Juliana Corby and Comcare
[2015] AATA 42
•29 January 2015
[2015] AATA 42
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/1655
2012/0134
Re
Juliana Corby
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Date 29 January 2015 Place Adelaide The decisions under review are affirmed.
........... [Sgd] ..........................................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Commonwealth employees – Claims for fibromyalgia, chronic fatigue syndrome, and pneumonia – Whether claimed conditions significantly contributed to by employment with ATO – Whether applicant suffered an aggravation of her conditions – Whether any aggravation resulted in incapacity or impairment – Decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 7(6), 14
REASONS FOR DECISION
Deputy President K Bean
29 January 2015
The applicant, Ms Corby, is 48 years old. She commenced working for the Australian Taxation Office (ATO) as a “pre-legal debt case manager” in August 2005.
Although she had had significant health issues previously, unfortunately from approximately the middle of 2008 Ms Corby’s health began to deteriorate significantly, and in the first half of 2009 she was diagnosed with fibromyalgia (FM) and chronic fatigue syndrome (CFS).[1]
[1] Exhibit 1, T3/11.
Part of Ms Corby’s case is that these conditions, or at least her CFS, can be traced back to a period in mid-2008 when she became acutely unwell and was diagnosed with viral pneumonia. Ms Corby contends that she contracted the illness diagnosed as viral pneumonia in her workplace, and by reason of that and other stressful events and conditions she was subjected to by her employer, the respiratory illness she suffered in mid-2008, as well as her FM and CFS, are all compensable conditions.
On 21 September 2010, Ms Corby accordingly made a claim for compensation for the conditions of “chronic fibromyalgia”, “chronic fatigue syndrome” and “stress”.[2] On 26 July 2011, she made a further claim for compensation for a “cold/and/or pneumonia”.[3] Both of these claims were denied initially and upon reconsideration, and on 4 May 2011 and 12 January 2012 respectively, Ms Corby lodged applications with this Tribunal seeking review of the relevant decisions.[4]
[2] Exhibit 1, T23/53 - 68.
[3] Exhibit 2, T3/13 - 32.
[4] Exhibit 1, T1/2 - 5 and Exhibit 2, T1/2 - 4.
In broad terms therefore, the issue before me is whether any of the claimed conditions are compensable under the applicable Act, being the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). As the answer to that question depends upon the application of a number of different provisions of the SRC Act, I will next set out the applicable statutory framework, before identifying the issues with more precision.
THE STATUTORY FRAMEWORK
The “gateway” provision of the SRC Act is s 14, which relevantly provides as follows:
14 Compensation 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.
The term “injury” is defined in the Act to include “a disease suffered by an employee”[5], and the term “disease” is defined in s 5B of the Act as follows:
[5] Subsection 5A(1).
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;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 5A also provides that the definition of “injury” 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.”
Section 5A further provides that:
(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.
As to whether incapacity or impairment “results from” a disease, subs 7(6) also relevantly provides that:
(6)An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a) the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
THE ISSUES
It follows that in applying the legislation to Ms Corby’s claims, the main issues which I must ultimately determine are:
(a)Whether she suffers from or has suffered from the claimed conditions, or any of them;
(b)Whether any condition from which Ms Corby suffers is a “disease” which has been significantly contributed to by her employment;
(c)Whether any such disease was suffered as a result of “reasonable administrative action” pursuant to subs 5A(1) of the SRC Act;
(d)Whether Ms Corby has at any time suffered from an “aggravation” of a claimed condition;
(e)Whether any such aggravation was contributed to, to a significant degree, by her employment;
(f)Whether any such aggravation was the result of “reasonable administrative action” within the meaning of s 5A of the SRC Act; and
(g)In respect of any condition or any aggravation of a condition which meets the requirements outlined above and is not excluded by s 5A of the SRC Act, whether that condition has resulted in “incapacity for work” or “impairment” for the purposes of subs 14(1) of the Act.
I propose to address each of these issues in turn, insofar as it is necessary for me to do so.
HAS MS CORBY SUFFERED FROM OR DOES SHE SUFFER FROM THE CLAIMED CONDITIONS?
FM and CFS
There is no dispute and I accept that Ms Corby was diagnosed as suffering from FM by Associate Professor Michael Ahern in March 2009 and that she was also diagnosed as suffering from CFS by Dr Richard Kwiatek, a Consultant Physician in Musculoskeletal Medicine/Rheumatology, in June 2009.
Mr Colgrave, who appeared as counsel for the respondent, indicated that the respondent did not necessarily concede that these descriptions constituted recognised medical diagnoses, however the respondent did concede that they each described a group of symptoms which constituted an “ailment” within the meaning of the SRC Act, and I also accept that proposition.
Accordingly, I am satisfied that Ms Corby has suffered from a condition described as FM from at least March 2009, and she has also suffered from a condition described as CFS from at least June 2009, and that each of these conditions constitutes an “ailment” within the meaning of subs 5B(1) of the Act.
The respiratory illness
There is also no dispute and I accept on the evidence before me that Ms Corby suffered from a respiratory illness in June 2008 which led her to seek treatment from the Flinders Medical Centre on 27 June 2008.[6] Further, there is no dispute that although blood tests showed no abnormality and Ms Corby’s chest x-ray was clear, a Resident Medical Officer made the notation in her notes “likely viral pneumonia”.[7]
[6] Exhibit 4, p. 238.
[7] Exhibit 4, p. 238.
For present purposes, I consider it sufficient for me to indicate that I am satisfied Ms Corby suffered from a respiratory illness in June 2008. It may or may not ultimately be necessary for me to determine whether she suffered from viral pneumonia.
WERE ANY OF THE CLAIMED CONDITIONS SIGNIFICANTLY CONTRIBUTED TO BY MS CORBY’S EMPLOYMENT?
The respiratory condition
Ms Corby contends that the respiratory condition she contracted in mid-2008 is likely to be attributable to her work for a number of reasons, including the fact that the air-conditioning at her workplace was poor, and the fact that fellow employees were often sick and would often come to work whilst they were sick. However, there is no medical evidence before me which supports the proposition that, on the balance of probabilities, Ms Corby’s respiratory illness is more likely than not to be attributable to her employment.
The only medical evidence before me directed to this issue consists of the opinions of Dr Kwiatek and Dr Stevenson, a Consultant Physician, both of whom have provided a number of reports and also gave oral evidence at the hearing.
Dr Stevenson said in his evidence that regardless of whether Ms Corby’s illness was viral pneumonia or some other respiratory illness, it was “statistically less likely” to have been contracted in the workplace. For his part, Dr Kwiatek essentially indicated that on the information available, it was not possible for him to positively state that Ms Corby’s viral pneumonia or other respiratory illness was contracted in the workplace.
Accordingly, there is simply no evidence before me which allows me to be positively satisfied on balance that the respiratory illness from which Ms Corby suffered in mid-2008 was attributable to or significantly contributed to by her employment. In these circumstances, I have concluded that I am not satisfied that the respiratory illness from which Ms Corby suffered in mid-2008, whether this was viral pneumonia or some other illness, was significantly contributed to by her employment. Accordingly, that condition is not compensable and I propose to affirm the determination under review in application 2012/0134.
FM and CFS
In addressing the question of whether Ms Corby’s FM and/or CFS were significantly contributed to by her employment, I should first indicate that the evidence before me is to the effect that Ms Corby suffers from what is described as an “overlap” between the chronic fatigue and fibromyalgia syndromes.[8] On the evidence, I understand there to be a close interrelationship between the two conditions such that, when considering the question of causation, it is more practical and appropriate to consider the causes or contributors to the development of the two conditions together, rather than attempting to assess causation separately with respect to each condition. That is the way in which both parties and all of the doctors appear to have approached the question of causation, and I accept that it is also appropriate for me to adopt that approach, rather than attempting to separate out the respective causes of and contributors to each of the relevant conditions.
[8] Exhibit 6, p. 58.
On the question of why her CFS/FM should be found to be compensable, the “applicant’s case on causation” was outlined in the written submissions prepared by her counsel, Mr Crocker, as follows:
9.There are a number of alternative factual bases to support the finding that the applicant’s employment with the ATO has contributed in a significant degree to the ailments she now suffers:
9.1.The introduction of Dialler in August 2007 caused distress at work, leading to the development of her FM and CFS;
9.2.The applicant acquired an infection at work, which infection caused the development of FM and CFS;
9.3.The applicant acquired a viral infection outside of work and she returned to work too soon, which led to an increase in her symptomatology, resulting in the development of FM and CFS;
9.4.The work related emotional distress experienced by the applicant since July 2008 has exacerbated her FM and CFS, irrespective of what may have caused the initial development of such conditions. This exacerbation has manifested itself in ‘flare ups’ and a gradual decline in her health.[9]
[9] Submissions on behalf of the applicant dated 11 August 2014, p. 6.
Of course, it follows from my conclusion that Ms Corby’s respiratory infection in 2008 was not attributable to her employment, that the argument outline at paragraph 9.2 cannot succeed. The argument outlined at paragraph 9.4 is directed to an exacerbation rather than the compensability of the conditions themselves, and I will return to that issue later in my Reasons. That leaves Ms Corby’s other two arguments, as outlined in paragraphs 9.1 and 9.3, each of which I will address in this section of my Reasons. Before doing so, however, I propose to briefly set out what I understand to be the most salient aspects of the evidence of Ms Corby’s treating Consultant Physician, Dr Kwiatek.
Dr Kwiatek’s evidence as to the causes of CFS and FM
In his report of 29 April 2013, Dr Kwiatek stated that:
[T]he literature strongly suggests that physical injury, infection and psychosocial stress can act as environmental stressors contributing to the development of musculoskeletal pain syndromes, and indeed are increasingly recognised as risk factors for so-called functional somatic syndromes in general.[10]
He went on to add that “The chronic fatigue literature contains quite high quality evidence that the severity of viral infections is the critical determinant of risk of developing post viral chronic fatigue syndrome …”.[11] And:
[T]he literature contains a single, high quality, prospective study which strongly suggests that workplace bullying can trigger and by implication aggravate fibromyalgia … .[12]
[10] Exhibit 6, p. 58.
[11] Exhibit 6, p. 59.
[12] Exhibit 6, p. 69.
With respect to Ms Corby’s circumstances and the likely contributors to her illness, he stated:
With regards to the onset of her condition in mid 2008, Ms Corby reported that it was triggered by a significant viral illness, seemingly interpreted as viral pneumonia by one or more parties, and at least in part she had been predisposed to this, as she had been subject to extreme pressure from her managers to return to work early, despite having had inadequate time off work to convalesce, such that she was significantly unwell when she returned to work.[13]
He continued:
From the events as presented to me, it seems more likely than not that if Ms Corby did not have the significant viral illness of mid 2008 she would not have developed her overlapping fibromyalgia and chronic fatigue syndromes and would not be in her current predicament.[14]
He added:
I submit that it is generally accepted medical (and lay) practice that adequate rest is indicated for all individuals to enable successful recovery from significant infectious illness. I therefore suggest that there appears to be a prima facie case that Ms Corby inappropriately returned to work earlier than she should have in mid-2008. [15]
And:
With regards to Ms Corby’s general decline since 2008, my letter to general practitioner Dr Wade dated 18 November 2011 documents that Ms Corby had alleged that she was being subjected to workplace bullying. With regards to this, the literature contains a single, high quality, prospective study which strongly suggests that workplace bullying can trigger and by implication aggravate fibromyalgia … and I suggest that such work-related stress is highly likely to have contributed substantially to Ms Corby’s current status, whether only occurring in late 2011 and/or at other times.[16]
[13] Exhibit 6, p. 59.
[14] Exhibit 6, p. 59.
[15] Exhibit 6, p. 59.
[16] Exhibit 6, p. 59.
On the question of whether Ms Corby may have returned to work too early after contracting her respiratory illness, in his oral evidence Dr Kwiatek indicated that if she had an active infection, it would have been too early for her to return to work the following week. He added that it normally takes one to two weeks to get over an infection.
However, when he was asked whether there was any support for the proposition that someone returning to work too quickly whilst suffering from a viral illness predisposes them to CFS/FM, Dr Kwiatek conceded that there was no study addressing this question, and so no specific scientific data which would support that proposition. He also indicated in his oral evidence that “psychosocial stress” tends to aggravate the syndrome, potentially irreversibly, although he conceded that there was no clear unequivocal evidence either way regarding a deterioration in Ms Corby’s condition in his notes during the period October 2010 to November 2011. He thought there was evidence of deterioration in June 2009, with Ms Corby being increasingly dependent on her walking stick, having increased weakness, slowing down and reporting a decreased ability to cope with work.
Under cross-examination, Dr Kwiatek was asked whether assuming that, apart from one day, Ms Corby had two weeks off following her attendance at the Flinders Medical Centre on 27 June 2008, it was reasonable to say that forcing herself to return to work had not contributed to her CFS/FM. Dr Kwiatek agreed with that proposition, on the proviso that he did not know how sick Ms Corby was at the end of the two-week period.
Dr Kwiatek added later in his evidence that he remained of the view that it was more likely than not that Ms Corby’s viral illness had made a significant contribution to her FM/CFS. He also reiterated that he did not have enough information to assess whether returning to work two weeks after contracting her “viral pneumonia” would have made any contribution to FM/CFS. He said he did not have enough information about the state of Ms Corby’s health at the time she went back to work. He added that he continued to suspect that work stress had been an aggravating factor in Ms Corby’s FM/CFS, and made particular reference to instances of bullying.
It is against this background that I propose to now address the two factors Ms Corby relies upon as making a significant contribution to the onset of her condition, namely the introduction of ‘Dialler’ in mid-2007 and returning to work too soon after her respiratory illness.
The introduction of Dialler
Mr Crocker’s written submissions on this issue were as follows:
10.The applicant may have been exhibiting symptoms of the syndromes before 2008. Work made a significant contribution to the applicant’s presentation because of the emotional distress caused by the introduction of Dialler in mid 2007.
11.The introduction of Dialler involved significant changes in the applicant’s workplace and work practices. Her workplace became a call centre dealing with inbound and outbound calls. It was quite different to her previous work as a debt collector dealing with individual tax payers.
12.As a result of these changes the applicant experienced physical and emotional distress at work, namely:
12.1.Increased stress and pressure given the inbound/outbound nature of the work and consequent statistical pressures;
12.2.physical symptoms, pain in her right shoulder and ear trauma as well as stress and anxiety;
12.3.fatigue and feeling run down, necessitating days off work, some of these days were taken as unpaid leave;
12.4.fatigue and run down over a period of months, making her susceptible to the acquisition of an infection.[17]
[17] Submissions on behalf of the applicant dated 11 August 2014, pp. 6 - 7.
However, even accepting the factual assertions on which they are based, there is very little medical support for these propositions. Whilst he accepted that it was possible that Ms Corby’s CFS and/or FM were developing earlier than when they were diagnosed, and it was even possible they were present earlier, Dr Kwiatek did not accept that he was in a position to say that the conditions were definitely present earlier than when they were respectively diagnosed in March and June 2009. Further, whilst he accepted that psycho-social stressors could contribute to the development of the syndrome, the effect of his evidence was that these needed to be reasonably serious, and in the context of possible workplace stressors he referred to bullying. In fact, the only two work-related contributors to her condition which he identified were the possibility that Ms Corby had returned to work too early after her respiratory illness, and possible workplace bullying.
It was not put to Dr Kwiatek that a change in Ms Corby’s duties which occurred approximately 18 months before the diagnosis of FM and approximately 21 months before the diagnosis of CFS would have made a significant contribution to the development of the conditions, and it is not possible for me to infer from his evidence that he would have supported that proposition. In these circumstances, given the absence of any meaningful support for the proposition in the medical evidence, I am not satisfied that the introduction of ‘Dialler’ in mid-2007 and the subsequent effects of this on Ms Corby made a significant contribution to the development of her CFS/FM.
Ms Corby’s return to work after her respiratory illness
Mr Crocker’s written submissions on this issue were as follows:
14.On acquiring the virus, the applicant returned to work before she had fully recovered. The applicant experienced emotional distress at work from the time Dialler was introduced. This distress manifested itself in episodic symptomology.
14.1.The continued sickness, along with work stress, led to the constellation of symptoms exhibited by the applicant to A/Prof Ahern in March 2009 and Dr Kwiatek in June 2009;
14.2.Work is a psychosocial stressor which results in the flaring of FM/CFS and aggravates and exacerbates her condition.
15.By the end of July 2008 the applicant’s health had deteriorated to a stage where her working hours were reduced. This is an objective indicator that such deterioration was caused by the applicant returning to work too soon.
16.The gradual decrease in the applicant’s capacity for work is evident in the documents (Ex 3, pp. 32-63) and can be summarised as:
16.1.When she was diagnosed with viral pneumonia at the end of June 2008 she was working full time, 5 days a week, for a total of 37½ hours per week;
16.2.Within a month, by the end of July 2008, her hours had reduced to 4 days a week for a total of 30 hours per week;
16.3.This reduction was reviewed at the beginning of February 2009 and maintained;
16.4.By the beginning of July 2009 her hours were reduced to only 3 days per week for a total of 22½ hours;
16.5.One year later that is further reduced to a total of 15 hours per week, namely, 5 hours per day for 3 days a week. That reduction is effective from 5.8.10;
16.6.Within 3 months, that is by the end of October 2010, her hours have been reduced to 12 hours per week, namely, 4 hours per day for 3 days per week.
17.There is evidence to support a finding that the applicant returned to work too soon. If her infection was viral pneumonia, two weeks away from work may not have been long enough. Dr Kwiatek’s evidence is that a return to work when one is still unwell is likely to exacerbate the symptomatology. Dr Stevenson suggested too much rest could be a bad thing. Unfortunately, this was never put to Dr Kwiatek in cross examination. However, it is contrary to common sense for sick people to remain at work. The evidence establishes this – the more the applicant attended work, the sicker she became.[18]
[18] Submissions on behalf of the applicant dated 11 August 2014, pp. 8 - 9.
However, again, these propositions are not well supported by Dr Kwiatek’s evidence in particular or the medical evidence in general.
As Mr Colgrave has pointed out, it is important to bear in mind in this context that Ms Corby’s leave records indicate that aside from the morning of Monday, 23 June 2008 (until 11:38 am), Tuesday, 1 July 2008 and Monday, 7 July 2008 (until 12:05 pm), Ms Corby was away from work on leave for the entire period between 13 June 2008 and Wednesday, 16 July 2008. In other words, excluding the dates mentioned, she was away from work for approximately two weeks prior to presenting to Flinders Medical Centre on 27 June 2008, and remained absent from work for approximately 16 days thereafter.
In the course of his oral evidence, Dr Kwiatek agreed with the proposition that, assuming she had remained off work for two weeks (apart from one full day) after her presentation to Flinders Medical Centre, it was not possible for him to say that Ms Corby had returned to work too early and this had contributed to her FM/CFS. The only qualification to this was that he was unsure exactly what her state of health was when she returned to work, the implication being that if she had still been ill, this could have made her illness worse and potentially contributed to CFS/FM.
Whilst he added that caveat to his evidence, however, Dr Kwiatek expressly did not support the proposition that, on balance, Ms Corby returned to work too early and this contributed to her FM/CFS. He simply indicated that he did not know precisely what her state of health was when she returned to work, and this was not described to him. Nor is there any evidence before me which directly addresses this issue, i.e. Ms Corby’s health status on 16 July 2008 and whether she still had symptoms of her respiratory illness.
I note there is a gap in the medical notes between July 3 and July 21, when Ms Corby presented to her General Practitioner as having been feverish for the previous 24 hours with a variety of symptoms which appear different from those relating to her respiratory illness.[19] I am not willing to infer from this that her respiratory illness was continuing as at Monday, 21 July 2008. Rather, this appears to be a new illness, which developed following her return to work on 16 July 2008.
[19] Exhibit 5, p. 182.
In the absence of any medical opinion in support of the proposition that Ms Corby’s return to work on 16 July 2008 (after having 16 days off following her presentation to Flinders Medical Centre) was too early, and that this prolonged or worsened her respiratory illness which, in turn, contributed to the development of CFS/FM, I am not satisfied that that proposition has been established. Accordingly, I am not satisfied that Ms Corby’s return to work for one full day on Tuesday, 1 July 2008 and the morning of 7 July 2008, followed by her ultimate return to work on 16 July 2008, made a significant contribution to the development of her FM/CFS.
Stress caused by needing to call the UPL Line
For completeness, I should also acknowledge that whilst it arises more squarely in the context of a possible aggravation of her FM/CFS, an issue also arises on the evidence as to whether distress occasioned by needing to call the Unplanned Leave Line (UPL line)[20] in the period between December 2008 and June 2009 contributed to the development of Ms Corby’s FM/CFS. That timeframe is of particular relevance given the evidence before me to the effect that a diagnosis of CFS requires symptoms for six months and a diagnosis of FM requires symptoms for three months.[21]
[20] Based on the evidence, as I understand it, ATO employees are required to call a designated UPL line for any unplanned absences from work. The team leader or manager who is rostered to answer calls to the UPL line has a number of pro forma enquiries to make of the employee.
[21] See [13] above:- Ms Corby’s diagnosis of CFS was made in June 2009 and her diagnosis of FM was made in March 2009.
The evidence is that during this period Ms Corby was absent on sick leave on the following days:
21 January 2009
16 February 2009 (from 1:30 pm)
17 February 2009
25 February 2009
10 March 2009 (from 1:45 pm)
11 - 12 March 2009
16 - 17 March 2009
2 April 2009
29 April 2009 (from 11:06 am)
6 May 2009
7 May 2009 (from 9:15 am)
13 - 14 May 2009
21 May 2009
28 May 2009
9 - 10 June 2009
16 - 18 June 2009
29 - 30 June 2009[22]
[22] Exhibit 3, pp. 159 - 162 (excludes flex leave and annual leave during this period).
However, there is no clear evidence before me as to what occurred when Ms Corby telephoned the UPL line to report that she was sick on each of these occasions, or what her reaction to that interaction was. More importantly, there is no medical evidence that any distress occasioned by any such interaction, any series of such interactions, or the need to call the UPL line per se, contributed to the development of her FM/CFS.
In these circumstances, I am not satisfied that stress or distress resulting from having to call the UPL line during the period December 2008 to June 2009 made a significant contribution to the development of Ms Corby’s FM/CFS. Nor am I satisfied that any combination of the potential contributions I have discussed above, taken together, made a significant contribution to the development of Ms Corby’s FM/CFS.
Conclusion
It follows from my conclusions in relation to each of the potential work-related contributors to Ms Corby’s condition that I am not satisfied that any aspect of Ms Corby’s employment made a significant contribution to the development of her FM/CFS, and insofar as the decision under review determined that the respondent was not liable pursuant to s 14 of the SRC Act for either condition, I propose to affirm that decision. However, that still leaves the question of whether Ms Corby suffered any ‘aggravation’ of her condition for which the respondent is liable.
DID MS CORBY SUFFER ANY COMPENSABLE AGGRAVATION(S) OF HER CFS/FM?
As I have alluded to above, in the alternative to her argument that her employment contributed to the development of her CFS/FM, Ms Corby contends that it contributed to aggravations of the condition. She says the mechanism by which this occurred was the emotional distress caused to her by “some of the practices and processes at work”.[23] Ms Corby relies in particular upon the following events, practices and processes:
[23] Submissions on behalf of the applicant dated 11 August 2014, [26].
26.The applicant experienced emotional distress because of some of the practices and processes at work:
26.1.The applicant found the process of explaining in a telephone call to the UPL line a very distressing experience.
26.2.She also considered some of the behaviour exhibited towards her by her colleagues and superiors to be in the nature of bullying; ie:
26.2.1.receiving two phone calls while in the ED at FMC demanding she come to work;
26.2.2.constant phone calls to her at home when on sick leave;
26.2.3.providing details of what was wrong; ie; ‘why can’t you move your legs?’;
26.2.4.mocked and yelled at whilst at work, especially mocking her physical movements;
26.2.5.denied access to the system codes and thus unable to work – there for a reduced time, leading to increase pressure to complete tasks in a timely manner;
26.2.6.monitored toilet breaks – leading to humiliating hygiene accidents;
26.2.7.excessive one on one meetings with team leader about work performance.[24]
[24] Submissions on behalf of the applicant dated 11 August 2014, pp. 12 - 13.
This aspect of Ms Corby’s case raises a number of potential issues, including the question of whether any particular ‘flare-up’ in her symptoms should properly be regarded as an ‘aggravation’ within the meaning of the SRC Act, and whether any ‘aggravation’ resulted in incapacity or impairment, so as to potentially give rise to compensation liability[25]. However, I propose to first address the more fundamental issue of whether Ms Corby’s employment made a significant contribution to any aggravation of her condition before turning to these other issues to the extent necessary.
Was any aggravation contributed to “to a significant degree” by Ms Corby’s employment?
[25] SRC Act, s 14.
Ms Corby’s contentions
In his written closing submissions on behalf of Ms Corby, Mr Crocker submitted that:
The work related emotional distress experienced by the applicant since July 2008 has exacerbated her FM and CFS, irrespective of what may have caused the initial development of such conditions. This exacerbation has manifested itself in ‘flare ups’ and a gradual decline in her health.[26]
[26] Submissions on behalf of the applicant dated 11 August 2014, [9.4], p. 6.
Mr Crocker further submitted that between Ms Corby’s return to work in July 2008 and the end of December 2008, her condition deteriorated[27], as evidenced by her absences from work. He referred to observations of Ms Corby’s supervisor, Mr McKeirnan, including the fact that she began to use a walking stick in August 2009, and her reported distress at needing to call the UPL line.
[27] Submissions on behalf of the applicant dated 11 August 2014, [21], p. 10.
Mr Crocker further submitted that Ms Corby’s health continued to deteriorate during the first half of 2009, and contended that “[t]here is no dispute in the medical evidence that emotional distress can cause FM and CFS to ‘flare up’”.[28] In addition to Mr McKiernan’s observations, he pointed to the contents of the GP notes as indicating instances of ‘flare ups’, together with the fact that Ms Corby’s hours were further reduced in July 2009.
[28] Submissions on behalf of the applicant dated 11 August 2014, [23], p. 11.
Mr Crocker also submitted that it is unnecessary in this context for the Tribunal to find fault or attribute blame. He contended that it would be sufficient for Ms Corby to establish that she suffered emotional distress as a consequence of her employment which contributed to an aggravation of her condition.[29] However, he placed particular emphasis on the matters outlined above, including the need to call the UPL line, receiving phone calls at home, and being denied access to the “system”[30], etc, which he said were considered by Ms Corby to represent behaviour “in the nature of bullying”. He also relied on observations made by another of Ms Corby’s supervisors, Ms Creighton, to the effect that whilst she was Ms Corby’s team leader, Ms Corby’s health appeared to be deteriorating as a result of stress caused by being “on the phones’, which led to Ms Creighton finding other duties for her.[31] He also acknowledged Ms Creighton’s evidence that even after Ms Corby was given other duties, her health continued to deteriorate.
[29] Submissions on behalf of the applicant dated 11 August 2014, [25], p. 12.
[30] Submissions on behalf of the applicant dated 11 August 2014, [26], pp. 12 -13.
[31] Submissions on behalf of the applicant dated 11 August 2014, [48], pp. 22 - 23 and [45.3], pp. 21 - 22.
In terms of support in the medical evidence for this aspect of Ms Corby’s case, Mr Crocker pointed out that Dr Stevenson accepted that “emotional distress can contribute to the manifestation of the symptoms seen in the applicant”.[32] He also submitted that “Dr Kwiatek’s opinion supports the applicant – the more she came to work, the sicker she got”[33], noting that “The one constant in the applicant’s life during this crucial period of July 2008 and November 2011 is her attendance at work”[34], and “The other stressors identified in the GP notes and letters of Dr Kwiatek are episodic in nature.”
[32] Submissions on behalf of the applicant dated 11 August 2014, [33], p. 17.
[33] Submissions on behalf of the applicant dated 11 August 2014, [52], p. 25.
[34] Submissions on behalf of the applicant dated 11 August 2014, [54], p. 25.
In his oral submissions, Mr Crocker also emphasised the point that the more Ms Corby came to work, “the sicker she became”. He accepted that from mid-2009, any work-related emotional distress was an aggravating rather than contributing factor, but contended that it was clear there had been aggravations due to work-related stress. He also submitted that, given the positon adopted by Dr Stevenson (that he had insufficient information to evaluate the relative contributions of various stressors), there was effectively no expert evidence to suggest the contrary of Dr Kwiatek’s evidence as to the role of stressors at work in Ms Corby’s condition.
In my view however, one of the critical questions for me is exactly what Dr Kwiatek’s opinion on this issue was. Ultimately, the question of whether, how and to what extent Ms Corby’s condition was aggravated by work-related stress is primarily a medical issue. Therefore in order for me to be positively satisfied that stress or distress related to her work contributed to an aggravation or aggravations of Ms Corby’s condition, it is necessary for Ms Corby to point to at least some medical evidence in support of that proposition.
Clearly, given the nature of the issue, it is simply not sufficient for Ms Corby to point to a temporal correlation between her continuing attendance at work and her deteriorating condition. That temporal correlation is at least equally consistent with, and better explained by, the proposition that Ms Corby’s condition followed its natural expected course, and she had increasing difficulty with her work as her incapacity increased, without there being any causal connection between her deteriorating condition, or fluctuations in her condition, and her employment. That is particularly the case in light of Dr Kwiatek’s evidence that the condition followed its expected course of steady deterioration, and continued to deteriorate once Ms Corby had ceased work altogether.
An important question for me therefore is whether there is any medical evidence which supports the proposition that Ms Corby suffered an aggravation or aggravations of her condition, to which work-related stress or distress contributed.
What is the medical evidence in relation to this issue?
As I understand the position, of the doctors who have provided reports or given oral evidence in the matter, only Dr Kwiatek has given evidence which could potentially be regarded as supporting the proposition advanced by Ms Corby, that her condition was aggravated by work-related stress.
The only qualification to this is that Ms Corby’s General Practitioner, Dr Wade, also gave evidence to the effect that stressful events could exacerbate any chronic health condition, and there may have been “some stressful work-related incidents” which would have contributed to Ms Corby’s symptoms. Later in his evidence he also referred to instances of Ms Corby reporting stress at work, or stressful experiences at work. In particular, on 16 June 2009 he recorded that she “had a terrible day at work yesterday”,[35] and on 1 November 2011 he recorded that Ms Corby “feels under a lot of stress at work”.[36] Dr Wade also agreed that those instances were ‘capable of contributing to her FM symptomatology’.[37] However, he did not say that they had done so, or what effect they had on Ms Corby’s symptomatology.
[35] Exhibit 5, p. 37.
[36] Exhibit 5, p. 50.
[37] Transcript, 13 June 2014, p. 316.
Accordingly, I will concentrate on Dr Kwiatek’s evidence in addressing this question.
During his oral evidence, Dr Kwiatek explained that physical exercise could aggravate CFS and FM, and that “flares” tend to go on “for several days if not a week or two”. He also referred to the fact that various factors including lack of sleep, psychological distress and immobility can perpetuate and “make the problem worse”.
Dr Kwiatek was asked about his report to Ms Corby’s General Practitioner dated 23 April 2010 in which he stated as follows:
Julie presents today in extreme distress using a single-pronged stick. She told me of the gynaecological events following a hysteroscopy at Flinders Medical Centre in the public system in early February. I agree that it seems that her uterus had been perforated, but as presented to me there seemed to have been some unprofessional behaviour on the part of the hospital concerning this.
Whilst her gynaecological problems seem to have at least temporarily settled with no further bleeding (but may shortly recur), it seems that in sympathy to the stress of these problems her fibromyalgia has flared with worsening widespread pains and consequent lack of sleep and marked daytime fatigue. She is also complaining of dizziness and weakness (blood pressure not taken today, but she was not pale). An unsympathetic husband is not helping matters and it seems that she is consequently under considerable marital stress.[38]
Dr Kwiatek confirmed that this was a good example of how stress could cause a ‘flare up’ of Ms Corby’s condition.
[38] Exhibit 1, T15/36.
Dr Kwiatek also indicated that he saw evidence of Ms Corby having deteriorated in June 2009, as she was increasingly dependent on a walking stick and was experiencing weakness, slowing down and also reporting decreased ability to cope with work. He further indicated in his evidence that “psychosocial stress aggravates the syndrome”, potentially irreversibly.
He was asked to assume that in the period October 2010 to November 2011 Ms Corby was subjected to various stressors at work, including being yelled at, humiliated, mocked, etc. Importantly, he was then asked whether he saw any evidence of a deterioration in her condition during that time, however he indicated that there was no clear unequivocal evidence “either way” in his notes for that period.
Under cross-examination, Dr Kwiatek was also asked to assume that Ms Corby was subjected to workplace bullying in 2011, and indicated that if that was the case this would be likely to have caused a ‘flare’ of Ms Corby’s condition. However he also agreed that as he had no evidence of a deterioration during the relevant timeframe, it followed that if this had occurred it had a minor effect on Ms Corby’s condition. He further indicated that it was his impression that Ms Corby’s gynaecological issues had been more stressful to her than ‘anything at work’, and had caused a ‘flare’ of her condition.
Dr Kwiatek added later in his evidence that aside from his note relating to an allegation of bullying in November 2011, he had no record of any stressor at work which had ‘materially’ aggravated Ms Corby’s condition. He further agreed that other matters, such as her gynaecological issues and problems with her sons were the prevalent stressors during the period prior to November 2011.
As to whether it was possible that workplace stress had caused any irreversible aggravation of Ms Corby’s condition, during re-examination Dr Kwiatek indicated that he did not consider that Ms Corby had suffered any irreversible aggravation of her condition after he saw her for the first time in June 2009. Therefore any irreversible aggravation could only have occurred prior to him seeing her. He confirmed that workplace stressors could only have caused temporary ‘flares’ of the condition after that time, rather than any irreversible or permanent aggravation.
In addition to reviewing his oral evidence, I have carefully reviewed all of the reports of Dr Kwiatek in evidence before me, which number 20 in total.
Of relevance in this context is the fact that in his first report Dr Kwiatek stated that he was “suspicious” that Ms Corby had been “under considerable psychosocial stress being a sole parent for some time [prior to her recent remarriage]”.[39] He also noted that she reported the “classical triggers” of stress and cold for all of her symptoms.
[39] Exhibit 1, T7/16.
In January 2010, Dr Kwiatek noted that Ms Corby was “just coping with work and is easily meeting her required performance level”.[40] In June 2010, he noted that her marital situation was deteriorating and “outside of work” she was “struggling majorly with physical chores”.[41] He also again made reference to her “serious gynaecological problems”, and having discussed with Ms Corby the “multiple stressors in her life”.
[40] Exhibit 1, T14/35.
[41] Exhibit 1, T17/38.
In August 2010, Dr Kwiatek noted that Ms Corby’s life was “far more peaceful” as she had left her marriage.[42] In his report of 1 November 2010 he indicated in response to a question about any aggravation, acceleration of a pre-existing or underlying condition:
Not applicable, but it should be noted that in general excessive psychological distress can exacerbate the symptoms of both the fibromyalgia and chronic fatigue syndromes, setting up a positive feedback loop”.[43]
[42] Exhibit 1, T20/47.
[43] Exhibit 1, T35/104.
In his report of 20 September 2011, Dr Kwiatek stated that:
Julie returned today for review after 3 months with pain, fatigue and sleep scores being worse on the Fibromyalgia Assessment Status Inventory compared with last time. I learnt that she took roughly one month’s annual leave recently, having a quiet time with consequent moderate improvement in her symptom complex. However over the last 2 weeks she has returned to work and whether related to the stress of this and/or stress related to her 2 older sons, her symptom complex has returned with a vengeance.
It appears that stress (together with cold weather) is a major exacerbating factor of her chronic fatigue overlapping with fibromyalgia syndrome. She currently describes significant generalised pain (currently worse in the hips), fatigue, day time somnolence, night time sleep disturbance and dyscognition. Muscle spasms are also once again a feature of her pain.
On examination once again I noted moderate to marked global muscle group tenderness to an estimated 4 kg of pressure. She was one kg lighter by our scales compared with last time (56 kg today), and she told me that at least in part this is because of her diet.
It is clear that she needs to manage stress in her life as best she can, and she told me that she will mobilise the help of her father to do this. I learnt that since last seen she has gone on to Duloxetine 30 mg nocte at night-time, specifically as a means of controlling associated nausea, and she feels that this at least initially may have improved her pain levels, but the question is whether it might be actually exacerbating her insomnia.[44]
[44] Exhibit 3, p. 128.
In a report to Comcare dated 1 November 2010, Dr Kwiatek also answered the questions put to him as follows:
6.In your opinion, when did Mrs Corby first suffer from clinically identifiable symptoms of a psychological condition? Please provide details in respect of clinical signs and symptoms which support your opinion.
Perusal of copies of my clinical notes indicates that Mrs Corby has been suffering from psychological distress throughout her time of association with me. It would appear that this is multifactorial, principally for marital reasons, as well as because of distressing physical symptoms.
…
8.In your opinion, is Mrs Corby’s current medical condition an aggravation, acceleration or recurrence of a pre-existing or underlying condition? If so, what is the nature of that aggravation?
Not applicable, but it should be noted that in general excessive psychological distress can exacerbate the symptoms of both the fibromyalgia and chronic fatigue syndromes, setting up a positive feedback loop.
…
10.In your opinion, what are the main factors (both employment related and non-employment related) which have contributed to Mrs Corby’s claimed medical condition?
It is in my opinion that Mrs Corby’s psychological condition of psychological distress have (sic) been triggered by the combined factors of lack of marital support and the distressing nature of her disabling physical symptoms. [45]
[45] Exhibit 1, T35/104.
In his report of 18 November 2011, Dr Kwiatek stated:
Upon review I learned that stress at home is vastly reduced as her two older sons have moved out of house. Work related stress came to a peak a week ago as she made a complaint about the manager who was bullying her. It seems that therefore motions are being set to invalid her out of the Commonwealth Public Service.[46]
[46] Exhibit 3, p. 129.
On 5 April 2012, Dr Kwiatek also reported to the ATO that “Ms Corby did not improve historically with either modified duties or reduced hours”.[47]
[47] Exhibit 3, p. 156.
In a report of 23 August 2012 he referred to the fact that Ms Corby’s “medical condition is easily aggravated by any stress”[48] and “it has been readily apparent on her recent consultations with me that this is significantly occurring”[49], and went on to state:
Environmental stressors, whether physical (such as intercurrent infections) or psychological (including marital stress, workplace bullying and financial stress), have respectively caused exacerbations of her clinical state.[50]
[48] Exhibit 6, p. 46.
[49] Exhibit 6, p. 46.
[50] Exhibit 6, p. 47.
In his report to Ms Corby’s solicitors dated 29 April 2013, Dr Kwiatek stated:
The overall impression is that in recent years Ms Corby has continued to slowly deteriorate, more recently principally because of financial stresses but also the stress of taking on a Comcare claim.[51]
[51] Exhibit 6, p. 58.
Later in his report he stated:
With regards to Ms Corby’s general decline since 2008, my letter to general practitioner Dr Wade dated 18 November 2011 documents that Ms Corby had alleged that she was being subjected to workplace bullying. With regards to this, the literature contains a single, high quality, prospective study which strongly suggests that workplace bullying can trigger and by implication aggravate fibromyalgia … and I suggest that such work-related stress is highly likely to have contributed substantially to Ms Corby’s current status, whether only occurring in late 2011 and/or at other times.[52]
And:
From the evidence presented to me, Ms Corby’s psychological distress appears to be entirely related to the effects of her chronic fatigue overlapping with the fibromyalgia syndrome and do not predate June 2008, which appears to be Dr Stevenson’s interpretation of the sequence of events. However, it is acknowledged that a subgroup of patients with these disorders can develop them purely as a consequence of psychological issues (if they are genetically predisposed to do so).[53]
[52] Exhibit 6, p. 59.
[53] Exhibit 6, p. 62.
In summary, taken as a whole, Dr Kwiatek’s evidence is to the effect that “psychosocial” stress can aggravate CFS/FM, potentially in an irreversible or permanent way, and it can also cause short term ‘flares’ of the condition, lasting for up to two weeks at most. In Ms Corby’s case, he saw no evidence of a permanent or irreversible aggravation of her condition in the period after he first saw her in mid 2009 until she left work in November 2011, although he saw and recorded short term “flares” or exacerbations of her symptoms due at least in part to stress on a number of occasions.
The only occasion on which Dr Kwiatek recorded an exacerbation of Ms Corby’s condition which he attributed to work-related stress was the occasion in November 2011, when he referred to reported ‘workplace bullying’, with this report being provided a couple of weeks before Ms Corby ultimately resigned on 29 November 2011. Whilst he acknowledged the possibility, Dr Kwiatek did not provide evidence which could be regarded as supporting the proposition that any other particular short term ‘flare’ in Ms Corby’s symptoms, or any deterioration of her condition, was attributable to stress resulting from her employment.
Other relevant evidence
With respect to the reported “bullying” recorded by Dr Kwiatek in November 2011, as I understand it this complaint by Ms Corby referred to alleged bullying by her then team leader, Ms Creighton, as detailed in Mr Crocker’s written submissions.[54]
[54] Submissions on behalf of the applicant dated 11 August 2014, [26.2.4] - [26.2.7], p. 13.
As to the allegation that Ms Corby was “mocked and yelled at whilst at work, especially mocking her physical movements”, when these allegations were put to Ms Creighton at the hearing, she completely denied and refuted them and was adamant that she would not have behaved in this way in the workplace or toward Ms Corby. As the evidence of Ms Corby and Ms Creighton on these issues was directly contradictory and impossible to reconcile, I have carefully considered whether I should accept Ms Corby’s evidence or that of Ms Creighton.
In considering that question, I have taken into account the fact that there were a number of troubling inconsistencies in Ms Corby’s evidence, and between her evidence and other evidence. I will not enumerate all of those inconsistencies, but some examples are as follows:
·Ms Corby repeated a number of times during her evidence that more senior employees at the ATO threatened to or actually required her to enter into a Performance Improvement Plan. She added that if she had signed one of these and been away from work in the 30 days following, this would have resulted in “instant dismissal”.[55] However, this evidence was starkly inconsistent with all of the other evidence before me;[56]
·Ms Corby claimed to have suffered a second episode of pneumonia in August 2008, but ultimately conceded that was incorrect;[57] and
·Ms Corby initially said she was telephoned by the ATO when she was at Flinders Medical Centre in June 2008, and then again when she attended the FMC in October 2008. However, she later stated she had not been telephoned by the ATO when she was at the FMC in October.[58]
Ms Corby also made a number of statements during her evidence to the effect that “My recollection is really poor. My cognitive ability is worse”.[59]
[55] Transcript, 10 June 2014, p. 39.
[56] Transcript, 12 June 2014, pp. 198 - 199; Transcript, 13 June 2014, pp. 266 and 288.
[57] Transcript, 11 June 2014, pp. 123 – 126; Statement of Juliana (Julie) Corby dated 17 December 2012, [5].
[58] Transcript, 11 June 2014, p. 133.
[59] Transcript, 11 June 2014, p. 161.
By way of contrast, I found Ms Creighton to be a confident, conscientious and straightforward witness, who comprehensively addressed the issues she was asked about. Her evidence was also entirely consistent, both internally and with evidence from other sources. In these circumstances, I have concluded that I prefer the evidence of Ms Creighton over that of Ms Corby where their evidence is in conflict.
As I therefore accept Ms Creighton’s evidence in preference to Ms Corby’s, I am satisfied that Ms Corby was not “mocked” or “yelled at whilst at work” in the period while Ms Creighton was her team leader. With respect to the allegation that Ms Corby’s toilet breaks were monitored leading to “humiliating hygiene accidents”, I note Ms Creighton also denied monitoring Ms Corby’s toilet breaks, or the toilet breaks of any employee and, in fact, indicated that she did not generally know when an employee was taking a toilet break. In the absence of any evidence to corroborate Ms Corby’s evidence in this regard, I accept Ms Creighton’s evidence, and I am not satisfied that Ms Corby’s allegations are an accurate reflection of what actually occurred.
With respect to Ms Corby’s allegation of “excessive one on one meetings with team leader about work performance”, I note Ms Creighton’s evidence that she met with Ms Corby monthly to discuss issues including performance.[60] She apparently became Ms Corby’s team leader in approximately October 2010 and the evidence suggests therefore that they met monthly for “one on one” meetings between October 2010 and November 2011.[61] However there is little evidence before me to suggest that Ms Corby suffered a “flare up” in her symptoms as a result of any of these meetings, or any combination of them. Dr Kwiatek’s evidence does not address this possibility and Ms Corby took only isolated days of sick leave during the time Ms Creighton was her team leader.[62] In addition, there is nothing before me which attributes any of those particular days off to a worsening of her FM/CFS symptoms. In these circumstances, I am not satisfied that Ms Corby suffered a “flare up” or deterioration in her condition as a result of “excessive one on one meetings with team leader about work performance”.
[60] Transcript, 13 June 2014, pp. 259 - 260 and 285.
[61] It appears that Ms Corby was moved from Ms Creighton’s team on or about 10 November 2011: Exhibit 7, p. 24; Exhibit 3, p.131.
[62] Exhibit 3, pp. 159 - 162. Sick leave days taken were: 25 November 2010 (from 10:00 am); 13 December 2010; 24 January 2011 (from 9:40 am); 22 March 2011; 14 June 2011 (from 11:25 am); 16 June 2011; 1 November 2011; 3 November 2011 (excludes miscellaneous, flex and annual leave taken between October 2010 and November 2011).
As to the allegation that Ms Corby was “denied access to the system codes and thus unable to work”, this was also directed to Ms Creighton and apparently the main instance of this occurred in October 2011 after Ms Corby returned from Macedonia.[63] Again, Ms Creighton provided an explanation for the delay in restoring Ms Corby’s access following her return to work which was entirely at odds with Ms Corby’s account. Ms Creighton explained that due to the length of her absence from work on leave, Ms Corby had been ‘locked out’ of the system automatically, and it was necessary for the IT section of the ATO to restore her access. Unfortunately there was a short delay in this occurring due in part to the fact that Ms Corby worked very few hours at that stage and on one occasion was not at work in time to reactivate her access during the applicable ‘window’ after it had been restored and before it automatically lapsed once more.
[63] Transcript, 11 June 2014, p. 151.
Again, for the reasons I have indicated, I prefer Ms Creighton’s evidence on these issues and I am not satisfied that Ms Corby was in fact denied access to the system by any deliberate act or any negligent failure to act on the part of Ms Creighton or any other ATO employee. Accordingly I am also not satisfied that this represented an instance of bullying or other inappropriate behaviour by Ms Creighton or any other employee of the kind cited by Dr Kwiatek as likely to cause sufficient stress such as to result in a ‘flare’ of symptoms. In any event, as with many of the other incidents relied upon, there is little evidence from Dr Kwiatek and little other evidence before me in support of the proposition that this episode caused a ‘flare’ or deterioration in Ms Corby’s condition, or as to the time of onset or duration of any flare or deterioration.[64] Nor is there any clear evidence that it resulted in incapacity or the need for medical treatment, noting that although Ms Corby took isolated days off work during this period, there is nothing before me which attributes these absences to any ‘flare’ or aggravation of her FM/CFS.
[64] Dr Kwiatek’s report of 29 April 2013 refers to work-related stress in the nature of “bullying” having been “highly likely to have contributed substantially to Ms Corby’s current status”. However, he did not give evidence of any ‘flare’ or aggravation resulting from any particular workplace incident, or as to the timing or duration of any such aggravation.
In all of these circumstances, I am not satisfied on the evidence before me that Ms Corby was denied ‘access to the system’, or that the delay in restoring her access following her return from leave resulted in a ‘flare’ of her symptoms or deterioration in her condition which could potentially be regarded as an ‘aggravation’.
Conclusions
In summary, I am not satisfied that Ms Corby was in fact ‘bullied’ by Ms Creighton or that any of the particular instances of inappropriate behaviour by Ms Creighton that Ms Corby has complained of actually occurred, or occurred in the way described by Ms Corby. For the reasons I have given, I prefer Ms Creighton’s evidence on these issues and I am not satisfied that Ms Creighton behaved in a bullying or otherwise untoward manner toward Ms Corby. Given the nature of his evidence on this issue, I am also not satisfied that Dr Kwiatek’s evidence supports the proposition that any flare in Ms Corby’s symptoms during the period when Ms Creighton was her team leader was attributable to work-related stress.
Dr Kwiatek’s evidence, together with the other evidence before me, including that of Ms Corby, still leaves open the possibility that at some other time between mid-2009 and November 2011, Ms Corby suffered a short term ‘flare’ of her symptoms, lasting up to two weeks, to which work-related stress made a significant contribution. However there is very little evidence before me directed to the questions of when Ms Corby suffered ‘flares’ in her symptoms, which of these were related to work stress, and what that work stress was.
As to the instances relied on by Mr Crocker as producing work-related stress, I have already indicated that I do not accept Ms Corby’s complaints against Ms Creighton, and as a consequence of that I do not accept that Ms Creighton’s behaviour toward her resulted in significant enough emotional stress such as to cause or contribute to a ‘flare’ in her symptoms.
The other particular instances relied upon by Mr Crocker relate to Ms Corby allegedly receiving what she ultimately acknowledged to be one phone call when she was at the Flinders Medical Centre in June 2008, ‘constant phone calls at home’, having to call the UPL line and having to provide ‘details of what was wrong’. However the alleged phone call to her while she was at Flinders occurred before she contracted CFS/FM, and in my view could not be regarded as having caused a short term aggravation of the condition.
With respect to the ‘constant phone calls’, calling the UPL line and having to provide ‘details’, there is no evidence before me as to precisely when these events occurred, what their effect was on Ms Corby on any particular occasion, whether any stress she suffered resulted in a short term ‘flare’ of her symptoms, and whether this in turn resulted in her needing to take time off work, or seek any treatment.
Furthermore, aside from the instances relied on by Mr Crocker, I have not identified any other occasions on which the evidence suggests that work-related stress contributed to a ‘flare’ of Ms Corby’s symptoms, or a temporary deterioration in her condition prior to it reverting to the ‘baseline’. That being the case, I am not satisfied on the evidence before me that in the period between June 2009 and November 2011, there was any particular instance on which Ms Corby suffered a short term ‘flare’ or temporary deterioration of her condition to which work-related stress made a significant contribution.
For completeness, I also note that even if this had been established, it would not have been of significant benefit to Ms Corby, since at best it could only have resulted in her being paid a relatively modest amount of compensation in respect of a short period of incapacity, and perhaps a small amount of medical expenses.
However in case I am wrong in the conclusions I have reached on the ‘significant contribution’ issue, I also propose to consider whether, even if Ms Corby’s employment made a significant contribution to any aggravation, any such aggravation resulted in ‘incapacity’ or ‘impairment’ so as to potentially give rise to compensation liability, bearing in mind the terms of subs 7(6) and s 14 of the SRC Act.
Did any aggravation lead to ‘incapacity’ or ‘impairment’?
There is no evidence before me which I consider supports the proposition that any aggravation of Ms Corby’s condition resulted in an “impairment” within the meaning of the SRC Act.[65] Nor is there evidence which makes a link between any potential work-related aggravation and isolated days off work. However, Ms Corby also relies on the fact that from July 2008 her working hours were steadily reduced, and I accept that this should be regarded as evidence of increasing incapacity, and that it is appropriate for me to consider whether any of these reductions in hours were potentially attributable to an aggravation of Ms Corby’s condition.
[65] See s 4.
The relevant reductions in hours were as follows:
Late July 2008 – reduction from full-time employment to four days at 7½ hours per day.
Beginning July 2009 – reduction from four days to three days, remaining at 7½ hours per day.
5 August 2010 – reduction from three days at 7½ hours per day to three days at 5 hours per day.
End October 2010 – reduction to three days at 4 hours per day.
As I have indicated above, Dr Kwiatek conceded that apart from a bullying complaint in November 2011, he had no other record of any work-related stressors aggravating Ms Corby’s condition. He also indicated under questioning from the Tribunal that he did not consider there were any irreversible aggravations of Ms Corby’s condition after mid-2009. He did consider that work-related stress could have potentially resulted in ‘flare-ups’ of Ms Corby’s symptoms without worsening her underlying condition, which steadily deteriorated from mid-2009 onwards.
One of the difficulties in this situation is separating out any incapacity resulting from a temporary deterioration or flare-up of symptoms from the increasing incapacity which resulted from the steady deterioration of Ms Corby’s condition as a result of the disease process itself. It was my understanding of Dr Kwiatek’s evidence that Ms Corby’s overall condition had continued to deteriorate, both while she was working and after she stopped working, and that so far as he was aware, there were no particular incidents of workplace stress which permanently aggravated her condition after the diagnosis in mid-2009. In other words, he saw Ms Corby’s increasing incapacity and ultimate inability to continue working as primarily attributable to the natural course or the inevitable course of her disease, rather than any work-related aggravation.
In this context, subs 7(6) of the SRC Act becomes relevant. As I have indicated above, that provision is as follows:
(6)An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a) the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
The difficulty for Ms Corby as I see it is that the effect of the evidence is that the reduction in her capacity was primarily attributable to the progression of her CFS/FM and that any temporary flare-up in her symptoms attributable to stress did not significantly affect the course of the condition, or the rate at which her incapacity increased. Dr Kwiatek’s evidence was that after each flare-up of symptoms, her condition after mid-2009 would have returned to the ‘baseline’, and Dr Stevenson agreed with that proposition.
Therefore in order to conclude that any reduction in hours was attributable to a flare up or aggravation, I would need to be satisfied that the progressive reduction in her working hours would have been different if not for that temporary flare-up or aggravation. In other words, I would need to be satisfied that any reduction in working hours may have occurred at a later point in time if not for the flare-up or aggravation. It is important, therefore, that I examine each occasion on which Ms Corby reduced her working hours, in order to ascertain whether this could potentially be attributable to a work-related aggravation of her symptoms.
Late July 2008
I note that Ms Corby reduced her hours to four days per week at this time. However, it has not been established on the evidence before me that she had FM/CFS at this time, and I am not satisfied that this reduction in hours was attributable to that condition, or any aggravation of it.
Beginning July 2009
Of the stressors relied upon by Ms Corby, I note that those which could be potentially applicable in this timeframe include needing to explain the reasons for her absences by telephoning the UPL line, “constant phone calls to her at home when on sick leave”, and “providing details of what was wrong”.
In the period leading up to the beginning of July 2009, I note that the sick leave records appear to show that Ms Corby was absent on unplanned sick leave on 9 - 10, 16 - 18 and 29 - 30 June 2009.[66] It is possible, therefore, that distress occasioned by needing to call the UPL line on one or more of these days may have resulted in a flare-up in the symptoms of Ms Corby’s condition. It is also possible that she received ‘follow up’ phone calls on one or more of those days and that she was asked to provide ‘details of what was wrong’. However, there is no evidence before me of precisely what occurred on any of these particular occasions, or how distressed Ms Corby was by her interaction with the UPL line or those telephoning her at the time.
[66] Exhibit 3, p. 161.
In addition, the evidence is that at that time her supervisor was Mr McKeirnan and as soon as he became aware of the distress caused to her by having to explain herself to the UPL line, he put in place an alternative mechanism. This involved Ms Corby simply advising the person she spoke to when she rang in that she had already spoken to Mr McKeirnan and had a recurring certificate and if anybody had any questions they were to see Mr McKeirnan.[67] Whilst Mr McKeirnan could not recall precisely when this alternative system was instituted, he said that he put this system in place “as soon as I became aware she had an issue with it”.[68]
[67] Transcript, 12 June 2014, p. 181.
[68] Transcript, 12 June 2014, p. 181.
As I accept Mr McKeirnan’s evidence in this regard, I also accept that as soon as Ms Corby voiced concerns to him in relation to the stress caused by phoning the UPL line, he put the alternative system in place. This does not eliminate the possibility that the calls Ms Corby made to the UPL line in the period preceding early July 2009 occurred prior to the new system being in place. However, if that is the case, Mr McKeirnan’s evidence would suggest that her distress had not reached the level where she had voiced her concerns to him.
In these circumstances, I am not satisfied on balance that Ms Corby’s distress caused by telephoning the UPL line when she was away from work in the period immediately preceding July 2009 resulted in a deterioration of her condition which in turn led to her reducing her working hours sooner than she would otherwise have done.
On the material available to me, I am also not satisfied that any telephone calls made to her when she was at home, or being asked to provide ‘details of what was wrong’ in the period immediately prior to the beginning of July 2009 resulted in Ms Corby reducing her hours earlier than she otherwise would have. Accordingly, I am not satisfied that a deterioration in her condition contributed to by work-related stress ‘resulted in’ the incapacity which led Ms Corby to reduce her working hours in early July 2009.
5 August 2010
Again, I note that the only stressors which are potentially applicable during this period are the process of telephoning the UPL line, “constant phone calls to her at home when on sick leave” and “providing details of what was wrong”.
Ms Corby’s sick leave records show that in the period leading up to 5 August 2010, she appears to have had unplanned sick leave on 24, 28 - 29 June, 1, 5, 6, 8 and 13 July 2010.[69]
[69] Exhibit 3, p. 162.
However, noting that Mr McKeirnan became her team leader in February 2009 and ceased to be her team leader in October 2010, I am confident on the evidence before me that he had put the alternative process for her to report sick leave in place before 5 August 2010. In addition, Mr McKeirnan’s evidence was to the effect that once he understood the nature of Ms Corby’s condition, he would not have needed to call her and “didn’t call her a lot”.[70] Having regard to his evidence and the other evidence before me, I am not satisfied that in the period June – July 2010, Ms Corby was receiving “constant phone calls to her at home when on sick leave” and that she was being required to provide details of what was wrong with her when she telephoned the UPL line. Accordingly, I am not satisfied that Ms Corby suffered any work-related exacerbation or aggravation of her condition in the period leading up to 5 August 2010 which affected the timing of her reduction in hours.
[70] Transcript, 12 June 2014, p. 180.
End October 2010
I note that Ms Corby’s leave records appear to indicate that she had no sick leave between 26 August 2010 and when she reduced her hours in late October 2010.[71] Therefore, on the evidence, I do not consider that issues relating to calling the UPL line or being telephoned whilst at home on sick leave played a role in her need to reduce her hours in late October 2010.
[71] Exhibit 3, p. 160.
With respect to the other matters alluded to in Mr Crocker’s submissions, I note that the alleged denial of access to the system apparently occurred in October 2011 and is therefore not relevant to this reduction in hours a year earlier.
Similarly, as I understood Ms Corby’s evidence, the other allegations made against Ms Creighton related to incidents or practices which either occurred sometime after Ms Creighton became Ms Corby’s team leader in October 2010, or which occurred repeatedly after that time and were a source of stress for that reason. In any event, for the reasons I have given, I am not satisfied that these instances occurred in the manner described by Ms Corby. For both of those reasons, I am not satisfied on the evidence that any aggravation of her condition secondary to work-related stress resulted in Ms Corby reducing her hours in October 2010 sooner or by more than she would otherwise have done.
Conclusion
It follows that, even if I had been satisfied that Ms Corby had suffered one or more flare-ups in her symptoms to which work-related stress made a significant contribution, I would not have been satisfied that such flare-ups in her symptoms resulted in “incapacity” within the meaning of the SRC Act. Accordingly, even assuming that any such exacerbation of her symptoms was properly regarded as an “aggravation” to which her employment made a significant contribution, in my view it did not result in “incapacity” or “impairment” within the meaning of s 14 of the SRC Act, and was therefore not compensable.
In these circumstances, I do not propose to proceed to consider whether any ‘flare up’ in Ms Corby’s symptoms can properly be regarded as an “aggravation” within the meaning of the SRC Act, or whether any aggravation was the result of reasonable administrative action, as it is unnecessary for me to do so.
For completeness, I note that at the hearing Mr Crocker expressly did not press any separate claim for “stress” and nor was any medical evidence put forward in support of such a claim. In these circumstances, I am also satisfied that that part of the decision under review which denied liability for “stress” should be affirmed.
As I have concluded that the respondent is not liable to pay compensation to Ms Corby pursuant to s 14 of the SRC Act in respect of her CFS/FM or any aggravation of her CFS/FM, I have therefore decided to affirm the decision under review in application 2011/1655.
DECISION
The decisions under review are affirmed.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ...... [Sgd] ................................
Associate
Dated 29 January 2015
Dates of hearing 10 - 13 June 2014; 6, 8, 11 August 2014
Counsel for the Applicant Mr A Crocker Solicitor for the Applicant Mr P Milte
Wallmans LawyersCounsel for the Respondent Mr I Colgrave Solicitor for the Respondent Mr A Schatz
Australian Government Solicitor
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