyer’s office” and that every moment of her spare time is taking up by dealing with emails, preparing documents etc. She said that even without working on matters she is still thinking about it. ...
With regard to psychiatric symptomatology, JQWK told me that her mood is generally “1/10”. She said that she wakes feeling miserable, and her mood then depends on “what happens at work”. JQWK told me that her sleep is poor…
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JQWK told me that her energy is “flat” and that she has “no motivation”. She said that her attention and concentration are “poor” - she said that her mind wanders to the extent that it makes following conversations hard to follow at times. She said that she has particular difficulty in meetings. She said that her memory is also “not good”.
JQWK described herself as being “irritable for most of the time”.
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With regard to cognitive symptomatology, JQWK said she feels “worthless” but predominantly attributes this to the opinions expressed in Dr Greenberg’s report. She described really only seeing the future for herself if her case is resolved satisfactorily and “management stop bullying”.
JQWK told me that from late 2009 she has been working at …[another office of the organisation]. She said that she enjoys working there. She said she has good relationships with the co-workers, and a good relationship with her supervisor. She said that despite that she often has to take days off work because of anxiety and depression and has to go home frequently.
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SUMMARY AND ASSESSMENT
In summary, JQWK presents with in my view a major depressive disorder that is on the basis of the history due to the above described workplace issues compounded by the fact that JQWK’s life has become utterly preoccupied with her case and seeking justice. With regard to treatment, this does not appear to have had much of an effect on JQWK’s condition to date…
In a supplementary report dated 27 July 2012, Dr F stated:
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To summarise my view of JQWK’s presentation, it is my view that she suffers from a major depressive episode precipitated by an incident involving an altercation with male colleague in March 2008. She then perceives that the subsequent investigation into the incident was flawed and that since then she has been subject to bullying, including inappropriate breaches of her privacy. From there, JQWK has become preoccupied with her case, to the exclusion of work, social and recreational activities. This has resulted in an exacerbation and perpetuation of her symptomatology.
JQWK has had in my view adequate and appropriate psychopharmacological and psychological treatment, and this has had very little effect on her condition. As is often the case with mood and anxiety disorders compound by continual angry ruminations, the condition is treatment resistant.
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It is not possible to meaningfully apportion contribution of the various breaches of privacy to JQWK’s condition. As noted above and in my reports, her condition has been perpetuated and significantly exacerbated by her perception that her privacy has been breached and by her almost continual angry ruminations about this and preoccupation with her case, however apportionment is not possible.
(2) What factors you consider now the significant contributors to JQWK’s current psychiatric condition.
The most significant contributors to JQWK’s psychiatric condition are her perception that the enquiry into the workplace incident of March 2008 was unsatisfactory (rather than the incident itself) and her perception that she has been bullied, that her privacy has been breached and that these issues have been handled inadequately. She unfortunately lacks insight into the degree to which her mental processes are contributing to her condition, which unfortunately largely renders any psychological approach useless.
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Dr A, consultant psychiatrist prepared a report dated 9 August 2011 for Comcare:
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Diagnosis:
…it is probable that JQWK has developed a chronic Major Depressive Disorder in the context of multiple work related factors including allegations of “mob bullying and harassment by…[the agency’s] management” and a breach of privacy in regards to passage of documentation from…[the agency] to Comcare.
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In answer to your specific questions contained in your referral letter of 21 July 2011:
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2. From what specific condition does JQWK currently suffer?...
Chronic Major Depressive Disorder of moderate severity, single episode. It appears that this condition has developed in the context of a complex Workers’ Compensation claim initially beginning in March 2008 with further complications arising in regards to breach of privacy within ensuing passage of documentation between Comcare and [the agency] which apparently has been confirmed as JQWK has received a written apology from the Department… acknowledging that JQWK had been distressed by these events that resulted in the breach of privacy.
3. If you consider JQWK has suffered or suffers a condition, please advise when you consider JQWK first suffered from her condition.
JQWK said that she was last well prior to March 2008 and it appears that her condition commenced in March 2008 and has slowly worsened with the passage of time and further stressors with matters relating to her breach of privacy and ongoing disputation with [the agency] and Comcare.
4. What is the prognosis for JQWK’s current condition?
The prognosis for JQWK’s current condition is guarded. JQWK reported that she has been maintained on antidepressant medication for at least 12 months and undergoing psychological treatment. However she reported continuing moderately severe symptoms. I am hopeful that with review of her psychopharmacological treatment by a consultant psychiatrist and appropriate changes in her medication that her condition will slowly respond over the next six months. This will also be dependent on matters regarding her complaints and disputation with Comcare being finalised.
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In a further report dated 25 July 2012, Dr A stated:
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Progress Since Last Assessment
JQWK told me that she had been retired from her job in December 2011. She stated she is currently receiving a pension from her superannuation fund…. She stated she had no plans in regards to her employment future and described herself as “not well enough”.
JQWK told me that since August 2011, she felt her condition had deteriorated. She stated that there was “more stuff, I discovered more breaches. I found further documents in November 2011”.
She stated “I’m the victim of discrimination, defamatory remarks and more psychological harassment”.
She stated that “earlier this year I obtained documents under the Freedom of Information Act, I discovered other things. It wasn’t nice stuff about me in the documents”.
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She stated “I couldn’t cope with everything that was happening, the harassment and what had happened in the past”.
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SUMMARY AND ASSESSMENT:
There has been little change in JQWK’s condition since my last assessment. She reported moderately severe symptoms of a Chronic Major Depressive Disorder of moderate severity which is not responding to current treatment. The condition in fact appears to have deteriorated in the context of her invalidity retirement and ongoing disputation in regards to her Comcare Claim. She requires ongoing psychiatric treatment…
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In answer to your specific questions:
(1) What contribution is made to JQWK’s current condition by:
(a) the discovery in September 2008 of the alleged breaches of privacy;
This is very difficult to separate out specific events in regards to JQWK’s current condition…
…
(2) What factors you consider are now the significant contributors to JQWK’s current psychiatric condition
Overall, there appeared to be multiple factors that continue to contribute to JQWK’s current psychiatric condition…
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Subject to further information, it appears that the discoveries in June/July 2010 were significant, in that JQWK reported she was working full-time prior to these incidents, but since then has essentially been unable to return to work in a full-time basis and more recently has been ill health retired.
In March 2013, JQWK saw Dr H, a psychiatrist to obtain a report, which she provided to the Tribunal. Dr H prepared a report dated 16 March 2013 based on the reports from Dr A and Dr F cited above and from two interviews with JQWK. He recounted the workplace history and symptomology she had given him. He described JQWK’s mental status examination as follows:
At interview, JQWK did not have an appearance of depression. She was obsessional and somewhat rigid in style. It was difficult for her to describe feeling states… There was not evidence of a disordered thought stream, perceptual abnormalities, delusional ideation nor cognitive impairment.
Dr H provided an assessment which included the following:
…
She indicated that when working at [the agency] there had been an incident in 2000 when she was “sexually harassed” by a male colleague… and she considered that [the agency] management’s response to her complaints had been inadequate. She also reported in 2003 being “verbally abused” by a woman team leader. There had also been an incident when she had complained of “unfair rostering”, had then submitted a workers compensation claim and had had one week off work on the suggestion of her counsellor.
There was nothing in the history provided to indicate a personality disorder, psychiatric illness prior to her recent depressive episode, nor was there evidence of the familial predisposition to psychiatric disorder.
JQWK described a “bullying incident” at work in March 2008. She had at that time lodged a complaint to management concerning the bullying and had lodged a workers compensation claim. She said at that time she was depressed, lacking in motivation and had a loss of appetite. She complained that thereafter there were inappropriate findings in relation to her complaint, her privacy was invaded by inappropriate information being provided to Comcare, there were major delays in investigations, her distress was compounded by “more privacy breaches”, and she regarded herself as having been subject to “victimisation” by the …agency’s Human Resources Department.
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JQWK presents with ongoing effective symptoms, with significant sleep disturbance, low appetite, generally low energy and motivation, social withdrawal, panic attacks, impairment of concentration and memory, lack of libido, and a largely depressed mood with tearfulness and some brief suicidal thoughts. It was evident that she was highly preoccupied with administrative and legal matters related to the original WorkCover claim in 2008.
I largely concur with formulations of Dr A. S. and Dr P. F. JQWK certainly presents with a chronic major depressive disorder. The level of her major depressive symptoms described is such that she could not at this point pursue any employment. I believe that her current ongoing major depressive symptomatology is a result of the original “bullying incident” of 2008, but more importantly all of the other difficulties detailed above which with the sequelae of her original workers compensation claim. I believe that her major depression at this time can be regarded as being still a consequence of the “bullying incident” and further occupational stresses. Her long-standing intense preoccupation with the above matters which appears to relate to rigid obsessional personality traits has certainly been a factor of considerable significance in her ongoing illness.
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I would take the view that her psychopharmacological management has been so inadequate that she may be regarded as having an essentially untreated major depressive disorder… There appears to have been no sustained specialist psychiatric input into JQWK’s psychopharmacological management… In the absence thus far of effective psychopharmacological management, I could not regard JQWK’s psychiatric status as having stabilised, and believe that there is the prospect of a response to adequate and appropriate psychiatric management.
From the medical evidence presented, the Tribunal is satisfied that JQWK is suffering from a depressive disorder.
IS JQWK’S MEDICAL CONDITION CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY HER EMPLOYMENT?
Based on the medical evidence, the Tribunal is satisfied that the discovery of the privacy breaches had a negative impact on JQWK’s already fragile state of health. While Dr G in her reports prepared in 2009 attributed JQWK’s problems in the workplace to a personality disorder alone without an accompanying medical condition, the psychiatrists who provided later opinions were of the view that JQWK was suffering from a depressive disorder along with predisposing personality traits. The March 2008 workplace incident which was the subject of the Tribunal’s March 2010 decision is cited as being the major precipitating incident in the later psychiatric reports.
Dr A stated that JQWK suffered from a chronic major depressive disorder of moderate severity with the condition having developed in the context of the March 2008 claim with further complications arising from the breach of privacy and the ongoing dispute with the employer and Comcare. The disputes with her employer following the Tribunal’s decision in March 2010 in relation to the March 2008 incident included complaints made to the Privacy Commissioner, HREOC and the senior management of her employer.
Dr F stated that JQWK suffered from a major depressive disorder precipitated by the March 2008 bullying incident. He described the workplace difficulties she had experienced since 2000 and other incidents. He pointed out the impact on her feelings that JQWK attributed to Dr G’s 2009 reports. Asked by the agency what were the factors that were the significant contributors to JQWK’s current psychiatric condition, he stated that the most significant contributors were her perception that the enquiry into the workplace incident was unsatisfactory and the perception that she had been bullied, that her privacy had been breached and that these issues had been handled inadequately.
Taking into account the medical reports and the other evidence provided, the Tribunal is satisfied that the March 2008 incident triggered JQWK’s depressive disorder. The Tribunal is unable to revisit the decision of the differently constituted Tribunal in March 2010 notwithstanding that it now has opinions from a number of psychiatrists that JQWK was suffering from a depressive disorder as a result. Later psychiatric opinion links the personality issues identified by Dr G with the depressive condition from which she now suffers. Dr F identified that it was JQWK’s perception of the unfairness of the handling and outcome of the dispute in relation to the March 2008 incident that triggered the medical condition rather than the incident itself.
The Tribunal is satisfied that JQWK suffers from a disease as defined by the Act. The Tribunal, while accepting the medical evidence that JQWK’s discovery of the privacy breaches exacerbated her already fragile state, has to be satisfied that JQWK’s ailment or aggravation of an ailment was contributed to, in a significant degree, by her employment.
JQWK gave evidence that in September 2008, her manager had authorised her to use some work time in managing her workers’ compensation claim. He allowed JQWK to spend two 30 minute sessions of work time on the claim or utilise flex time and recreation leave to do so. JQWK submitted that as she discovered the privacy breaches and an email written by the HR manager she considered derogatory while looking at the agency’s files during work time, this therefore constituted part of her employment. Comcare disagreed with her view.
Mr Wallace, on behalf of Comcare, submitted that what triggered JQWK’s condition was JQWK’s earlier claim and the request pursuant to section 71 of the SRC Act for the agency to provide relevant information to Comcare. He also submitted that the HR Manager’s email to her colleagues seeking to relocate JQWK, and thereby advising of complaints lodged about the workplace, constituted an attempt to provide JQWK a suitable alternative workplace to assist her return to work.
Mr Wallace submitted that:
… the documentation [provided to Comcare] is in relation to a statutory requirement to provide information in relation to a workers’ compensation claim. The response to that isn’t compensable, the response from JQWK in relation to reading those documents are not compensable, for these reasons: because it’s not in relation to her employment, it’s in relation to her workers’ compensation claim.
The corollary of that is this...and I’ll cite a case, that would be this: an employee makes a claim and says “I’ve injured my left leg”. The claim is denied. The employee then finds the decision that the injury is not compensable, but because the employee having read all the documents in relation to his or her claim believes the injury is compensable, a psychiatric condition then arises from that action is about the claim, it’s not about the injury because there wasn’t one, and there is a case on this…
In Kirkpatrick v Commonwealth (1985) 9 FCR 40, the Full Court stated:
The fact that the applicant thought his disability arose out of his work, and therefore thought it compensable, may have been potent factors in the development of his neurosis. But there were thoughts in his mind. This does not mean that his employment actually was a contributing factor in the development of his neurosis. The contrary view would lead to a absurd circumstances. For example, a worker might wrongly believe that a boil was suffered as a result of dust at work and become resentful upon the proper rejection of his claim. If such a worker then developed a neurosis, it would seem to be a necessary consequence of the applicant’s argument, if correct, that he would be entitled to compensation for the neurosis arising solely out of the correct refusal of the claim for compensation for the boil.
Mr Wallace, in his submission, then went on to state:
Shortly stated, it was Mr Kirkpatrick’s belief that his leg pain was a result of the compensable back injury when he developed resentment over and the rejection of his claim, and that in is in a sense what is happening here. There is - the claim is rejected. JQWK sees documentation as required by the compensation authority for their purposes. She then reads that documentation. That documentation wasn’t provided in the sense of arising out of or in the course of employment; that is, doing things that she would normally do at work. That documentation was sitting there all the time, was collated together for the purposes of not her employment but a Workers Compensation claim.
… then what follows from that can never be compensable because otherwise a non-compensable injury would become a compensable injury because the employee was overly concerned with the manner in which her claim was dealt with, not by her employer per se but by Comcare, the respondent, and a claim that would properly be rejected would suddenly turn into a claim that could be accepted because of the way in which the claim was managed and/or decided.
Notwithstanding that in retrospect, some further narrowing and scrutiny of the documents given to Centrelink pursuant to section 71 of the SRC Act would have been sensible, particularly given JQWK’s request concerning her medical records held by the employer, the provision of the documents to Comcare was in line with their usual practice. While the practices have now been refined, in light of JQWK’s complaint, providing those documents to Comcare was still reasonable in the circumstances. Providing the documentation was not the agency publishing to the world but rather giving material to its insurers as required under the SRC Act. The privacy issues were dealt with by Privacy Commissioner, the Ombudsman and others. The Tribunal accepts Comcare’s argument that the aggravation of JQWK’s depressive condition which arose out of inspection of the workers’ compensation documents was caused by repercussions of her earlier workers’ compensation claim rather than her employment.
In relation to JQWK’s other complaints concerning mob bullying, it is possible that one could classify some or most of them as employment related. Even if the discovery of the breaches of privacy were considered as part of her employment as well because the documents were partly viewed during work time (which is contrary to the Tribunal’s finding above), there would need to be a consideration of whether the employment contributed to her condition to a significant degree. The term significant degree is defined in subsection 5B(3) of the SRC Act as meaning a degree that is substantially more than material.
The psychiatrists’ opinions cited earlier indicate that JQWK had a long history of workplace disputes with a considerable time off work. It appears her state of health has varied as she pursued what she saw as valid issues as far as she was able. The Tribunal is not satisfied that the events cited by JQWK in the claims currently being considered are the substantial cause of her current condition. The evidence now available indicates that the March 2008 event, which the Tribunal is unable to revisit, was a major trigger in JQWK’s condition although the psychiatrists suggest that earlier events may also have contributed. The Tribunal is therefore unable to be satisfied that JQWK’s employment, in terms of the claims being considered in the matters currently before it, contributed to her condition to a significant degree.
JQWK’s claim for permanent impairment arising out of the breaches of privacy and related events cited in the main claim must therefore also fail. In any event, the psychiatrists proffer the opinion that JQWK has not been optimally treated and that there may well be some improvement in her condition were she to be so treated.
Given the Tribunal has not found in JQWK’s favour in relation to the substantive claim for compensation, the application concerning medical and related costs must also fail.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member ...............................[sgd].........................................
Assistant
Dated 22 November 2013
Dates of hearing 29 & 30 April 2013, 11, 12 & 19 June 2013 Advocate for the Applicant Ralph Tyler Counsel for the Respondent John Wallace Solicitors for the Respondent Norton Rose
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