Lang and Comcare
[2003] AATA 1176
•21 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1176
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/891
GENERAL ADMINISTRATIVE DIVISION )
Re MARLENE LANG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date21 November 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ................…(Sgd)...............
J Cowdroy
Member
CATCHWORDS
COMPENSATION - whether the applicant suffers from a diagnosed condition that was materially contributed to by her former employment with the Department of Veterans’ Affairs – anxiety state
Safety, Rehabilitation and Compensation Act 1988 ss 4
REASONS FOR DECISION
21 November 2003 Ms J Cowdroy, Member 1. This matter relates to the review of a decision dated 22 August 2002 which affirmed earlier determinations dated 21 March 2002 that denied liability to pay compensation in respects of claims for “anxiety state”.
Hearing
2. The matter was heard on 4 June 2003. Ms Lang appeared in person and the respondent was represented by Mr D O’Donovan of Counsel. Ms Lang gave evidence as well as Mr Scott Stevenson. Dr A Byth gave evidence for the respondent. The “T” Documents were admitted into evidence pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, as well as the following material which was admitted as evidence:
Exhibit 2 Record of Interview dated 6 July 2001
Exhibit 3 File Note
Exhibit 4 Email of 20 July 2001
Exhibit 5 Sick leave record
Exhibit 6 Letter to Mr Tony Walsh from Ms Lang (undated)
Exhibit 7 Letter from Ms K Dear dated 6 December 2002
Exhibit 8Batch of letters from Ms Lang dated 1 April 2003, 12 December 2001 and 12 December 2002
Exhibit 9 References for Ms Lang (three)
Exhibit 10 Letter and email
Exhibit 11 Statement of Sharyn Finn dated 2 August 2002
Exhibit 12 Report of Dr Byth dated 27 March 2003
4. Ms Lang subsequently provided a letter, received by the Tribunal on 30 June 2003. I had regard to the contents of that letter, together with the respondent’s reply dated 23 July 2003.
Background to the Application
5. The following matters are not in dispute and serve to provide background information. The applicant, who is currently aged 42 years was a contract employee with the Department of Veterans Affairs, Townsville office, from June 2000 to 3 August 2001. Her position was that of cashier/receptionist. During the course of her employment, amounts of money were found to be missing from a cash drawer at her workplace. In connection with the theft, the Queensland Police and the National Fraud Control Unit (NFCU) interviewed the applicant.
6. The applicant’s employment with the department ceased on 3 August 2001. By letter dated 20 September 2001 the applicant was advised that no action was being taken by her employer in relation to the missing money. On 22 January 2002, the applicant completed a claim for compensation for an injury or disease described as “acute or chronic anxiety state with associated feelings of depression”, which was said to be attributable to “being falsely accused of stealing public money”.
7. On 24 January 2002 the applicant completed a further claim for compensation claiming compensation for an injury or disease described as “state of distress in personal illness” attributable to “workplace stress”.
8. On 21 March 2002 the respondent disallowed the applicant’s claims for compensation dated 22 January 2002 and 24 January 2002. She requested reconsideration of both of those decisions on 22 April 2002, and by decision dated 12 August 2002, the respondent affirmed the earlier determinations.
The Issue
9. The sole issue for the Tribunal is whether the applicant suffers from a diagnosed condition that was materially contributed to by her former employment with the Department of Veterans’ Affairs (DVA).
The Evidence
10. In her claim dated 22 January 2002, (T3/6-10), the applicant stated that her condition was caused by the fact she was falsely accused of stealing public monies by DVA. It was suggested the money was to pay for medicine for my mother (who is deceased). In her second claim, dated 24 January 2002 (T4-26), Ms Lang referred to a period of about eight months where she was responsible for public monies “in an unsecured environment”.. Although she raised her concerns about the lack of security, her concerns were ignored. When monies went missing from the chief cashier’s drawer, this heightened her fears and her anxiety. Although there were several instances of money going missing, the manager took no corrective action.
11. Ms Lang was aggrieved at the fact she was not advised she was not under suspicion as the person who stole the monies, until she had ceased work with DVA. She had never received exoneration of the allegations that she stole the money or an apology.
12. In a letter which appears at T33/98-106, Ms Lang referred to a number of issues in support of her claims for compensation, including what she perceived as inappropriate comments made by her manager, Mr K Bycroft and other staff, workplace bullying, poor treatment of staff of DVA veterans, dissatisfaction with her relationships with some DVA staff, including a perception that some staff thought she had stolen the money and concerns about the presence of spare keys to the cash drawer, to which unauthorised staff may have had access.
13. The Queensland Police interviewed Ms Lang in January 2001, in relation to the theft. Some months later, the NFCU started an investigation and she was interviewed by officers of that agency in May of 2001. During that interview, which was not recorded, and during which she stated she was subject to badgering and intimidation, accusations were made that she stole the money. Ms Lang objected to the manner in which the first interview was conducted by members of the NFCU.
14. On 6 July 2001 she was interviewed by the NFCU again, this time in the presence of the State Assistant Secretary of the CPSU. That interview was taped and transcribed. After the interview of 6 July 2001, Ms Lang was absent on sick leave until the time her contract expired in September of 2001. On 16 July 2001 Ms Lang made a formal complaint to Mr Paul Hogan, Assistant Director, Corporate Support regarding the interview. She also sent e-mails to DVA management staff in November of 2001.
15. Ms Lang’s evidence was that after the first lot of money went missing, she became increasingly anxious and despite asking the manager about new procedures to ensure there were no other thefts, no changes were made. Her anxieties increased after the 2nd and 3rd instances of theft.
16. Ms Lang described an “overwhelming feeling of injustice” at her treatment by DVA. In respect to the report of Dr Byth, she considered it contained a number of factual errors, in that her past history was not correctly recorded. She also was critical of the fact that when she appeared for consultation, he did not ask to see her identification. She stated that Dr Byth’s opinion that she had overamplified events she believed was attributable to her inability to reveal her true feelings to him.
17. She pointed out that prior to her position at DVA Townsville, she had enjoyed a harmonious working environment, including a temporary position with DVA Brisbane and a position with Queensland Treasury Corporation. All her peers attest to the fact that she was well liked and that her work performance was exemplary.
18. Following the interview on 9 May 2001 with the NFCU, she did not attend a doctor, however she took the afternoon off and the following day she attended a doctor who gave her a certificate for a condition described as “allergic reaction”. She said she saw no need to supply information about her reaction to that interview, and in any event she believed her symptoms at that time were aptly described as an allergic reaction due to stress.
19. She had no more absences from work in either May or June. She stated she was still feeling stressed, however she had been reluctant to seek medical attention as she felt to do so implied a breach of confidentiality and a degree of disloyalty to her employer, as she knew the doctor would ask her about stress.
20. She considered that if she discussed DVA’s cash practices with persons outside DVA, she could be performing an illegal act. By July of 2001 she had done “her absolute best”, she was not able to cope any longer, and she sought medical attention. Ms Lang ceased work on 19 July 2001 and her contract expired on 3 August 2001. Between the time of ceasing work and her contract expiring, she made formal allegations about the cash handling practices of DVA, including a telephone call to the Minister’s office. She continued to pursue this matter after her contract had expired and after she had been informed that the DPP were not intending to initiate a prosecution due to insufficient evidence.
21. In cross examination, Ms Lang conceded that by the time she left DVA’s employment, significant changes had been made to their cash practices, however her concern related to the events during the course of her employment and that no corrective action was taken during that time. She agreed that at the time she ceased employment, there had been no thefts for four months. She accepted that by the time she consulted Dr Horn on 20 July 2001, that the cash management practices had been changed.
22. She explained the absence of any mention of bullying by her manager and other staff in her first claim as a reluctance on her part to “get people into trouble” that it was “opening a can of worms” and that she had hoped her compensation claim would be paid without her having to divulge the bullying issue. She was accused of trying to construct a claim, which she denied.
23. Evidence from Dr A Byth, a psychiatrist involved in clinical practice and medico-legal work, following two consultations with the applicant, was that she suffers from borderline personality disorder and that any anxiety or depression which she experiences is related to that condition, rather than attributable to her work. He considered that the applicant’s reaction to certain events was excessive, however it was not to the point which would fit a diagnosis of anxiety disorder. He pointed to a range of matters Ms Lang was concerned about, including her interactions with staff which Dr Byth considered minor, but which Ms Lang had described as bullying.
24. Evidence from Mr Scott Stevenson of the Internal Investigation Unit of DVA detailed the investigations which occurred following the thefts. He considered that there was no point at which Ms Lang had any reason to have been anxious about anyone having access to her cash drawer or to the relief drawer.
25. In submissions, the respondent pointed to the fact that considerable time had elapsed between the applicant’s cessation of employment and lodgment of her claims. There was no evidence that the applicant suffered stress because of cash handling procedures and her concerns about the existence of a spare key. It is not correct that no corrective action was taken. The accusation she alleges was made was not followed by any indication of depression or anxiety and in fact, she had been informed she was not considered a suspect long before her claim was lodged.
26. The applicant’s consultation with Dr Horn on 20 July 2001 was made at a time when all the stresses to which he alludes had been removed. Counsel pointed to Dr Byth’s evidence that a person suffering from personality disorder attaches meaning to events which are not necessarily reasonable or justified. He referred to the applicant’s retrospective desire to explain her present condition by reference to her employment.
27. Ms Lang referred to the fact she had not received exoneration and that certain information given to the Director of Public Prosecutions was misleading in that it was not the case that she had access to Ms Kyle’s cash drawer. She pointed to the perceptions by others, contained in work references and a testimonial from her sister, to the effect that before her work with DVA Townsville, she was a strong confident individual. She had endured many painful life events, including the slow and painful death of her mother, the breakdown of relationships and grief at the loss of a close friend, none of which have caused her present predicament. Her claim has enlarged over time because she has felt less restricted by issues of confidentiality and loyalty to former work colleagues.
Consideration
28.For liability to exist under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”), it must be shown that the claimant has suffered an injury or disease either arising out of, or aggravated by the claimant’s employment. Section 4 of the Act defines “disease” as:
“(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment,
being an ailment or aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth …..”.
29. It is clear from the evidence of Drs Vicki McIntosh and Dr Michelle Horn, general practitioners who provided medical certificates during 2001 and 2002, and Dr Byth that the applicant suffers a psychiatric condition. Drs Horn and McIntosh refer to the applicant’s presentation as “anxiety state with associated feelings of depression” and to “anxiety and depression”.. In providing certificates of incapacity for work, those doctors refer to work stress. However, at a time when many of those certificates were issued, the applicant had ceased work for many months.
30. I do not doubt that when the applicant consulted the general practitioners she was in a distressed state and felt she could not cope. Dr Horn, in a certificate dated 24 January 2002, refers to the applicant’s concern regarding her former DVA employment in summary form. It is clear that she is simply recording what the patient conveyed to her.
31. Dr Byth listed a number of complaints from the applicant regarding her employment, including bullying at work, poor treatment, rudeness and abruptness from other employees, her concern that the cash office was not secure and in particular an issue relating to spare keys, and that she was accused of stealing the money missing from the other cashier’s drawer. Dr Byth concludes that Ms Lang has a borderline personality disorder that pre-existed her employment at DVA. He states that the interview with the Fraud Squad in February 2002 (it is clear he means 2001), may have caused a brief period of emotional upset which would be seen as a normal emotional reaction, however it did not precipitate any mental illness nor did it cause exacerbation of the pre-existing mental illness.
32. I accept the opinion of Dr Byth. He is an experienced medical practitioner with specialist qualifications. He considered that many of the incidents that Ms Lang considered significant were in reality, quite minor and they were expressed in a dramatic and elaborated fashion. He considered that her anger and depression were “better formulated as simple anger, resentment and feeling offended over interactions with other staff at Veterans Affairs, in a highly sensitive individual …..”.
33. I consider that Ms Lang’s evidence at hearing confirmed Dr Byth’s view that she focused on minor events which others might regard as trifling. For example, she gave considerable evidence about a discrepancy in a travel claim in the sum of five cents. There was considerable written material about numerous other minor events, which a reasonable person would simply ignore. I do not doubt that the interviews over the theft would have caused some anxiety, as would her perceptions that there was insufficient attention to cash management practices. However, having brought her concerns to the attention of those who had the ability to take remedial action, she focused on it to the point where it became her overwhelming concern. According to Dr Byth, this was attributable to in inherent personality traits and attitudes.
34. Apart from the applicant’s perception that work at DVA Townsville caused her to develop a psychiatric condition which was a response to the stresses she believed she was subjected to, there is no evidence that supports her contention that the psychiatric condition from which she suffers was either caused by or exacerbated by her employment.
35. For the above reasons, I affirm the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 4 June 2003
Date of Decision 21 November 2003The Applicant appeared in Person
Counsel for the Respondent Mr D O’Donovan
Solicitor for the Respondent Dibbs Barker Gosling
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