Khoo and Comcare
[2010] AATA 183
•17 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 183
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4242
GENERAL ADMINISTRATIVE DIVISION ) Re GUAN KHOO Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke Date17 March 2010
PlaceCanberra
Decision The Tribunal sets aside the reviewable decision and substitutes with the following decision:
1. Comcare is liable to pay compensation to Dr Khoo under section 14 of the Act in respect of the injury which resulted in Dr Khoo's incapacity for work or impairment.
2. The Tribunal also orders that the costs of these proceedings incurred by Dr Khoo be paid by the responsible authority subject to any submissions from the parties.
............................[sgd]...........................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Applicant suffered psychological injury – whether Applicant’s employment or the ‘number of other stressors’ in his life materially contributed to injury – whether Applicant’s perception of bullying/harassment based on fact – whether injury a result of ‘failure to obtain a benefit’ – decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5, 7, 14, 67(8).
Re Albanese and Comcare [2004[ AATA 768
Comcare v Mooi (1996) 69 FCR 439
Comcare v Ross [1996] FCA 680
Comcare v Sahu-Khan (2007) 156 FCR 536
Re Davill and Australian Postal Corporation [1995] AATA 391
Golds v Comcare [1999] FCA 1481
Hart v Comcare (2005) 145 FCR 29
Re Millichap and Comcare [2009] AATA 127
Trewin v Comcare (1998) 156 ALR 615
Weigand v Comcare (2002) 72 ALD 795
17 March 2010 REASONS FOR DECISION
Professor RM Creyke 1.Dr Guan Khoo was employed from 1991 by the Therapeutic Goods Administration (TGA) Division, within the Department of Health and Ageing. From 2002, he worked as an auditor in the Manufacturer Assessment Branch, Good Manufacturing Practices (GMP) section. He suffered from a psychological injury, namely, anxiety or depression he claimed was due to workplace harassment by his employer. Dr Khoo has not worked since 24 October 2006.
2.He submitted a claim for compensation on 24 November 2007. In a decision of 18 April 2008, Comcare denied liability, a decision it affirmed on review on 4 August 2008. In doing so, Comcare assessed the date of injury as 13 November 2007 and found that Dr Khoo’s employment did not make a material contribution to his injury. On review on 4 August 2008, the decision was affirmed. The decision-maker relied in part on the exclusionary provision relating to ‘reasonable administrative action’.[1]
[1] Pursuant to Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A (as amended 1 July 2007).
3.On 11 September 2008, Dr Khoo sought review by the Tribunal.
Legislation
4.The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) are:
4 Interpretation
(1) In this Act, unless the contrary intention appears:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Comcare means the body corporate established by section 68.
Commonwealth, in relation to persons employed by a Commonwealth authority, has the additional meaning given in subsection 5(7).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
employee has the meaning given in section 5, and also applies to persons 65 years of age or older.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of that employment;
but does not include any such disease, injury or aggravation suffered by am employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
5 Employees
(1) In this Act, unless the contrary intention appears:
employee means:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship…
7 Provisions relating to diseases
(1) Where:
(a) an employee has suffered, or is suffering, from a disease or the death of an employee results from a disease;
(b) the disease is of a kind specified by the Minister by notice in writing as a disease related to employment of a kind specified in the notice; and
(c) the employee was, at any time before symptoms of the disease first became apparent, engaged by the Commonwealth or a licensed corporation in employment of that kind;
the employment in which the employee was so engaged shall, for the purposes of this Act, be taken to have contributed in a material degree to the contraction of the disease, unless the contrary is established.
(2) Where an employee contracts a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the disease first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed in a material degree to the contraction of the disease if the incidence of that disease among persons who have engaged in such employment is significantly greater than the incidence of the disease among persons who have engaged in other employment in the place where the employee is ordinarily employed.
(3) Where an employee suffers an aggravation of a disease, any employment in which he or she was engaged by the Commonwealth or a licensed corporation at any time before symptoms of the aggravation first became apparent shall, unless the contrary is established, be taken, for the purposes of this Act, to have contributed in a material degree to the aggravation if the incidence of the aggravation of that disease among persons suffering from it who have engaged in such employment is significantly greater than the incidence of the aggravation of that disease among persons suffering from it who have engaged in other employment in the place where the employee was ordinarily employed.
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
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…
Issues
5.The issues are the following:
·What was the date of the injury for the purposes of section 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act)?
·Whether Dr Khoo suffered a disease, namely, a psychological injury outside the boundaries of normal mental functioning and behaviour?
·Whether that disease was materially contributed to by his employment with the Therapeutic Goods Administration?
·Whether Dr Khoo’s condition was the result of the failure to obtain a benefit in connection with his employment?
·If Dr Khoo did suffer a disease, namely, a psychological injury under section 14, whether that disease had resolved at any time prior to October 2006 when he ceased working at TGA?
·Whether Dr Khoo suffered an aggravation of a pre-existing disease, namely, a psychological injury in the period leading up to October 2006?
·If so, whether the aggravation was contributed to in a material degree by Dr Khoo’s employment with the Therapeutic Goods Administration?
·If so, whether the aggravation was materially contributed to by his failure to obtain a benefit in connection with his employment?
·Whether Comcare is liable to pay compensation to Dr Khoo under section 14 of the Act in respect of an injury which resulted in Dr Khoo’s incapacity for work or impairment?
Evidence
6.Dr Khoo was born and educated in Singapore. He had an undergraduate degree in aeronautical engineering and a PhD in bioengineering from universities in the United Kingdom. He attended university in Australia for three years in the 1990s studying for a Bachelor in Laws but did not complete the qualification. After he graduated he was employed in Singapore and then came to Australia in 1989 where he worked in Queensland before moving to Canberra in 1991 to work with the TGA.
7.Dr Khoo commenced employment with the Department of Health and Ageing on 3 January 1991 and became an auditor in the GMP section in 2002. He was employed as an auditor until he ceased work for stress-related reasons in October 2006. He then took leave which ran out in March 2008. He is currently on leave without pay.
8.The GMP section is responsible for auditing manufacturers of medicines, medical devices and blood and tissue products, to ensure compliance with Australian regulations before they receive approval from the TGA to be marketed in Australia. The three areas of specialty - medical devices, medicines/pharmaceuticals (medicines), and blood and tissue products - have been managed by separate teams following a restructure of the organisation in 2005. Prior to that time, auditors were not divided into teams and in particular, auditors within the medicines stream typically also conducted audits in the medical devices stream. Since 2005, auditors may be assigned to one or more of these streams. Management prefers auditors to be able to work in more than one team. Auditors are required to travel extensively, including overseas, to conduct audits. Time spent on audits typically occupies several weeks at the location of the manufacturer, followed by a period of weeks in the workplace writing up audit reports.
9.Dr Khoo is qualified as a Lead Auditor for medical devices. He wanted to be a Lead Auditor for both medicines and medical devices, and alleges that this ambition was thwarted by the bullying and harassment to which he was subjected by others in the GMP section, in particular, his immediate supervisor since January 2006, Dr Dragana Milic, GMP Audit Manager, and Mr Anthony Gould, Deputy Chief and, from 2003, Chief GMP Auditor.
10.Dr Khoo also faced a number of other stressors in the period before October 2006. These included the separation from his wife in 1997, her diagnosis with ovarian cancer in 2002 and his virtual loss of contact with his daughter between then and the death of his ex-wife in 2005. After his ex-wife’s death, he became sole carer for his then 11 year-old daughter, and the two went through a settling down period which lasted about 6 months. At that time, Dr Khoo sought to be moved to another position within TGA involving less travel. When that was refused, he managed his daughter’s care by calling on friends and by putting his daughter in boarding school for short periods at a time. Dr Khoo maintains, and the Tribunal accepts, that although he was separated from his wife, the separation was mutual and had no lasting emotional effect on him.
11.In addition to the depressive illness and anxiety which precipitated Dr Khoo’s leaving work in October 2006, he also suffered from thyroiditis, diagnosed in December 2006. However, the condition cleared up by March 2007 and has not recurred. In a report by Dr Khoo’s treating doctor dated 16 June 2008, Dr Andrew Pitcher expressed the opinion that Dr Khoo’s thyroid condition was caused by the exacerbation of his injury. Earlier in 2005. Dr Khoo had undergone a colonoscopy and treatment for haemorrhoids. A year later, he underwent an operation for the condition and had time off work for seven weeks between July and August 2006.
12.Since ceasing work in October 2006, some of Dr Khoo‘s symptoms have not disappeared. He remains on medication for depression and experiences panic attacks if he receives any communication from the TGA, has to drive past the TGA building, or has to answer the door unexpectedly. He avoids going to shopping centres as much as possible but has persisted with his horse riding and does interact with a group of fellow riders.
13.An event which occurred in September 2004 was also unsettling for Dr Khoo. He and two other auditors were scheduled to attend a course run by Health Canada in Singapore. The participants were assessed and Dr Khoo got a mark of 68. The pass mark was 75. He was told while in Singapore by an organiser of the course that he had failed to complete two pages of the test. Dr Khoo claimed the two pages were stuck together and he had inadvertently not completed them. This was the first time a GMP auditor had failed the test.
14.In 2005, Dr Khoo was asked to provide a report to his supervisor. The report, which was only in draft form, was criticised by Dr Mark Doverty, who joined the TGA on 1 August 2005 as Assistant Secretary and remained until mid-2008. A number of the auditors in the GMP section did not have English as their first language and writing skills were an issue within TGA. Following this event, Dr Khoo attended a report writing course in 2005 which he passed satisfactorily and his writing skills improved.
Lead Auditor status
15.Within the auditor group, there are several categories, the highest being lead auditor. To become a lead auditor requires training. Auditor training in the GMP section is covered by a policy, Standard Operating Procedure (No 101.3) (SOP) dated 27 August 2001. The document sets out the procedures for training and assessment and applies to all GMPALS (Good Manufacturing Practice and Licensing Section) auditors.
16.Auditors are defined in the document as a ‘lead auditor’, a ‘trainee lead auditor’ or an ‘auditor’. A ‘lead auditor’ is ‘able to manage an audit team and co-ordinate all aspects of a complete audit.’ A ‘trainee lead auditor’ is defined as an auditor ‘in training to be a lead auditor and meeting the criteria for a Lead Auditor other than the auditing experience criteria.’ An ‘auditor’ is a person who is able to ‘perform all or part of an audit as a member of an audit team.’ The evidence also referred to a category of ‘sole auditor’. The SOP does not use the term ‘sole auditor’ and the Tribunal was informed that this was an informal description for an auditor conducting an audit on their own. The difference between a ‘lead auditor’ and a ‘sole auditor’ is that a lead auditor is in charge of a team, while a sole auditor conducts an audit alone, that is, unsupervised. Thus, a sole auditor is also considered a lead auditor, since only a lead auditor can carry out an unsupervised audit.
17.The SOP outlines the steps to obtain lead auditor status. In summary, trainee lead auditors first participate in audits as an observer. Trainee lead auditors are then assigned particular audit tasks within an audit team under supervision. Next, trainee lead auditors perform a lead audit under supervision of another lead auditor. Lead Auditor status is then confirmed if the Chief or Deputy Chief, GMP Auditor, ‘signs off’ the trainee as a lead auditor. A pre-requisite is that the trainee has kept training records and had each section completed and signed off by the supervisor or Chief GMP Auditor. The final step is for a trainee lead auditor to be observed and supervised, if necessary, by either the Chief or Deputy Chief GMP Auditor. The SOP requires that ‘[t]he last audit as a trainee lead auditor must be observed (and supervised if necessary) by the Chief or Deputy Chief GMP Auditor’. Lead auditor status is assigned following this observed audit 'only if significant corrective action or further practical audit training is not required.’ The SOP also states: ‘[all] training must be tailored to the needs of the trainee and… this procedure must remain flexible and must be applied at the discretion of the Chief GMP Auditor.’
Dr Khoo’s auditor status
18.Dr Khoo successfully completed the theoretical training element of the lead auditor course on 11 July 2002. He was assigned to the GMP section in January 2003. He completed the orientation and preliminary elements of the training by 17 July 2003. His Practical Auditing records for the period 28 January 2003 to 24 June 2003 show him, with one exception, as ‘Trainee Lead Auditor’ for both medical devices and medicines/pharmaceuticals for the period 18 March 2003 to 17 April 2003. From 28 May 2003 to 24 June 2003 he is listed as ‘Auditor (Lead under supervision)’ or ‘Trainee lead auditor’. The final page, however, lists him as ‘Lead Auditor’ for a medicines audit of Pharmaxis Pty Ltd, conducted on 25 June 2003. Evidence was also provided that, as lead auditor, he conducted a routine audit and an audit for extension of licence of Comax-Pharma Pty Ltd on 21-22 July 2003, and an audit, on 23 July 2003, of Aussie Tucker Technik Pty Ltd. However, entries in the Practical Auditing records for audits conducted on 30 June 2003, and 1 & 2 July 2003 have the words ‘Lead’ crossed out, and ‘Trainee’ inserted. These entries were signed off by Dr Milic, Dr Khoo’s immediate supervisor.
19.In addition to the signatures of the supervising auditors, each page of the Practical Auditing record is signed by Mr Bob Tribe, Chief GMP Auditor until he retired towards the end of 2003. The final page is signed by Mr Tribe and dated 17 July 2003. Comcare tendered a further page of his Practical Auditing records showing audits on 20-21 August 2003, and 22 August 2003. Dr Khoo is referred to in these entries as ‘Trainee Lead Auditor’. Since neither entry is signed off by the supervising auditor, the Tribunal gives no weight to these pages of the record.
20.Dr Khoo said he understood that Mr Tribe’s sign-off for his practical training records on 17 July 2003 indicated he qualified as a lead auditor for both medical devices and the medicinal/pharmaceutical streams. There is evidence to support his belief. First are the records showing Dr Khoo as lead auditor for the audits of Pharmaxis Pty Ltd on 23 June, of Comax Pharma Pty Ltd on 21-22 July 2003, and Aussie Tucker Technik Pty Ltd on 23 July 2003.
21.Second are events connected with Dr Khoo's professional development assessment. On 24 July 2003, Mr Tribe had signed Dr Khoo’s Personal Development Scheme form, completed by Dr Khoo in March 2003, and assessed him as ‘partially effective’. In response to Dr Khoo’s concerns about this assessment, there is a note dated 25 July 2003 by Dr Khoo showing he discussed the assessment with Mr Tribe, who explained that since Dr Khoo had only joined the section on 9 January 2003, Mr Tribe had no option but to give him a ‘partially effective’ rating since he was new to the section and he could not be fully effective while under training. This note is confirmed by a handwritten message from Mr Tribe to Dr Khoo on 31 July 2003 which stated:
Guan, I have spoken with Rita [Maclachlan – Head of the Office of Devices, Blood and Tissues] and indicated that while I had no option but to rate you partially effective because you were a trainee during the assessment period, I was pleased with your performance as a trainee and you have now progressed to auditing on your own.
22.Finally, evidence was given at the hearing indicating that Mr Tribe did not generally follow the practice required by the SOP procedures of supervising an audit as the final step in the assessment process for lead auditor. According to Dr Khoo, the only other person who had undergone an observed audit was Mr Andrzej Wozniak, an auditor in the Canberra office who joined the GMP section about the same time as Dr Khoo, and his was only a partial audit.
23.This evidence included the acknowledgment by Mr Gould at the hearing that it was possible for the Chief Auditor to authorise a deviation from a procedure and do something the procedure did not specify. The Tribunal notes this is consistent with the principle in the SOP that the procedure is at the discretion of the Chief GMP Auditor. Dr Wozniak, in evidence to the Tribunal, said he had not completed an observed audit prior to being signed off as lead auditor for medical devices and as lead auditor medicines. He said feedback was only provided to Mr Tribe by the lead auditor who observed him, rather than the observation being conducted by Mr Tribe in person. It was Dr Wozniak’s recollection that the only document signed in his case when he qualified as a lead auditor was his training record and this was regarded as sufficient compliance with the quality system.
24.The evidence of Mr Andrew Lattimore, a GMP auditor from 1997, who was based in the Canberra office of the TGA, was that the process for maintaining training records during Mr Tribe’s period as GMP auditor was not particularly stringent, although he said he was not aware of auditors being signed off without undergoing an observed audit. He also said he would have understood that Mr Tribe’s handwritten note to Dr Khoo, extracted above, would indicate that Dr Khoo was suitable to be a lead auditor. Mr Andrew Muir, an auditor in the GMP section, Canberra office, since 1997, said in evidence said Mr Tribe’s signing off of Dr Khoo’s training record would have indicated that Dr Khoo was signed off as lead auditor for both medicines and medical devices. To Mr Lattimore’s recollection, Mr Tribe did not undertake a final observed audit in relation to himself. Dr Milic noted that her observed audit in blood products during Mr Tribe’s incumbency as Chief GMP Auditor was undertaken by a senior blood and tissue auditor, not by Mr Tribe.
25.On the basis of this evidence, the Tribunal finds that Dr Khoo's belief that he had been signed off as lead auditor for both medical devices and medicines either on 17 July 2003 or at least on 31 July 2003 was justified. This finding is also supported by Mr Gould's evidence at the hearing that he always accepted that Dr Khoo was a lead auditor for medical devices, and he had not observed Dr Khoo for the purpose of qualifying him as lead auditor when he accompanied him on a medical devices audit in September 2003. In response to a question at the hearing about the status of that audit Mr Anthony Gould said it was the practice for observation to be undertaken of a lead auditor as part of the auditor’s ongoing training and such observed audits were not for the purpose of assessing lead auditor status. It was clear from the evidence of Dr Khoo and others that this was not their understanding of the effect of Mr Gould’s September 2003 observed audit of Dr Khoo in a medical devices matter. Nonetheless, in light of Mr Gould’s statement, and the short time frame between what would otherwise have been a removal of Dr Khoo’s status as lead auditor medical devices in August 2003 and Mr Gould’s reinstatement of that status in September 2003, the Tribunal accepts that Dr Khoo retained his lead auditor status for medical devices confirmed by Mr Tribe in July 2003.
26.However, in August 2003, Mr Gould did undertake an observed audit of Dr Khoo in medicines for the purpose of the final step in the SOP process, that is, accreditation as lead auditor. Afterwards, Mr Gould told Dr Khoo that he had not qualified as lead auditor medicines due to 'his apparent lack of understanding of the processes of manufacturing of pharmaceuticals and his inability to ask meaningful questions during the audit'. There is no evidence that Mr Tribe, as Chief GMP Auditor, questioned Mr Gould’s assessment. In October 2003, Mr Tribe ceased being Chief GMP Auditor and Mr Gould took on the role.
27.For completeness, the Tribunal notes that in addition to Dr Khoo’s training records, a Requested Audit History of Dr Guan Khoo (2003 and 2004) was prepared for the hearing which also listed Dr Khoo's audit program. The document is not signed off. Entries cover audits undertaken by Dr Khoo between 28 January 2003 and 9 December 2004. The entries correspond substantially with Dr Khoo’s training records, except that for all audits to 30 June 2003, he is described as a ‘Trainee lead auditor’.
28.There are, however, some differences between Dr Khoo's record and the Requested Audit History document. For a medical devices audit dated 1-2 July 2003, he is described as an ‘observer’, and for the medicines audits of Comax Pharma Pty Ltd on 21-22 July 2003 and of Aussie Tucker Technik Pty Ltd on 23 July 2003, Dr Khoo is listed as ‘Sole auditor’. A medicines audit on 20-21 August 2003 again lists Dr Khoo as ‘Trainee lead auditor’. However, a medicines audit on 22 August 2003 shows Dr Khoo as ‘Lead auditor’, with Ms Merryn Hagan as ‘Observer’; and a medical devices audit on 22-23 Sept 2003 lists Dr Khoo as ‘lead auditor’ with Mr Gould as ‘Observer’. Subsequently, Dr Khoo is listed as ‘lead auditor’ for all medical devices audits between October 2003 and December 2004. However, medicines audits in October 2003 and December 2003 show Dr Khoo only as ‘trainee Lead Auditor’. The compilers of this document warn that it may not be entirely reliable given some inconsistencies in the databases from which the material was sourced. The Tribunal accepts that the weight to be given the document is affected by this qualification and where there are discrepancies, the Tribunal relied on the signed training records of Dr Khoo rather than the document prepared for the hearing.
Medical evidence
29.Dr Pitcher, Dr Khoo's treating general practitioner from 1986, first refers to depression in his clinical notes in 1999. His notes on Dr Khoo record him prescribing Zoloft in September and then October 2002. No further reference to depression occurs in his notes until 6 November 2006. In a letter to Comcare dated 18 February 2008, Dr Pitcher diagnosed Dr Khoo as suffering ‘reactive depression and anxiety’ which are ‘attributed to work place issues’ in the two years to 2006. In a further report to Comcare dated 16 June 2008, Dr Pitcher noted that ‘[a]s early as 2004, [Dr] Khoo consulted me and appeared to have suffered from depressive mood reacting to the mismanagement, preferential and unfair treatment in his workplace. [Dr] Khoo was concerned about the inappropriate and unreasonable behaviours of his supervisors leading to unsound decisions and treatment of staff. He commenced antidepressant medication then.‘ Some of this is due to ‘unjustified and unnecessary comments … about [Dr Khoo’s] work or his capacity to work'. Some he said ‘could be attributed to his racial background where he has difficulty in expressing himself.’ His report noted that Dr Khoo ‘has pessimism about the future. He has ideas of worthlessness. He has low self esteem with difficulty in being assertive.’
30.Dr Radin Ahmad, an occupational physician, in his report of 29 October 2007 to the Rehabilitation Case Manager, Department of Health and Ageing, said Dr Khoo had two significant medical conditions (which he could not specify for confidentiality reasons), 'which … significantly affect his work capacity and .... have not reached maximum medical improvement’. He diagnosed Dr Khoo with an adjustment disorder with chronic depression/anxiety due to ‘several psychosocial issues at work’ which ‘are [a] significant barriers to a successful return to work plan.’
31.Ms Vanessa Hamilton, psychologist, in her report of 5 February 2009, referred to Dr Khoo's ‘marked symptoms of anxiety and depression’ which are ‘clinically elevated (severe range)’ and date from 'approximately two - three years ago,’ that is, since 2006-2007. She diagnosed his condition as ‘Social Phobia, with panic attacks and major depressive disorder (MDD), current moderate depressive episode’, but said that Dr Khoo persevered ‘despite increasing psychological (& physical) symptoms associated with perceived workplace stressors, until he could no longer cope… [which] cumulated in his cessation of work (TGA) in October 2006'. Her report refers to Dr Khoo’s family situation but concludes ‘despite this he continued to function effectively and reports no significant emotional difficulties’. She notes that his stress levels were ‘within the normal range’ since he had left work, indicating that they have ‘now generalised to outside of the workplace and continue to interfere with his capacity to function and enjoy life.’ Her report concludes his ‘current mental health concerns appear to be resultant from workplace stress’ and in her report of 12 December 2008, noted that it was unclear when the condition would be resolved.
32.Dr Jessica Rose, a psychologist, in her report of 16 May 2008 diagnosed ‘reactive anxiety and depression’ and said she was unable to say when the condition would be resolved.
33.Dr Ramon Gupta, a senior specialist in psychiatry with ACT Health in his report of 13 May 2008, diagnosed Dr Khoo as having a ‘major depressive disorder’.
34.Dr Graham George, a psychiatrist with a practice in Canberra, in his report of 5 March 2008, diagnosed Dr Khoo's condition as ‘major depression with anxious mood’ and said that ‘It is impossible to know when the effects of his condition will cease’. He also mentioned that as at March 2008 Dr Khoo was incapable of any kind of work, nor then of rehabilitation. In his supplementary report of 20 April 2009, he did not resile from this diagnosis.
Consideration
Whether Dr Khoo suffered a disease, namely, a psychological injury outside the boundaries of normal mental functioning and behaviour?
35.The medical evidence establishes to the Tribunal’s satisfaction that Dr Khoo was suffering a psychological condition, namely, either adjustment disorder with chronic symptoms of depression and anxiety, major depressive disorder, or reactive depression and anxiety.
36.It is not an issue that Dr Khoo’s condition was ‘outside the boundaries of normal mental functioning’.[2] In describing Dr Khoo’s psychological condition as ‘chronic’ and ‘major’, the medical experts have assigned labels which indicate that his condition was ‘unusual’, and not ‘within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances’.[3]
[2] Comcare v Mooi (1996) 69 FCR 439 at 444.
[3] Ibid.
What was the date of the injury for the purposes of section 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act)?
37.The date of injury for the purpose of section 7(4) of the Act is claimed by Dr Khoo to be Wednesday, 25 October 2006 when he first became incapacitated for work. Dr Khoo has not worked since Tuesday 24 October 2006. Counsel for Comcare conceded that that was the first date which could be considered. An alternative date is 6 November 2006, when Dr Pitcher first diagnosed Dr Khoo with depression. In the event, choice of either of these dates will not affect the outcome. On that basis, the Tribunal finds that the date of injury was 25 October 2006.
Whether that disease was materially contributed to by his employment with the Therapeutic Goods Administration?
38.Comcare contended that Dr Khoo’s condition was not materially contributed to by his employment, but rather by non-employment stressors. At most, Comcare conceded that Dr Khoo’s depression may have been aggravated by various factors – psychosocial, ill health, and ill-treatment at work between 2003 and 2006. However, it was contended that even if work factors aggravated his injury, they did not make a material contribution to his injury. Alternatively, it was argued that Comcare had no liability for the condition since the injury resulted from Dr Khoo’s failure to obtain a ‘benefit’ in accordance with the proviso to the definition of ‘injury’ in section 4(1) of the Act. The second of these issues is discussed separately under the next sub-heading.
39.The test for ‘material contribution’ in Comcare v Sahu-Khan[4] requires that the connection be more than de minimis. Taking into account the dangers identified by Finn J in Sahu-Khan in paraphrasing legislative expressions, the case is authority for the principle that ‘a material contribution’ requires at least that the contribution be ‘in a material degree; substantially, considerably’[5], taking into account ‘all relevant contributing factors‘.[6]
[4] Comcare v Sahu-Khan (2007) 156 FCR 536.
[5] Id at [15].
[6] Id at [16].
40.That contribution may also be a matter of perception. As von Doussa J said of the test for material contribution in Weigand v Comcare Australia:[7]
… it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.
[7] Weigand v Comcare Australia [2002] 72 ALD 795 at [31]. Followed by Deputy President Jarvis in Re Albanese and Comcare [2004] AATA 768 at [68].
41.As Weigand indicates, the ‘incident or state of affairs’ must have some grounding in fact. As von Doussa J said: ‘A perception held by the employee will meet a ”reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.’[8] In combination, these principles mean that if someone holds a perception, even if irrationally based, that may still be compensable if it is founded in fact.
[8] Id at [24].
42.There is certainly medical and other evidence that Dr Khoo had a perception that events in his workplace were affecting him adversely. His claims of harassment, bullying and being isolated attest to that. The issue is whether those perceptions are founded in fact.
43.The Tribunal accepts that Dr Khoo had been dealing with a number of matters in his private life which undoubtedly affected him. These included his separation from his wif,; the refusal by his ex-wife for a period for Dr Khoo to have regular contact with his only daughter, his wife’s illness for three years, and finally death due to ovarian cancer, the adjustments he needed to make to his lifestyle when his daughter came to live with him after his ex-wife’s deat,; and the litigation with his sister-in-law over the house in which his ex-wife had lived, finalised in Dr Khoo’s favour early in 2006. The Tribunal does not propose to dwell on these matters. As von Doussa J said in Weigand:
It is sufficient that an incident or state of affairs [in the workplace] contributes in a material degree. That may be the case even where there are a number of other contributing factors, and other factors that have contributed to a greater degree.[9]
[9] Id at [34] (per von Doussa J).
44.The focus of the discussion will be on whether there were events in the workplace which materially contributed to Dr Khoo’s depressive condition, that is, which contributed more than to a de minimis degree according to the principles in Sahu-Khan.
45.There is medical evidence in support of Dr Khoo’s perceptions of events in the workplace. Although the Tribunal concedes that the reports of medical practitioners largely reflect information related by a patient, they do represent a contemporaneous record of the key issues in the patient’s mind as assessed by their medical specialists.
46.Dr Pitcher’s notes from 25 January 2007 refer to Dr Khoo’s problems with personnel at TGA. There is a reference to Dr Khoo being ‘sabotaged by Boss woman’, that ‘she is blaming Guan about poor report’. On 13 April 2007, there is a reference to ‘problems with woman supervisor at work’. By 26 September 2007, he has mentioned he ‘wants to move somewhere else at work’ and in the consultation of 13 November 2007, the notes states ‘Agreed that Guan fit to return to work in different environment not in contact with Ms Dragana Milic and Mr Anthony Gould and Mr Mark Doverty.’ These and subsequent references in the notes in February 2008, June 2008, July–September 2008 and November 2008 all relate to work problems and disappointments about rejection by Comcare of Dr Khoo’s claim for compensation.
47.In his letter to Comcare of 16 June 2008, Dr Pitcher confirmed that Dr Khoo’s depression was due to events at his workplace. He noted Dr Khoo’s domestic situation but said ‘[t]here is no evidence that his family circumstances have contributed to his current injury’, and concluded: ’there is only one factor that contributes to Mr Khoo’s injury, that is, his employment.’
48.Dr Gupta in his report of 13 May 2008 states Dr Khoo’s injury ‘is due to the work related stress and due to the death of his wife.’
49.Dr George in his report of 5 March 2008 said there were three major causative factors: the first was work circumstances; the second related to psychosocial issues, namely the illness of his wife between 2002 and her death in May 2005, and the recommencement of looking after his daughter, and its impact on his life; and the third factor was that he had not been treated consistently with antidepressant medication. The report stated that ‘at the present time [Dr Khoo’s] employment has contributed to his condition in a significant and lasting manner.’
50.In his supplementary report of 20 April 2009, following his thorough reading of the voluminous reports and other material for the hearing, Dr George gave greater emphasis to the psychosocial factors which may have been causative of Dr Khoo's condition. Nonetheless, he did not resile from his earlier report that of the’ three major factors contributing to his depressive disorder’, work was the first factor. As he said Dr Khoo’s condition:
…related to his work circumstances whereby he believed that he was actively discriminated against and harassed by a supervisor whom he identified as Ms Milic. He believed that she directly blocked his vocational path over time. There were other factors also which he mentioned which indicated to him that he was a victim of bullying and harassment.
51.Ms Jessica Rose in her report of 16 May 2008 noted ‘some situational challenges outside the workplace during [2002-2006]’ but said they had not ‘significantly contributed to the illness he experienced in 2006.’ As she said:
I believe that Dr Khoo’s high levels of anxiety leading to a less resilient immune system, and subsequent thyroiditis in 2006 resulted from an extremely stressful undermining and confusing work environment.
52.Ms Vanessa Hamilton in her file notes of December 2008 refers under ‘issues’ to ‘workplace stress and harassment’ and in her report of 5 February 2009 notes ‘a history of increasing anxiety related to workplace issues, dating back to around 2004.’
53.Ms Josephine Kulesz, TGA Human Resources Manager between 1997 and 2007, recalled a conversation with Dr Khoo either in December 2003 or early 2004 in which he told her ‘he was unhappy with the way he was being supervised at that time.’ She recalls talking to him about his concerns for ‘future opportunities if he wasn’t given Lead Auditor status’, and his failure of the Health Canada exam in Singapore. She said she became more involved with him in 2005-06 and ‘became aware that he was extremely unhappy with how he was being managed, and he believed that he was not getting the same opportunities as other people.’ She also said ‘he did indicate he felt he was under pressure from his supervisor and was concerned that she continually found fault with his work.’ She also noted ‘there was a period when Dr Khoo requested leave and it was denied’ although she could not recall him making specific complains about being bullied or harassed. As she concluded ‘My impression was that Dr Khoo was very unhappy in the workplace. … He wanted to become a medicinal auditor, and really wanted to be able to do both medical devices and medicinal auditing.’
54.These reports clearly support Dr Khoo’s perception that it was events at his workplace which caused his breakdown in health to the extent that he needed to leave work.
Was there a factual basis for Dr Khoo’s belief that he was unfairly treated?
55.Dr Khoo complained that he was:
·excluded from training, particularly in medicines/pharmaceuticals;
·isolated from the audit team;
·excluded from internal meetings, including a meeting about one of his audits;
·inappropriately treated, and had been described as ‘a useless Asian’, ‘a liability’, and ‘a turkey’; and
·pressured by his supervisor, Dr Milic.
56.He also complained that:
·his disqualification from lead auditor medicines status following a supervised audit was premeditated and he was singled out for observation;
·he was denied feedback about his performance; and
·he was humiliated by the publication within the section of the fact that he failed.
57.The Tribunal notes this was a time of some turmoil in the GMP section following the widely reported ‘Pan Pharmaceuticals’ problems, the ANAO report of the TGA, the retirement of Mr Tribe as Chief GMP Auditor, and the restructuring of the section by its new Assistant Secretary, Dr Doverty. Ms Jessica Rose in her evidence referred to TGA as a ‘confusing work environment’. An example of the changes is the enhanced emphasis on following procedures for accreditation. These developments would have compounded the uncertainties experienced by Dr Khoo and increased his anxiety level. The Tribunal was conscious of the many occasions at the hearing when Dr Khoo said he sought feedback on his performance and instruction on how to improve, but believed his call for assistance was not heeded.
58.Training. Dr Khoo claimed that he was excluded from training sessions, particularly in medicines. The Tribunal notes, however, that Dr Khoo was offered the Health Canada training in Singapore in September 2003. Dr Milic also said that Dr Khoo was scheduled to attend training in November 2006 on medicine-related matters but he had left TGA by that time. The Tribunal notes that there was no evidence that Dr Khoo knew that this training had been proposed. Mr Gould was also instrumental in arranging for Dr Khoo to undertake a professional writing course in 2004.
59.At the same time, following Dr Khoo’s return from the Health Canada training in Singapore, Dr Milic indicated Dr Khoo was not permitted to attend a meeting the following week to do with the standards for medical devices because he was needed for operational audits.
60.Dr Milic denied that she had told Dr Khoo not to attend the training scheduled for February 2004 since he would fail. Her view was supported by Mr Gould. She claimed the ‘failure’ comment was nonsense since there was no assessment. However, it was Dr Khoo’s view that the previous November, when the training was first being discussed, it was proposed that the session was to be ‘textbook’ training with a test at the end. If that was the case, Dr Milic’s alleged remark would have had more force. Dr Khoo said the proposed ‘textbook’ style training was changed between November 2003 and February 2004. The Tribunal finds that Dr Khoo did not attend the February training, although he was apparently only scheduled for audits on 2-3 and 23-25 February 2004. No evidence was provided of the days on which this training session was conducted so it is not clear whether Dr Khoo could have attended. However, the evidence suggests he would have been discouraged from attending even if he was available. Dr Milic said she was aware of Dr Khoo's desire to be trained in medicines auditing, but she said the training needs were in the area of medical devices and this had priority.
61.Mr Gould agreed that in the period 2004-06, following the appointment in 2004 of new auditors for pharmaceuticals, training would have been provided for them. He acknowledged that Dr Khoo had specific technical gaps and that Dr Khoo could have been included but said that to take Dr Khoo offline for training ‘was just not possible at that particular time’ and ‘did not make operational sense.’ Dr Khoo was told he would be given training when the opportunity arose. Dr Khoo at the hearing acknowledged that further training was at the Director’s discretion.
62.Ms Kulesz said that in conversations with Dr Khoo he had said 'he was not getting the same opportunities as other people.’ She also said: 'He was very upset when he failed the Health Canada test, and this had a tremendous impact on his self-confidence, self-esteem and how he felt others looked at his ability to perform his job.’
63.Dr Wozniak was not able to say that Dr Khoo was specifically excluded from training but did agree that prior to August 2005, there was a lack of objectivity so that not all within the group were provided with the same opportunities. Dr Doverty, who joined TGA on 1 August 2005 as Assistant Secretary and remained until mid 2008, noted that the staff when he joined had complained that training was disorganised and dysfunctional. Mr Roger Snaith, who became a medical devices auditor in 2004, based in Sydney, said he could not recall Dr Khoo being excluded from training, but his location in Sydney meant he was less likely to be aware of practices in Canberra.
64.On balance, there is evidence that Dr Khoo was discouraged from attending some training sessions. There may have been sound operational reasons for some exclusions, but the evidence does support Dr Khoo’s perception of being denied training opportunities.
65.Isolation. Mr Muir gave evidence that when Dr Khoo first started:
… due to a lack of office accommodation [Dr Khoo] was assigned an office in a different location. Subsequently he moved to an office in the main building area. I presume that when he was not auditing he would have been invited to participate in section meetings and training meetings but I cannot verify that. I am not aware of the applicant being excluded from such activities.
66.At the hearing, Mr Muir said he thought the location was downstairs and away from the audit section and he said 'I think I can understand feeling isolated, certainly while he was in a different location.’ Mr Lattimore said he recalled conversations in which Dr Khoo had said he felt isolated and excluded from the group. No other evidence was provided, except by Dr Khoo, of his being physically isolated, nor of the period for which he was located in an office away from the other GMP auditors.
67.The Tribunal finds, on balance, that Dr Khoo did have an office physically located away from the GMP auditors' offices when he was first appointed to the GMP section. In the absence of evidence of how long he spent in that location, the Tribunal assigns minimal significance to this fact.
68.Exclusion from internal meetings, including a review panel meeting. There is little evidence that Dr Khoo was actually excluded from internal auditor meetings. Dr Khoo has asserted this took place. Mr Lattimore, a GMP auditor in the Canberra office since 1997, said he could not recall any occasion when Dr Khoo was excluded from meetings. Similar evidence was given by Mr Snaith, who joined TGA in September 2004, and was allocated a role in the medical devices stream in October 2005 under the restructure organised by Dr Doverty. He said he could not recall him being excluded from any training, meetings or other group activities.
69.Dr Milic denied refusing Dr Khoo's request to attend a Global Harmonisation Taskforce (GHT) meeting in Canberra in 2004, but admits she may have suggested that since he had been in Singapore the previous week, operational audits needed to take precedence.
70.On 5 September 2003, an Audit Review Panel meeting was convened concerning the Comax Pharma Pty Ltd audit which Dr Khoo had conducted on his own. He was not invited to attend the meeting although Dr Khoo’s evidence was that it would be usual for the auditor to be present and the minutes recorded that he was there. Dr Khoo discovered the meeting had taken place in 2005. Dr Khoo claimed this error meant that Mr Gould had ‘fudged’ the minutes. Dr Khoo's concern arose from the fact that Mr M Lok, TGA finance manager, referred in an email to a Minute of that meeting which noted that Dr Khoo was ‘not qualified as a lead auditor according to the MAS quality system' for the audit of Comax-Pharma Pty Ltd. Dr Khoo said had he been at the meeting he would have corrected the statement since in his view he was qualified at that time.
71.The Tribunal notes that the comment in the Minute was technically correct since Mr Tribe’s handwritten note approving Dr Khoo as a lead auditor was dated 31 July 2003. The Tribunal also agrees with Dr Khoo that there was no apparent reason for Mr Gould to have ‘fudged’ the records. Nor is there any indication that any adverse consequences flowed from the comment. In those circumstances, the Tribunal gives minimal weight to this issue.
72.On balance, there is insufficient evidence to show that Dr Khoo was excluded, deliberately or inadvertently, from general meetings of the section, although he did not attend an Audit Review Panel meeting for one of the audits he had conducted on his own and was excluded from the GHT meeting in February 2004.
73.Inappropriate treatment. Dr Wozniak in his evidence said he was present at an unscheduled meeting between Dr Milic and Mr Gould at which Dr Khoo was referred to as a ‘liability’, a ‘useless Asian’ and a ‘turkey’ and Dr Milic said to Mr Gould that he should terminate Dr Khoo's employment. According to Dr Wozniak, his recollection about the ‘turkey’ statement in particular was clear, since, according to Dr Khoo, Dr Milic had previously referred to Dr Wozniak using the same term. Dr Milic denied making any such statement and her denial was supported by Mr Gould and by Dr Jan Michalicek, a GMP auditor based in the Sydney office.
74.Dr Doverty said he recalled Dr Milic stating to him that Dr Khoo could not be trusted, that he was a 'useless Asian' who could not write, and was a 'complete liability' when out on an audit. However, Dr Khoo had made no formal complaint to him about Dr Milic's behaviour and he never had any concrete evidence that Dr Milic acted inappropriately towards Dr Khoo. The Tribunal notes, however, that Dr Doverty had sufficient concern about the relationship between the two to organise a meeting between Dr Milic and Dr Khoo when he counselled them to display respect in the workplace and to act in a professional manner. He also stated in his written report that he was aware that Dr Khoo was fearful of Dr Milic and Mr Gould and he put this down to the fact that Dr Khoo was a 'quiet, timid and very reserved person.’
75.The Tribunal notes, however, that use of the term 'turkey' is not likely to be invented by someone of Dr Khoo’s background and the term could have been used by Dr Milic in a moment of frustration. The Tribunal, in light of Dr Wozniak's evidence and his recollection that Mr Gould appeared embarrassed that Dr Wozniak witnessed this conversation and suggested to Dr Milic they discuss the situation later, finds that the term was used in relation to Dr Khoo. The Tribunal makes no findings about the accuracy of the recollections of the other terms used. The Tribunal also finds that the relaying of information about the term to Dr Khoo would have reinforced his belief that Dr Milic was unhappy with his performance.
76.Pressure from supervisor, Dr Milic. Dr Khoo gave evidence that he felt pressured by Dr Milic, who, as the audit manager, was his immediate supervisor. Ms Kulesz's evidence was that 'he felt under pressure from his supervisor and was concerned that she continually found fault with his work.’ She also said that Dr Khoo had told her that 'he was extremely unhappy with how he was being managed' and was dissatisfied 'with [Dr Milic’s] management style'. Dr Wozniak said he recalled an incident in which Dr Milic was unhappy about Dr Khoo and his suitability for the job but he did not recall the specifics. Dr Doverty said he was aware that Dr Khoo was fearful of Dr Milic, but made no formal complaint to him. Mr Lattimore said he never witnessed any specific acts of bullying or harassment against Dr Khoo. Ms Kulesz said she believed Dr Khoo complained about Dr Milic and from time to time they disagreed about how Dr Khoo should be doing his work.
77.Dr Doverty also said Dr Milic was a supportive manager. Indeed, Dr Milic was particularly accommodating of Dr Khoo's needs for a more predictable travelling schedule once he took on the care of his daughter. She agreed to his request that he be scheduled to have three weeks out of the office and six weeks in the office to help him with his child care responsibilities. This was not the usual pattern for scheduling audits. In addition, she had assisted him with his application when Dr Khoo applied for an EL2 position, and offered to be a referee.
78.Dr Milic denied she had told Dr Khoo not to go for an assessment - presumably as lead auditor, medicines - as he would fail. She denied ever saying he would not get into medicines auditing because the TGA did not want to train him and did not need him. She also said that after an informal coffee between herself and Dr Khoo, arranged by Dr Doverty, he had seemed happier and for the rest of 2006, appeared to be well motivated and joined in team and branch activities. She also said she attempted to reschedule training sessions for further Health Canada training for Dr Khoo so he could resit the test, but Dr Khoo could not attend because he was unwell on both occasions. She also said she always rated him 'fully effective' in performance reviews. She did say he was not the best auditor in her team but that he was not useless, nor incapable. She denied assigning Dr Khoo meaningless tasks like finding files for her. She also denied complaining to Dr Doverty about Dr Khoo’s late lodgement of his recreation leave forms.
79.At the same time, she said she was not aware that Dr Khoo was suffering a stress-related illness when he left work in October 2006, and she fully expected him to return to work and had delayed audits in anticipation of his return. In other words, she had little insight into Dr Khoo's condition at that time.
80.There was also evidence about difficulties with Dr Milic's scheduling of audits. Undoubtedly as manufacturers were not always ready for scheduled audits, there was a need for some flexibility in the scheduling program. Mr Snaith said Dr Milic was an effective manager. Dr Michalicek said he did not think Dr Milic had acted unreasonably in scheduling Dr Khoo's audits. At the same time, there were also complaints about Dr Milic's lack of organisation. Mr Lattimore referred to a perception that audit priorities were changed at short notice and as a result there was insufficient time to prepare properly for, or complete, audits. Dr Doverty said he was aware of problems with Dr Milic's organisation of the audit schedule and that this made it difficult for Dr Khoo to arrange his domestic circumstances. Dr Michalicek confirmed that Dr Milic could be disorganised but explained that on the basis that she had a heavy workload.
81.The Tribunal finds that the relationship between Dr Milic and Dr Khoo was, at times, a difficult one. Dr Milic experienced a degree of frustration at Dr Khoo's level of performance. Dr Khoo found Dr Milic difficult to work with and experienced her management style as imposing pressure on him, particularly when she exhibited disorganisation in her work which impacted on Dr Khoo.
82.Disqualification was premeditated. Dr Khoo contended that Dr Milic was influencing Mr Gould against him, as indicated by his belief in the comment overheard by Dr Wozniak from Dr Milic to Mr Gould that he should sack Dr Khoo. Dr Khoo also interpreted passages in the statements of Dr Milic and other witnesses that he was better suited by background, for medical devices, rather than medicines, as also meaning there was a conspiracy to exclude him from medicines audits.
83.Mr Gould described any suggestion that his observed audit of Dr Khoo was part of a conspiracy between he and Dr Milic as ‘a ludicrous, ridiculous suggestion.’ Dr Milic also denied any conspiracy. Nonetheless, the Tribunal finds that Mr Gould had some prior concerns about Dr Khoo’s competence in the medicines area, and that this was the reason he undertook an observed audit with him. This finding is supported by that fact that Mr Gould did not question Dr Khoo's competence in the area of medical devices because, as he told the Tribunal, it was his understanding that Dr Khoo retained his lead auditor status in medical devices and the observed audit of medical devices in September 2003 which he undertook with Dr Khoo was not for the purpose of qualifying him as a lead auditor in that area. In other words, Mr Gould must have had some prior knowledge that Dr Khoo was not performing to standard in the area of medicines only. However, prior knowledge does not amount to a conspiracy and the Tribunal does not accept that there was any premeditated effort by Dr Milic and Mr Gould not to qualify him at the observed audit.
84.Dr Khoo was singled out for observation. Whether Dr Khoo was singled out for observation is not clear. It is apparent that up until the last quarter of 2003, when Mr Gould became Chief GMP Auditor, the practices under Mr Tribe had not followed closely the procedures for observation of audits. Although the procedures requiring a final observed audit had been introduced some time in 2001, the Tribunal finds that they had not been followed assiduously. Mr Gould noted that the observation process ‘hadn’t been the process from the beginning of the TGA and he was not sure when the practice began to be implemented.’ However, he said to the best of his knowledge, all new auditors would have been going through the process by August 2003. The evidence, however, does not establish this to be the case. It was probably Mr Gould’s becoming Deputy Chief GMP Auditor in August 2003, coupled with the tightening of procedures following the ANAO report on the TGA, which led to the change. On balance, the Tribunal does not accept that Dr Khoo was singled out for observation and that with the advent of Mr Gould, the observation procedure began to be implemented in all cases.
85.Denial of feedback. A theme in Dr Khoo’s evidence was that he was regularly denied feedback to help him improve his performance. The Tribunal observes, from Dr Khoo's evidence, that Dr Khoo was concerned about compliance with processes and tended to be upset when procedures were not followed to the letter. For example, Dr Khoo referred at some length to the fact that the SOP procedures permitted sign off as lead auditor at the final observed audit unless there was ‘significant corrective action or further practical audit training’ which was required. Dr Khoo's evidence was that following his disqualification in August 2003, his principal concern was that he did not receive feedback which would help him improve. As he said: ‘I need to know what are those significant deficiencies or corrective actions that I need to do.’ He said he had pleaded with Mr Gould: ‘tell me exactly what I have to do and I’ll fix it’ and ‘give me a corrective action to do.’ Similarly, after Dr Khoo had failed the Health Canada exam, he telephoned Health Canada staff to seek information to the extent that the Health Canada staff contacted TGA and requested them to ask Dr Khoo to stop badgering them.
86.The Tribunal is unable to find whether that feedback was ever provided by Mr Gould to Dr Khoo in August 2003. Dr Khoo said that immediately following the audit he had to return to Canberra and Mr Gould remained in Sydney. At that stage he had not received any detailed feedback. Dr Khoo also said that during the audit he and Mr Gould had meals together and no indication had been given to him that there was any problem with his performance. Mr Gould explained this on the basis that it was inappropriate for comment during an observed audit. Dr Khoo disagreed and said that the practice was for feedback during the audit, particularly to avoid any errors by the auditor.
87.At the hearing, there was discussion of whether a performance report was made by Mr Gould following his observation of Dr Khoo. No copy was provided to the Tribunal but counsel for Comcare asserted that she had sighted a copy of such a report. Mr Gould said he would have made one but has no recollection of it.
88.In the absence of documentary evidence that Dr Khoo received feedback following the observed audit, the Tribunal finds that the feedback process was not followed on that occasion and Mr Gould’s comment to the Tribunal that Dr Khoo could have asked for feedback if he had wanted it is not an adequate response.
89.Humiliation of Dr Khoo. Mr Gould said he would have told Dr Milic of Dr Khoo’s failure to qualify as a lead auditor, medicines since she needed to take that into account for the purpose of scheduling. However, he said it would have been ludicrous to suggest that he broadcast it publicly. However, the Tribunal notes that an event of that kind in a small section is likely to become well-known within a short time. Dr Khoo conceded at the hearing that it was an embarrassment to have failed the observed medicines audit. All the witnesses said they were aware that Dr Khoo was anxious to become a lead auditor, medicines and Mr Gould said that in 2003, to his knowledge, it was the first time that a GMP auditor was not qualified as a lead auditor in both medical devices and medicines. It became more common after the team arrangements were put in place in 2005.
90.Mr Lattimore said he recalled Dr Khoo telling him that Dr Doverty had been unhappy about the quality of a report by Dr Khoo and Dr Doverty had been 'quite angry during the meeting' and that Dr Khoo felt humiliated by this interaction.
91.Mr Gould said that Dr Khoo’s failing the Health Canada exam was a first for a TGA auditor with the consequence that he would not be able to do Health Canada work. This limited his value for the section. Ms Kulesz said that Dr Khoo ‘was very upset when he failed the Health Canada test, and this had a tremendous impact on his self-confidence, self esteem and how he felt others looked at his ability to perform his job’. Having observed Dr Khoo at the hearing, and in the light of this evidence, the Tribunal finds that this description of Ms Kulesz’s accurately describes the cumulative effect these failures had on Dr Khoo.
In summary, the Tribunal finds that Dr Khoo's perceptions may have been 'over-valued' at times but have sufficient grounding in fact for their impact on him to be sufficient for a finding that his psychiatric condition was materially contributed to by his employment with the Therapeutic Goods Administration.
Whether Dr Khoo’s condition was the result of the failure to obtain a benefit in connection with his employment.
92.An injury will not be compensable if it is due to ‘Failure by the employee to obtain a promotion, transfer or benefit in connection with … employment’.[10] Even if there are other causative factors contributing to an injury, the exclusion will operate if there has been a failure to obtain a benefit and that failure materially contributed to the injury.[11]
[10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4(1), as it applied in October 200.6
[11] Hart v Comcare (2005) 145 FCR 29; Wiegand v Comcare (No 2) (2007) 94 ALD 154.
93.The cases have established that the proviso to section 4 of the Act relates to failure to obtain a benefit, not failure to retain a benefit.[12] That means that as the Tribunal has found that Dr Khoo was appointed as a lead auditor for medicines and medical devices by Mr Tribe and then had that status removed by Mr Gould for medicines, his loss of that status does not fall within the proviso. However, that is not the end of the discussion on this issue.
[12] Comcare v Ross [1996] FCA 680; Re Davill and Australian PostalCorporation (1995) AATA 391.
94.What constitutes a ‘benefit’ has been the subject of considerable attention. The word is capable, as Heerey J said in Trewin v Comcare[13] of a broad meaning to include ‘anything that is for the good of a person or thing’.[14] The meaning is not confined to a benefit obtained as of right, and includes anything which is administratively or legally enforceable. For example, ‘benefit’ extended to obtaining permanency within the public service in Trewin. However, as Heerey J said in Trewin, the terms of the proviso:
… has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be deduced from the exception to the definition of ‘injury’ in s 4 is that parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable.[15]
[13] Trewin v Comcare (1998) 156 ALR 615.
[14] Id at 620.
[15] Ibid.
95.As Cooper J said in Golds v Comcare a failure to be given opportunities to demonstrate fitness for a better paid position, of a lack of training for a higher position, and to approve payment of a higher duties allowance, fall within the proviso.[16] However, each of these circumstances is relevant to something which was ‘legally or administratively enforceable’ within the ‘complex regime of … awards, workplace agreements and appeal systems’ which characterise Commonwealth employment. It is clear from Cooper J’s finding that he limited the meaning of ‘benefit’ – a term of wide connotation – by interpreting it in the context of its related statutory terms, ‘promotion’ and ‘transfer’.
[16] Golds v Comcare [1999] FCA 1481.
96.This approach also underpinned the warning given by Deputy President Hack in Re Millichap and Comcare[17] that some caution needs to be exercised in relation to the breadth of the notion of ‘benefit’. As Deputy President Hack said:
As the present case demonstrates, it may be possible to characterise every adverse incident of employment as a failure to obtain a benefit. At a superficial level it may be said that employees have ‘understandings or expectations’ that they will not be bullied in the workplace. Thus a condition resulting entirely from bullying is capable of being characterised as a failure to obtain the benefit of not being bullied. It seems absurd to suggest that such a condition would not be compensable.
[17] Re Millichap and Comcare [2009] AATA 127.
97.These cases establish that ‘benefit’ should be interpreted narrowly to avoid every adverse incident of employment being described as a failure to obtain a benefit and falling within the proviso to then section 4, thus undermining the beneficial intention of the compensation legislation.
98.It was not clear what ‘benefit’ Dr Khoo failed to receive. The suggestion was made at the hearing that the failure to attain lead auditor status for medicines was denial of a ‘benefit’. Certainly, as the evidence establishes, Dr Khoo was very disappointed about not having lead auditor medicines status. However, since there were no financial or promotional advancement from the status, all the auditors being at the same (EL2) level of seniority within the Australian Public Service, in accordance with the authorities, this disappointment does not fall within section 4.
99.It was suggested that failure to get suitable training was a failure of a benefit. Since the training which might have led to Dr Khoo being appointed as a lead auditor medicines would not have related to a promotion, the status again would not be covered by section 4. In addition, the Tribunal considers that as Re Millichap indicates, such a finding would make nonsense of the exclusion.
100.Another suggestion was that there might have been future opportunities and greater flexibility in having skills in auditing medical devices as well as medicines. Since Dr Khoo had been involved, until October 2003, in both medicines and medical devices audits, he must be taken to have had auditing skills in both areas, although he did not qualify as a lead auditor in the medicines stream. So that was unlikely to be failure to obtain a ‘benefit’ sufficient to justify exclusion of liability for employment-related injury.
101.It was also suggested that there were increased travel possibilities from having the dual qualification, and it was faintly argued that there might be financial benefits, presumably if the person’s travel allowance was not fully expended. Since Dr Khoo was concerned to restrict, not expand, his opportunities for travel, this last would not have benefited him and the financial advantage was not pressed. Any benefit from working in a ‘less bullying or harassing environment’ is also not what was intended to be covered by the exclusion as the extract from Re Millichap indicates.
102.The reviewable determination of 4 August 2008 states that the employee unsuccessfully sought a transfer to a position that would allow him to spend more time with his daughter, without the need for extensive travelling, and that this was a ‘failure to obtain a benefit in connection with his employment’. Whether this is the kind of benefit which is covered by the exclusion is contentious. However, the Tribunal does not need to enter this debate.
103.At the hearing there was no emphasis on whether Dr Khoo’s failure to obtain a transfer to another part of TGA occurred. There was no documentary evidence of any formal request, although it is referred to in the evidence of some witnesses as another example of Dr Khoo’s unsympathetic treatment at work. Dr Pitcher had recommended in November 2008 that Dr Khoo commence a graduated return to work but not with Ms Milic, Mr Gould and Mr Doverty. Ms Kulesz in her statement indicates that she tried to assist Dr Khoo to move to another section of TGA but for that to happen, Dr Khoo would have had to take a reduction in salary and level and he was reluctant on financial grounds to take that step. Otherwise there is little evidence that the transfer was seriously contemplated.
104.For such a failure to fall within the proviso to section 4, it would also have been necessary to establish that the failure made a material contribution to Dr Khoo’s condition. Dr Khoo did not refer to it in his evidence and whether it was ever a serious possibility is unknown. In the absence of any such evidence, the Tribunal finds that this failure did not fall within the proviso to section 4. In summary, the Tribunal finds that there is no discernible ‘benefit’ which could activate the proviso to section 4 of the Act.
If Dr Khoo did suffer a disease, namely, a psychological injury under section 14 whether that disease had resolved at any time prior to October 2006 when he ceased working at TGA.
105.Dr George’s 7 April 2009 report refers to file material indicating that Dr Khoo had suffered a depressive disorder in the 1990s as well as in 2002 around non-access to his daughter. Dr George concluded that Dr Khoo may have had a predisposition towards depressive disorder. Nonetheless, in his April 2009 report he also noted, after discussion of the statements of some of the witnesses, ‘in light of what was said... Mr Khoo may well have been developing a depressive disorder in those 12 months prior to his leaving work’. This comment suggested by implication that Dr George considered Dr Khoo may have recovered from his earlier depressive illness some 4 years earlier but was experiencing a recurrence in the twelve months to October 2006.
106.Dr Pitcher’s medical notes confirm that Dr Khoo was treated with anti-depressant medication in 2002 and in October 2002 he was referred to Dr Ann Harrison, a psychologist for depression. He did not again prescribe an anti-depressant medication until 2006. Nonetheless, in his report of 16 June 2008, Dr Pitcher said:
As early as 2004, Mr Khoo consulted me and appeared to have suffered from depressive mood reacting to the mismanagement, preferential and unfair treatment in his workplace. Mr Khoo was concerned about the inappropriate and unreasonable behaviours of his supervisors leading to unsound decisions and treatment of staff. He commenced antidepressant medication then.
107.These comments suggest that Kr Khoo's condition continued and had not resolved, despite the fact that he was not prescribed medication, because of the conditions at work.
108.Dr Khoo's own evidence supports this suggestion. He asserted that he managed to continue to work even during the period when his ex-wife died and he took over the care of their daughter until October 2006 when he collapsed at work. Support for this assertion is provided by Dr Khoo's audit schedules for the period 2003-2006. Dr Malichek's statement said that the expectation was that each auditor within the medical devices team would conduct approximately 60 days of audit each year. Dr Khoo’s audit work patterns, according to the audit schedules, showed he undertook 61 days of auditing in 2003, despite taking time out for the Health Canada course in Singapore in September. The number of days increased to 75 in 2004. However, in 2005, Dr Khoo only undertook 47 auditing days. That figure also reflects his absence from work from May for two months when he took time off to adjust to living with his daughter and the two operations he underwent which extended his leave to mid September. For January 2006 to 24 October 2006 he only did 24 days auditing. He had December 2005-March 2006 off work, and he was off work again from mid June until the end of August. This increasing absenteeism is not explained. However, it is probable, given the evidence from other witnesses that throughout this period he became increasingly unhappy at work, that it reflects this unhappiness which precipitated his depressive illness in October 2006.
109.The Tribunal finds, on this evidence, that Dr Khoo's depressive illness which was first apparent in the mid-1990s, required treatment in 2002, and was being treated with antidepressant medication in 2004, had not resolved by October 2006.
Conclusion
110.The Tribunal has found that Dr Khoo suffered a disease, namely, a psychological injury which was materially contributed to by his employment at the TGA in the period 2003-2006. That condition, first diagnosed in the 1990s and treated in 2002, had not resolved between then and Dr Khoo's time at the GMP section of TGA. In those circumstances, there is no need to consider the remaining issues which were identified.
111.Comcare is liable to pay compensation to Dr Khoo under section 14 of the Act in respect of the injury which resulted in Dr Khoo's incapacity for work or impairment.
112.The Tribunal also orders that the costs of these proceedings incurred by Dr Khoo be paid by the responsible authority subject to any submissions from the parties.[18]
[18] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 67(8).
I certify that the 112 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke
Signed: .........................................................................
C. Kocak, AssociateDate/s of Hearing 12 January 2010 - 15 January 2010
Date of Decision 17 March 2010
Counsel for the Applicant D. Richards
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent L. Walker
Solicitor for the Respondent Sparke Helmore
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