Lenz and Comcare (Compensation)
[2015] AATA 659
•31 August 2015
Lenz and Comcare (Compensation) [2015] AATA 659 (31 August 2015)
Division
GENERAL DIVISION
File Number(s)
2013/6063
Re
Andre Lenz
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President Gary Humphries and Dr Peter Wilkins, Member
Date 31 August 2015 Place Canberra The decision under review is affirmed.
.............................[sgd]...........................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – Commonwealth employee – condition of major depressive disorder – incident in East Timor in 2003 – whether incident contributed to a significant degree to applicant’s injury – whether caused by reasonable administrative action – applicant offered voluntary redundancy – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14
Cases
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
Lombardo and Comcare [2013] AATA 470
Zdziarski v Telstra Corporation Limited [2015] FCA 207
REASONS FOR DECISION
Deputy President Gary Humphries and Dr Peter Wilkins, Member
31 August 2015
Summary
The reviewable decision dated 4 September 2013, denying liability to pay compensation to the applicant for major depressive disorder (single episode) under s 14 of the Safety, Rehabilitation and Compensation Act 1988, is affirmed.
Background
Andre Lenz was a sworn member of the Australian Federal Police (AFP) for some 27 years. He served in a variety of roles and in places as diverse as Arnhem Land and Christmas Island. His service included six months as part of the United Nations-sponsored international policing effort in East Timor in 2003. During that deployment, he was assigned duties involving close personal protection of the President and First Lady of East Timor and as a technical adviser on national security to the East Timor government. He spent most of the last few years of his AFP service at the Robina office of the AFP on the Gold Coast in Queensland, where he and his wife live.
On 19 March 2013, Mr Lenz lodged a workers’ compensation claim in which he claimed to be suffering from post-traumatic stress disorder (PTSD) arising out of two traumatic incidents during his deployment to East Timor. In an initial determination of 25 June 2013, and again in a reconsideration dated 4 September 2013, Comcare rejected his claim. He now seeks review of the latter decision before this Tribunal.
Comcare accepts that Mr Lenz suffered mental illness at the time of his claim for workers’ compensation, and further accepts that his employment with the AFP contributed materially to that illness. However, it denies that Mr Lenz suffered a mental illness arising from his service in East Timor in 2003, and instead asserts that events surrounding the closure of the AFP’s Robina office in 2012 (the Robina incidents) were factors which contributed to his illness, and that the particular administrative actions which the AFP took at that time, and which contributed to his illness, constituted reasonable administrative action under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act). As a result, it was asserted, these administrative actions disqualify Mr Lenz from compensation.
The issues
Mr Lenz gave evidence at the hearing of being involved in a night-time incident, in which he feared for his life, in a village in East Timor in July 2003 while he was assigned to protect the President of East Timor (the East Timor incident). It was this incident which formed the basis of his claim to have suffered PTSD, although it was conceded that the symptoms of this condition did not manifest themselves fully for some period after the incident. Accordingly, the Tribunal was required to determine:
(a)whether the East Timor incident occurred, and if it did whether it contributed to a significant degree to an injury to Mr Lenz within the meaning of ss 5B and 14 of the Act;
(b)whether the Robina incidents contributed to a significant degree to an injury to Mr Lenz within the meaning of ss 5B and 14 of the Act;
(c)the date of any injury in paragraphs (a) and (b);
(d)if Mr Lenz was injured as described in paragraph (b), whether the Robina incidents amount to reasonable administrative action within the terms of s 5A of the Act.
It is apparent that the date of injury, if any, is a critical question. If Mr Lenz sustained a s 14 injury prior to the Robina incidents of 2012, later reasonable administrative action by the AFP in 2012 cannot be said to have been causative of that injury: Zdziarski v Telstra Corporation Limited [2015] FCA 207.
The legislation
Section 14(1) of the Act provides:
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.
“Injury” is defined in s 5A:
(1) In this Act:
"injury” means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
The East Timor incident
Between May and November 2003, Mr Lenz was part of the Australian police contingent to the United Nations Mission of Support in East Timor. He was assigned to the Presidential Protection Team looking after President Gusmao. His duties included providing close personal protection to the President and other senior figures in the government of East Timor, as well as to supervise the training of East Timorese police in those duties.
Mr Lenz’s filed statements prior to the hearing referred to the East Timor incident having taken place in a village called Saelari in September 2003. However, in his evidence before the Tribunal he corrected this to say it had taken place between 2 and 3 July 2003, in an unnamed village near Balibo in the Bobonaro District. The following 5 paragraphs is a summary of his oral evidence about this incident.
The President was in the habit of making unannounced trips to various remote locations to try and reconcile with the militia units, typically without notice to the UN authorities. The President’s party, including Mr Lenz, left Dili, the capital, by motorcade. On the second night of this trip the motorcade – by this stage consisting of 3 vehicles – arrived at a village in the mountains, the name of which Mr Lenz had forgotten. The President was organised to stay with the chief of the village, and Mr Lenz was assigned a wooden hut nearby to sleep in. The hut had approximate dimensions of 12 feet by 12 feet, with a dirt floor and a wooden door. That night Mr Lenz set up a “mozzie dome” in the corner of the hut. He cooked himself some food and prepared for bed.
At around 10:00pm or 10:30pm, he heard a single gunshot, a rifle shot. Some 45 minutes later, there was a second single shot, apparently closer because it was louder. Shortly afterwards, there was a third single shot, followed by automatic gunfire. The President’s driver, an East Timorese policeman, came to his door and they had a conversation. Mr Lenz told him to tell the other police officers to stay with the President
…because I’ll be as much a target as what they would be, as the President, because they would see the UN and think I’d be a good catch, as much as what the President would be I guess.
During this conversation there was another round of gunshots, quite loud and close, within 500 metres, he estimated. He then told the policeman to return to the President, saying I’ll fend for myself, because the priority’s him, not me.
Mr Lenz then proceeded to rig up some tripwires using fishing line and small bells. He then recounts
I came back to the corner closest to the door entrance and I sat in the corner there with my bum on the ground and knees up with my vest on, and basically had my Glock out and sat there pointing my Glock at the door. And I had around about 100 rounds worth of ammunition… What at the time I was thinking is that my worst nightmare’s coming true, and my biggest – my biggest concern was – my biggest worry was that I was going to get – I was going to get captured or shot.
He later heard voices whispering outside, and heard the bells on one of his tripwires sound. He told the Tribunal
I didn’t know if it was militia, I didn’t know if it was Indonesian Kopassus or whatever, no idea. So I basically sat there, frozen, guns action [ready to fire when the trigger is squeezed], waiting for someone to come through the door, thinking that, yes, whatever happens is going to happen, you know. And I basically sat like that until dawn. Nothing happened. No one came through the door. My relief, thank God for that, and as soon as dawn came I could hear the dogs barking and the chickens and roosters crying. I’ve come outside. I saw the villagers walk around as normal. I went and saw the President and then the Timorese police, and everything was okay.
That day – 3 July 2003 – the President’s party returned to Dili. Mr Lenz returned to his accommodation in Dili, wrote in his diary and then went down to the Dili Club and had a few drinks. He recounts calling his wife and he kind of bawled my eyes out a bit. He completed a report on the trip for the UN on 4 July.
The foregoing was his account of the East Timor incident. A detailed written account of his time in East Timor, which accompanied his claim for workers’ compensation in March 2013, also included a reference to a riot in which he was involved in Dili. Before the Tribunal, he gave evidence of the circumstances of a debriefing conducted on his return to Darwin on 7 November 2003. He described this exercise, and the form he completed during it, as more of a tick and flick-type exercise. In this form he was asked questions, and provided answers, as follows:
“..Q. What sort of issues did you have in the workplace with your colleagues or the UN?
A. No issues with colleagues. Occasional lack of experience. Training some to do job. Not much to do with UN – mainly Timorese Govt.
Q. What were your living conditions like in East Timor? Who did you live with? Were there any issues? Food, environment, lifestyle…
A. Very good – no complaints – Double bed with ensuite. Could cook in room – go out for dinner. Trips away with President – eat local food.
Q. Were you exposed to any critical incidents? Type? Length of exposure? Impact?
A. 2 Riots – concern with US colleague. 20 mins. No impact felt I handled it well. Annoyed with American’s behaviour response.
Q. What was the worst experience for you? What are your thoughts on it now? What are your feelings about it now?
A. No bad experiences. All gamuts of emotions and lot of frustrations at times – problems with communication – lack of interpreters.
Q. How have the following areas of your life been over the last 6 months?
A. Exercise – Increased. Walking every day 1 to 1.5 hours. “Hash” [sic] run every Sunday.
Social Networks – Fantastic socialising – very little to do with Aust Police.
General Health – Fine. No Problems. …”
..Q. Sleep Patterns – how long does it take you to get to sleep? How many uninterrupted hours of sleep do you get? Waking during the night? Getting back to sleep? How refreshed do you feel in the morning? Are you taking any medication? Have you experienced any dreams/nightmares that concern you?
A. 5 mins. Good 8 hours. No late nights needed to be refreshed in morning. No medication. No dreams.
Q. Do you experience any daytime memory recalls (flashbacks) that disturb or upset you? Nature of recall? Feelings generated from recall? How do you deal with the experience?
A. No.
Q. Startle/vigilance levels?
A. Depends whether working or not – goes up and down. Always aware of surroundings.
Q. Planning and decision making problems?
A. No.
Q. Memory – are you having trouble remembering things?
A. No.
Q. Did you ever feel unsafe in Timor? Circumstances?
A. No.
Q. Do you feel safe now?
A. Yes.. …”
…Q. How are you feeling now?
A. Pretty good.
Q. How was the deployment overall for you? What were the positive outcomes of the deployment for you?
A. Excellent – rewarding. Positive experience – nothing happened while I was there – no one hurt and police trained….
…Q. What have you learnt about yourself? How have you grown as a person and a professional?
A. Don’t think I have changed. Aware patience was required. Adapted quite well – have spent time in Asia in past. Thought it may have been worse – Arnhem Land more difficult to deal with. …”
In evidence he explained his failure to refer to the East Timor incident in these terms:
I guess one of the problems that I had…which was quite adamant was that I didn’t want this to be my only mission overseas either and I knew that if you do say anything in these debriefings or say that you have any issues or something that may affect you, that’s pretty well the end of your – not only your career but any future overseas deployments, whether with the AFP or UN.
On the first day of the hearing, counsel for Mr Lenz produced a diary which was alleged to have been kept by Mr Lenz in East Timor, and a photocopy of a UN incident report of the East Timor incident Mr Lenz said he had prepared. Mr Lenz’s evidence was that he had copied this incident report before submitting it to the UN authorities in Dili, and had only found the copy in his papers at home a couple of days prior to the hearing.
During the hearing Comcare advised the Tribunal that a search of AFP records disclosed no reference to the East Timor incident, nor was any incident report in relation to it on its files.
The Robina incidents
Soon after his return from East Timor, Mr Lenz won a position with surveillance operations based at the Robina office of the AFP. In early 2011 he was transferred to the Crime Operations Team, but remained at the Robina office.
He gave evidence that during October 2011 he heard rumours that the Robina office would be closed, rumours which were officially denied at that time. In May 2012, while on a deployment to Christmas Island, Mr Lenz was contacted by someone from the Robina office to advise that the office would be closing and that all members would be reporting to the AFP’s Brisbane office. Mr Lenz said that he was distressed at this news as his wife was not well and travel to and from the Brisbane office would greatly extend his working day. He also had “issues” with AFP staff in the Brisbane office. He was contacted by his Team Leader, Tanya Swift, to advise him of the office closing and to ask his preferences as to where he would like to go. He responded that he would like to be transferred to the AFP office at the Coolangatta Airport, or otherwise to get a voluntary redundancy. In his written statement of 7 February 2013, attached to his Comcare claim, he said of this period Once again I’m on the stress rollercoaster. He also said that he contacted an AFP psychologist, Ms Keli Wainwright, to request an interview on his return as I was having trouble dealing with these issues and my coping mechanisms were stretched.
He returned from Christmas Island at the end of June 2012. He said that the mood in the Robina office was very solemn. Soon after he met with Ms Wainwright. On 6 July 2012, staff at the Robina office were briefed on the process for closing the Robina office by 30 November 2012, and what options lay before them in consequence. Soon afterwards Mr Lenz spoke to Neil Gaughan, National Manager, HighTech Crime Operations about the possibility of a voluntary redundancy even though they were not on the table because of my compassionate reasons regarding the care of my wife.
It became apparent soon afterwards that the only options being offered by AFP management were to transfer to the Brisbane office or to relocate outside the South-East Queensland region of the AFP altogether. He understood it was unlikely he would get approval for a transfer to the Coolangatta Airport. He said in his statement My stress at work and home increased dramatically as I tried to cope with this. He submitted a detailed request for a voluntary redundancy in late July, and in early August took a week’s recreation leave to try and cope with the stress I was under. The night sweats, nightmares, hypersensitivity and headaches had returned.
His statement then reports a meeting on 17 August 2012 with Assistant Commissioner Gaughan, in which the latter told him that a voluntary redundancy was “99% confirmed” and to tell my wife to pick out a caravan. His statement then recounts:
As a result of this information I cried for the first time in a long time as I had a huge sense of relief.
In live testimony, however, he said that Assistant Commissioner Gaughan in that conversation had not been able to guarantee that there would be a redundancy. I mean he’s never ever, ever said that I would get the redundancy. Ever.
On 4 September 2012, members at the Robina office received an email from the Brisbane office stating that they were all to be transferred to Brisbane. Mr Lenz did not receive such an email, leading him to believe that he might still be offered a redundancy. He wrote in his statement:
I did not sleep that night at all as I was so stressed. I paced around the house for hours worrying about my future.
The following day, 5 September 2012, Mr Lenz received an email from the manager of the Brisbane office, advising that he would be commencing duties in the Brisbane office on 3 December 2012. He replied to ask whether he was or was not to receive a voluntary redundancy. The email response was ambiguous, but he showed the email to a manager who confirmed that the answer was no. In response to this:
I was absolutely gutted. Once again stress and depression set in. I just could not believe it. I did not know how to tell my wife that our dreams were shattered. My stress levels became out of control and all of my coping mechanisms were failing.
On 28 September 2012, Assistant Commissioner Gaughan confirmed he would not be receiving a voluntary redundancy, and he then switched his focus to attempting to secure a transfer to Coolangatta Airport. In October he had a meeting with the manager of the Brisbane office, which he described as “cordial”. Later that month he received advice that he was to be transferred to the Special References Team in Brisbane to work for Team Leader Ray Holder. His statement recounts:
I was not happy about this as I knew that I would be way out of my depth in this team and that there would be considerable pressure to perform. I considered this to be another nail in the coffin for me. Once again depression, stress, anxiety set in. I was in total disbelief.
In oral testimony, he also said The team leader, he and I don’t get on. He said, in relation to an earlier working relationship at Robina with Mr Holder, he and I would just constantly clash. On 19 October 2012, he told Ms Swift that he did not want to go to Ray Holder’s team any earlier than he had to. He got angry and walked out of the office.
I walked around the Robina Town Centre for over an hour like a zombie. I sat by the lake staring into the water. I couldn’t stop shaking I was that angry.
Mr Holder, on the other hand, gave evidence that he had had very little to do with Mr Lenz prior to the latter’s deployment to Brisbane in December 2012, and denied that he and Mr Lenz didn’t get on.
Over the following weeks, he recounted that he snapped during a Team Meeting, passed out at the dinner table at home and had chest pains. He also said I again had night sweats, headaches and the same nightmares from East Timor.
On 3 December 2012, Mr Lenz began work at the Brisbane office. He told the Tribunal that Mr Holder did not provide him with a friendly welcome, but used words to the effect Look, I don’t give a crap about what you went through at Robina, you’re here now. Get on with it. That day Mr Holder asked him to deploy down to Sydney for a particular task. He told Mr Holder that he couldn’t go at a whim. In her statement, Ms Swift said that Mr Holder asked Mr Lenz why he couldn’t deploy to Sydney, and Mr Lenz replied Because I don’t want to. Mr Lenz then gave evidence that later that day he caught up with Mr Holder in a corridor and explained that the reason he wouldn’t go was because of his wife’s health. In his own testimony Mr Holder denied that any such conversation occurred. Mr Lenz agreed that there was no reference to this encounter in the corridor in his own statement of 7 February 2013.
Mr Lenz also reports that on 3 December 2012 he was told by Ms Swift that Mr Holder had said of him I don’t want him on my team any more. I don’t want anything to do with him. He then spent about 2 weeks doing an audit of seized drugs. I was getting quite depressed at that stage. It was put to him that the effect of the evidence about his experiences in the Brisbane office on and after 3 December 2012 was that he had been victimised at work, to which he agreed.
He took extended leave over Christmas. Just before he was due to return from leave, on about 13 January 2013, he collapsed in his toilet at home where his wife found him lying on the floor.
I was shaking uncontrollably. I was crying, bawling my eyes out… I was just not in a good place…
He went to see his GP, Dr Blanks, the following Monday morning.
He told the Tribunal he was having massive nightmares at this time.
I was having crazy hallucinations and things of what had happened over in Timor and my wife would come in and wake me up because she could hear me screaming and yelling. I was having vivid recollections of Timor. Why Timor came back, I didn’t know.
Over the ensuing period he reported sleeplessness and nightmares, an inability to go to crowded places without feeling tense, hypervigilance and flashbacks.
The medical evidence
Since returning from East Timor, Mr Lenz was provided a number of opportunities to report on his general state of health to his employer. These include the following:
·AFP Member’s Statement of Medical Fitness for Operational Deployment/Training (27 January 2004)
·PEPQ (PsychEval Personality Questionnaire Interpretation) (7 March 2006)
·Statement of Medical History and Medical Examination Record, prior to deployment to Christmas Island (1 May 2012)
In each of these processes there were questions relating to whether Mr Lenz was suffering from any psychological disease, injury or disability or exhibited any symptoms of anxiety, depression, situational stress or any nervous disorder. In response to these questions Mr Lenz generally answered in the negative. For example, in the evaluation dated 27 January 2004, he was asked:
Do you have now, have you ever had, or have you been investigated for or treated for, any medical condition that has affected, or could affect your ability to perform your operational policing tasks? If yes, please provide details.
He answered no to this question. He also stated that he had never taken medication to relieve symptoms of anxiety, depression, situational stress or any nervous disorder and had no history of psychiatric, behavioural or psychological conditions or need for counselling.
Mr Lenz gave evidence of suffering a pulmonary embolism in 2005.
Craig Pearman, treating psychologist, first saw Mr Lenz in January 2013. Comcare requested a report which Mr Pearman provided dated 18 April 2013. The report includes the following:
…the onset of Mr. Lenz’s current symptom presentation began in December 2012. Mr. Lenz reported rumours (beginning as early as October 2011) regarding the closure of the Robina office of the AFP (where Mr. Lenz was based), and subsequent relocation of all service officers. Throughout the remainder of 2011 and early 2012, Mr. Lenz reported feeling uncertain about his future, but determined to work as normal. In May 2012, Mr. Lenz was informed that the Robina office would indeed be closing, and that relocation would be necessary. Between May and December 2012, Mr. Lenz reported gradually increasing stress levels relating to misinformation and perceived mistreatment by the AFP. By December 2012, Mr. Lenz was suffering loss of sleep, anxiety, irritability and conflict at work, and having dreams about his experiences in East Timor in September 2003 (while on duty with the AFP). He subsequently sought help from his GP, and was referred to me for assessment and management. …
Mr Pearman stated that Mr Lenz meets the criteria for a diagnosis of PTSD delayed onset, chronic presentation. This is based on his report to Mr Pearman that he was exposed to an extreme stressor whilst in East Timor, during which he believed his life to be in grave danger and that his reaction included intense fear and helplessness. In the report he stated:
Mr Lenz reports that his symptoms began when it became clear that there would be a workplace relocation, and that he had no options regarding his relocation.
Mr Pearman discusses the changes happening in Mr Lenz’s workplace in 2011 and 2012 and the impact these had on him. He states:
Mr Lenz reported no pre-existing psychological conditions prior to the increased stress levels relating to his AFP employment/relocation in 2011-2012.
Mr Pearman advised the Tribunal that he had kept no clinical notes of his consultations during 2013 with Mr Lenz, at Mr Lenz’s request. Mr Pearman was thus unable to recall certain details of the account Mr Lenz had given him of factors which may have contributed to his condition.
On 23 April 2013, Associate Professor Sandy Macleod, consultant psychiatrist, provided a medical report based on his examination of Mr Lenz on 16 April 2013. According to that report, despite describing a breakdown at work in January 2013 Mr Lenz reported feeling mildly anxious over many months. He described his predominant traumatic nightmare as relating to a situation in East Timor in 2003 when he was sitting in a hut awaiting an armed man to burst through the door. He stated that he had experienced nightmares intermittently since 2003 but they were more frequent since 2005, and then more frequent again over the last year or so (i.e. from about April 2012).
Professor Macleod offered the opinion that Mr Lenz is suffering a major depressive episode and, although he presents with a traumatic history and is certainly experiencing traumatic nightmares, does not present with sufficient symptoms for a diagnosis of PTSD. Rather a major depressive disorder has unmasked previously contained traumatic symptoms. Mr Lenz is not unusually troubled by intrusive memories nor suffers panic attacks, but presents with classical symptoms of an irritable and agitated depression. Professor Macleod stated that although the incident in Timor in 2003 remains the most troublesome and recurrent traumatic memory, Mr Lenz has accumulated over the years many other traumatic experiences. He considers Mr Lenz’s depression has been evolving for one to three years and work-related stressors have probably been the main contributing factor. He reiterates that the precise cause of the major depressive disorder remains unknown.
On 8 May 2013, Dr Michael Hagan provided a medical report to Comcare. Dr Hagan diagnosed Mr Lenz with PTSD and Major Depressive Disorder. He attributed his PTSD to the life threatening event in East Timor and possibly the shock when diagnosed with pulmonary embolus in 2005. In relation to the Major Depressive Disorder, Dr Hagan regarded his dissatisfaction at having to travel to Brisbane and difficulty in relocating to that office as likely to have been significant in the onset of the disorder. He stated he prescribed anti-depressants, and said that Mr Lenz did not have the capacity to work.
Mr Lenz was referred to Dr Chris Danesi, a consultant psychiatrist, by his GP, Dr Blanks. After what appears to be one consultation, on 8 May 2013 Dr Danesi provided a medical report in which he referred to the traumatic incident in East Timor which [Mr Lenz] settled from, the pulmonary embolus in 2005 and being transferred to Brisbane when the Robina office closed. He noted Mr Lenz thought he was going to get a redundancy but this was not correct and he did not want to work in the Brisbane office due to a relationship conflict. He stated Mr Lenz has a Major Depressive Disorder and query PTSD.
In a further report dated 16 February 2014, Dr Hagan considered that Mr Lenz suffered a depressive state in 2013 based on workplace factors. Following review of the evidence he was briefed with, Dr Hagan noted various inconsistencies with the history as described to him by Mr Lenz and opines that although he has had some post trauma symptoms, they were not severe enough to stop him from undertaking his work until recent work place issues. Dr Hagan identified the relocation to the Brisbane office and the failure to obtain a transfer or voluntary redundancy as significant in the onset of his Major Depressive Disorder.
Under cross-examination, Mr Lenz agreed that he had described to the doctors different times when he first began to experience flashbacks to the East Timor incident. He told Dr Danesi that he first began to experience them after his pulmonary embolism in 2005, told Dr Hagan it was mid-2004 and Professor Macleod it was 2003.
Consideration
It is obviously critical to the case put to the Tribunal by Mr Lenz that the East Timor incident actually occurred. Mr Lenz gave an extensive and detailed account of that incident, details of which were broadly corroborated by what was in the diary and the copy of the UN incident report he produced.
There remain, however, some troubling matters facing the Tribunal in accepting that this incident occurred. We note in particular that:
·there is no AFP record of the incident;
·no surviving paperwork from that period corroborates the incident, except for the diary and incident report copy produced by Mr Lenz on the first day of the hearing;
·in his detailed statement of 7 February 2013, Mr Lenz makes no reference to keeping a diary or submitting an incident report;
·despite Mr Lenz describing the incident as the most traumatic event of my life, he was unable to accurately remember prior to the hearing either the month or location in which the incident occurred;
·despite so describing the incident, Mr Lenz appears to have told nobody about it or recorded it in writing at any time from his return from East Timor until 2013.
The members who made up the Tribunal in this hearing came to different views on the first issue for determination, namely whether the East Timor incident occurred. Deputy President Humphries finds on balance that the incident did occur, although he cannot be sure that the incident occurred in precisely the way Mr Lenz said that it did. Dr Wilkins finds that the evidence before the Tribunal is insufficient to determine whether the incident occurred or not.
However, it is unnecessary for the Tribunal to come to a resolved position on this issue, as the members agree as to the other issues before them. We find that, even if the East Timor incident did occur, it did not contribute to a significant degree to an injury to Mr Lenz within the meaning of ss 5B and 14 of the Act. We further find that, even if the incident occurred and even if it contributed to a significant degree to such an injury, the date of injury was no earlier than the date Mr Lenz sustained an injury within the meaning of ss 5B and 14 of the Act that was contributed to to a significant degree by the Robina incidents. For reasons set out below, we consider that the Robina incidents constitute reasonable administrative action and therefore, pursuant to s 5A and the principles in Hart v Comcare (2005) 145 FCR 29, Mr Lenz’s condition is not an injury under the Act. Hart’s case is authority for the proposition that, if there are multiple causes of a disease or injury which could otherwise fall within the definition of a compensable injury under the Act, and at least one of those causes constitutes reasonable administrative action under s 5A, then the disease or injury is not an injury for the purposes of the Act.
It was common ground between the parties that by early 2013 Mr Lenz was suffering from an ailment, and that this ailment was contributed to by his employment with the AFP. In Comcare v Mooi (1996) 69 FCR 439 at [12] the Federal Court outlined the test of what constitutes an injury under the Act with respect to mental illness; for an employee to succeed it is necessary, it said, that he demonstrates that he is in a condition that is outside the boundaries of normal mental functioning and behaviour. The evidence before the Tribunal of the distress felt by Mr Lenz in the lead up to his collapse on the toilet floor in January 2013 clearly meets this test. Counsel for Comcare put it to the Tribunal that the date of injury, for the purposes of s 7(4), was 19 November 2012, the date he first sought medical attention from his GP for his mental illness. Counsel for Mr Lenz, however, contended that the evidence showed he was operating outside the boundaries of normal mental functioning and behaviour earlier than this, and indeed no later than his deployment to Christmas Island in May 2012.
On its assessment of the evidence, the Tribunal perceives a distinct change in the mental health of Mr Lenz during 2012. Prior to the Robina incidents, there is little evidence of mental dysfunction and, to the extent that there is (the onset of flashbacks), this seems to be linked to his pulmonary embolism in 2005. Most significant is that nowhere in his clinical record is there evidence prior to 2012 of Mr Lenz linking any ill health to his experience in East Timor. Indeed, he made no mention to his GP, between his return from East Timor and 2012, of the severe headaches, nightmares or night sweats he told the Tribunal he had been having since his return. Conversely, the evidence clearly establishes an escalating mental distress – even panic – on his part during the course of 2012 at the prospect he would be denied a voluntary redundancy and be forced to work in Brisbane. Mr Lenz exuded a sense that he felt his employer owed him a voluntary redundancy, and the conviction he was being treated so poorly by being denied it seems to have fed the mental dysfunction he was experiencing.
There were several inconsistencies in Mr Lenz’s evidence to the Tribunal. In his tendered statement of 7 February 2013 he drew strong links between the unfolding events of 2012 and his deteriorating mental condition, but in oral evidence seemed to retreat somewhat from that and to emphasise pre-2012 matters, in particular flashbacks and nightmares from 2003. His failure to obtain a voluntary redundancy was a central theme of his statement, but took something of a back seat in the live testimony. He also gave evidence of personal animosity between himself and Federal Agent Holder, despite having made no reference to this in his statement, and although he gave an account of the deployment-to-Sydney issue of 3 December 2012 which was unflattering of Mr Holder, none of those elements were put to Mr Holder while in the witness box.
All the medical evidence draws a link between the events of 2012 and his “mental breakdown” at the beginning of 2013. Professor Macleod considered Mr Lenz’s depression had been evolving for one to three years prior to April 2013 and work-related stressors were probably the main contributing factor. The medical evidence is somewhat conflicted as to the contribution, if any, the East Timor incident made to his condition in early 2013. The Tribunal notes that there seems to be some unevenness in the accounts Mr Lenz himself gave to different doctors, which may be a factor in this conflict.
Taking the medical and other evidence as a whole, the Tribunal finds that Mr Lenz was suffering a major depressive disorder during 2012. Events unfolding in his workplace, particularly the emerging likelihood that he would be obliged to work in Brisbane and would be denied a voluntary redundancy to avoid this dreaded outcome, were significant contributors to that disorder. We consider that, on balance, he did not suffer from PTSD. If, as suggested by Professor Macleod, there was depression evolving between 2010 and 2013, it was largely symptomless prior to the unsettling events of 2012, and created no incapacity for work, such that it cannot form the basis for a successful claim under s 14 of the Act.
We are not satisfied that the East Timor incident, if it occurred, contributed significantly to the major depressive disorder Mr Lenz was suffering during 2012. We adopt Professor Macleod’s view that the disorder unmasked previously contained traumatic symptoms, symptoms which nonetheless were within normal mental functioning and behaviour until the events of 2012.
Based on our finding that it was work-related causes in 2012 which contributed significantly to Mr Lenz’s condition, it is necessary to consider whether those causes, or any one of them (per Hart’s case), constitutes reasonable administrative action taken reasonably, so as to exclude his condition from the definition of injury in the Act. Mr Lenz’s counsel argued that, despite the lack of a diagnosis at this point, he was exhibiting signs of mental dysfunction as early as May 2012, and as such a compensable condition predates any reasonable administrative action occurring later in that year. If this is so, counsel argued, the administrative action cannot be said to have been causative of that injury, according to the principles in Zdziarski. However, we consider it implausible that any long-dormant traumatic symptoms relating to his time in East Timor should suddenly emerge at this time quite independently of the issues unfolding at his workplace.
With respect to the Robina incidents, there are 3 “administrative actions” which the evidence suggests could have contributed to Mr Lenz’s condition:
(a)his transfer to the Brisbane office of the AFP on closure of the Robina office;
(b)the AFP’s denial of a voluntary redundancy;
(c)his inability to transfer to the Coolangatta Airport office of the AFP.
In relation to (a), counsel for Mr Lenz put to the Tribunal that transfer in these circumstances cannot be taken to be administrative action in respect of the employee’s employment, pursuant to s 5A(1). This contention relies on Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, where the Full Federal Court held (at [60]) that the exclusion in s 5A(1) is intended to embrace
…specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job.
In relation to (b) and (c), counsel argued that there was no evidence before the Tribunal allowing it to come to the conclusion that either the refusal of Mr Lenz’s redundancy or the denial of his transfer application was conducted according to the AFP’s rules, noting that the onus of establishing reasonable administrative action here falls on the respondent.
We perceive some basis for Mr Lenz’s arguments with respect to (a) and (c), but we find it unnecessary to come to a final view on those arguments as it is clear to us that, regarding (b), the AFP’s decision to deny him a voluntary redundancy was reasonable administrative action under s 5A. A refusal of a voluntary redundancy is clearly something done in connection with an employee’s failure to obtain a benefit under s 5A(2)(f): Lombardo and Comcare [2013] AATA 470. No flesh was placed on the bones of the suggestion that the redundancy process was somehow unreasonable. On the other hand, evidence was produced of the written advice given to members of the Robina office in July 2012 that Voluntary Redundancies will not be made unless extenuating circumstances exist. Mr Lenz had confirmation of that position by email on 5 September 2012 from Commander Mark Walters. A statement of facts from Commander Walters describing the redundancy process employed in the Robina office closure was tendered. We consider that the obligation on Comcare to show that the administrative action in question was reasonable and was taken reasonably has been discharged.
We find that the date of injury, for the purposes of s 7(4), was 19 November 2012, the date Mr Lenz first sought medical attention from his GP for his mental illness. He was, at that point, clearly affected by the AFP’s refusal to provide him with a voluntary redundancy. His condition, therefore, arose out of his employment, but because the employment-related cause was also reasonable administrative action, the condition is not, pursuant to s 5A of the Act, an injury.
Accordingly, the Tribunal affirms Comcare’s decision of 4 September 2013 denying liability to pay compensation to Mr Lenz for major depressive disorder (single episode) under s 14 of the Act.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries and Dr Peter Wilkins, Member...................................[sgd].....................................
Associate
Dated 31 August 2015
Date(s) of hearing 11-12 June 2015, 22 June 2015 Counsel for the Applicant Karl Pattenden Solicitors for the Applicant Nicholl & Co Lawyers Counsel for the Respondent Jane Godtschalk Solicitors for the Respondent Australian Government Solicitor
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