Layton and Comcare
[2007] AATA 1926
•5 November 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1926
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/177
GENERAL ADMINISTRATIVE DIVISION ) Re GRAZYNA (CHRIS) LAYTON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr S. Webb, Member Date5 November 2007
PlaceCanberra
Decision The decision under review is affirmed.
...............signed......................
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - psychological injury accepted – determination ceasing compensation benefits - multifactorial causation - administrative processes perceived to be unfair - harassment - failure to obtain a promotion, transfer or benefit - injury excluded - decision affirmed
Safety, Rehabilitation and Compensation Act 1988 ss4, 14, 16, 19
Canute v Comcare [2006] HCA 47
Hart v Comcare [2005] FCAFC 16
Wiegand v Comcare [2006] FCA 1620
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Golds v Comcare [1997] FCA 1481
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Sahu Kahn [2007] FCA 15
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
Australian Postal Corporation v Nadge (1994) WAG 36
REASONS FOR DECISION
5 November 2007 Mr S. Webb, Member 1. Grazyna (Chris) Layton was injured in employment by Comcare. She successfully claimed compensation. However, subsequently Comcare determined that the injury resolved and ceased paying compensation benefits. Ms Layton requested reconsideration of the determination, which was affirmed. Unhappy, she placed the matter before the Tribunal for review.
2. The issue to be determined is whether from 25 May 2006 Ms Layton is entitled to compensation benefits in relation to the psychological injury she suffered in 2003.
the factual context
3. Ms Layton commenced employment with Comcare on 19 June 2000. On 28 February 2003, she consulted Dr J. Broderick, general practitioner, who certified that she was unfit for work as a result of “Adjustment disorder with mixed anxiety and depressed mood” caused by “work related stressors viz. unfair promotional processes, frequent shift of worksite, harassment”.[1]
[1] T4 folios 5 and 6, T13 and T14 refer.
4. On 10 March 2003, Ms Layton lodged a compensation claim in relation to ‘hypertension’ (which she equated to stress).[2] She attached a detailed statement in which she set out the circumstances of the claim.[3] In the statement she identified a number of employment factors that were relevant to her claimed injury including:
(a)perceived favouritism in relation to transfers from the Comcare Call Centre to the Incapacity Claims section and in relation to the Legislative Training Program for Incapacity[4];
(b)perceived unfairness in selection processes in relation to APS level 2, 3 and 4 positions[5];
(c)harassment by a co-worker[6]; and
(d)movement between positions without obtaining a secure position.[7]
[2] T7.
[3] T6.
[4] T6 folios 7 and 8.
[5] T6 folios 8-11.
[6] T6 folios 11 and 12.
[7] T6 folios 12 and 13.
5. These matters were investigated by Mr Bruce Clark.[8] On 17 April 2003, Mr P. Pharoah made a statement concerning Mr Clark’s investigation.[9] It appears that Mr Clark found no merit in Ms Layton’s perceptions of favouritism and unfairness in relation to selection and transfer processes, but found that she had been treated inappropriately by a co-worker, in breach of the of the APS Code of Conduct. Mr Clark was not called to give evidence. I note that the report in Exhibit R4 is not signed or dated. However, the factual background set out therein is not disputed and I accept it.
[8] Report in Exhibit R4.
[9] T15; Exhibit R4.
6. On 7 May 2003, Dr M. Duke, Consultant Psychiatrist, reported that Ms Layton “currently suffers from no condition. She did suffer from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, DSM Category 309.28, which has now remitted”.[10] Dr Duke reported that the cause of Ms Layton’s disorder was “hierarchical, organisational and interpersonal problems at work”.
[10] T16 folio 36.
7. On 28 May 2003, Comcare determined to “accept adjustment reaction with depressive reaction” and approved medical treatment claims in relation to that injury up to 14 April 2003.[11]
[11] T21 folio 44.
8. On 18 July 2003, Dr Broderick certified that Ms Layton was unfit for work from 27 June 2003 to 24 July 2003 as a result of “exacerbation adjustment disorder previously described (March ’03) Hypertension” that was caused by “incident at work [on 27/6/03]”.[12] On 11 August 2003, Dr G. Kelly, general practitioner, certified that Ms Layton was suffering from “Adjustment disorder with depressed mood” and was “fit for work @ 4hrs/day x 4days week (Wednesdays off)”.[13] Ms Layton participated in a graduated return to work plan.[14]
[12] T26 folio 50; T45; and a further statement by Ms Layton at T58, refer.
[13] T31 folio 57.
[14] T36, T37, T38, T39, T40, T42, T43, T46, T48, T49, T50 T51, T53, T54, T55, T56, T57, T59, T60, T63, T64, T65 and T67 refer.
9. I note in passing that Ms Layton was assessed by Dr A. Farshid, Consultant Cardiologist, on or about 25 September 2003. Subsequently Dr Farshid diagnosed and treated Ms Layton for coronary artery disease and hypertension, including angioplasty and stenting of 2 coronary vessels on 12 January 2004.[15] This treatment and Ms Layton’s subsequent full recovery intruded upon the graduated return to work program but with only minimal effect and delay. Comcare rejected Ms Layton’s claim for compensation in relation to hypertension in April 2004.[16]
[15] T41, T47, T61 and T62.
[16] T66.
10. On 8 April 2004, Dr B. Tait, general practitioner, certified that Ms Layton was suffering from adjustment disorder and hypertension and was fit to work modified duties “6 and ½ hours per day 3 days per week and 4 hours per day 2 days per week”.[17] On 21 April 2004, Dr Tait certified that Ms Layton was totally unfit for work from 19 April 2004.[18] Even though Dr Tait certified that Ms Layton was fit to resume modified duties on 30 April 2004,[19] it does not appear that she did so at any time thereafter to the present.[20]
[17] T63; T64 refers.
[18] T68.
[19] T72.
[20] T73, T74, T77, T78, T82, T87, T88, T89, T92, T93, T94, T99, T100, T101, T102, T103, T109, T111, T112, T113, T115, T117, T118, T121, T122, T125, T129, T132, T138, T142, T144, T145, T150, T154, T159, T164, T165, T170, T172 and T176 refer.
11. On 5 May 2004, Ms Layton obtained psychological treatment from Mr J. Parsons, Psychologist,[21] and she subsequently obtained treatment from Dr J. Saboisky, Consultant Psychiatrist.[22] She was assessed by Dr A. Young, Consultant Psychiatrist, in May 2004.[23] Dr Young reported that the Adjustment Disorder was on-going and that Ms Layton was “‘sensitised’ to further difficulties”: “with each experience at Comcare that is very negative for her, she is more easily destabilised to the development of anxiety and depressive symptoms”.[24] On 11 February 2005, Ms Layton was assessed by Dr V. Pascall, Occupational Physician.[25] Dr Pascall reported that Ms Layton suffers from anxiety that “is a personality trait [extending to paranoia] that when severe becomes an Anxiety Disorder”.[26] In Dr Pascall’s opinion, at that time Ms Layton was not capable of returning to work in any capacity and her condition was not related to and pre-dated her employment.[27]
[21] T94 refers.
[22] T90 refers.
[23] See reports at T81 and T91.
[24] T81 folio 151.
[25] See report at T114.
[26] T114 folio 217.
[27] T114 folio 218.
12. On 4 October 2005, Dr Saboisky reported that Ms Layton “seemed to me at least to be in reasonable psychological shape”, and that he had nothing further to offer her by way of treatment, but recommended ongoing psychological counselling.[28]
[28] T141.
13. On 8 February 2006, Dr J. Donsworth, Consultant Psychiatrist, assessed Ms Layton.[29] Dr Donsworth diagnosed General Anxiety Disorder, Social Phobia and a Paranoid Personality Disorder that she subsequently reported as paranoid personality traits (following a report by Dr H. Veness, Consultant Psychiatrist[30]). These conditions were described by Dr Donsworth as lifelong or constitutional. The Doctor reported that Ms Layton suffered a work-related Adjustment Disorder with Anxiety in 2003, but that condition “has long resolved, or at least been overtaken by the lifelong conditions in priority”.[31]
[29] See reports at T153 and Exhibit R5.
[30] T167.
[31] T153 folio 305.
14. On 7 March 2006, Comcare determined that Ms Layton did not “presently suffer from the effects of your compensable injury”.[32]
[32] T155 folio 307.
15. On 26 April 2006, Dr H. Veness, Consultant Psychiatrist, assessed Ms Layton.[33] Dr Veness reported that he agreed with the previous diagnoses of Dr Duke and Dr Young, with the exception that he considered the Adjustment Disorder with Mixed Anxiety and Depressed Mood to be chronic.[34]
[33] See report at T167.
[34] T167 folio 337.
16. On 25 May 2006, Comcare determined to cease payment of compensation benefits to Ms Layton in respect of her injury.[35] By Ms Layton’s request that determination was reconsidered. On 18 July 2006, the reconsideration officer affirmed the determination.[36] That decision is the subject of these proceedings.
[35] T169.
[36] T174 and T175.
consideration
17. Ms Layton says that the adverse effects of her psychological injury are ongoing and that her injury did not resolve on or before 25 May 2006. The effects to which she refers include incapacity for work, impairment and the requirement for medical treatment. In her submission, any previous anxiety condition was stable and did not cause incapacity prior to the injury. In Ms Layton’s submission, she is entitled to compensation benefits from 25 May 2006 to the present.
18. As will appear I do not agree.
19. Under the Safety, Rehabilitation and Compensation Act 1988 (the Act) an injured employee’s entitlement to compensation is to be determined in relation to an injury as defined (Canute v Comcare [2006][37]). If the claimed injury results from a failure to obtain a promotion, transfer or benefit in connection with the employment, it is not within the meaning of ‘injury’ under the Act (subs 4(1)).
[37] HCA 47, at [10].
20. Thus, the following questions must be answered:
(a)What is the injury claimed?
(b)In the case of a disease, was the injury materially contributed to by the employment?
(c)Did the injury result from a failure to obtain a promotion, transfer or benefit in connection with the employment?
(d)Was the injury operative for compensation purposes in the period from 25 May 2006 to the present?
what is the injury claimed?
21. Considering the facts and the submissions contended for by Ms Layton’s counsel, Mr Wayne Sharwood, I am satisfied that the injury under claim is Adjustment Disorder with Mixed Anxiety and Depressed Mood.
was the injury materially contributed to by the employment?
22. In response to Ms Layton’s claim Comcare determined that her employment materially contributed to cause “adjustment reaction with depressive reaction”. That conclusion is not controversial in these proceedings and I accept it. I note that on the weight of the medical evidence the correct diagnosis of the ailment Ms Layton suffered in February 2003 is Adjustment Disorder with Mixed Anxiety and Depressed Mood.
did that injury result from a failure to obtain a promotion, transfer or benefit in connection with the employment?
23. In Ms Layton’s submission, the injury she suffered and claimed was as a result of harassment by a co-worker. She asserts that she did not care about failing to obtain promotions, transfers or training benefits, but cared more about the unfair processes she perceived. Ms Layton says that the administrative processes she perceived as unfair may have contributed to cause her psychological injury, but that her failure to obtain promotions, transfers or benefits that she desired from time to time, did not. She acknowledged that she experienced disappointment in those circumstances; however, those responses were transitory and did not cause her to experience anxiety or panic attacks. She asserts that she was angry, upset, confused and disillusioned by her perceptions of unfairness in her employment. Ms Layton distinguishes her concerns about unfair treatment, which she says did not have a material effect upon her health, from the adverse effect on her health of being harassed by a co-worker, which she characterised as “the last straw”. Thus, Ms Layton asserts that her injury is not excluded.
24. As will appear I do not agree.
25. By definition, an ‘injury’ under the Act does not include a claimed injury that results from “failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment” (subs4(1)). That is so, irrespective of other operative causes (Hart v Comcare [2005][38]). Thus, the exclusionary provisos of the definition of ‘injury’ have a disentitling effect upon an injured employee, even though the particular element may be but one of a number of factors that the claimed injury resulted from. Even though the outcome thus produced may appear harsh in some circumstances (Wiegand v Comcare [2006][39]), I am bound to apply Hart and the policy that is given expression in the Statute. However, before the exclusionary effect is enlivened, the preconditioning factors must be properly established to the reasonable satisfaction standard.
[38] FCAFC 16, at [16]-[19].
[39] FCA 1620 at [17].
26. Plainly enough these matters were before the original decision maker who considered and accepted Ms Layton’s claim in relation to the injury presently in dispute. Those considerations and the resulting determination were finalised before the High Court’s decision in Hart. In those circumstances it is open for Comcare to reconsider its original determination to accept liability pursuant to subs 62(1) of the Act. However, that has not occurred and the original determination is not before me in these proceedings. Nevertheless, the scheme set out in the Act provides for progressive or evolving decision making and permits fact finding for the purpose of determining compensation entitlements in relation to a claimed injury subsequent to an operative s.14 determination concerning that injury (Conti J in Telstra Corporation Limited v Hannaford [2006][40]).
[40] FCAFC 87, at [57].
27. The value of Ms Layton’s evidence was diminished by her difficulty recalling precise details of events that allegedly occurred 5 or so years ago and, in that regard, is unreliable. One of the difficulties in this case is that there is scant probative evidence concerning the particularity of events and circumstances in Ms Layton’s employment prior to injury. However, the otherwise powerful effect of that deficiency is ameliorated by the (undisputed) factual background set out in Mr Clark’s report and the contemporaneous medical evidence of Ms Layton’s treating doctors concerning the causal factors of the injury Dr Broderick certified on 28 February 2003.
28. I am satisfied and find that Ms Layton unsuccessfully applied for promotions, transfers and access to training during her employment by Comcare in 2002, and furthermore, that she was transferred into a variety of positions on a temporary basis, performing higher duties. That is so even though it appears that she may subsequently have obtained certain transfers or training despite her initial failure (for example in relation to INCAPS). Her initial failure to obtain such transfers or benefits cannot simply be ruled out on the basis of her subsequent success. A failure of requisite kind occurs at a point in time. That is a matter of fact. Subsequent events may ameliorate or extinguish the effect of the initial failure, but not the fact of it. Thus, if Ms Layton’s initial failure to obtain a transfer or benefit, albeit temporary, resulted in the claimed injury, the injury is excluded under the Act.
29. Even though it appears that the particular promotion, transfer and training processes in question occurred weeks and months before Ms Layton consulted Dr Broderick, I am satisfied that the events of which she complained, which the Doctor recorded in his medical certificate: “work related stressors viz. unfair promotional processes, frequent shift of worksite, harassment”,[41] were operative factors in the causation of the injury claimed. I accept that the inappropriate behaviour of a co-worker in relation to Ms Layton was, in all likelihood, a very significant operative factor in the onset of the Adjustment Disorder. However, I am not persuaded that it was the only operative factor in relation to Ms Layton’s employment. I accept Dr Veness’ evidence concerning the important cumulative effect of the employment related factors of which Ms Layton complained over the weeks and months before she consulted Dr Broderick in the onset of the Adjustment Disorder.
[41] T4 folios 5 and 6.
30. The evidence is not sufficient to distinguish Ms Layton’s grievances about the administrative processes in relation to the promotions, transfers and access to training in which she was interested, from her failure to obtain those outcomes as a result. The contemporaneous medical evidence does not differentiate these elements. While Dr Broderick’s medical certificate refers to work stresses and unfair promotional processes, precisely what he meant is not clear and the Doctor was not available to give evidence. Ms Layton’s own evidence is that she wanted to advance her career in Comcare and for that purpose at least she desired and pursued the promotions, transfers and training in question. By her account, the unfairness involved perceptions of favouritism. However, Mr Clark found no factual basis to support Ms Layton’s perceptions and grievances about unfairness. I am satisfied and find that, in all likelihood, Ms Layton’s perceptions and the injury she suffered are bound up in the in the outcome of the processes about which she has complained (see Hart v Comcare [2005][42]), as a result of which she perceived that her advancement in Comcare was unfairly thwarted. Had the particular processes delivered different outcomes for Ms Layton, it is likely that her perceptions of unfairness would not have arisen. In those circumstances, it is probable that her grievances about those processes and the harm that resulted would not have materialised from that cause.
[42] Above n 38, at [26].
31. The matters Ms Layton set out in her statement at T6 and the matters she reported to medical practitioners and medico legal experts over time, consistently reveal the operative causal factors of her claimed injury. Considering that evidence and the medical evidence concerning the cumulative effect of these factors on Ms Layton at the time (Dr Veness, Mr Parsons, Dr Young, Dr Duke, and Mr Nomchong), I am reasonably satisfied and find that Ms Layton’s accepted injury was, in part, the result of:
(a)anxiety conditions and paranoid personality traits that pre-dated her employment by Comcare;
(b)failure to obtain promotions to the APS level 2 and 3 positions for which she applied and her related perceptions of unfairness and favouritism in the administration of those selection processes;
(c)failure to obtain transfers and training that she requested and her related perceptions of unfairness concerning the administration of these matters; and
(d)inappropriate behaviour by a co-worker.
32. Ms Layton’s failure to obtain the particular promotions, transfers and training she desired in connection with her employment frustrated her hopes of advancing her career in Comcare and resulted in the claimed injury. These factors are within the exclusionary elements of the definition of ‘injury’ (Golds v Comcare [1997][43]). On that basis, as it appears to me, the injury that Ms Layton claimed and Comcare accepted is not an injury under the Act. I so find.
[43] FCA 1481 at [41]-[42]
33. That being so, I am reasonably satisfied that Ms Layton is not entitled to compensation in relation to the Adjustment Disorder with Mixed Anxiety and Depressed Mood in the period from 25 May 2006 to the present. That is so, despite Comcare’s original determination to accept liability pursuant to s.14 of the Act in relation that claimed injury.
34. It follows that the decision under review will be affirmed.
35. I do not accept Mr Sharwood’s submission that the exclusionary provisos of the definition of ‘injury’ will only be made out if one or more of those elements contribute ‘in a material degree’ to cause the claimed injury. Bearing in mind what the Full Federal Court said in relation to the words ‘contribution’ and ‘material’ in Treloar v Australian Telecommunications Commission (1990)[44] (albeit in the context of the Compensation (Commonwealth Government Employees) Act1971), and what Finn J said in relation to ‘material degree’ (albeit in relation to the definition of ‘disease’ under the Act in Comcare v Sahu Kahn [2007][45]), there are three things to say about Mr Sharwood’s proposition. Firstly, it is necessary to construe the words used by the Parliament, bearing in mind the beneficial nature of the Act (Hart v Comcare [2005][46]). What is required is a causal connection between the claimed injury and the failure to obtain a promotion, transfer or benefit in connection with the employment. The causal nexus between the injury and the particular failure is set out in the words of the statute: “as a result of”.[47] While these words are to be interpreted generously in the present statutory context, a commonsense evaluation of the causal chain is required in the light of the statutory formulation (Ilsley v Wattyl Australia Pty Ltd (1997)[48]). Secondly, to import a test of materiality when interpreting the definition is to import a threshold test of degree that may either constrain or expand upon the ordinary meaning of the words used. If the Parliament had intended to apply such a test, as in the case of ‘disease’ for example, it would have been a simple matter of drafting to do so. However, the statute is not cast in such terms. What is required to establish a causal nexus between the injury and the particular exclusionary element or elements is that the element adds its measure to the causation or aggravation of the claimed injury. To that extent, plainly enough, it may be said that the factor was ‘material’ in causing the claimed injury. Nevertheless, once a causal connection between the injury and one or more of the excluded elements is established it does not matter whether the contribution is of a greater or lesser degree. If it is thus established on the probabilities that the claimed injury is a result of one or more of the exclusionary elements, then the claimed injury is not an ‘injury’ under the Act. Thirdly, the medical evidence and Ms Layton’s own account establishes to the reasonable satisfaction standard that her failure to obtain the aforementioned promotions, transfers and benefits were material in causing the injury in question.
[44] 26 FCR 316, at 323.
[45] FCA 15, at [13] to [16].
[46] Above n 38, at [20].
[47] Section 4(1) of the Act, definition of ‘injury’.
[48] 75 FCR 1, at 6.
36. It is not strictly necessary to proceed further to consider other matters contended for by the parties. Nevertheless, it is appropriate to record that I am not persuaded that Ms Layton’s claimed injury continued on or after 25 May 2006. I am reasonably satisfied that Ms Layton has a long history of anxiety related issues and, in all likelihood, is predisposed by lifelong personality traits to clinically significant anxiety problems, including panic attacks. I note that the medical evidence from her treating doctors reveals a history of consultations and treatments in relation to such conditions from, at least, 1989.
37. I am not persuaded to accept Dr Veness’ diagnosis of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Dr Veness examined Ms Layton once and, as it appears to me, with respect, the Doctor was not aware of her full clinical history of anxiety-related problems. Nor, for similar reasons, am I persuaded by Mr Nomchong’s opinion that Ms Layton’s present psychological difficulties related to her previous employment by Comcare.
38. As it appears to me, it is more probable than not that Ms Layton’s claimed Adjustment Disorder injury remitted in May 2003 as reported by Dr Duke. Subsequently she experienced further anxiety symptoms. In all likelihood she was sensitised to further difficulties and stress as a result of her underlying personality traits and her previous experiences in employment (Dr Young and Dr Pascall). I am not persuaded that such sensitisation is a continuation of Ms Layton’s claimed injury, but is more likely than not related to predisposing elements of her personality. It is possible that events in her employment after May 2003 may have contributed to fresh injuries (see Australian Postal Corporation v Nadge (1994)[49]). However, I make no such finding. No such fresh injury was claimed and such matters were not agitated before me.
[49] WAG 36, at [29]-[30].
39. Mr Parsons and Dr Saboisky treated Ms Layton in 2005 but were not called to give evidence. It appears that both practitioners considered that Ms Layton’s Adjustment Disorder resolved (as did Dr Donsworth) and Ms Layton obtained no further treatment from them. Mr Parsons and Dr Donsworth were aware of Ms Layton’s full clinical history. Thus, even if the claimed injury was not excluded for the reasons given, I am reasonably satisfied that Ms Layton’s case is not made out.
decision
40. The decision under review is affirmed.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: ……signed……………………………………
Jane Gribble
AssociateDate of Hearing 15,16,18 October 2007
Date of Decision 5 November 2007
Counsel for the Applicant Wayne Sharwood
Solicitor for the Applicant Brian Hatch
Pamela Coward & Associates
Counsel for the Respondent Stuart Pilkinton
Solicitors for the Respondent Rosa Pezzella and Louise Cairns
Australian Government Solicitor
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