MacNab and National Australia Bank Limited (Compensation)
[2016] AATA 980
•1 December 2016
MacNab and National Australia Bank Limited (Compensation) [2016] AATA 980 (1 December 2016)
Division
GENERAL DIVISION
File Numbers
2014/4994, 2015/3454
Re
Cameron MacNab
APPLICANT
And
National Australia Bank Limited
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 1 December 2016 Place Melbourne In relation to application no. 2014/4994, the Tribunal sets aside the decision under review and substitutes a decision that Mr MacNab suffered a disease that was contributed to, to a significant degree, by his employment with the respondent. The Tribunal remits the application to the respondent for calculation of his entitlements pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) on and from 23 December 2013 to the present date and at the present date in respect of his mental health condition. The respondent shall pay Mr MacNab’s costs and disbursements of that application pursuant to s 67 of the Act.
In relation to application 2015/3454, the Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
WORKERS’ COMPENSATION – whether mental health condition arose out of or in the course of employment – whether the result of reasonable administrative action in a reasonable manner – whether permanent impairment
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 24, 27, 67Safety, Rehabilitation and Compensation Act 1988 – Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
Cases
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
Regina Perton, Member
1 December 2016
Cameron MacNab, now in his mid-forties, has worked for the National Australia Bank (the bank) since 1988. During 2013, just before he started six months’ long service leave, he was advised that there was to be a restructure of the area in which he worked, resulting in his job being abolished. Mr MacNab was told that he had to find another role at the bank. On his return to work, he started looking around for appropriate positions that were equivalent to his own. Following a discussion with his supervisor just before Christmas 2013, the reasonableness of which is in dispute, Mr MacNab suffered a diagnosed mental illness from which he still suffers. Mr MacNab lodged a claim for compensation on 8 May 2014 in relation to anxiety and depression stating that he first sought medical treatment for his illness on 23 December 2013.
On 18 July 2014 the bank denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). The bank accepted that Mr MacNab suffered from a work-related condition but determined that liability was excluded because the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr MacNab’s employment.
On 31 July 2014 solicitors acting for Mr MacNab requested reconsideration of the decision. On 4 September 2014 a delegate of the bank affirmed the initial decision. On 25 September 2014, the Tribunal received Mr MacNab’s application for review (2014/4994).
On 21 February 2015 solicitors acting for Mr MacNab lodged a claim for permanent impairment and non-economic loss in relation to anxiety and depression. On 28 April 2015 the bank rejected the claim. On 5 May 2015 Mr MacNab requested reconsideration of the decision. On 21 May 2015 the bank’s delegate affirmed the original decision. On 10 July 2015 an application was lodged with the tribunal (2015/3454).
The Tribunal heard and determined both matters together.
RELEVANT LEGISLATION
Section 14(1) of the Act provides:
Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5A of the Act states:
Definition of injury
(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.
Section 5B of the Act states:
Definition of disease
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(2)In this Act:
significant degree means a degree that is substantially more than material.
Ailment is defined in s 4 of the Act:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 16 of the Act refers to compensation for medical expenses. Section 19 concerns compensation for injuries resulting in incapacity. Sections 24 and 27 of the Act concern compensation for permanent impairment.
MR MACNAB’S BACKGROUND
Mr MacNab is married with three dependent children. The bank has been his sole employer since he was 19 years old. He was promoted to Business Banking Manager 3 (BBM3) in 2008. His role involved dealing with the financial needs of businesses in a particular geographical area. Following a restructure during 2013 in the region in which he worked, Mr MacNab’s position was abolished and he was told that he would need to find another suitable position within the bank if he wished to continue to work there. He was not offered a redundancy. Further details about the circumstances in which he was told about his options and his job search are provided later in these Reasons for Decision.
MEDICAL EVIDENCE
Dr Andrew Pearce, Mr MacNab’s general practitioner, provided medical certificates and backdated Certificates of Capacity when Mr MacNab indicated he was lodging a worker’s compensation claim. In a report dated 30 May 2014 addressed to NAB Workers Compensation, Mr Pearce stated:
Cameron has attended this surgery for the past 14 years having first attended her [sic] October 3rd 2000. Cameron’s past health has been unremarkable and he has suffered no significant pre existing injuries or illnesses.
Cameron’s most recent problems started at the end of 2013 and he presented to the surgery on Monday 23rd December 2013 saying that he had suffered from stresses at work. Cameron was told that he had been put in the position where his employer had wanted him to resign. Cameron was diagnosed as having some anxiety secondary to this and was advised to try seeking mediation perhaps through a solicitor, try sorting things out, the possibility of raising a workcover claim was discussed with him, he was given a certificate for a couple of days off and hoped that things would settle over the Christmas period.
Cameron was reviewed on the 3rd January 2014 things had not changed much, on January 9th 2014 Cameron was prescribed some Temaze for sleeping difficulties and he was reviewed on 13th January 2014. Cameron complained still about stresses related to his uncertainty of his future about work, he was not sleeping, he was feeling depressed and he was referred to a psychologist…under a Mental Health Care Plan for assessment of this. Cameron on 22nd January 2014 he had contacted the union and they had advised him not to see a solicitor as he should be seeing either the union or a solicitor Cameron left this in the union’s hands, he was still suffering from some insomnia although this was being treated satisfactorily with Temaze.
Cameron attended for review on Friday, 14 February 2014, nothing much had happened. Cameron reiterated that his work had told him they were waiting for him to resign and that he did not understand what was going on. Cameron was lacking confidence, not sleeping, feeling indecisive, feeling very anxious and starting to spill over into his home life. On March 14, 2014 Cameron was still waiting for a meting [sic] to sort out what was going on and his mood remained the same.
Cameron was reviewed on Friday 11th April 2014, Cameron had had the meeting in late March, Cameron had spoken with his head boss and his area manager and some options had been put to Cameron who stated that these were a demotion, re employment but with a performance management review for going back and resigning if no job was present for him three months down the track. Cameron felt at this stage that he had been marginalised by his employer, that he was suffering from some anxiety in response to undue pressures on him to resign. Cameron was feeling that his work was running his life in a bad way and that he was not going to let work get away with this. It was pointed out to Cameron that his mood had suffered over 2014, that he’d been waiting for meetings and waiting to resolve this but not a lot had happened and that in the meantime he had suffered from increased insomnia, increased indecisiveness, constant worry and rising anxiety and depression.
Cameron stated that his union had advised him to claim on workcover for this and so a workcover form was filled out on this date. Cameron was seen on the 28th April 2014 where things remain the same and most recently on 27 May 2014 where things remained the same. Cameron was given some Temaze to help with his sleeping, was encouraged to continue with his counselling. He was not keen on taking any anti-depressant medications and a workcover form was filled out and this stated that Cameron was suffering from some anxiety and depression and he was certified as being unfit for work until review. In answer to your specific questions –
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2. The history provided by the Claimant at the initial consultation as to the causes - Cameron told me that he had been employed in a position at work. At the meeting with his boss before Christmas time Cameron states that he was told that his position had only ever been temporary and that he was expected to resign as there was no ongoing position for him and Cameron felt this was unjust. He also denied having been told this prior to this meeting.
3. What were the symptoms the Claimant reported to you at the time? - please see above.
a) On Cameron’s first presentation he was particularly upset and worried about the future. He presented as an anxious and agitated person and was hoping that some time off and time to think about things and get in touch with his union might sort these problems out over the Christmas period and this was not the case.
b) Has there been any improvement or decline in symptoms? What were the contributing factors to this - I believe that there has been a decline in Cameron’s symptoms. I believe he has developed a worsening anxiety and a worsening depression, I believe that Cameron’s inability to return to work has lead to him being fixated upon this and not able to concentrate on many other things and has lead to a loss of his general confidence, concentration and well being. I believe that his anxiety and depression has spilled over into his family life. I believe that Cameron is now fixated on making sure that his work ”cannot get away with this”, I believe that Cameron could and should be looking for alternative forms of employment in a less stressful environment but Cameron is not able to do this at the moment as he is fixated on righting the above perceived wrong.
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6. Does the Claimant suffer from an underlying or pre-existing condition –
a) No
b) No
7. What treatment plan is recommended for the condition suffered by the Claimant - Cameron’s treatment plan is –
1. Try sorting out his stresses and addressing these
2. Psychologist review and counselling
3. Hypnotics to help him sleep at night time4. Medications to help calm Cameron and assist with his anxiety and depression have not been engaged as Cameron has been reluctant to start these at this stage.
8. What is the prognosis of the Claimant’s condition? - I feel the Claimant has a poor prognosis. I believe that apart from the afore mentioned anxiety and depression an adversarial relationship has developed between Cameron and his firm and this is contributing to his slow progress.
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In a medical certificate dated 6 June 2014, Dr Pearce stated that Mr McNab was suffering from anxiety depression PTSD adjustment disorder.
The bank wrote to Dr Pearce on 17 June 2014 indicating that Mr MacNab had provided written authorisation to obtain information from him. Dr Pearce completed the attached form on 18 June 2014 stating that the diagnosis of Mr MacNab’s medical condition was PTSD, Anxiety, Depression. Asked if Mr MacNab could return to his normal role of Business Banking Manager, Dr Pearce stated that he was unsure. He suspected that a breakdown in trust had occurred and this will be difficult to resolve.
On 14 October 2014 Dr Pearce provided a report to Mr MacNab’s solicitor. He again indicated that Mr MacNab had been his patient for the past 14 years and he had suffered no significant pre existing injuries or illnesses. He repeated and updated the history given to the bank and described his patient’s condition when reviewed in August and September 2014. Dr Pearce said that Mr MacNab agreed to have a trial of an anti-depressant and continued to see his psychologist every three weeks.
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He was reviewed most recently on September 29 where he was feeling that the medications were not having much benefit and he was having difficulty doing anything.
Asked about the relationship between Mr MacNab’s injury and his employment and whether his injuries were consistent with the stated cause and in particular whether he believed that on the balance of probabilities that MacNab’s employment had significantly contributed to his condition, Dr Pearce stated:
… Cameron is well-known to the surgery. He has no past history of mood disorder. He has had no stress outside of his workplace. His presentation with anxiety and stress on 23 December 2013 was out of character. Depression is now hampering his day-to-day activities to the extreme. He has had difficulty knowing what to do. Moreover this problem has dragged on whilst he has been trying for a satisfactory resolution to his problem. He is now not sleeping. He is seeing a psychologist and is on anti-depressant medications. He had initially hoped to go back to his job, but I feel that he now feels a loss of trust with his employer and let down.
His prolonged stresses, anxiety and worsening depression now are hampering his day-to-day activities. His psychologist is working on strategies to plan his day, and get him to do things. Cameron’s energy and lack of confidence are a struggle for him. Sadly I feel that were he to reach a satisfactory conciliation he would struggle to return to work in the medium future because of the affect that his depression is having on his life. And this depression is due to his work experiences. Cameron’s work is significantly responsible for the major ill effect on his health.
In oral evidence, Dr Pearce stated that he had been a general practitioner for some 30 years. He said that he had had a lot of exposure to people with mood disorders. Dr Pearce said that since his first attendance as a patient in October 2000, there had been nothing much physically or psychologically wrong with Mr MacNab until his attendance on 23 December 2013. Dr Pearce said that Mr MacNab’s presentation after the December meeting and beyond was quite different to the person he had known and taken care of for some 14 years.
Dr Pearce said that Mr MacNab had come in agitated, super anxious and it took him a few minutes to get Mr MacNab calm and settled. It was a difficult consultation. Dr Pearce said that it had been a bolt out of the blue being asked to resign. He confirmed that Mr MacNab had not seen him or any other clinic doctor after the November meeting nor had he seen him when there were discussions about his performance.
Dr Pearce described the consultations and scripts issued. He also confirmed that Mr MacNab had not told him about his level of drinking during the many consultations he had had since 23 December 2013. Dr Pearce said that he had no doubt that the stress from which his patient suffered was due to the expectation from his employer that he resign and that he would have no job. Dr Pearce said that Mr MacNab felt that he had been harshly dealt with by his employer after such long and dedicated service.
Dr Pearce said that he had considered the diagnosis of adjustment disorder in December 2013 but as it was more than six months since the events, he believed Mr MacNab was suffering from a major depressive disorder.
Under cross-examination, Dr Pearce said that he had not referred Mr MacNab to a psychiatrist as he was quite confident at treating him and also believed psychological counselling would be of assistance. He said that he does not have post graduate qualifications in psychiatry although he does attend conferences. Dr Pearce said that he sees two or three depressed patients every day.
Dr Pearce said that on seeing Mr MacNab at the hearing, he was surprised at his transformation back into a suit from his rather sloppy appearances over the past two years. He was optimistic that things might be improving.
Associate Professor N Paoletti examined Mr MacNab on 21 November 2014. He provided background including information about Mr MacNab’s employment, medical history and a description of alleged problems at work and history of presenting illness. He provided a summary of Mr MacNab’s description of the impact of the current illness on his life. The opinion he provided about Mr MacNab was:
In my opinion, Mr MacNab suffers from:
1. Unspecified Depressive Disorder… with anxiety.
2.Alcohol Use Disorder… secondary to the above.
His reaction to the recounted events at work is a ‘significant contributing factor [In fact the only discernible factor] to the above.
In relation to treatment:
·the current regimen of psychological treatment and antidepressant medication seems reasonable and appropriate
·the symptomatic use of alcohol for self-medication needs addressing
·he may need review of his psychotropic medication by a psychiatrist, which would be a reasonable treatment expense, additional to seeing the psychologist.
Prognostic outlook is static for the foreseeable future.
Coming to work capacity:
·Mr MacNab does not have a current sustainable work capacity.
·this is likely to apply to the foreseeable future.
·whether, at some point he will be able to return to work at NAB depends on both progress of his mental state and whether there can be a rapprochement in the relationship with his line managers or whether he could be redeployed to suitable work within the Bank
·he has a lot of banking experience and he is relatively young, with a possibility work outside the NAB in future, but the availability of such jobs is outside my expertise.
As far as psychosocial impact is concerned, there has been a pervasive impact on Mr MacNab’s disposition to socialisation, his capacity for recreational pursuits, his lifestyle and his quality of life.
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In oral evidence, Professor Paoletti said that when he examined Mr MacNab, he gained the impression that he was straightforward and candid. In relation to Mr MacNab’s drinking, Professor Paoletti said that he was not an alcoholic but using alcohol for symptomatic relief which sometimes happens when people are anxious or depressed. He said that he and Dr Majoor were in agreement on that point.
Professor Paoletti said that his diagnosis and that of Dr Majoor were not really very different. He said that in his view, if a condition lasted more than six months, it was no longer an adjustment disorder with depressed mood but better diagnosed as depression. Professor Paoletti said that Mr MacNab’s unresolved issues with his employer were a strong factor in delaying his recovery.
Under cross-examination by Mr Wallace, Professor Paoletti said that he thought Mr MacNab’s level of impairment according to the Guide to the assessment of the degree of permanent impairment (the Guide) was above 10%. When it was pointed out that 15% impairment required supervision of daily living and that Mr MacNab had given evidence that he could care for himself, Professor Paoletti said that Mr MacNab’s wife would sometimes remind him of the need to take care of himself. Professor Paoletti conceded that he had no evidence that Mr MacNab could not take care of himself without direct supervision but added that if Mr MacNab was left completely on his own, things could be different. His wife was there as a background presence.
Mr Wallace questioned Professor Paoletti about other aspects of the Impairment Tables including whether Mr MacNab had any restrictions on his physical movements, reading, writing, driving and other related matters. Professor Paoletti conceded that Mr MacNab could still undertake those activities but that depression caused Mr MacNab to slow down and/or be uninterested in many things that he had previously cared about.
Dr Jennifer Majoor provided a report dated 14 July 2014 at the bank’s request. Her summary and assessment was as follows:
...
Mr MacNab is a 44-year-old married man who has not worked in his usual occupation as a business banker with the National Australia Bank since January 2014. He relates his non-attendance at work to lowered mood, which he stated was triggered by having been told that he would have to resign if he did not find an alternative role at the conclusion of his redeployment program. Mr MacNab describes symptoms of lowered mood, poor sleep, poor concentration, increased alcohol intake, decreased motivation, fatigue and lethargy and poor appetite. He described high levels of disaffection with his workplace, believing that he was poorly treated up to 25 years of service with the bank and poorly informed during his redeployment process.
Mr MacNab would appear to be suffering from a mild Adjustment Disorder with depressed mood. He is currently receiving psychological treatment, which would appear to be appropriate. I would recommend that he return to work as soon as possible, to reduce the possibility of work avoidance, which tends to increase when work anxiety and disaffection is allowed to manifest over time. I would advise a return to work program consisting of 3 days/week for 2 weeks increasing by 1 day/week at fortnightly intervals until full-time hours have been achieved.
Although not directly stated by him, it may be that Mr MacNab was expecting a redundancy at the end of January, as opposed to continuing employment with the National Australia Bank. There appears to be a discrepancy between the documentation in the file materials made available to me and the account provided by Mr MacNab. ...
In engaging Mr MacNab in a return to work program, it will be important that he undergo mediation in order to address the processes surrounding his redeployment program and to address his disaffection with his workplace. I would suggest engagement of a rehabilitation provider to facilitate Mr MacNab’s redeployment, provide a third party to assist with communication of the redeployment principles and to assist with his reintegration into the workplace.
Dr Jennifer Majoor provided a further report dated 29 June 2015. Dr Majoor’s summary and assessment were as follows:
Mr MacNab is a 45-year-old man who last worked as a business banker with the National Australia Bank in January 2014. He ceased work following difficulties associated with a redeployment program as an ongoing Workers Compensation claim. He describes an ongoing lowered mood, anger, fatigue and lethargy, poor concentration, poor sleep, increased alcohol intake and a loss of interest in activities. It would appear that he maintains engagement in domestic tasks and in his children’s sporting interests.
Mr MacNab has previously been diagnosed with a mild adjustment disorder with depressed mood. He continues to express a high level of disaffection with his workplace regarding the process of the redeployment and this appears to have been compounded and to have intensified with his absence from the workplace. He has not engaged in a return to work program and now appears unwilling to return to his previous workplace environment. On this assessment, it would appear there has been minimal change in Mr MacNab’s condition with the introduction of an SSRI antidepressant and ongoing psychological therapy.
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In response to a question asking her to provide her psychiatric diagnosis, Dr Majoor stated:
Mr MacNab is continuing to suffer from an Adjustment Disorder with depressed mood and alcohol abuse.
According to DSM-IV-TR and DSM5, Mr MacNab is suffering an Adjustment Disorder with depressed mood. Mr MacNab meets the criteria for this condition as he has developed emotional and behavioural symptoms in response to an identifiable stressor with the stressor being his perception of workplace incidents notably the redeployment program and his belief that he was told he would have to resign if he did not find an alternative position by the end of January 2014. An adjustment disorder is not necessarily a condition that describes behaviour or symptoms that are outside the boundaries of normal mental functioning. It generally describes a significant reaction to a major stressor where the symptoms and behaviours have become clinically significant to the point of causing significant impairment in social or occupational functioning. Mr MacNab’s symptoms include lowered mood, anger, fatigue and lethargy, poor concentration, poor sleep, increased alcohol intake and a loss of interest in activities.
Mr MacNab did not identify that his alcohol intake was causing any social or interpersonal problems and did not describe using alcohol in hazardous situations. He did not describe a failure to fulfil role obligations or legal problems arising from his alcohol use. He therefore did not meet the DSM-IV-TR criteria for alcohol abuse at the current time, although his intake is above recommended levels.
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Mr MacNab’s condition would appear to have stabilised at the current level of functioning. He has had [sic] received reasonable recommended medical treatment for mild – moderate depression of an SSRI antidepressant and psychological therapy and this would appear to have had a minimal effect on his symptoms. I do not believe that there are indications for more aggressive pharmacological management of his mood. Until there is some resolution in his legal and workplace issues (the stressor for his adjustment disorder), his condition is likely to persist with the ongoing reported symptoms.
Asked to provide her opinion as to whether Mr MacNab suffers a psychiatric incapacity to work in his pre-injury duties, Dr Majoor stated:
I do not believe that Mr MacNab suffers a psychiatric incapacity to work in his pre-injury duties. In my opinion, he is disaffected and embittered towards his workplace with regard to the redeployment process and his anger has intensified during his prolonged period of leave. I do not believe that the reported symptoms of his adjustment disorder are of sufficient severity cause a restriction in work capacity. Although a return to his former workplace may be difficult, given his level of distrust towards his employer, I do not believe that he is unable to perform the duties of his previous role at the current time.
In response to a request to give her opinion on whether Mr MacNab suffers a psychiatric incapacity for any work, Dr Majoor stated:
Mr MacNab stated that he could not concentrate on menial tasks or perform mundane jobs around the house. He did however, state that he has maintained some activity in domestic duties and involvement in his children’s sporting activities. Mr MacNab’s current distress from his adjustment disorder would appear to relate to his level of anger, in betterment and disaffection towards his previous workplace (his perceived stressor), as opposed to a major mood disorder. In my opinion Mr MacNab does not suffer an ongoing psychiatric incapacity for any work and would benefit from commencing a graduated return to work program with tasks and duties that were modified, staged and increased according to his progress. A return to his former workplace is not likely to be successful, given his level of embitterment towards his employer and a vocational assessment may be required to assist suitable employment options.
As outlined in my previous report, return to work as soon as possible is preferable, in order to lessen the anxiety about work. Continued absence from the workplace, may heighten anxiety about work and may act as a barrier to re-engaging with a work program in future.
Dr Majoor stated that it did not appear that there were any non-work related psychosocial factors that might be having a negative impact on his condition.
In oral evidence, Dr Majoor maintained the views expressed in her report.
MR MACNAB’S FIRST CLAIM
In his first claim form lodged in May 2014, Mr MacNab stated that he first realised that he was injured around 1 pm on 20 December 2013, a Friday. He saw his general practitioner the following Monday, 23 December 2013. Dr Pearce diagnosed Mr MacNab as suffering from depression and anxiety.
After the rejection of his compensation claim on the basis that he had suffered a health condition which was significantly contributed to by his employment but that his injury was not compensable as it had arisen due to reasonable administrative action taken in a reasonable manner, Mr MacNab sought reconsideration of the decision.
On reconsideration, the bank continued to accept that Mr MacNab suffered from an ailment that was contributed to, to a significant degree, by Mr MacNab’s employment with the bank but also stated it arose as a result of reasonable administrative action and was therefore not compensable.
Taking into account the evidence before the Tribunal from his treating health practitioner and those arranged by the bank and his solicitors and Mr MacNab’s evidence and submissions, the Tribunal also accepts that Mr MacNab’s employment was the major contributor to the development of anxiety and depression and/or adjustment disorder with depressed mood. The Tribunal is satisfied that Mr MacNab suffered an ailment as defined in Sections 4, 5A and 5B of the Act as initially diagnosed on and from 23 December 2013.
DID MR MACNAB SUFFER A WORK RELATED INJURY?
A person may suffer from an adverse health condition with a significant work contribution but still not be entitled to workers’ compensation in certain prescribed circumstances. These include the provisions set out in Section 5A(2) of the Act where examples of reasonable administrative action are spelled out:
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(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
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(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.
Mr MacNab stated that the meeting on 20 December 2013 was the trigger for his ailment. He had not previously sought medical attention despite the circumstances in which he found himself after the abolition of his position. He had had earlier discussions concerning his future with Mr Alistair Freeman, his People Leader (supervisor), and with others in the bank. After his return from long service leave on 1 October 2013, he took on relieving roles at locations that were not his original office at Braeside. He said that he coped well with those roles until the meeting just before Christmas.
The bank maintained its view that administrative action taken on 20 December 2013 was appropriate in the circumstances. Mr MacNab and Mr Freeman differ in their recollections as to what was said on that day and at an earlier meeting on 11 November 2013.
In Hart v Comcare [2005] FCAFC 16 the Full Federal Court held that, provided that an ailment is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in the Act, that disease is not an injury (later applied to s 5A of the SRC Act), and it is immaterial whether that ailment is also suffered as a result of any other employment-related circumstance.
The need to differentiate between administrative and other actions was considered in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21 where Gray J stated at [31]:
The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
Mr MacNab undertook work at other locations as directed by the bank at their Berwick, Dandenong and Moorabbin offices after his return from long service leave. He was not working at Braeside on 20 December 2013 when the meeting which appears to have precipitated his ailment took place. The meeting on 20 December 2013 took place after a Christmas function that Friday morning at Braeside. Mr MacNab was on deployment at another office at that time.
Mr MacNab gave extensive oral evidence elaborating on his written evidence and commenting on the statements made by his supervisors and their manager at the bank. He provided copies of notes he took following meetings with Mr Freeman on 11 November 2013 and 20 December 2013. He stated that the notes had been written in a notebook purchased on 11 November 2013 on his way home from work that day. An extract of his note of 11 November 2013 states:
Spoke to Paul Wood at Dandenong Business Banking Centre. He advised me that my application for the managers role at Berwick BBC was unsuccessful.
His feedback was that I interviewed very well and that his decision was a “toss of the coin”. He said that he was very happy with the relieving role that I did in the vacant BBM position and that if he had another BB3 position available that he would be happy to offer it to me.
He asked if I could consider the role that was being offered at Wonthaggi, but I said that relocation for me was not a realistic option for me at this time as my father passed away in July leaving my Mother alone nearby.
Spoke to Alistair Freeman after returning to Braeside BBC from Dandenong. He said that he wanted me to relieve the vacant BB3 role pending the commencement of newly appt manager.
We spoke about my lending numbers which were below target at the time of me taking Long Service Leave. I told Alastair that this was heavily impacted by the staffing issues that the centre previously, and more particularly by not having had any direct assistance for six months while the issues surrounding my associates departure were investigated. Alastair suggested that I did not talk about the lack of support during this period because he said “It makes you sound like a sook”. He said that due to my extended leave during the operating period that I would have an appraisal of “unrated”. We agreed on an “on deployment” period to the end of January 2014. Alastair suggested that I call Frank Torcasio at Frankston BBC to see if any roles were available, but when we checked the organisational chart at Frankston it appeared to be fairly stable.
Alistair asked if I did not want to work at the Braeside site as I did not apply for the role being advertised concurrently with the Berwick role. I told Alastair that I had no problem with working at Braeside, I said that I acknowledge that I “put all my eggs in one basket” with the Berwick application. I said that I had always enjoyed working at Braeside and that in retrospect I had made a mistake. He said that sometimes employees wait until bonuses are paid and then resign so that something may come up in December.
Mr MacNab’s note written on or around 20 December 2013 stated:
I met with Alistair Freeman at the Braeside office. He asked me how I was progressing finding a new role. I advised that I had been regularly checking the online Job search system but there had been no appropriate roles advertised other than the one that I had applied for unsuccessfully.
He impressed upon me the urgency stating that the 31st Jan deadline was fast approaching. He offered to call ‘retail’ to see if there are any Branch Manager roles available. I said I did not believe that the Branch Manager role suits my skill sets and that I would prefer to return to my 3 role. He said that role no longer exists and it might be difficult getting one in the future with guys like Mario and Scotty coming through.
He said that if I don’t find a role by the 31/1/14 “That’s it!”. I said what you mean “that’s it”? He said “that’s it, finished!”. I said what do you mean finished? Redundancy? He said no, there is no redundancy. He said that because I did not opt into a role under the BFB process that I would be expected to resign if no role is forthcoming.
He said he want to make it clear so there are no misunderstandings. This was a total shock to me. He then again offered to call retail. I said that given the ultimatum of a role that doesn’t suit me or being forced to resign that I’d just as soon leave.
In a written statement dated 9 July 2015, Mr MacNab stated:
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4. Prior to taking long service leave I was told that my role no longer existed and that when I return from my leave I would be expected to find a new role within the bank.
5. I had spoken to Alistair a number of times over the phone while I was in my relieving position at the Dandenong Business Banking Centre. At no time did he offer me a role during that period or at any later meetings or discussions. Nor did he attempt to contact me to offer a role. He had never mentioned that he had even attempted to contact me. If required he could easily have done so by calling Paul Wood who was within eye sight of my desk to mention that I was uncontactable if this were truly the case. It is difficult to believe that Alistair was unable to contact me as he was able to on both occasions that he required me to change work sites to assist his team with workflow stress.
6. I have discussed with Alistair, my application for the Berwick role and he said that if I was successful that I would undoubtedly transition straight into that role. However if I were not successful he said that I would return to assist the team at Braeside which I was comfortable with.
7. As per my diary notes 11 November 2013, Paul Wood provided me direct feedback that I had interviewed very well.
8. I was aware of the deployment end date as 31 January 2014 and was regularly checking the Online Job Search tool. There were no similar roles available as incorrectly stated in Alistair’s statement. The West Gippsland role referred to was in Wonthaggi, which was over an hour and half away by car. At the time the role was advertised I was asked if I would consider a relocation. I explained that due to my father’s recent death I needed to live close to my elderly mother and therefore relocation was not a realistic option.
9. On 20 March 2014 I had a meeting with Mike Sullivan in which I requested for the Union representative Jay Madsden to be present. The following three options were put to me:
i.Accept a BBM3 Role – Under performance management
ii.Accept a BBM2 Demotion
iiiReturn to work for a further 3 months with the view to find a new role. I was however required to sign a document to say that if a role was not forthcoming that I would resign.
10. The options were never put to me prior to the meeting with Mike Sullivan on 20 March 2014.
11. I was not placed on Performance Management prior to taking my long service leave as claimed by Mike Sullivan in the meeting of 20 March 2014. I note in paragraph 8 on page 8 of 10 of the Circumstances Investigation report it is stated: “The claimant has never been issued with a formal warning or subject to formal performance management.”
12. Mike Sullivan told me that before I went on long service leave that I had been told I was on performance management and I dispute this. Alistair and I discussed the reasons for the deterioration in my financial performance in our meeting on 11 November 2013. We discussed both the Braeside Business Banking Centre staffing issues which I note have now been acknowledged by the bank. We also discussed that during the period in which Alistair highlighted as a drop in my performance I was left without direct Associate support for six months. When I raised this, Alistair suggested I did not talk about these issues as it “makes me sound like a sook”. I have noted these comments in my diary on 11 November 2013.
13. I have been off work since 10 January 2014 covered by normal sick certificates. I have seen my GP Andrew Pearce who is in Mornington. He has now converted these certificates to Certificates of Capacity which have been backdated. I continue to obtain Certificates of Capacity from Dr Pearce who continues to certify me as unfit for all work. Andrew Pearce referred me to psychologist Nicole Redlich who I continue to see.
14. I have never worked with a friend in their business during my long service leave as claimed by NAB. I do not have any friends that have their own business. I never worked at all during my long service leave. I do not have any employment prospects outside of NAB. I have worked with the National Australia Bank Ltd since 1988. In my time I have performed my work with integrity and I do not believe anyone within the organisation could dispute this.
15. As a result of my current condition, I feel anxious, I cannot sleep and feel extremely stressed. I have been diagnosed with PTSD and depression.
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17. I currently take Lovan (antidepressant) and Temazepam (a sleep preparation).
18. The only options I was given were to either find another role or resign. I felt as though there was pressure on me to resign in order for NAB to avoid paying a redundancy even though my role had disappeared before I had gone on long service leave.
In oral evidence, Mr MacNab said that he knew about the restructure before he went on long service leave. When he returned from leave on 1 October 2013, he undertook a role at Dandenong, returning to Braeside on 11 November 2013 and from 16 December 2013, he was relieving at Moorabbin for a week until 20 December 2013, He was then on leave, sick leave for two days and then annual leave, returning to Moorabbin after that.
Mr MacNab said that David Gamble, who was Mr MacNab’s previous People Leader before Alistair Freeman, had told him of the proposed restructure and the loss of his position before Mr MacNab went on long service leave. Mr MacNab said he knew that he would have to find a new role on his return from long service leave. Mr Freeman had subsequently acted in David Gamble’s role and then was given the position permanently whilst Mr MacNab was away. Mr MacNab said he had received an email from Mr Freeman whilst he was on leave concerning expressions of interest to be lodged for a new facility being established at Waverley. He said he did not go to a session explaining the new structure whilst on leave or participate in a webinar as he did not know that it was something important or relevant to his circumstances.
Mr MacNab said that he had met up with David Gamble whilst on leave as Mr Gamble had contacted him and told him about a job at Berwick as a BBM3 that he thought would suit Mr MacNab. Mr MacNab knew the manager, Paul Wood, and enjoyed working with him. He had subsequently been interviewed and as indicated earlier, had missed out on the job.
Asked why he did not take up the Wonthaggi role, he said the distance from his home was at least one and a half hours each way. His father had recently died and his mother lived close to his home. He did not want to be so far away from her and his own family. He said the trip to Braeside was about 45 to 50 minutes.
Mr MacNab said that he had a good relationship with Mr Freeman until the meetings on 11 November and 20 December 2013, the descriptions of which he had written up in his notebook on or around the dates of the meetings. Mr MacNab said the meeting on 11 November 2013 was a face-to-face meeting at Braeside. He had been working at Dandenong and went back to Braeside at about 10 am and the meeting was soon thereafter. Mr MacNab estimated the meeting took about 20 minutes. They discussed Mr MacNab’s lending being below the target and Mr MacNab said that not having an associate for a lengthy period had affected him as he was doing the work of both his associate and himself. Mr Freeman said that they would leave his assessment is unrated because of his absence on extended leave.
Asked why he started writing notes after the meeting on 11 November 2013 Mr MacNab said it was because of his work stresses and particularly because Mr Freeman had said that he sounded like a sook. Mr MacNab said he bought the notebook on his way home.
Asked about his understanding of what on deployment meant on his return from leave, Mr MacNab said he understood that he had three months to find a role or would be made redundant. He said he was confident about getting the Berwick role and acknowledged that he should have applied for the vacancy in Braeside. He said no one had suggested he apply for the Braeside vacancy.
He said that he had written the final sentence of his notes of 11 November because he was prompted by the comment of sounding like a sook. He said that Mr Freeman’s tone was quite aggressive and intimidating and different to how their conversations had been previously. Mr MacNab said that he was at work on 12 November 2013 and did not attend a doctor.
Mr MacNab said that he looked at the on-line job search every couple of days. The Berwick and Braeside roles were advertised as were other roles at that level but not ones that he thought were appropriate for him. Mr MacNab said that he did not apply for branch manager positions as they were staff management roles which he had never undertaken apart from managing an associate. He said he prefers to deal with clients.
Mr MacNab was questioned about the diary note dated 20 December 2013. He could not recall how the meeting had been scheduled or when he knew of it but he did not think it was spontaneous. He and Mr Freeman had met in the conference room. When Mr Freeman suggested others might be coming through the ranks and might take the roles like his, he said he was amazed as both of them were still associates.
Mr MacNab said he was dumbfounded when told that he would have to resign if he had no new role by 31 January 2014. He said he felt “sick in the stomach” and went into a hot flush. He was worried that he could not support his family. He said he had anticipated a redundancy if he could not find or be given a role. He said he did not realise until the meeting that day what the consequences were of not having found a particular role by 31 January 2014. Mr MacNab said that he had not been told by anyone prior to 20 December 2013 that he would be required to resign if he had not found a new role.
Asked how he felt after he left the meeting on 20 December 2013 Mr MacNab said he felt confused, he felt sick. He and another employee went back to the Moorabbin Branch after the meeting where Mr MacNab had been working that week. Prior to his meeting with Mr Freeman they had a team meeting and an end of year function. Mr MacNab said that after he went back to Moorabbin, he collected his things and went home. He was still feeling sick and confused. Over the weekend he could not sleep. He had lots of worrying thoughts as it was going to be only four or five weeks before they were financially ruined given they had a mortgage etc. He said he had some dark thoughts about self harm. On the Monday morning he went to see Dr Pearce and did not go to work. Dr Pearce gave him the Monday and Tuesday off on sick leave. Mr MacNab was due to be on annual leave from 27 December 2013 and return to work on 6 January 2014. Mr MacNab said he had never felt the way he had on that weekend after the meeting.
Mr MacNab said that he contacted People and Culture on 23 December 2013 to check on his status. He said he could not recall whom he spoke to but they were not very helpful. He said he also called the Financial Services Union (FSU) on that day. They told him they would need to assign him a Case manager and they would call him back. He said he had no response until a couple of weeks into January. Mr MacNab said he did not contact Mr Freeman as he had lost trust in him.
When Mr MacNab received Mr Freeman’s email on 8 January 2014, he said he felt that Mr Freeman was trying to put something in the email that did not happen. Mr MacNab said he did not know about the Employee Assistance Program (EAP) until it was mentioned in the email. He said he responded to Mr Freeman’s email on 9 January 2014 as he knew that Mr Freeman was going on leave that day.
Asked why he did not take a job that would not suit him rather than resign, Mr MacNab said that he had never intended to resign. He said he spent Christmas worrying about whether he would be able to provide for his family. His wife is a teacher who was working part-time at that time. Mr MacNab said that he had not returned to work since 23 January 2014 except for the meeting with Mr Sullivan.
Mr MacNab was asked to contrast his behaviour before he became ill with the present time. He said he no longer wants to socialise in the way he did previously, he prefers to be alone. He said he now has low self-esteem and feels worthless. He is sleeping better sometimes resorting to medication, sometimes resorting to alcohol. He has increased his level of alcohol consumption. Asked why he was drinking so much, he said it made him feel better and sleep better. However he has cut back in recent times and is more in control of the situation. He said he’d been working with the psychologist in trying to deal with the situation. He said he is also taking Lovan which evens out his mood. He doesn’t get to the depths he did before. Mr MacNab said that he’d always been a happy person but no longer is. He does not enjoy the same things he did before and has an overwhelming feeling of negativity and difficulty concentrating.
Mr MacNab said that he had not met with, nor had a conversation with, Mr Freeman since the 20 December 2013 meeting.
Asked if Mr Freeman had given any indication at the meetings on 11 November 2013 or 20 December 2013 as to why the date of 31 January 2014 was chosen, Mr MacNab said that this was three months after his return from leave and was the period initially suggested during which he should find another permanent placement.
Mr MacNab denied that he had been seeking redundancy, rather he wanted to find another position in the bank. Mr MacNab said his main goal on return from long service leave was to find another role at the bank but he felt that if nothing came up and redundancy was available, he could support his family while he retrained. On 20 December 2013, all that changed when he was told he would have to resign if he had not been given another role within the next few weeks, much of which was the Christmas – New Year holiday period.
Under cross-examination by Mr Wallace, counsel for the bank, Mr MacNab conceded that he had not talked to supervisors, People and Culture or others about exactly what would happen on his return from long service leave given his position had been abolished at Braeside. He denied that he had been expecting a redundancy if he did not find a position by 31 January 2014.
Mr Wallace questioned Mr MacNab closely about his notes of the two meetings and about what he knew of vacancies at other branches. He also asked Mr MacNab about his understanding of the bank’s Enterprise Bargaining Agreement (EBA) and the way he tried to get information. Part of the problem, according to Mr MacNab’s evidence, was that it was hard to get information during the Christmas – early January period from either the union or from the human resources area. Mr MacNab said that he had contacted some solicitors’ office but they all wanted lump sums in advance. Mr Wallace questioned Mr MacNab as to why he had not checked with People and Culture if he could be forced to resign.
Questioned about his self-care, Mr MacNab said that he did not need assistance with showering and the like. He dresses himself, can make himself a cup of coffee, can dress himself, shave himself etc. He said he still drives and had driven to the hearing from his home on the Mornington Peninsula . Mr MacNab said that he would be able to physically get ready for work.
Mr MacNab said that he has not seen a psychiatrist for treatment although that had been recommended as he was happy to rely on Dr Pearce and his psychologist. He agreed that he did not commence medication until early August 2014 which was indicated in Dr Pearce’s notes.
In terms of his drinking which had been discussed in the psychiatrist reports, Mr MacNab said that he did not drink and drive such as when picking up the children from school. His drinking would be at night at home. He stated that he did not take Temaze every night and never mixed alcohol and medication. He stressed that he had cut back on the level of drinking described in the medical reports.
During re-examination, Mr MacNab said that he had felt confident about getting another position in the bank on return from long service leave.
Mr MacNab said that on 20 December 2013, when he was told by Mr Freeman that he would have to resign, he believed that was the case. Mr MacNab said that he had been in good spirits at the Christmas party before the meeting with Mr Freeman and that his distress had been caused by being told he would have to resign if he was not appointed to another role by 31 January 2014.
Mr Freeman, Mr MacNab’s supervisor at the relevant time, provided a statement following an interview on 17 June 2014. He described what had happened from his perspective.
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6. I am a Business Banking Executive, and I have been in the role since October 2013, and I have been with the Bank for 22 years this year. I have been in this type of role for six years.
7. Business banking is about maintaining relationships with customers to provide products and services to meet their needs and goals, whilst adhering to the bank’s operational risk requirements.
8. Cameron has been in the bank for about the last 25 years. His role until he went on long service leave has been that of Business Banking Manager. He commenced that leave in March 2013 for a period of six months. I was not his People Leader at that time. Shortly after he commenced his leave there was a well-publicised restructure of how we operate. The restructure went ahead and I understand that Cameron spent most of his time off at his residence, and he was aware of the timeframe for the restructure beforehand… During the time that he was off on leave he was notified that his position was absorbed by the restructure and he was provided the information pertaining to the new roles created as part of this restructure and given the opportunity to apply under an expression of interest period. He didn’t apply in that period….
9. At that time his employment was secure as long as he adhered to performance standards. He is a permanent fulltime employee at this time.
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11. Supervision is provided by a People Leader. I formally assumed that position on 1 October 2013, but I was acting in that position from late May 2013. Cameron returned from his leave in late September 2013.
12. At that time he was a Manager without a portfolio. As such he worked as directed. He initially worked at our Dandenong Centre, as an acting Senior Business Banking Manager. His duties there were to maintain relationships with our higher net worth and more complex business customers. Post that Cameron returned to his old branch at Braeside, not to his original position to assist others. There is always plenty of work and that provided a good opportunity to clean up on outstanding work. Cameron was aware that this was a temporary arrangement whilst he sourced a suitable role.
13. I have called Cameron during October 2013, left messages on his personal mobile, as at that time he didn’t have a work mobile, with a view of offering him a Business Banking Manager role at Braeside. I asked him to call me back and he didn’t respond until the role I had on offer had been filled by me with another candidate. The time lapse between calls was about a week. I had met with Cameron in mid November 2013 and we had a meeting at which we discussed his options.
14. Cameron had applied for a role of Business Banking Manager at Berwick in October 2013 and was an unsuccessful candidate. I did by way of feedback hear that he did not present very well at the interview.
15. Cameron attends work as required, and he is helpful in the office. Cameron is capable of doing the job he had held prior to the restructure. When Cameron worked at Braeside before he went off sick, his attitude was good and he was helping the team.
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17. Again at about the 20 December 2013 Cameron and I had a meeting at Braeside. I had spoken with my People Leader, Mike Sullivan about the future of Cameron, prior to the meeting. I also spoke to Workplace Relations staff at HO as to how to manage my meetings with Cameron and they provided the advice on how I was to proceed.
18. Cameron needed a substantive position and he didn’t appear to be active in seeking such a position, and there were positions available. There was one in West Gippsland at the time and the fact is that roles come up all the time, through the on-line job centre. At the meeting I offered to assist Cameron by calling people in my role at other sites seeking information on similar roles becoming available. Cameron didn’t take me up on that offer. I did mention to Cameron that if he didn’t obtain a position then he would have to consider his future. The intent of that meeting was to remind Cameron that he needed to find a position and the agreed timeframe was the 31 January 2014, four months after he returned from long service leave.
19. During that meeting I had reiterated to Cameron that he needed to find a substantive role. I pointed out that I have mentioned to him in November 2013 at that meeting that he needed a position by the end of January 2014. I again offered at the November meeting to contact people on his behalf and give him any supporting needed. I asked him what he wanted at the November meeting and he replied that he just wanted to be a Banker. He didn’t want to be in the retail banking field and he was not interested in being at the Fulfilment Centre at Waverley.
20. Mike Sullivan and I had offered another Business Banking Manager’s role to Cameron. It was a level below his old role, but still within the same pay band. He declined to take that role.
21. On 8 January 2014 I sent an email to Cameron (Copy provided) setting out what had previously been pointed out to him. Cameron did email me back and he asked what separation meant. He said he was surprised that after 25 years he would be treated in such a way. Shortly after that he went on sick leave. I didn’t again get the opportunity to speak with Cameron.
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26. Response to any specific allegations made by claimant:
a) I don’t believe that he was bullied in anyway. We have taken steps to assist Cameron to find a role and we have left a role open for him.
Mr Freeman provided a further written statement dated 22 July 2015 and gave oral evidence. In his later statement, Mr Freeman stated:
1. My name is Alistair Freeman and I am employed with the respondent as a Business Banking Executive, Bayside. I have been in this role since October 2013. In late May 2013 I was the applicant’s Acting People Leader and on 1 October 2013 I formally assumed this role.
2. I made a statement of 17 June 2014 which is true and correct and I make this statement in addition.
3. The applicant has been employed with respondent for approximately 25 years. His role until he went on long service leave was that of a Business Banking Manager. He commenced long service leave in March 2013 for a period of six months. Shortly after he commenced to sleep there was a well-publicised restructure of how the business was to operate. The restructure went ahead and I understand that the applicant was aware of the timeframe for the restructure beforehand. As I was not the applicant’s People Leader prior to him commencing long service leave I did not have a conversation with him regarding his long service leave or his role. I understand that the applicant had been underperforming prior to commencing long service leave and his midyear assessment at March 2013 was “not meeting expectations”.
4. During his long service leave I understand the applicant was informed by David Gamble of the upcoming restructure and the impact on his role, namely that his position was to be absorbed by the restructure. I provided the applicant with information on the proposed structure once the new structure was clarified. These emails included options for the applicant in terms of roles he could apply for, both management level and pre-management level and he was given the opportunity to apply under an expression of interest period. The applicant did not apply for any roles in that period.
5. At the time and despite the restructure of the Business Division, the applicant’s employment was secure as long as he adhered to performance standards.
6. The applicant returned from his long service leave in late September/early October 2013. When he returned he was a manager without a portfolio. Therefore, he did work as directed. He initially worked at the Respondent’s Dandenong centre, as an Acting Senior Business Banking Manager. He then returned to the Bayside branch assisting others. The applicant was aware that this was a temporary arrangement while he secured a suitable role.
7. On 8 October 2013 I sent the applicant an email attempted to catch up with him for a chat and I suggested Thursday 10 October. I do not recall receiving a response to this email. During October I also attempted to call the applicant with a view of offering him a Business Banking Manager role at Bayside. I left messages on his personal mobile phone, as at that time he did not have a work mobile, asking him to call me back. The applicant did not call me back and did not respond until the role I had on offer had been filled by another candidate. The time lapse between calls was about a week.
8. The applicant had applied for a role of Business Banking Manager at Berwick in October 2013 and was an unsuccessful candidate.
9. I recall I met with the applicant in mid November 2013 and we had a meeting at which time we discussed his options. At that meeting I indicated that he needed to position by the end of January 2014 and I offered to contact people on his behalf and give him any supporting needed.
10. As the applicant needed a substantive position and he did not appear to be active in seeking such a position, on or about 20 December 2013 the applicant and I had a meeting at Bayside. At the meeting I again offered to assist the applicant by calling people in my role at other sites seeking information on similar roles becoming available. The applicant did not take me up on that offer. I did mention to the applicant that if he did not obtain a position then he would have to consider his future. The intent of that meeting was to remind the applicant that he needed to find a position and the agreed timeframe was 31 January 2014, four months after he returned from long service leave. During that meeting I reiterated to the applicant that he needed to find a substantive role by the end of January 2014.
11. On 8 January 2014 I sent an email to the applicant setting out what had previously been pointed out to him. The applicant emailed me back and he asked me what separation meant. He said that he was surprised that after 25 years he would be treated in such a way. Shortly after that I believe he went on sick leave. I have not had an opportunity to speak to the applicant since.
Mr Freeman sent an email to Mr MacNab’s work email address on 8 January 2014 with a subject title “Confirmation email” in which he stated:
Cameron,
Thought it was important to circle back on our conversations since your return from long service leave.
As we have discussed, upon your return from long service leave we agreed to provide you until the 31st January 2014 to apply for and obtain another role within the organisation.
We have provided you with this opportunity to opt into other roles as part of the BFB process.
To confirm, in our last meeting we discussed and agreed that if you do not secure another role by 31st January 2014 we would review the situation at this time and discuss potential separation.
Please respond to me with any questions you may have regarding the above.
I remind you that the Employee Assistance Program is available to all staff of the Bank.
All the best.
Mr MacNab responded on 10 January 2014:
Your e-mail (8/1/14) below refers.
My understanding of our initial conversation relating to a 3 month period to find a role was that this was an “on deployment” period.
I refute the the [sic] statement in your e-mail below that “we discussed and agreed that that [sic] if I do not secure another role by 31st January 2014 we would review the situation at this time and discuss potential separation”. I do, however acknowledge, that at that meeting on the 20/12/14 you advised me that because I did not opt into a role under the BFB process, should a role not be forthcoming by 31st January 2014, the expectation would be that I resign (which is not my intent).
Whilst I am currently seeking independent advice in order to better understand my current employment status, I would respectfully ask that you provide more adequate information about what the organisations process/expectations are with respect to the term “potential separation”.
I also feel I must convey my disappointment, that during the process that may have had such a monumental impact on my working life at nab after 25 years, that all formal correspondence I have received amounts to your below email.
Regards
Cameron MacNab
Shown the email he had written on 8 January 2014 during oral evidence, Mr Freeman said that it appeared to reflect what had happened. However, Mr Freeman recalled few details of his meeting on 20 December 2013. He could not recall telling Mr MacNab that he would have to resign if he was not in an actual role by 31 January 2014 nor the exact words he used to emphasize the need for him to find a new role by that date. He said that he could recall Mr MacNab saying that he just wanted to be a banker. He could not recall naming two BBM2s as being a threat to Mr MacNab as far as future prospects went. Mr Freeman said that he and Mr MacNab had worked well together.
Mr Freeman said that he thought that he had initiated the 20 December 2013 meeting by asking Mr MacNab to drop in and have a chat.
Asked if he could remember saying that’s it in relation to a forced resignation on 31 January 2014, Mr Freeman could not recall saying that. In response to a question as to whether he had authority to set the deadline date and attempting to force Mr MacNab to resign on that date if he did not have a new position, Mr Freeman said that he did not. Mr Freeman could not recall anything he might have said that would have given Mr MacNab the impression that he had the power to sack him. He could not recall saying anything about redundancy. Mr Freeman said that he did not notice any change in Mr MacNab’s demeanour during their conversation on 20 December 2013.
In terms of setting the deadline of 31 January 2014 Mr Freeman said that he had picked the date following discussions with Mr Sullivan, who was his supervisor. Mr Freeman said that date was picked to emphasize the urgency.
Mr Freeman said that when he sent the email to Mr MacNab on 8 January 2014, he was unaware of Mr MacNab’s mental health issues, believing he was on annual leave. He confirmed that he had not had any contact with Mr MacNab since he commenced extended sick leave. Mr Freeman said quite a number of vacancies had arisen in banker roles since Mr MacNab went on sick leave but he had not let Mr MacNab know about them.
Mr Freeman confirmed that he was not at Braeside when Mr MacNab went on long service leave. He said that by the time he arrived Mr MacNab’s portfolio had been allocated to other bankers. Mr Freeman confirmed that if Mr MacNab had not gone on long service leave, he would have maintained his portfolio. Mr Freeman said that he did not have a responsibility to help find a role for Mr MacNab. He denied changing his demeanour towards Mr MacNab from friendly and helpful to unfriendly.
Mr Michael Sullivan provided a witness statement dated 6 July 2015 and gave oral evidence at the hearing. Mr Sullivan was the manager at Braeside during the relevant period. Mr Sullivan described his recollections of the discussions he had with Mr MacNab in January 2014 and March 2014. He also commented on the notes written by Mr MacNab following the telephone discussions and meeting they had after the 20 December 2013 meeting with Mr Freeman. He said that he did not have any notes of the meetings or telephone conversations he had with Mr MacNab but described his memories of them and the circumstances of the restructuring.
In his statement, Mr Sullivan stated:
1. My name is Michael Sullivan and I am employed with the Respondent as the Regional Business Executive, Melbourne South.
2. I manage approximately 21 Group 3 Business Managers in my district which has a turnover of 40-50% in these roles each year. I would estimate that my district does not go more than one to two months without having an opening for either a Business Banking Manager 2 or 3.
3. The applicant has [been] employed by the Respondent since approximately 1989 and since approximately September 2008 he has been employed as a Business Banking Manager 3.
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8. In November 2013 I had two informal discussions with the applicant about his future with the respondent. In one discussion, I mentioned a Business Banking Manager 3 role which had become vacant in Warragul/Leongatha. I do recall that the applicant informed me that he was interested in working in close proximity to his house and he was therefore hesitant about the travel that would be involved…..
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10. My next involvement about this matter was when I met with the applicant and his union representative on 7 March 2014. During that meeting I asked the applicant why he did not discuss the Business Banking Manager 3 at Braeside in October with us at which time he stated that he had made a big mistake by putting all his eggs in one basket by going for the Business Banking Manger 3 role at Berwick. The applicant also informed me during this meeting that he had been told by Mr Freeman that he had until 31 January 2014 to find another role. The date, 31 January 2014, is an arbitrary date and I believe was a date picked by Mr Freeman because the applicant had not applied for the role in Braeside and he missed out on securing the role in Berwick in October 2013.
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Mr MacNab wrote the following note dated 23 January 2014 after speaking to Mr Sullivan:
Spoke to Mike Sullivan.
Mike asked why I am not at the office. I said that I was unwell. He asked why I had not advised the office that I would not be coming in. I said that I had notified Rita on Monday morning via txt. Mike said that he had spoken to Rita and that she had said that she had not received anything from me. I told Mike that I would send him a copy of the screen dump to confirm if required. He asked if I had sent a copy of my doctors certificate with it which I said I have not. He said it was not acceptable, not to have provided a copy of the certificate. I said that I will send a copy by e-mail today. He asked me what was wrong with me. I said I had a stress related issue that I dealing with. He asked how long I would be off away for. I said I had a certificate to 19th Feb.
He asked me if I was shocked by the email that Alister [sic] had sent me. I said I was shocked by our discussion of 20th December. He said that he wanted to discuss options for me and the Bank and insisted that we meet face-to-face.
He asked if there was anything else he could do. I asked him to send me via email details of the process that I am currently under so that I can understand my position. He said that he would not send anything through by e-mail and that we could discuss the process further at our face to face meeting.
In a handwritten note dated 27 February 2014, Mr MacNab wrote:
Spoke to Mike Sullivan.
Trying to arrange an appt time suitable to meet. I told Mike that I wanted to have a member of the FSU present as I’m still confused about the process and do not believe that I have been given the correct information.
I said that I would check their availability and let him know.
On 20 March 2014, Mr MacNab’s handwritten note states:
Met with Mike Sullivan with Jay Madsen of the FSU.
I explained to Mike that I wanted Jay to attend as I did not understand the current process that I was being subjected to. I asked Mike to explain the process and how it should have transpired. Mike could not answer my question to clarify the process other than to say that I had 3 options currently available to me.
1. That I agree to come back for another 3 month period to find a role, but I had to sign an agreement that if nothing was forthcoming in this time that I would resign.
2. Accept a level 2 Business banker role (i.e. demotion).
3. Accept a level 3 Business banker role but be on performance management program as he claims that I was on Performance Management when I left for LSL.
I told Mike that at no time was I on Performance Management. He claims to have been told by my previous Mgr (David Gamble) that I was. I told Mike that I would be seeking a copy of the relative appraisal as I am confirming this was not the case. Mike said that there would be hard copies of the document (which is a one page doc he said).
Mike suggested that I do not consider the level 3 role as it would require performance targets to be met. I said to Mike that all roles required targets to be met. Mike said I was trying to start a fight with him. I said I was not, but just trying to understand my position.
Mike said that I would need to get my anger under control before returning to work as it would not benefit either party. I said to Mike that if he had been treated the way I had been treated since returning from leave then he would be angry too.
Mike asked what had been said at my meeting with Alistair. I told Mike about being told that I had to resign, which he appeared not to have known. I asked Mike if there were no expectation for me to resign and no redundancy as part of what ever process I was currently under, then what relevance was the end date given to me of the 31st January?
Mike again would not answer this question but said that he had spoken to HR and that they had said to provide me with the 3 alternatives detailed.
Mike said that he and Alistair had been confused as to why I did not apply for the being at Braeside. I asked Mike what he meant by confused. I told Mike that I felt I had made a mistake not applying for the Berwick and Braeside roles concurrently. I told Mike that I had had this same conversation with Alistair upon my return to the Braeside office to which he appeared surprised. He asked me when it was that I had had this conversation. I referred to my notes and advised 11/11/13.
At the hearing, Mr Sullivan confirmed that he was not in a position to make a decision on whether Mr MacNab should be made redundant. He said that the organisational restructure made no provision for redundancies.
IS MR MACNAB ENTITLED TO COMPENSATION?
As indicated earlier, the bank accepts, as does the Tribunal, that Mr MacNab suffered a mental health condition to which his employment made a significant contribution. He therefore suffered an ailment/disease as defined in the Act.
Comcare submitted that while Mr MacNab did suffer a psychiatric injury to which his employment made a significant contribution, the cause of that condition was multifactorial and included matters that would attract the exclusionary provisions set out in ss 5A(1) and 5A(2) of the Act. Comcare submitted that the case of Hart v Comcare [2005] FCAFC 16 was relevant in this matter. The Full Federal Court held that, provided that a disease is suffered as a result of any of the circumstances specified in the exclusionary provision in the then s 4 of the Act that disease is not an injury (later applied to s 5A of the Act), and it is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. Therefore it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances.
Based on the lay and medical evidence, the Tribunal is satisfied that Mr MacNab’s psychiatric condition arose as a result of the meeting held on 20 December 2013. He had not previously sought medical intervention in relation to depression or anxiety and had continued to work after other meetings and being told of the unsuccessful outcome of the Berwick role.
The Tribunal is satisfied that it was appropriate for Mr Freeman to discuss with Mr MacNab his progress in finding an alternative role. Such a meeting, whether formal or informal, falls into the definition of reasonable administrative action under s 5A(2)(b) of the Act. The Tribunal finds that the meeting on 20 December 2013 constitutes reasonable administrative action as a result of which Mr Freeman developed a disease.
However, the question that arises in this matter is whether the reasonable administrative action was taken in a reasonable manner.
The Tribunal is satisfied that Mr MacNab’s evidence, both as written in his diary notes and statement and in his oral evidence, reflects what was discussed in the meeting on 20 December 2013. The Tribunal notes that Mr Freeman’s memory of the meeting was poor and that he could not remember telling Mr MacNab that he would have to resign. His email of 8 January 2014 was possibly an attempt to change the impression he gave on 20 December 2013 that Mr MacNab would be forced to resign on 31 January 2014 but there is no evidence before the Tribunal to allow it to make such a finding.
It is clear from the evidence of Mr Freeman and Mr Sullivan that they had no authority to force Mr MacNab to resign on 31 January 2014. There appears to be no ability to force a person to tender a resignation under the EBA under which Mr MacNab was employed. Mr Sullivan’s evidence was that 31 January 2014 was an arbitrary date chosen to get Mr MacNab to move quickly to formally take on another role, even if that role was below his current level. Mr Sullivan and Mr Freeman suggested Mr MacNab would be paid the same if he did take on a lower level role or took on a branch manager’s role but Mr MacNab did not believe he had the skill set for the latter.
To suggest to Mr MacNab in the meeting just before Christmas that he would have to find a role by a designated date might still have constituted reasonable administrative action if Mr Freeman had not talked of the requirement to resign in about five weeks’ time even though it was the traditional quiet time of the Christmas/January period. However, to tell Mr MacNab that he would have to resign on 31 January 2014 should he not have had found another role when Mr Freeman had no entitlement to say anything of the sort could not be described as acting in a reasonable manner.
Mr Wallace suggested that Mr MacNab had been angling for a redundancy and therefore he also came within the exclusion in s 5A(2)(f) of the Act. The Tribunal is not satisfied that the meeting on 20 December 2013 or Mr MacNab’s reaction to it was because of his failure to obtain a promotion, reclassification, transfer or benefit. At that time, he was still employed but it was the attempted imposition of a mandatory resignation if he had not found something by 31 January 2014 by Mr Freeman that led to his medical condition.
The Tribunal finds that Mr MacNab’s adjustment disorder and/or depression and anxiety comes within the definition of injury in the Act and he is entitled to compensation.
The Tribunal believes it appropriate to award costs to Mr MacNab in relation to his first claim the subject of application number 2014/4994.
IS MR MACNAB’S INJURY PERMANENT?
Mr MacNab’s second claim was lodged on 21 February 2015, reconsidered on 21 May 2015 and then the subject of a fresh application to this Tribunal on 10 July 2015.
In the claim form for permanent impairment and non-economic loss, Mr MacNab gave himself a score of 1 (intermittent attacks of pain of nuisance value only. Can be ignored when activity commences) in relation to pain.
In relation to suffering, the description given by Mr MacNab was:
I am having difficulty sleeping without the use of alcohol or Temazepam tablets.
I have difficulty with concentration & tasks requiring clear thinking.
My energy and motivational levels are now required to be assisted by medication (Lovan).
Mr MacNab gave himself a score of 3, the description of which is:
Symptoms of mental distress are distinct and varied. Episodes of mental distress occur regularly. Ability to cope or perform activity effectively reduced during episodes. Needs time to recover between episodes. Treatments such as antidepressants, counselling and other supportive therapies help to control or relieve symptoms (score 3).
In relation to loss of amenities, Mr MacNab stated, in relation to mobility a score of 1 (Periodic effects on mobility – no restriction in-between episodes):
I am still physical mobile.
My mood and energy levels have affected my mobility.
In relation to social relationships Mr MacNab gave himself a score of 2 (relationships confined to immediate and extended family and close friends, but unable to relate to casual acquaintances):
My ability to maintain relationships with immediate family has been largely due to a very understanding wife. I have lost contact with a number of friends because I have not returned calls or been proactive in seeking company. I do have some close friends that are aware of my health issues who have instigated visits.
In relation to recreational and leisure activities Mr MacNab stated:
I don’t have the concentration/motivation for social golf anymore.
I had a 13 year social membership with the Hawthorn F.C. that I would take my son to 1/2 dozen games per year with. We have not been to the AFL since 2013 - I have forfeited my membership.
I had been looking forward to playing club cricket with my son in the 2014/2015 season prior to my illness. I have been unable to play with him which is very upsetting.
Mr MacNab gave himself a score of 3-4, the descriptions of which are as follows:
Unable to continue with pre-injury level of activity. Alternative, less-rewarding activity possible (score 3).
Range of pre-injury activities greatly reduced. Needs some assistance to participate in pre-injury recreational and leisure activities (score 4).
In relation to other non-economic loss, Mr MacNab gave himself a score of 0.
There was no treating practitioner’s or other assessing medical practitioner’s score completed as was prompted in the claim form.
Questioned by his counsel about the scores he gave himself in the form, Mr MacNab stated that the scores still seemed appropriate. He stated that he had only played golf twice since developing his condition because of his lack of concentration. He said that the reason he stopped going to the football was that he did not like being part of the crowd. Mr MacNab said that he still watches his son play cricket but decided not to become involved in a father and son cricket team as he did not want to become involved with people he did not know.
Mr MacNab said that he now mistrusted Mr Freeman and Mr Sullivan. He said he did not know what had led Mr Freeman to say what he said, he was not sure if that was his own initiative or whether he was put upon to suggest he would have to resign.
Professor Paoletti, in his November 2014 report, prepared some four months before the permanent impairment claim was lodged, assessed Mr MacNab as 15% impaired. His assessment was as follows:
COMCARE ASSESSMENT
Comcare Part A
5.1 PSYCHIATRIC CONDITIONS
Mr MacNab has all three of:
·reaction to stressors of daily living which cause modification of daily living patterns
·marked disturbance of thinking
·definite disturbance of behaviour.
Note:
·clinically, I would see him as definitely above 10%, because he has all three of the above, despite psychological treatment and psychotropic medication
·but he falls short of 25%, because, while he needs prompting to motivate him into action, he does not strictly get regular direction and supervision for his ADLs, although it needs to be said that his wife has been understanding, and has not insisted or pushed him, but that does not mean that he would not deteriorate if left totally to his own devices.
Therefore:
·I have assessed him at 15% psychiatric impairment.
Comcare Part B
NON-ECONOMIC LOSS
Table B1, Pain
Pain: score 0 (not applicable).
Table B2. Suffering
Suffering: score: 4
·chronic symptoms of depression and anxiety, that dominate his thinking
·symptoms of mental distress are pervasively present
·difficulty coping/performing activities
·treatment necessary to control symptoms.
Table B3: Loss of amenities
B3.1 Mobility score: 1
· no physical mobility issues, but he is limited by his low motivation
B3.2 Social relationships: score: 2
· social contacts confined to family and close friends, and he does not initiate contact
B3.3 Recreation and leisure activities: score: 4
· level of pre-injury activities greatly reduced.
Table B4. Other loss
Score: 0 (not applicable).
Table B5. Loss of expectation of life
Score: 0 (no immediate risk such as suicidal thinking).
…
Prognostic outlook is static for the foreseeable future.
Coming to work capacity:
·Mr MacNab does not have a current sustainable work capacity
·this is likely to apply to the foreseeable future
·Whether, at some point, he will be able to return to work at NAB depends on both progress of his mental state and whether they can be a rapprochement in the relationship with his line managers or whether he could be redeployed to suitable work within the Bank
·he has a lot of banking experience and he is relatively young, with the possibility of work outside the NAB in future, but the availability of such jobs is outside my expertise.
Dr Majoor, in her report dated 29 June 2015, some three months after the claim for permanent impairment was lodged, stated:
…
Progress Since Last Assessment:
Mr MacNab stated that since his last assessment, he commenced the antidepressant, Lovan 40 mg/day, which he said had helped his mood. He reported that he does not feel as low. However, Mr MacNab stated that he still suffered ‘ups and downs’ with a fluctuating mood and that he had not been well enough to go back to work. He stated that he had been trying ‘to get back to where he was’ but that he was unable to concentrate on even menial tasks. He stated that he had low energy levels and could not do mundane jobs around the house.
Mr MacNab stated that he did not know what would make him better. He stated that he felt that things were tiring. He stated that when he thought about his ‘work stuff’ he became upset and angry, and that the more he thought about it, the angrier he became. He stated that he tried to think positively.
Mr MacNab stated that he slept with the assistance of alcohol, amounting to up to eight to ten stubbies a night and occasionally a Scotch. He stated that he had a two week period of abstinence from alcohol approximately six to eight weeks ago because he was concerned about his health. Mr MacNab stated that he also occasionally slept with the assistance of temazepam if not drinking alcohol. He stated that he did not feel that his sleep was sound or restful.
Mr MacNab stated that he had no disturbance of appetite and did not think he had lost any weight.
Mr MacNab stated that he had lost interest in his usual hobbies. He stated he was not driving his classic car, going to the football socialising with friends. He stated that he tended to think “What’s the point?” of doing things. He stated that he has continued to remain engaged in his children’s interests such, such as their sporting activities.
…
SUMMARY AND ASSESSMENT:
Mr MacNab is a 45-year-old man who last worked as a business banker with the National Australia Bank in January 2014. He ceased work following difficulties associated with the redeployment program has an ongoing Workers’ Compensation claim. He describes an ongoing lowered mood, anger, fatigue and lethargy, poor concentration, poor sleep, increased alcohol intake, and a loss of interest in activities. It would appear that he maintains engagement in domestic tasks and in his children’s sporting interests.
Mr MacNab has previously been diagnosed with a mild adjustment disorder with depressed mood. He continues to express a high level of disaffection with his workplace regarding the process of the redeployment and this appears to have compounded and have intensified with his absence from the workplace. He has not engaged in return to work program and stated now appears unwilling to return to his previous workplace environment. On this assessment, it would appear that there has been minimal change in Mr MacNab’s condition with the introduction of an SSRI and ongoing psychological therapy.
…
Responding to a question from the bank’s lawyers asking that she undertake a psychiatric impairment assessment in accordance with Edition 2.1 of the Guide to Assessment of the Degree of Permanent Impairment (the Comcare guide), Dr Majoor stated:
… Mr MacNab has a psychiatric impairment of 0%.
Asked her opinion about the non-economic consequences of the injury taking into account the categories in the Comcare guide, Dr Majoor stated:
B1: Pain – 0;
B2: Suffering – 3;
B3: Loss of amenitiesMobility – 0
Social relationships – 1
Recreation and leisure activities – 1B4: Other loss – 0
B5: Loss of expectation of Life – 0Dr Majoor was asked to provide her opinions on Mr MacNab’s psychiatric incapacities towards future work, Dr Majoor responded as follows:
…Provide your opinion as to whether the worker suffers psychiatric incapacity to work in his pre-injury duties:
I do not believe that Mr MacNab suffers a psychiatric incapacity to work in his pre-injury duties. In my opinion, he is disaffected and embittered towards his workplace with regard to the re-deployment process and his anger has intensified during his prolonged period of leave. I do not believe that the reported symptoms of his adjustment disorder are of sufficient severity cause a restriction on work capacity. Although return to his former workplace may be difficult, given his level of distrust towards his employer, I do not believe that he is unable to perform the duties of his previous role at the current time.
…Provide your opinion as to whether the worker suffers a psychiatric incapacity for any work;
Mr MacNab stated that he could not concentrate on menial tasks or perform mundane jobs around the house. He did however, state that he has maintained some activity in domestic duties and involvement in his children’s sporting activities. Mr MacNab’s current distress from his adjustment disorder would appear to relate to his level of anger, embitterment and disaffection towards his previous workplace (his perceived stressor), as opposed to a major mood disorder. In my opinion, Mr MacNab does not suffer an ongoing psychiatric incapacity for any work and would benefit from commencing a graduated return to work program with tasks and duties that were modified, staged and increased according to his progress. Return to his former workplace is not likely to be successful, given his level of embitterment towards his employer and a vocational assessment may be required to assist suitable employment options
As outlined in my previous report, a return to work as soon as possible is preferable, in order to lessen the anxiety about work. Continued absence from the workplace, may heighten anxiety about work and may act as a barrier to re-engaging with the work program in future.
…
Mr MacNab is able to undertake a rehabilitation programme, particularly vocational rehabilitation program, consisting of a graduated return to work…
…
Mr MacNab did not describe other non-work-related psychosocial factors that might be impacting on his condition.
…
Although he had not worked since January 2014, Mr MacNab told the Tribunal that he thought he might be able to return to the workforce but not with the bank. The medical personnel who have examined and reported on his condition agreed that he should not return to the bank as he had become distrustful of his managers and disenchanted because of how he had been treated after more than 25 years loyal service to the bank.
Mr MacNab, in responding to Mr Wallace’s comments, agreed that he was able to take care of his own grooming and dressing, undertake routine household tasks, drive, interact with his children and the like. The Tribunal is not satisfied that he meets the threshold of needing support in relation to activities of daily living. The Tribunal prefers Dr Majoor’s analysis of whether Mr MacNab meets the 10 per cent minimum limit for permanent impairment to that of Professor Paoletti. She gave evidence of her experience in such assessments and given the evidence of Mr MacNab during the hearing, her assessment appears to be more accurate than that of Professor Paoletti. The Tribunal notes that there was no objective medical assessment of his impairment in Mr MacNab’s claim form for permanent impairment.
Based on the medical evidence and Mr MacNab’s concession that he did not feel he could work for the bank but that he may be capable of working elsewhere, the Tribunal is not satisfied that he was permanently impaired at the time he lodged his application for permanent impairment.
The Tribunal therefore finds that Mr MacNab is not eligible to be compensated for permanent impairment based on the timing of his claim and insufficient evidence that he would be unable to work for an employer other than the bank.
DECISION
In relation to application no. 2014/4994, the Tribunal sets aside the decision under review and substitutes a decision that Mr MacNab suffered a disease that was contributed to, to a significant degree, by his employment with the respondent. The Tribunal remits the application to the respondent for calculation of his entitlements pursuant to sections 14, 16 and 19 of the the Act on and from 23 December 2013 to the present date and at the present date in respect of his mental health conditions. The respondent shall pay Mr MacNab’s costs and disbursements of that application pursuant to s 67 of the Act.
In relation to application 2015/3454, the Tribunal affirms the decision under review.
I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member [sgd]........................................................................
Associate
Dated 1 December 2016
Dates of hearing 12-16 October 2015, 27 October 2015 and 13 January 2016 Counsel for the Applicant Ms Cassie Serpell Advocate for the Applicant Sebastian Buscemi Solicitors for the Applicant Angela Sdrinis Legal Counsel for the Respondent John Wallace Advocate for the Respondent Lauren Oliver Solicitors for the Respondent Minter Ellison
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
Legal Concepts
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Appeal
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Causation
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Remedies
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Costs
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Statutory Construction
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