Julie Kennedy and Comcare
[2014] AATA 557
[2014] AATA 557
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/3140; 2012/1258
Re
Julie Kennedy
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms J Toohey, Senior Member
Dr M Couch, MemberDate 12 August 2014 Place Sydney The Tribunal affirms the decision under review.
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Ms J Toohey, Senior Member
CATCHWORDS
COMPENSATION – whether applicant suffered an injury in 2009 – psychological condition – whether events in 2009 aggravated a previous injury – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 s 5A(1), 14
CASES
Julie Kennedy and Comcare [2013] AATA 696
Kennedy v Comcare [2014] FCA 82
Comcare v Mooi (1996) 137 ALR 690
REASONS FOR DECISION
Ms J Toohey, Senior Member
Dr M Couch, MemberBACKGROUND – THE TRIBUNAL’S FIRST DECISION
On 27 September 2013 the Tribunal, as presently constituted, affirmed a decision of the respondent denying liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) to compensate Ms Julie Kennedy for an adjustment disorder and consequential injuries: Julie Kennedy and Comcare [2013] AATA 696.
The focus of Ms Kennedy’s claim was on events said to have occurred at her workplace in 2007 and 2010 and, to a lesser extent, on events said to have occurred in the second half of 2009.
In affirming the decision under review, we found Ms Kennedy’s account of events in 2007 unreliable, although not because of any dishonesty on her part. We were not satisfied that her employment contributed to a significant degree to her condition. We decided that, in any event, the conduct of her supervisor which was said to have caused her condition constituted reasonable administrative action taken in a reasonable manner in respect of her employment within the meaning of the Act with the result that her claim would be excluded by s 5A(1).
In relation to events in April 2010, being a visit to Ms Kennedy’s home by staff of the respondent, and a meeting with her supervisor, it was not in dispute, and we were satisfied, that the events of which she complained contributed to a significant degree to her condition. However, we found her claim excluded because these events constituted reasonable administrative action taken in a reasonable manner in respect of her employment within the meaning of the Act.
Ms Kennedy sought review of the Tribunal’s decision by the Federal Court. On 18 February 2014, the Court allowed her appeal in part: Kennedy v Comcare [2014] FCA 82.
THE ISSUES ON APPEAL
Before the Federal Court, the only issue was whether Ms Kennedy suffered an injury in 2009 for which the respondent was liable, in particular whether the Tribunal had failed to deal with a submission advanced on her behalf that she suffered an aggravation of her psychiatric disorder in the latter half of 2009 for which the respondent was liable to compensate her.
Judge Katzmann referred at [34] and [35] to the outline of closing submissions for Ms Kennedy which, she said, did not contain submissions that there was an injury in 2009, but “an inference that there was merely a recurrence of symptoms of the 2007 injury at that time” with “only a hint that those symptoms were attributable to anything that occurred at work in 2009”. However, taking into account matters including statements Ms Kennedy gave to the respondent, Katzmann J agreed that “a submission was made to the tribunal that Ms Kennedy had suffered an injury in the latter part of 2009 for which she should have been compensated and which the tribunal did not address”. She remitted the following question to the Tribunal for reconsideration according to law:
Whether the applicant suffered an injury in mid to late 2009, which entitles the applicant to compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988.
Neither party called further evidence at the reconsideration hearing. The relevant legislation, and the evidence and our findings about events between 2007 and 2010, are set out in our decision of 27 September 2013. We will not repeat them except where relevant to what we now have to determine.
The evidence about events in 2009 was summarised at [88] to [90] of our previous decision. Because we misapprehended Ms Kennedy’s claim, the summary was brief. The evidence is set out in more detail below together with parties’ present submissions.
EVIDENCE AND SUBMISSIONS ABOUT EVENTS IN 2009
In a lengthy written statement to the respondent in July 2010, Ms Kennedy detailed the events which she said gave rise to her injuries. She described how, in September 2007, she took her complaints about her then supervisor to her manager, Helen Oberg, as a result of which Ms Oberg convened a meeting with Ms Kennedy and her supervisor. After that, Ms Kennedy stated “the bullying/harassment issues in the workplace seemed to be ongoing” but she was “relieved” they were no longer directed at her. Her written statement was consistent with her oral evidence to the effect that, after that meeting, the problems she had been having with her supervisor resolved. It is conceded on her behalf that there is no evidence of any impairment in functioning “for some two to three years” after the meeting.
In early 2008, Belinda Oostendorp started work in Ms Kennedy’s unit. At some point in 2009, she became Ms Kennedy’s team leader. Ms Kennedy claims that, although their relationship was positive to start with, around mid-2009 Ms Oostendorp started criticising her work in front of others, commenting on how many calls she was taking and how she was entering data on her computer. Further, when it came out that their call centre had the highest level of unplanned leave, Ms Oostendorp targeted her because of her high level of unplanned leave and instructed her to move her desk closer where she could be closely supervised. Ms Kennedy claims she was not given the same support with her unplanned leave as others and, in particular, she was not given a “work-life balance plan”, as the procedure for unplanned leave required.
Ms Kennedy’s written statement
In her written statement in July 2010, Ms Kennedy described events in 2009 as follows:
In June 2009 Belinda began making more frequent comments about my performance metrics in front of other staff and seemed to flit around the place one minute she was there in the next gone. Coaching became less focused and she would normally ask me to fill in the information and forward it to her rather than to spend the allocated hour with me and other staff commented that this was occurring for them also. She was involved in a number of other activities within the Call Centre and had less and less time to focus on individual coaching as a result usually turning up for the last 10 minutes to collect my information.
From July 2009 her erratic behaviour and the comments in front of others began to make me more uncomfortable and on edge. My personal metrics and length of people support break times were being openly discussed in front of other staff in a manner that was embarrassing in public and which should been discussed in coaching. Other team colleagues noticed this and commented that the way she spoke to me was inappropriate. Justin who sat directly next to me also commented that she had no right to speak to me the way she was.
I saw my doctor throughout this time and sought support by using the reference material, cognitive therapy methods and other learned assistance provided to me by my Psychologist previously to help me cope. I turned my focus to involvement in [social policy work in the workplace] … which helped give me something positive during that time.
Ms Kennedy wrote that Ms Oostendorp gave opportunities to others who appeared to be her favourites but “I didn’t allow this to create barriers to my [Performance Assessment] and became involved in other activities to assist my PA so I could be deemed effective”. She stated:
At this time, with the focus on new metrics, the inappropriate comments to me in front of other staff increased. With ongoing pressure to be involved in external team social events and this new queue being applied to me again I started to feel the effects of this and my health again began to suffer with more frequent headaches/migraines and an increase in time off work for same.
I continued to ask for help and support but instead received public criticism and comments about my failing metrics … I was not given any support … I was starting to feel avoided, excluded and unsupported...
Ms Kennedy wrote that she became so frustrated that she asked another manager if she could have another staff member sit next to her to help her. She was “at [her] wits end with further hair loss, headaches/migraines more frequent and panicky feelings increasing”. She was also having problems with her computer. Ms Oostendorp questioned her and discussed her leave in front of other staff in a “threatening” manner; it was “obvious” she was being “pushed aside, excluded and ostracised” and others commented about her treatment.
Ms Kennedy stated that her family doctor commented that the stress at work was a “key factor” in her viruses and headaches. In September 2009, she sought the assistance of the workplace Employee Assistance Program (EAP) and saw a registered psychologist. We understand that an employee’s use of the EAP is confidential and records are not made available to an employer. We accept Ms Kennedy saw the psychologist but, other than her statement, we have no information about why, or on how many occasions.
At some point, it appears around the end of 2009, Ms Oostendorp required Ms Kennedy and another staff member to move their desks close to hers. The lighting at that work station was bright which, Ms Kennedy wrote, “was not good for a person with identified ongoing frequent migraines” and a Deputy Manager agreed she could move her desk away from the light. When Ms Oostendorp returned from leave she “yelled” at her in front of everyone “in a threatening and angry tone”; she “stormed into” the Deputy Manager’s office and “slammed the door”.
From January to February 2010, Ms Kennedy says, Ms Oostendorp bullied her “daily”. In early March 2010, she broke down in front of Ms Oostendorp and another manager.
Ms Kennedy’s oral evidence
When giving oral evidence, Ms Kennedy was questioned briefly by her counsel about problems in 2009 with Ms Oostendorp. She said things were fine until “it all of a sudden changed” and their monthly coaching sessions started to focus on things like her leave and how long she was on the phone, and how she was treated “changed a lot”. She was not asked to elaborate on these claims.
In cross-examination, Ms Kennedy said that for several months when Ms Oostendorp first supervised her, their relationship was “entirely positive and supportive”. She agreed that her employer had to respond to her high levels of leave but said it should have been done “in an appropriate manner”; she should have been put on a “work-life balance plan” to address her attendance but she was dealt with “very differently and inappropriately”.
Ms Kennedy did not appear to dispute that Centrelink sought to assist her with an “Absence Support Plan” to maintain regular attendance, and she could not suggest any other ways that Centrelink might have assisted her, but she maintained nevertheless that “appropriate procedure” required that she be offered a work-life balance plan. It is not clear what difference it would have made to her had that procedure been adopted.
Ms Oostendorp’s evidence
Ms Oostendorp gave evidence that Ms Kennedy was selected to join her team on a trial basis because of her customer relations skills but it turned out that she “wasn’t performing highly at all”. She was dealing with far fewer calls than required and she had “a history of IT problems” to do with not following procedures when shutting down her computer. Ms Oostendorp denied bullying or harassing Ms Kennedy.
Ms Oostendorp said she had to speak to Ms Kennedy “on numerous occasions” about her problems using the computer. She decided Ms Kennedy should sit next to her so she could observe any problems as they arose and deal with them promptly so that Ms Kennedy could resume taking calls as quickly as possible. She agreed that Ms Kennedy complained about the lighting causing migraines but said a workstation assessment officer found it was “exactly the same as where she had been sitting” and, after he had set up her workstation, Ms Kennedy said it was “a better set-up than where she was prior”. This evidence does not appear to be disputed by Ms Kennedy.
According to Ms Oostendorp, Ms Kennedy was taking a lot of unplanned sick leave, and “extended people support breaks” (away from the telephone) for which she could not give satisfactory reasons. Ms Oostendorp spoke with the Attendance Manager, Maria Krkovski, about a strategy to “get her engaged and get her at work”. To accommodate Ms Kennedy’s childcare commitments, it was agreed that she could start later on Monday mornings. After she went off work around March 2010 and her sick leave was exhausted, concerns that her pay would be affected led to the visit by Mr Newton and Ms Oostendorp in April 2010 which was the subject of our earlier decision.
Medical evidence
As set out in our previous decision at [129], there is no dispute that events in April 2010 contributed to a significant degree to an aggravation of Ms Kennedy’s psychological condition. It is submitted on her behalf that, even before those events, she was suffering an aggravation of the condition which had been “quiescent” since 2007, which aggravation resulted in impairment in her functioning. In effect, it is said, the events in April and May 2010 were the straw that broke the camel’s back, causing Ms Kennedy to leave work and not return. For the reasons that follow, we do not agree.
Ms Kennedy saw a number of doctors for treatment and assessment over the period 2007 to 2012. Some of their evidence is at set out in our previous decision. Some refer to her condition as progressively worsening over time. It is submitted for Ms Kennedy that none state positively that her condition “resolved completely” after 2007 and none has said the events in 2010 “themselves triggered an aggravation”. It is submitted it “makes sense” to see what happened in 2010 as part of a series of continuing events such that, had she not been unwell, the meeting at her home in April 2010 would not have had the impact that it did.
We do not accept that submission. In the first place, none of the doctors was specifically asked whether Ms Kennedy’s condition “resolved completely” after 2007 and whether events in 2010 “themselves triggered an aggravation”. By Ms Kennedy’s own evidence, her condition “resolved” after the meeting in October 2007 with Ms Oberg and her then supervisor. Moreover, statements by some doctors to the effect that she had been subjected to ongoing harassment and bullying over the years rely largely on what Ms Kennedy told them, and is at odds with other evidence. It is relevant that only Dr Yvonne Skinner, who saw Ms Kennedy in 2012, referred to events with Ms Oostendorp at all.
Dr Rees
Dr Anne-Marie Rees, consultant psychiatrist, saw Ms Kennedy for assessment of her fitness for duty on 9 June 2010. She diagnosed Ms Kennedy as suffering at that time from Panic Disorder with Agoraphobia with a likely degree of depression which would meet criteria for an Adjustment Disorder with Depressed Mood.
For Ms Kennedy it is submitted that this diagnosis was “relatively contemporaneous” with events in 2009. However, given the intervening events in April 2010 which it is agreed contributed significantly to an aggravation of her condition, and that Dr Rees’ assessment took place after those events, nothing can reliably be inferred about the effect of any events in 2009 from her diagnosis. Further, her assessment was for the purposes of assessing Ms Kennedy’s fitness for duty rather than causation.
Mr Mahoney
Chris Mahoney, clinical psychologist, reported on 6 July 2010 to Dr Pather, a general practitioner whom Ms Kennedy saw from time to time, that he had seen her for six sessions since 20 May 2010; she presented with signs and symptoms of panic disorder and depression which had become quite severe. He wrote that her symptoms “appear to be directly related to significant and sustained workplace bullying that has been occurring for several years”.
Ms Kennedy saw Mr Mahoney after the events in April 2010. For the same reasons as above, nothing can be inferred from his report about the effect of any events in 2009.
Dr Skinner
The first (and only) report which specifically refers to events with Ms Oostendorp is from Dr Skinner, who saw Ms Kennedy in February 2012. In a report dated 27 February 2012, Dr Skinner recorded the history of Ms Kennedy’s problems including:
… the team leader insisted that Ms Kennedy should sit next to her. She would yell in front of other people. Ms Kennedy was excluded from team meetings. She was working only 30 hours per week and the meetings were often at times when she was not there.
She tried to arrange to be moved away from sitting next to the leader. She moved but when the team leader came back she again insisted that Ms Kennedy was to sit next to her. She went to the human relations manager but was told that there would be no change.
Although Dr Skinner’s report did not identify Ms Oostendorp by name, this part of the history she took apparently refers to the events Ms Kennedy says happened in 2009. For reasons which are not clear, there is no reference to 2009 and this part of the history is included in events said to have occurred in 2007.
In response to questions, Dr Skinner wrote in her report as follows:
Do you consider Ms Kennedy has sustained a psychological/psychiatric condition as a result of workplace events, particularly in 2007 and/or during 2009 and 2010?
Ms Kennedy has suffered a psychiatric condition while working at Centrelink, anxiety disorder and excessive/compulsive disorder. … It seems that the factors contributing to her condition were her perception that her supervisors were intrusive and interventionist in their management styles and she perceived this as “bullying and harassment”.
If you consider Ms Kennedy suffered a psychological/psychiatric condition in 2007, did that condition resolve such that a new and different condition arose at a later time such as in 2009 and/or 2010?
In 2007 Ms Kennedy suffered an anxiety disorder as she found working with Sean as supervisor to be a stressful experience. There was a brief period when she felt more comfortable after being transferred to another team, but she again suffered anxiety when she was asked to sit next to Belinda.
As a result of workplace events, particularly from 2007 and in 2009 and 2010, what impairment has Ms Kennedy suffered and what incapacity has Ms Kennedy suffered?
Ms Kennedy has suffered an impairment, loss of efficiency … Ms Kennedy has suffered an incapacity to function effectively in her home because of her obsessive-compulsive disorder symptoms of cleaning and checking rituals that are quite disabling.
Giving oral evidence, Dr Skinner said she was not sure when Ms Kennedy was transferred but she thought it was in 2007. Asked whether she was “talking about an aggravation occurring at 2009/2010, ie the seating time”, Dr Skinner replied: Yes. Asked to clarify whether “in that late period late 2009 we assume the seating arrangements occurred then, through to April 2010. Is there one aggravation in the condition or two?”, Dr Skinner said:
I think it was ongoing, that the anxiety – the disorder was ongoing. … I think from 2007 there’s been a problem, an ongoing problem of an anxiety disorder … [which] never really settled.
Dr Skinner’s evidence does not assist us. Her conclusion that Ms Kennedy’s symptoms “never really settled” appears to be based, in part, on her understanding that there was only a “brief period” after the events in 2007 when Ms Kennedy felt “more comfortable” before she suffered anxiety when asked to sit next to Ms Oostendorp. That is at odds with Ms Kennedy’s own evidence and, as discussed below, is not supported by other evidence concerning 2009.
It is relevant that Dr Rees and Dr Skinner both saw Ms Kennedy some time after 2009, Dr Rees in 2010 and Dr Skinner in 2012, and both relied on the history she gave them. As we said in our previous decision at [47], Ms Kennedy appeared to us to give her evidence about events in 2007 as honestly as she could but we were not satisfied that her account was reliable.
Clinical records
Nor do the clinical records of Ms Kennedy’s general practitioners for the period suggest Ms Kennedy was having any particular work-related difficulty during 2009. Records from the Lakeview Medical Centre, where she saw Dr Barker or another doctor, , show that, between 9 June 2009 and 15 January 2010, Ms Kennedy attended on the practice on nine occasions. On the first occasion Dr Andrew Murray certified her unfit for work for two days without recording the reason. Dr Barker recorded “tension headache” on 21 July 2009; and on 14 and 15 January he recorded “common migraine”. He otherwise recorded various gynaecological matters.
There is no reference anywhere in the clinical records of the Lakeview Medical Centre to work related stress in 2009 and nothing to suggest that Ms Kennedy’s tension headache or migraines were related to work. Ms Kennedy had previously said that she suffered headaches as a result of what she described as bullying and harassment. However, even accepting that her tension headache on 21 July 2009 and the migraine reported on 14 and 15 January were related to work, that is the full extent of any suggestion in those notes of a work-related condition. Nothing suggests deteriorating function that might amount to an aggravation, being a mental condition outside the boundaries of normal functioning: Comcare v Mooi 137 ALR 690. We note that, on 3 May 2010, Dr Barker noted “Stress at work. Treatment by employer discussed”, suggesting he might have made a similar note had Ms Kennedy complained that her headache and migraines were work-related.
Dr Pather, a general practitioner whom Ms Kennedy saw from time to time, wrote to the respondent on 29 July 2010. He stated that Ms Kennedy had been attending his surgery since 16 January 2008 and she first complained of work-related panic attacks on 3 May 2010 when she was referred for counselling and given medication. He noted that she had been complaining of migraine headaches since 31 June 2008 [sic]. He diagnosed “anxiety/panic attacks” and said he felt Ms Kennedy’s migraine headaches were “consistent with her psychological condition”.
The clinical notes do not appear to support Ms Kennedy’s statement (at [12] above) that she saw her doctor “throughout this time” in order to cope with what was happening at work.
Workplace records
As we found in our previous decision, Ms Kennedy’s evidence about events in 2007 was at odds in almost every respect with the consistent evidence of her supervisor, and Ms Oberg and Ms Krkovski. In relation to events in April 2010, we found the overwhelming weight of the evidence favoured the accounts of events given by others over those given by Ms Kennedy.
We have no reason to doubt Ms Oostendorp’s evidence about events in 2009 and contemporaneous workplace documents are consistent with her account. We are not satisfied that Ms Kennedy’s evidence about those events is reliable.
A document headed Record of Staff Feedback records discussions between Ms Kennedy and her team leader about various “coaching issues” and events from February 2008 to 10 August 2009 and from 11 December 2009 to 25 January 2010. (It is not clear why the record for the period in between is not available). They comprise electronic entries and exchanges by Ms Kennedy and her supervisors, mostly Ms Oostendorp. There are numerous references to Ms Kennedy experiencing “outages” with her computer. Throughout July and August 2009, and again in December 2009 and January 2010, the exchanges appear friendly and constructive on both sides, and Ms Kennedy frequently signs off “Cheers, Julie, :)”.
A one-page unsigned CSA Self-Assessment and Coaching form apparently completed by Ms Kennedy and Ms Oostendorp on 18 November 2009 contains the following “Feedback for my Team Leader”:
I love my Team Leader, she is lovely, always helpful and very supportive.
In an unsigned CSA Self-Assessment and Coaching form also apparently completed by Ms Kennedy and Ms Oostendorp on 8 March 2010, Ms Oostendorp noted:
Julie advised she is finding the CRU queue satisfying and will research the taskcards in I&D as she finds some of the taskcards complex.
Julie has not had as many system issues as a result of being seated next to team leader where team leader identified that Julie was shutting down system when only SUW errors. I advised Julie that only SUW needed to be shut down when bug errors or system freezing.
Julie requested leave to go on overseas trip. I advised Julie to send email with details as Julie advised purchase leave may be required.This last record was made one month before the visit by Ms Oostendorp and Mr Newton to Ms Kennedy’s home when Ms Kennedy was at home on leave with a respiratory illness. There is nothing to suggest any difficulties in her relationship with Ms Oostendorp at any point. To the contrary, Ms Kennedy’s assessment of Ms Oostendorp in November 2009 was glowing. Nor does there appear to be any diminution in Ms Kennedy’s capacity for work (other than the outages problems she was continuing to have). The respondent submits, and we agree, that everything points to Ms Kennedy continuing to do her duties as usual throughout 2009 and into 2010. There do not appear to be any of the manifestations of the illness that doctors noted to be present following the events in April and May 2010 and after.
We accept Ms Kennedy may have disliked some of what happened in 2009 when Ms Oostendorp was supervising her closely but the evidence does not support the conclusion that she suffered an aggravation of her previous condition. There is nothing to suggest a degree of distress, or frustration, or upset that might be expected if an aggravation occurred (as it did in 2010). Ms Kennedy’s complaints about Ms Oostendorp are not borne out in the contemporary notes of their dealings over much of that period, there is no evidence that her functioning or capacity for work was impaired, and the contemporary clinical notes do not bear out a deterioration in her condition. The only evidence in support of an aggravation is her own account, which we do not consider reliable, and what Dr Skinner recorded in very general terms approximately three years later which relied almost entirely on Ms Kennedy’s account
CONCLUSION
For these reasons we are not satisfied that Ms Kennedy suffered an injury in mid to late 2009 which entitles the applicant to compensation under s 14 of the Safety Rehabilitation and Compensation Act. We affirm the decision under review.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr M Couch, Member. .........................................
Associate
Dated 12 August 2014
Date of hearing 18 July 2014 Counsel for the Applicant Mr M Vincent Solicitors for the Applicant RMB Lawyers Counsel for the Respondent Mr M Snell
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