Mark Grant and Comcare
[2014] AATA 726
•7 October 2014
[2014] AATA 726
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/4344
Re
Mark Grant
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 7 October 2014 Place Sydney The decision under review is affirmed.
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Ms N Isenberg, Senior Member
CATCHWORDS
WORKERS COMPENSATION - Accepted condition - Whether condition contributed to by employment - Applicant employed in Centrelink call centre - Contemporaneous medical evidence attributes condition to alternate employment - Condition not contributed to in a significant degree by applicant's employment - Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4(1), 5A, 5B, 14
REASONS FOR DECISION
Ms N Isenberg, Senior Member
7 October 2014
INTRODUCTION
Mark Grant (‘the applicant‘) worked at Centrelink from 21 May 2008 to 11 November 2008. He suffers from a psychological condition that he attributes to his work at Centrelink as a Call Centre Customer Service Operator (‘CSO’). He claimed compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the SRC Act’). Comcare rejected his claim at first instance and on reconsideration. He has applied for review of that decision.
RELEVANT LEGISLATION
The relevant legislation in respect of claims for workers compensations by Commonwealth employees is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation under the Act for an injury suffered by an employee which results in incapacity for work. ‘Injury’ is defined in by s 5A to mean:
(1)(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
...
‘Disease’ is further defined in s 5B(1) to include an ‘ailment’ or ‘aggravation of such an ailment’ that has been “contributed to, to a significant degree, by the employee’s employment”. In s 4(1), ‘ailment’ is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”; Section 5B(2) permits “any predisposition of the employee to the ailment” and “any other matters affecting the employee’s health” to be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. Section 5B(3) states that ‘significant degree’ means a degree that is substantially more than material”.
Compensation for such injuries is provided by s 14 which states:
14 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.
ISSUES FOR DETERMINATION
The Respondent accepted that the Applicant suffers an 'ailment', being a psychological condition outside the bounds of normal mental functioning and behaviour (diagnosis variously described).
The issue for determination is therefore whether the applicant‘s ailment was contributed to, to a significant degree, by his employment with Centrelink.
BACKGROUND
The applicant worked in the finance industry for some years; in particular, from 1999 he worked continuously as a mortgage broker. In May 2008 he commenced additional work as a contract CSO at a Centrelink call centre. In August 2008 he was engaged as an ongoing employee. He resigned from Centrelink in November 2008 but continued work as a mortgage broker until June 2009.
EVIDENCE
Applicant’s Evidence
The applicant gave evidence that he had worked as a mortgage broker for 10 years before commencing work with Centrelink. He was disillusioned, he said, with the inefficiencies of the banks and wanted a career change. He took the Centrelink job, to see if he could work ‘for a boss’. He said he made a good living as a mortgage broker and had ‘no issues’ with customers. He regarded it as ‘the best job in town’. While working at Centrelink he retained his mortgage broking business but had staff doing the work, which he just managed - a time investment of only about 10 hours per week.
The applicant said that there was no evidence that he suffered any psychological condition prior to his employment at Centrelink. He said that if he had a telephone phobia prior to commencing at Centrelink, it would have made no sense for him to have taken a job as a call centre operator. The applicant noted that prior to starting the job at Centrelink he was required to undergo a medical examination. Nothing of relevance to a psychological condition was found. He noted that Centrelink’s own checklist for pre-employment medicals highlights the fact that CSOs were required to deal with difficult customers.
The applicant said he had started work as a contractor and worked about 37 hours per week. That work had entailed dealing with new claimants only and for the most part he was able to help them. However, in August 2008, when he was made an ‘on-going’ employee, the dynamic changed, and he had to deal with the full range of claimants. The applicant provided examples of daily interactions he found stressful: young people who were unable to get jobs ‘pulled at [his] heart strings’; people would say they were unable to pay the rent, let alone pay to travel to a job interview; people who were relying on the generosity of friends. There was also an element of aggression in some of the calls, although there was no evidence that the applicant complained of any specific threats or abuse. He agreed that, being in a call centre, he was anonymous to the callers. The applicant said that although he was only at Centrelink for about six months it ‘felt like a long time’.
The applicant contrasted this with dealing with clients as a mortgage broker, where he only had to deal with up to about five people at any one time, compared to about 60 at Centrelink. He was asked if the Global Financial Crisis (GFC) had affected his clients and he said it had made no difference, although this appears to be contrary to what he had told some of the doctors who provided reports. He said that the banks’ customer service had changed and it became more difficult to deal with them in order to help his clients. The banks were delaying dealing with home loan applications and his clients’ home purchases were in jeopardy.
He referred to the report by his supervisor, Ms Lyndall Wilkie wherein she confirmed that he was ‘not enjoying the work’. Although the applicant contended that he had told Ms Wilkie that he ‘hated’ the work, he submitted that his statement must have made an impression upon her for her to remember that he ‘did not enjoy’ the work some four years after his short period of employment. He submitted that Ms Wilkie’s report supported his contention that he left Centrelink due to his condition. In fact Ms Wilkie wrote in her report that the applicant left to focus on his business again and NILs (no interest loans). She did not recall any issues or medical concerns associated with his work.
The applicant referred to a Centrelink management document which referred to early warning signs of psychological injury, and these included gastro-intestinal disorders and headaches. He referred to his sick leave during his work at Centrelink. On 16 October 2008 he was sick with ‘gastroenteritis’ and on 13 November 2008, with a ‘headache’. He submitted that this was an indication that, at the time, he was already suffering symptoms of his condition.
By June 2009 the mortgage broking business had been reduced to two contract staff managed by the applicant. His company went into liquidation in July 2009. The failure of his mortgage broking business, he said, was a reflection on his inability to cope as a result of his Centrelink employment and was not itself the cause of his distress.
Therefore, he submitted, having eliminated the pre and post Centrelink employment, it was reasonable for the Tribunal to find his condition was significantly contributed to by his employment at Centrelink.
On 6 May 2013, the Applicant made a claim for workers' compensation with Comcare. In the covering letter, the Applicant said that he had come to realise that 'the main disabling condition is telephone phobia and this stems from [his] time at Centrelink’. In the claim form, the Applicant said that the cause of the illness was 'a combination of: so many people living in despair; so many people "ripping off the system" (sic); the system being unfair/rigid’. The Applicant said that his illness arose from 'taking of telephone calls, fear of what/who the next call might be. Young homeless people hit [him] the hardest'.
The applicant said he currently works as a taxi driver and noted that he does not utilise the phone in the taxi to take fares, but relies upon the network computer.
The applicant‘s General Practitioner, Dr Benjamin Gordon
According to the doctor’s clinical notes, the Applicant first consulted him, his long-term General Practitioner, with signs of depression and anxiety on 11 June 2009. In his report of 23 June 2013 the doctor referred to the applicant presenting on that day, additionally, with (telephone) phobia although this was not mentioned in his notes. The applicant said that there had been a six week delay in getting an appointment with Dr Gordon, which he had sought in April 2009. He provided information that, in 2003 at least, there was a shortage of GPs in the area, so, he submitted, his contention of a delay in getting an appointment was reasonable. Dr Parsonage reported that the applicant had difficulty obtaining an appointment with Dr Gordon.
The symptoms - low mood, poor sleep, avoidance task, anhedonia, low energy, irritable, weight gain - were said to have been present “for months”. At the consultation of 11 June 2009 the applicant made no attribution of his depression and anxiety to his work at Centrelink. The applicant said in his evidence that this was wrong and that his symptoms related back to his time at Centrelink.
The applicant agreed that even before he saw Dr Gordon about his psychological symptoms in June 2009 he was ‘grumpy’ about the way banks were treating customers. Previously though, he had been able to handle it. He said that between April and June 2009 he was ‘barely functioning’.
On 4 August 2009, when the Applicant claimed against his income protection and total and permanent disability insurance, which had been taken out in April 2007, he relied on Dr Gordon’s 'Medical Attendant's Statement' dated 16 July 2009. There Dr Gordon wrote that the Applicant was suffering 'depression', for which symptoms first appeared on 1 May 2009. The applicant said in his evidence that that date was incorrect. Dr Gordon stated that 'depression has led to inability to deal with people or phones. This is the main part of Mark's business. Therefore the impact is quite severe’. The applicant said in cross-examination that he had referred to his problems in the context of his mortgage broking business because that was in the forefront of his mind.
The applicant denied that he had only attributed his psychological condition to his work at Centrelink after his income protection insurance payments had run out. He said that if he had still been at Centrelink in June 2009 when he first saw Dr Gordon, then he would have blamed Centrelink then.
In a 'Group Risk Claims Preliminary Medical Assessment's Statement' dated 12 October 2010, Dr Gordon stated that the applicant‘s injury arose as a result of 'job stress as part of working as a mortgage broker. Anxiety, fear of using the telephone and meeting with customers'.
On 5 January 2013, the Applicant lodged a claim for Disability Support Pension (‘DSP’) with Centrelink. In a report for Centrelink dated 12 February 2013, Dr Gordon wrote that the Applicant's 'depression and anxiety stem directly from his work as a mortgage broker. He reacted badly to very stressful events and is in recovery'. His application for DSP was refused.
Psychologists’ reports
Mr Colin Payne, psychologist, provided a report dated 30 June 2010. He wrote that he first saw the applicant, on referral from Dr Gordon, on 17 August 2009. Mr Payne wrote that the Applicant reported to him that he first became aware of being stressed in January 2009. The applicant gave him a history of the mortgage broking business being very difficult and explained how it had placed a great deal of emotional stress upon him. There was no attribution of this emotional stress to his work at Centrelink, notwithstanding that Mr Payne saw the applicant on three occasions, the last of which was in February 2010.
Mr Michael Brandwood, psychologist, in a letter to Dr Gordon dated 13 December 2012, said that the Applicant's 'extreme social avoidance is an aspect of his generalised anxiety disorder resulting from "being burnt out" as a mortgage broker in the wake of the GFC’. The applicant agreed in his evidence that ‘mortgage broker’, accurately reflected his occupation at the time but denied his complaint was to do with the GFC or that he felt 'burnt out’. He denied he had told Mr Brandwood that he ‘hates banks’ because of the effect they had on his clients – contrary to what had been recorded in Mr Brandwood’s clinical notes.
The applicant said Mr Brandwood had asked him to do ‘a timeline’ and it was then that he recalled his problems at Centrelink. Notwithstanding that, by the date of his report, Mr Brandwood had seen the applicant twice and the applicant had not attributed his condition to his work at Centrelink.
The applicant said he was not coherent when he saw Mr Brandwood, because by then his business had failed and he was not coping.
Vocational assessment report: Ms Kasey Ackers
In January 2011, in association with his claim at CommInsure, the applicant was assessed by Ms Kasey Ackers to identify alternative vocational options. Ms Ackers reported that the applicant had, in relation to his mortgage broking work, started to feel like ‘the meat in the sandwich’ when he constantly received phone calls from clients and banks. The applicant agreed in his evidence that he said those words to Ms Ackers because that was how he felt. Ms Ackers also wrote that he had reported that it was during 2009 he began to experience anxiety symptoms including a racing heart and fear and avoidance, especially in relation to answering telephone calls and dealing with customers. The applicant said he could not recall what cause he had given for his complaints but denied that he had said his symptoms started only in 2009. Mr Ackers noted the applicant’s inability to perform duties that would involve answering or making telephone calls or answering face-to-face enquiries. In his evidence the applicant denied that he had those problems in his mortgage broking business.
Dr Parsonage, consultant psychiatrist
In September 2009, CommInsure accepted the Applicant's claim. Then, at CommInsure's request, the Applicant was examined on 16 March 2010 by Dr Brian Parsonage, psychiatrist. In a report dated 19 March 2010, Dr Parsonage said that the Applicant was suffering 'major depressive disorder' and 'specific phobia' (i.e. phone phobia). The applicant said that the phone phobia clearly post-dated his work with Centrelink and was occasioned by that work. The applicant agreed in cross-examination that he had found Dr Parsonage’s report acceptable because he had reported in his favour.
In a report to the Respondent dated 18 December 2013, Dr Parsonage stated that under the DSM-IV, the Applicant was suffering 'Major Depressive Disorder in partial remission with a Specific Phobia of the use of a phone and Agoraphobia with Panic Attacks'. Dr Parsonage said that the condition was not caused by employment with Centrelink, and said that the Applicant's 'realisation' that his condition arose from Centrelink was attributable to a 'source memory error, also known as memory misattribution'. Dr Parsonage said that the ailments were caused by work as a mortgage broker. The applicant said he regarded Dr Parsonage as fair.
The applicant however was critical of Dr Parsonage’s second report, and said that when he saw him at the Respondent’s request, the doctor had been disinterested in discussing the applicant’s work at Centrelink. He thought Dr Parsonage had formed a view in his first report and would not consider the effect of the applicant’s work at Centrelink. The applicant denied that he only took issue with the report because, unlike the first report, it was unsupportive. Dr Parsonage pointed out in cross-examination that he had asked about Centrelink and recalled that the applicant was insistent that all his psychological problems were attributable to his time at Centrelink.
In cross-examination Dr Parsonage agreed that the ‘lead-in period’ (as the applicant described it) could be months but Dr Parsonage said the history taken by Dr Gordon – the first medical practitioner to be consulted – was much less, and that the applicant had only attempted to obtain an appointment in April 2009. Dr Parsonage agreed that the type of work the applicant had done at Centrelink would be stressful, but this did not inevitably give rise to a psychological condition. He said that it is only in retrospect that the applicant sees himself as having been depressed at that time.
Dr Parsonage agreed that gastroenteritis and headaches can be symptomatic of stress. Dr Parsonage said that the history given by the applicant to other medical practitioners in relation to abusive customers was not his work at Centrelink, because with that work he was empathic towards the customers to whom he was anonymous. His mortgage broking clients knew precisely who he was and blamed him for the problems with the banks, and as a consequence, his livelihood was threatened, whereas at Centrelink he would receive a steady source of income. He also regarded it as significant that the applicant’s work as a mortgage broker was of far longer duration and that there was more at stake financially.
Dr Parsonage was asked by the applicant if, as he claimed, he had a phone phobia in 2008, would his mortgage broking in 2009 be destined to fail. Dr Parsonage said that if the applicant had been affected by his work at Centrelink as he claimed, then he would not have been able to work in mortgage broking at all.
Dr Parsonage was asked by the applicant if there was a stigma attached to mental illness in the workplace. Dr Parsonage said that if a person had failed to recognise that their workplace was the cause of their condition then it was inconsistent to suggest that they were concerned about ‘stigma’. He said that the ‘stigma’ may prevent a person talking about their condition, but does not prevent the person being aware of the cause. The applicant’s history consistently given to various medical practitioners was not of problems at Centrelink, but with his mortgage broking business, and it was only much later that he attributed his problems to his time at Centrelink.
CONSIDERATION
The applicant said he experienced no problems until after August 2008 when his work role changed and he was dealing with the full range of Centrelink customers. This then amounted to a period of about three months. While he was employed at Centrelink he continued with his mortgage broking business. That would tend to suggest that he was not so affected by his Centrelink work since his mortgage broking work was not impacted during that time. He continued with his mortgage broking business until July 2009.
The applicant referred to having a sick day for gastroenteritis and for a headache while at Centrelink. I accept his submission, supported by Dr Parsonage’s evidence that these may be symptoms of a stress condition. However I do not accept that these isolated occurrences were necessarily stress-related, they being common complaints and frequent reasons for absenteeism. In any event, in April 2008, well before he commenced work at Centrelink, the applicant attended Dr Gordon’s practice, the complaining of headaches. I do not find these complaints to be symptomatic of stress related to the applicant’s work at Centrelink.
I accept though that the applicant may have been stressed from the time he attempted to obtain an appointment with Dr Gordon in April 2009, although it may have been as early as January 2009, according to Mr Payne. This was some months after his work with Centrelink, and while his mortgage broking business was in apparent difficulty, given that his company went into liquidation in July 2009.
Importantly, the applicant was recorded by medical practitioners as consistently attributing his psychological problems to his interaction with banks and the negative effect upon his mortgage broking clients. The earliest attribution to his work in Centrelink was, on the applicant’s evidence, to Mr Payne, in August 2009. However, this was not borne out by the report of Mr Payne, who took a history which noted that the applicant’s mortgage broking business had placed a great deal of emotional stress upon him. The evidence is that the applicant referred exclusively to the problems with his mortgage broking business to each of the medical practitioners until his second consultation with Dr Parsonage in December 2013. From Dr Parsonage’s evidence it appeared the applicant was adamant to impress upon him the attribution of his condition to his work at Centrelink. The applicant did not bring attention to his concerns about his work with Centrelink until after his income protection claim had been finalized.
The applicant relied particularly upon Ms Ackers’ observations in 2011 that his symptoms dated back to 2009. This comment does not, in my view, assist in establishing any connection between the applicant’s symptoms and his work at Centrelink.
The clinical notes of Dr Gordon also fail to support the applicant’s attribution. As late as February 2013 when Dr Gordon supported the applicant‘s claim for DSP he related the applicant’s psychological condition to his mortgage broking work. On 10 June 2013, Dr Gordon specifically declined to endorse the applicant’s request that he inform the Respondent that the applicant’s condition related to his Centrelink employment.
For a condition to be compensable it must be “contributed to in a significant degree by the employee’s employment”. The medical evidence, from the medical practitioners with whom the applicant consulted, does not attribute the applicant’s psychological condition to his Centrelink workplace at all, let alone to a ‘significant degree’.
CONCLUSION
The applicant has failed to satisfy the Tribunal that his disease was contributed to, to a significant degree, by his employment with Centrelink within the meaning of section 5B of the SRC Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ........................................................................
Associate
Dated 7 October 2014
Date of hearing 19 September 2014 Applicant In person Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Lehmann Snell Lawyers
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