LUCIANO PELLIZZERI and COMCARE
[2009] AATA 311
•6 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0408
GENERAL ADMINISTRATIVE DIVISION ) Re LUCIANO PELLIZZERI Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, MemberDate6 May 2009
PlaceSydney
Decision We affirm the reviewable decision that Comcare is not liable to pay compensation to Mr Pellizzeri under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for an injury suffered on or about 10 January 2007. ...................[sgd].........................
Presiding Member
Mrs Josephine Kelly, Senior Member
CATCHWORDS
COMPENSATION – Centrelink Employee - Claim for generalised anxiety disorder - Liability denied – Whether suffers disease – Whether disease contributed to in a material degree by employment – Whether disease suffered as a result of failure to obtain a benefit – Held suffers disease materially contributed to by employment – Failure to be released for systems testing a “benefit” - Disease suffered as a result of failure to obtain a benefit – Not an injury - Decision affirmed
Safety, Rehabilitation and Compensation Act 1988, s 4, 14
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (1997) 156 FCR 536
Hart v Comcare (2005) 145 FCR 29
Re Millichap and Comcare [2009] AATA 127
Trewin v Comcare (1998) 84 FCR 171
REASONS FOR DECISION
6 May 2009 Mrs Josephine Kelly, Senior Member
Dr MEC Thorpe, MemberSUMMARY
1. Mr Luciano Pellizzeri has been employed by Centrelink and its predecessors since about 1993 as a customer service officer and worked at the Liverpool customer service centre (CSC) until January 2007. He seeks the review of the decision made on 8 December 2007 by a Comcare Independent Review Officer to affirm a decision to deny liability for "generalised anxiety disorder" (GAD) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Mr Pellizzeri claimed his GAD began on 10 January 2007 at 7 or 8 pm as a result of a number of aspects of his employment.
2. Mr Pellizzeri has completed a return to work program successfully and has been working without difficulty at Centrelink's Refugee Review Unit at Fairfield since at least July 2007.
3. For the reasons that follow, we affirm the reviewable decision because we find that the mental ailment Mr Pellizzeri suffered was a result of his failure to obtain a benefit in connection with his employment, which means that he has not suffered a compensable “injury” under the Act.
THE ISSUES
4. The issues in this case are:
a) Whether as at 10 January 2007 Mr Pellizzeri suffered a "disease" within the meaning of s 4 of the Act[1];
b) If so, whether the disease was contributed to in a material degree by his employment?
c) If so, is the disease not compensable under the Act because it was "as a result of" his "failure to obtain a benefit" (s 4 of the Act)? Two issues arise in relation to this question:
i) Did Mr Pellizzeri suffer the disease as a result of being notified at 11:55 am on 10 January 2007 that is request to do "systems testing" in Adelaide had been refused?
ii) If so, was being released to do "systems testing" "a benefit" (s 4 of the Act)?
[1] Prior to amendment by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007.
5. "Systems testing" is the checking of a new product or change to a system to see if it works as required and to identify any problems before it is released to Centrelink's network. It is held in either the Brisbane or Adelaide Systems Testing Centre.
6. Section 4(1) of the Act provided, relevantly:
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 with the Commonwealth…
…
injury means:
(a) a disease suffered by an employee;
…
but does not include any such disease… suffered by an employee as a result of… failure by an employee to obtain a promotion, transfer or benefit in connection with his or her employment.
MR PELLIZZERI’S CASE
7. Mr Pellizzeri's case is as set out in his claim for workers' compensation form which is dated 25 January 2007. He claimed compensation for "Anxiety/stress disorder" which he first noticed on 10 January 2007 at 7 to 8 pm. He claimed that it was caused by an assault at work in 2001, customer aggression, excess workload, conflict with managers, the creation of a new section called "WAP" (Working Age Participation), long queues, inadequate training, and use of new computer program. Mr Pellizzeri did not specify an incident of customer aggression on 10 January 2007.
8. During his evidence, Mr Pellizzeri said that on 10 January 2007 there was an incident of customer aggression which "really rattled him". He said that his colleague, Mr Luigi Cataldo, was a few metres away from him, serving someone who was "kicking up a stink". That customer said that he would come in and shoot somebody and blow up the place. Mr Pellizzeri said that this specific threat rolled around his mind and made him extremely stressed. He had tried to cope with the customer aggression which occurred in the office, but after this he could not return to work and went to the doctor the next day and told him what had happened.
9. Mr Pellizeri did not accept that the refusal on the morning of 10 January 2007 of his request to be sent to Adelaide for systems testing contributed to his condition. We also understood him to argue that being released to attend systems testing was not a "benefit" under the Act.
DID MR PELLIZZERI SUFFER FROM A "DISEASE"?
10. Mr Dube, who appeared for the Respondent, Comcare, did not concede that Mr Pellizzeri suffered a "disease" as defined in the Act, but made the following submission. It is a matter for the Tribunal to make that finding on the evidence before it, but in this case there was sufficient evidence for the Tribunal to be so satisfied, and he pointed to that evidence. He noted that the reviewable decision accepted that Mr Pellizzeri suffered a "disease".
11. Taking into account all the medical evidence, we find that, as at the 10 January 2007, Mr Pellizzeri suffered a disease as defined in the Act. He suffered a mental ailment. We do not consider it necessary to make a finding as to diagnosis, the evidence conflicting on that question, but prefer to find that the Mr Pellizzeri's condition was outside the bounds of normal mental functioning and behaviour. Such a description satisfies the test for the existence of a mental ailment set out in Comcare v Mooi at 444.
12. We come to this conclusion on the basis of the following evidence.
13. The first medical certificate Mr Pellizzeri provided to Centrelink was dated 11 January 2007 and signed by Dr Kanapathipillai, general practitioner. She stated that Mr Pellizzeri had attended "regarding a medical condition", and certified him unfit for work on 11 and 12 January 2007. There were medical certificates in evidence from Mr Pellizzeri's usual general practitioner, Dr Karthigesu, dated 16 January, 23 January and 30 January 2007, and 13 and 27 February 2007. Each referred to anxiety and stress at work. Dr Karthigesu prepared a report dated 18 April 2007 in which she stated that Mr Pellizzeri “suffers from generated [sic] anxiety and stress”.
14. Mr Herrera, consultant psychologist, prepared a report dated 25 July 2008. He saw Mr Pellizzeri at the request of his "nominated treating doctor" for the purpose of providing a report about the "work related incident that occurred on the 11th January 2007". The report does not state when Mr Herrera saw Mr Pellizzeri for that assessment, however it is apparent from the general practitioner's clinical notes that Mr Herrera saw Mr Pellizzeri for the first time for assessment and treatment shortly after he went off work in January 2007, in about the second last week of January 2007, and continued to see him for some time. We infer that the 2008 report is based in part on Mr Herrera's knowledge of Mr Pellizzeri's condition from treating him from January 2007. In the report, Mr Herrera diagnosed Generalised Anxiety Disorder and Depressed Moods caused by various employment factors, and stated that the condition had stabilised as of the date of assessment, which we infer was July 2008.
15. Dr Synnott, consultant psychiatrist, saw Mr Pellizzeri on 2 February 2007. His opinion was that Mr Pellizzeri described sufficient psychological symptoms on that day to meet the diagnostic criteria of a non-specific anxiety disorder. However in Dr Synnott's opinion, non-work factors were the most significant factor in Mr Pellizzeri's presentation.
16. On 19 February 2007 Mr Pellizzeri was seen by Mr Walker, consultant psychologist, for the purpose of an "Initial Needs Assessment" in relation to a rehabilitation program. The referral was made by Jennifer Cairncross, Centrelink Rehabilitation consultant, on 16 February 2007. When seen by Mr Walker, Mr Pellizzeri was not taking any medication. Mr Walker did not give an opinion as to diagnosis, but said Mr Pellizzeri “is depressed, anxious and unmotivated and requires a Cognitive Behavioural intervention to assist him” to manage those symptoms.
17. Dr Lewin, consultant psychiatrist, was of the opinion that Mr Pellizerri was not suffering a psychiatric illness when he saw him on 28 March 2007, however, he accepted during oral evidence that the cluster of symptoms Mr Pellizerri reported at the time he went off work were outside the bounds of normal mental functioning and behaviour.
DID MR PELLIZZERI'S EMPLOYMENT RELEVANTLY CAUSE THE DISEASE?
18. The first question that has to be answered is whether Mr Pellizzeri's employment contributed to the disease in a material degree (s 4(1) of the Act). This requires an evaluation of all the relevant contributing factors, and whether this is so is a matter of fact and degree. The word “material” means “substantially, considerably” (Comcare v Sahu-Khan at 543).
19. We have set out earlier in this decision the various aspects of his employment which Mr Pellizzeri believed had caused his condition. Mr Dube said that there was a "raft of evidence" of a number of employment related aspects. We will deal with the various aspects Mr Pellizzeri specified in his compensation claim in turn.
Customer aggression
20. Mr Dube acknowledged that the evidence of a number of Centrelink employees was that there were incidents of customer aggression at the Liverpool CSC where Mr Pellizzeri had worked for many years and where he was working when he went off work in January 2007.
21. We agree that the evidence was overwhelming that there were incidents of customer aggression at the Liverpool office. It is relevant that Mr Pellizzeri had been physically assaulted by a customer in 2001. He was punched in the face, causing his glasses to break and gash his cheek bone below his eye. As a result, Mr Pellizzeri was off work for a time. It was agreed that Comcare had accepted liability and paid medical expenses and incapacity payments, and undertook a return to work program. Mr Pellizzeri's evidence was that this incident continued to adversely affect him up until the incident on 10 January 2007. It is also the history which he told to various people.
22. Mr Petrie, area business manager for Centrelink, described the customer base of the Liverpool CSC as disadvantaged and vulnerable. He said that Mr Pellizzeri had asked to work on the counter and, in his opinion, that was because Mr Pellizzeri did not want to be constrained by time limits imposed in relation to other kinds of work available, but not in relation to reception work. Mr Pellizzeri's evidence was to the same effect.
23. Ms Risson, Mr Pellizzeri's immediate manager, described Liverpool CSC as one of the largest offices nationally, always a very busy office, resulting in long queues. She said that the customer demographics included quite vulnerable customers with drug and alcohol dependency, mental health, and a large population of people from diverse cultural and linguistic backgrounds.
24. A bundle of 34 reports of customer aggression made by Mr Pellizzeri for the period from 10 April 2001 until October 2006 was in evidence. They do not include incidents suffered by other staff and customers that he had witnessed, and incidents he had been told about but not witnessed. We accept Mr Pellizzeri's evidence that there were such incidents.
25. We accept that there was an incident of customer aggression involving Mr Cataldo on 10 January 2007 which Mr Pellizzeri witnessed. Mr Cataldo provided a statement and gave oral evidence. He recalled the customer making threatening remarks as he left the office on that day but he did not recall the exact words used. Mr Cataldo did remember that Mr Pellizzeri heard the remarks and was upset, and had approached him and asked if he was "OK". However, Mr Cataldo did not record the incident on Centrelink's reporting system because:
for me it was just another aggressive customer and I deal with aggressive customers every day. We cannot and do not have time to record every single episode of aggression.
This note of itself indicates that incidents of customer aggression were frequent.
26. In the document dated 5 April 2007 which he provided to Comcare in response to its request for further information ("the April document"), Mr Pellizzeri described what happened. He said that Mr Cataldo was serving a customer who was not happy, who moved back a few metres from the counter and said that he was going to come back with a gun and shoot "us all" and place a bomb in the building and blow us up. He wrote: “This was rather rattling to me as you cannot really do anything to stop such a situation”. As noted previously, this specific incident was not recorded as an incident and was not referred to in Mr Pellizzeri's claim for compensation.
Conflict with managers
27. Another aspect of his work which Mr Pellizzeri claimed contributed to his mental ailment was conflict with some of his managers: Mr Holmes, Ms Risson and Ms Lukins.
28. In relation to Mr Holmes, Mr Pellizzeri's evidence was consistent with that of Ms Cairncross who dealt with the matter when Mr Pellizzeri complained informally to her. All the issues he had raised were resolved and the manager stopped harassing him. We accept Ms Cairncross's evidence and find that this occurred in 2004.
29. In the April document Mr Pelllizzeri stated that he had conflict with Ms Risson. He described an incident "a few years ago" when she was an acting manager. He thought she was aggressive towards him when she asked where he had been and, after he explained, had said “don’t you think we have better things to do?”. He was “rather shocked by her tone”.
30. Mr Pellizzeri also described an incident that had occurred a few days before he went off work in January 2007:
A few days before I went off she went ballistic at me for telling her that I put my application in for system testing. She told me that we needed bums on seats. I was then telling her about other options available for when I leave e.g. over time but I kept going on.. "well what about those people they are going to get over stressed". She was rude & aggressive towards me.
31. He also referred to incidents when he said Ms Risson was abrupt or shouted at other staff members.
32. We prefer Ms Risson's evidence in relation to the request Mr Pellizzeri made to do Systems Testing. We find that this request was made to Mr Risson in July 2007 and that she sent another officer because there was growing resentment that Mr Pellizzeri was always going. We also accept her evidence that she thought it would be a difficult conversation and was surprised how well Mr Pellizzeri accepted her decision, saying that he would take it further, which he did.
33. Ms Lukins was Ms Risson's manager. Mr Pellizzeri's evidence was that after Ms Lukins became responsible for the Liverpool CSC, the discussion going on made him realise that she wanted to make it operate in the same way as the Fairfield office, for which she was also responsible. Mr Pellizzeri collated information about how Fairfield operated and sent it to his list of union members. Mr Pellizeri was a union delegate. Mr Holmes arranged a meeting with Ms Lukins, Mr Pellizeri and the lead union delegate. Mr Pellizeri said that Mr Lukins verbally abused him for sending the email. However:
In the end she managed to calm herself down & the conversation proceed to a satisfactory level.
34. On the evidence, we do not accept that conflict with managers was causing Mr Pellizzeri stress when he went off work in January 2007. The incidents were all in the past, and had been resolved satisfactorily.
Workload at Liverpool too much for him to handle
35. This complaint or conflict related to Mr Pellizzeri's accessing learning and development time of three hours per week under the Centrelink development agreement. He worked 4 days a week, Tuesday to Friday, three days on reception and one day on claims or walk-ins. Mr Pellizzeri stated that:
Through union representation I managed to access this as it wasn't given before unless you happen to be on claims or walk-ins on a Wednesday afternoon.
36. Mr Pellizzeri’s evidence was that there were many instances when all staff, including him, were asked to get a customer from the line as it was very long while a team meeting, such that he did not access the three hours per week all the time.
37. We do not consider that this complaint was of significance in relation to Mr Pellizzeri's psychological condition at January 2007. We conclude that Mr Pellizzeri complained about every aspect of his employment with which he was dissatisfied to support his case, but dissatisfaction does not lead necessarily to a conclusion that it was adversely affecting his psychological condition.
Lack of training
38. In the April document Mr Pellizzeri stated that in about 2005 he had worked in a small team called Youth and Students which specialised in certain benefits, and which was amalgamated with another team twice its size. This was the new WAP team. According to Mr Pellizzeri there were two consequences. One was that he was interrupted by people from the other team asking him about the benefits they did not have experience with, which he found frustrating. He sometimes had queues of three people waiting to ask him questions. That obviously interfered with his work. The second consequence was that he was faced with work that he had little if any knowledge. He stated he only had 30 minutes session on disability pension. He felt that he looked inept in front of customers and it was time-consuming getting assistance.
39. Mr Pellizeri also considered that workloads increased, reception queues increased, fewer staff were allowed to be off on a single day, and general staff talk about dissatisfaction and stress increased. We will return to this and the next two aspects of his employment later in these reasons.
New computer program
40. Mr Pellizzeri's evidence was that problems arose with the introduction of a new computer system.which was very slow, did not process correctly, was unstable, frustrating, caused embarrassment in front of customers, and inquiries took longer, causing a longer, more slow moving queue of customers. He considered that the training had been very limited. Mr Pellizeri spoke to the Chief Executive Officer when he visited Liverpool one day, and told him about the problems. He was not happy with the CEO's attitude as reflected in his response that it had taken 20 years to stabilise the previous computer system and that it was going to take time to stabilise the new system. Mr Pellizzeri said:
It confirmed that he had no idea of the pressures we face here in the csc & that it is of the utmost importance that we have fast efficient tools to do our work.
Extension of business hours
41. Mr Pellizzeri stated in the April document that extended opening hours had not been good for workloads. In the past the CSC closed at 1630 but now he was required to provide an extra 30 minutes or more of customer service at reception. This had the consequence that time was reduced for dealing with left-over work and emails, including those necessary to keep up to date.
There was just not enough time to do what was expected off me as a long term officer. The bombardment was relentless, so I tried to work as fast as I could to keep up with the work & expectations.
42. The consequence of all of this was that:
There is just person after person after person with no end in sight. It has been like this for the last few months reference date 10/1/2007. Its so impossible to get things done with such a huge amount of customer demand & no extra resources or assistance from within the organisation.
43. Mr Pellizzeri said that the waiting time for customers was longer. He gave the example of a man who was waiting before he went to lunch and was still there when he came back. He served the man who told him "sharply" that he had been waiting 1 hour and 20 minutes, and complained that it gave him a sore back, and asked why was there such a long line. Mr Pellizeri stated that customers frequently made similar comments. He felt bad for them and helpless, and tried to work faster. He thought that the average waiting time was 45 to 60 minutes. The waiting also caused customers to get frustrated and he felt they were leering at him, making him uncomfortable. Sometimes customers in the queue would make comments, including rude and vulgar remarks. Mr Pellizzeri stated that he had suggested going back to a system where tickets were issued, which was rejected.
Medical Evidence on Causation
44. The first medical certificate was provided for Mr Pellizzeri on 11 January 2007 did not specify a work related medical condition but simply stated "medical condition". The first medical certificate to relate his condition to work was that dated 16 January 2007.
45. Doing the best we can to decipher the clinical notes from the medical practice Mr Pellizzeri attended, we understand them to reveal the following. The first clinical note relating to Mr Pellizzeri's going off work was dated 16 January 2007. It notes that Mr Pellizzeri had found it difficult to cope with changes at work, it mentions "computer", and customer abuse about 10 January 2007 and stated "threatened to return with a gun or bomb the place. “V. agitated Does not want to return to work. Has brought back memories of assult in 2001.”There was discussion about seeing a psychologist. On 23 January 2007 the doctor noted that Mr Pellizzeri was still feeling anxious and that the thought of going back to work was a problem "still". He was referred to Mr Herrera and reference was made to medication.
46. Later notes reflect that Centrelink referred him to Mr Walker, and that Ms Cairncross was involved in Mr Pellizzeri's case in relation to a return to work program. He was to return to work at Liverpool but by 19 March 2007 it had been determined that he would work in a back office at Bankstown. By 10 April 2007 Mr Pellizzeri was working at Bankstown 4 days a week 5 hours a day. By 24 April there was some "customer content" two hours a day. Mr Pellizzeri felt some discomfort meeting customers and was seeing Mr Herrera weekly. By 9 July 2007 Mr Pellizzeri was working his pre-injury hours of 34 hours at Fairfield. The doctor noted Happy in new work place. A medical certificate was issued for return to normal duties.
47. Following is a summary of Mr Herrera's report of 25 July 2008. Mr Pellizeri told Mr Herrera that he was never provided with any counselling after the 2001 assault and has never been able to get over it. He experienced anxiety and fear, was easily rattled, and reacted to unexpected noise. He was fearful while working on counter, was tense, and suffered stomach discomfort. In 2003 he experienced a relapse and his employer refused him any time off work. Later, he was referred to a psychologist and an anxiety clinic, and advised to take an antidepressant. He continued to work and take the antidepressant Aropax, which was changed to Zoloft Mr Pellizzeri reported the incident with Mr Cataldo on 10 January and that he was very shakey when he finished work, and that night experienced intrusive thoughts and "fuzziness in his head", diarrhoea, teariness, sadness, felt scared and did not want to socialise. He consulted his general practitioner who prescribed Cipramil 25 mg ½ tablet per day, which he ceased because of side effects. Critically, he noted:
Mr Pellizzeri said that he had unsuccessfully sought to be transferred to Adelaide for 5 weeks in order to get away from such a stressful environment however, this option did not eventuate.
48. Under the heading "Examination", Mr Herrera noted, amongst other things, that Mr Pellizzeri could not understand why his work grievances had not been addressed and that he had little confidence in his employer's ability to resolve grievances in a prompt and efficient manner. Based on the history, Mr Herrera determined that the following factors contributing to GAD and depressed moods: the re-organisation of the workplace, the lack of any formal training, threats made by clients, and the employer's inability to address the grievances raised. Mr Herrera also considered that Mr Pellizzeri did not receive adequate and appropriate intervention at an early stage for the physical assault in 2001.
49. Mr Pellizzeri reported to Mr Walker on 19 February 2007 that he had been treated harshly by management in denying him the opportunity to spend five weeks in either Adelaide or Brisbane on secondment. Mr Pellizzeri saw this opportunity as giving him a break from his current duties and role. He also gave Mr Walker a history, indicating that he:
Had been attempting to travel down to Adelaide or Brisbane for five weeks to get a break working at one of the specialist centres there… most recently he has been refused the option of going down to Adelaide and has been told that there will be only one opportunity per year on the rotation system for all staff, not just select staff to go to Adelaide or Brisbane. He reports being very upset by this, and that Adelaide liked the work he did there and he wanted to go back there. He reports contacting the staff counsellor at the time and telling them he could not cope and he wanted to go to Adelaide.
He reports most recently telling his manager that he was trying to get down to Adelaide and he had been shouted at by the manager saying they are short staffed where he is and he is needed at the office, making it very plain to him that it would be difficult to travel elsewhere.
Complaints to Dr Synnott
50. The history Mr Pellizzeri gave to Dr Synnott in February 2007 was similar to that given to Mr Herrera. He emphasised his continuing apprehension of another assault after returning to work in 2001, and that he had a relapse in 2003. Mr Pellizzeri did tell Dr Synnott that his mother was diagnosed with cancer in 2001 and that her health deteriorated in early 2003. At that time Mr Pellizzeri went to work three days a week in order to spend more time with her. She died in September 2003. Mr Pellizzeri said that throughout that time he had remained fearful of another assault and had chronic anxiety, and that there were no significant psychological symptoms before his mother's death that were related to her health problems. After her death, Mr Pellizzeri was diagnosed with grief and consulted a psychiatrist on one occasion. He went off work for eight weeks. He returned to work in November 2003 working three days a week and in the middle of 2004 increased his work to four days a week, which he was continuing up to the time of the hearing. Mr Pellizzeri told Dr Synnott that work became particularly busy and in 2006 his psychological state deteriorated because of restructuring at work; he had to deal with new things without training, that there were long queues, "people were always there" and "I couldn't handle the pressure". Mr Pellizzeri told Dr Synnott that in November/December 2006 he asked about having an alternative job – perhaps going to Adelaide for five weeks "to have a break and to get away". On 10 January 2007, he was not coping and "I couldn't do it any more". He described the incident of customer aggression on that day.
51. Dr Synnott noted that Mr Pellizzeri did not mention that his application for "systems testing" had been declined the day before he went off work.
52. Dr Synnott's diagnosis of “non-specific anxiety disorder” was qualified:
However, this is a broad diagnostic category and covers a wide range of presentations and no automatic implications can be drawn from the diagnosis. One should not necessarily assume there is any significant psychiatric impairment or incapacity for work – and the diagnosis isn’t an automatic contraindication to participating in employment.
Also, one should not assume that the current behaviour and situation of the individual is related the psychiatric symptoms they described.
Complaints to Dr Lewin
53. When Mr Pellizzeri saw Dr Lewin on 28 March 2007, Mr Pellizzeri had researched his symptoms on the internet and consulted part of the Comcare website looking for details about "psychological injury". He had typed out a list of likely symptoms. He recognised his own pattern of symptoms consistent with the information on the internet. Mr Pellizzeri's reports of incidents at work were different in some respects from what he had told other doctors and psychologists. For example, he said that on one occasion he wanted to hit his boss over the head with a glass bottle and that on another occasion he wanted to get a gun and shoot them. He also referred to some conflict at home that he had never previously discussed with a professional. Dr Lewin observed that Mr Pellizzeri's greatest distress during the interview was at this point of the examination. Mr Pellizzeri said that all his reported symptoms had settled. He told Dr Lewin that he had taken an anti-depressant, Cipramil for ten days but had ceased taking it. He was seeing Mr Herrera once a week. The treatment included "learning to manage time", relaxation techniques, and making lifestyle changes. Dr Lewin prepared a further report dated 11 March 2009 after being provided with additional material but without re-examining Mr Pellizzeri.
CONCLUSION
Was Mr Pellizzeri’s mental ailment materially contributed to by his employment?
54. We accept that some aspects of Mr Pellizzeri's work caused him to feel anxious. Liverpool was a very busy office where incidents of customer verbal aggression were frequent, although we find that physical assaults were not frequent. As Mr Pellizzeri said himself, he was, unfortunately, one of the few staff who had suffered physical assault.
55. We find that there were lengthy queues of people waiting to be served, as this is also consistent with Ms Risson's evidence. We also accept, contrary to Mr Petrie's evidence, that the ten minute time frame for serving customers was not met for much of the time, as Ms Risson explained.
56. However, we also find that Mr Pellizzeri has exaggerated the impact on him of some aspects of his work, for example conflict with managers, not accessing training time, and the impact of the customer aggression incident on 10 January 2007. The histories given to various professionals have differed. For example, some of the symptoms described to Dr Lewin were much more serious than had been described to other professionals previously.
57. Mr Pellizzeri also downplayed the impact on him of aspects of his personal life, for example his response to his mother's illness and death. His memory is not reliable. For example, Mr Pellizzeri told Mr Herrera that he received no counselling after the 2001 assault. This was contradicted by a handwritten report or draft report attached to the clinical notes from his general practitioner, apparently prepared for the purpose of the 2001 compensation claim, which noted that he had had counselling which he found helpful but did not need any medication, and that his condition was:
definitely helped by psychological treatment. This helped him to understand, accept and feel confident to re-commence working.
58. It is significant that Mr Pellizzeri also did not mention the incident of customer aggression that occurred on 10 January 2007 to his general practitioner or in his compensation claim form but sought to emphasise that incident in retrospect. We do not think that particular incident was the trigger for his going off work.
59. However, that he wanted regular breaks away from his work environment to attend systems testing reflects, in our view, that he found his employment stressful, and when he his request was refused, he reacted by going off work. The evidence established that Mr Pellizzeri had attended systems testing for four week blocks in May - June and August - September 2005, April - May and June - July 2006, and 5 November to 9 December 2007. That he is much happier in his new position also supports our finding that he found his work stressful, in particular the verbal aggression from customers, the long queues, unfamiliar areas of work for which he did not feel adequately trained, and the problems arising from the change of computer systems.
60. We conclude that Mr Pellizzeri's mental ailment was contributed to in a material degree by his employment with Centrelink.
Did Mr Pellizzeri suffer the mental ailment as a result of his failure to be released for systems testing?
61. Mr Pellizzeri was adamant that the refusal to release him for systems testing was not particularly important to him. He pointed to his having applied for and being refused release for systems testing after 10 January 2007, when he did not react as he had on 10 January 2007.
62. His evidence, and that of Ms Risson, was consistent in relation to a conversation which we find occurred on 25 July 2006. Ms Risson had a discussion with Mr Pellizzeri about systems testing for the period 7 August to 8 September 2006 because another officer had requested to attend. She advised Mr Pellizzeri of the growing resentment in the team as he was seen as the only one who went to systems testing, that she had to be fair and equitable in approving release for systems testing as five Case Service Assistants (CSAs) had expressed interest and that she had recommended another CSA for the systems testing period August - September 2006. She also told Mr Pellizzeri that operational requirements took priority over sending any CSA to systems testing because Liverpool was a very busy site.
63. On 6 December 2006, Mr Pellizzeri met with Ms Louise Hamilton and presented two different proposals which would allow him to attend Systems Testing.
64. We find that Mr Pellizzeri sought to downplay the importance to him of being released to do systems testing in Adelaide. We do not think it was mere coincidence that he went off work the day after receiving the email from Ms Hamilton that he would not be released. He had met with Ms Hamilton earlier and put forward thoughtful proposals that would allow him to be released. He mentioned the refusal to Mr Herrera and Mr Walker in terms that indicate that it was important to him. We find that the evidence shows that the trigger for his going off work on 11 January 2007 was learning that he would not be released to do systems testing.
65. While other employment related factors materially contributed to Mr Pellizzeri’s mental ailment, it is not a compensable injury if it suffered “as a result of” any of the excluded factors, including a failure to obtain a benefit (see Hart v Comcare). We find that Mr Pellizzeri's mental ailment was suffered as a result of his request to do systems testing being finally refused on 10 January 2007. The refusal materially contributed to Mr Pellizzeri's disease.
Was being released for “systems testing” a benefit?
66. What is a “benefit”? In Trewin v Comcare at 177, Heerey J found it includes a benefit to which an employee is entitled as a matter of right, in the sense of being legally or administratively enforceable. His Honour observed at 176 - 177:
In my opinion the term benefit in s 4 is not restricted to something which is a matter of charity or gratuity. The Macquarie Dictionary gives two relevant meanings for the noun “benefit”: 1. “an act of kindness. 2. anything that is for the good of a person or thing.” To some extent the meanings overlap, with the latter being broader. I think the word is used in the latter sense.
67. The particular benefit identified in Trewin was the employee’s obtaining a permanent position within the Department of Defence accommodating her physical limitations.
68. Mr Dube referred us to the Tribunal’s decision in Re Millichap and Comcare, where Deputy President Hack observed that it may be possible to characterise every adverse incident of employment as a failure to obtain a benefit. For example, a condition resulting entirely from bullying is capable of being characterised as a failure to obtain the benefit of not being bullied, but that it seems absurd that such a condition not be compensable. The observations were not essential to the decision in that case. In any event, the factual circumstances that arose there are not analogous to Mr Pellizzeri's circumstances.
69. Mr Petrie's evidence, which was not contradicted by Mr Pellizzeri, was that prior to July 2007 travel allowance paid to staff included a component for accommodation that was paid at a set rate depending on the location, capital cities attracting a higher rate than country locations. The money was paid prior to travel and was not conditional upon the person paying for accommodation at that rate. Therefore, it was possible to make a profit by staying with friends or relatives or paying less for accommodation. There was also an allowance for meals and incidentals. Mr Pellizzeri's evidence was that he made no profit from his travel allowance. We accept he did not make a profit.
70. However, the evidence establishes that the release for systems testing was sought after, not only by Mr Pellizzeri, but by other staff at the Liverpool CSC. Mr Pellizzeri clearly found his release for systems testing to be important and for his own good. Taking into account Justice Heerey's consideration of what might constitute a "benefit" in connection with employment, we find that being released for systems testing was relevantly a benefit under the Act.
DECISION
71. Having considered all the material before us, we find that Mr Pellizzeri's mental ailment was suffered as a result of his failure to obtain a benefit and is therefore excluded from the definition of "injury" in the Act.
72. Accordingly, we affirm the reviewable decision that Comcare is not liable to pay compensation to Mr Pellizzeri under s 14 of the Act for an injury suffered on or about 10 January 2007.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member and Dr MEC Thorpe, Member.
Signed: ……..[sgd]……...…
Steven Mulipola, Associate
Date of hearing: 14 and 15 April 2009
Date of decision: 6 May 2009
Representative for the Applicant: Self-represented
Counsel for the Respondent: Mr B Dube
Solicitors for the Respondent: Dibbs Barker
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