Martin and Comcare
[2011] AATA 664
•27 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 664
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5142
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN MARTIN Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Toohey, Senior Member and Dr I Alexander, Member Date27 September 2011
PlaceSydney
Decision The decision under review is affirmed. .................[sgd].............................
Ms J Toohey
Senior Member
CATCHWORDS
COMPENSATION – employment related anxiety condition – whether condition aggravated by offensive email – Tribunal not satisfied of reliability of the applicant’s evidence – not satisfied that the e-mail caused the distress claimed by the applicant – decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
27 September 2011 Ms J Toohey, Senior Member and Dr I Alexander, Member BACKGROUND
1. Stephen Martin started work for the Australian Federal Police (AFP) in July 2005. After two years in community policing, in August 2007, he transferred to Sydney airport.
2. In March 2009, Mr Martin lodged a claim under the Safety, Rehabilitation and Compensation Act1988 (the Act) for compensation for an anxiety condition which he said was due to harassment and bullying after he made a formal complaint about his team leader and others at work.
3. Mr Martin’s claim concerned a practical joke played on him in December 2008 by workmates who advertised his jet-ski for sale on the internet without his knowledge. The advertisement included his name and telephone number, and led to numerous phone calls from members of the public. His complaint about a breach of his privacy set in train events which led to his claim for compensation.
4. In 11 March 2009, Mr Martin went off work suffering from an anxiety condition. He saw his doctor the following day, and has not returned to work since.
5. In January 2010, the respondent determined that Mr Martin had suffered an anxiety condition arising out of his employment but denied liability to compensate him on the ground that his injury resulted from reasonable administrative action taken in a reasonable manner.
6. In September 2009, Mr Martin lodged a second claim for compensation. This claim concerned an e-mail circulated by a workmate in July 2009. Mr Martin found this e-mail, which referred to him personally, offensive. He claims it aggravated his anxiety condition, from which he was starting to recover, and led to a resumption of the panic attacks, sleeplessness and tearfulness which he had been experiencing previously.
7. In November 2010, the respondent determined that the e-mail had “play[ed] a part” in Mr Martin’s psychological condition but was not satisfied that it had made him “sicker” or “added to [his] incapacity”.
8. On 9 March 2010, Mr Martin sought review of the first determination by the Tribunal. On 26 November 2010, he sought review of the second determination.
9. For reasons which do not concern us, Mr Martin has abandoned his first application.
THE ISSUES
10. We have to determine whether Mr Martin suffered an aggravation of his anxiety condition as a result of the July 2009 e-mail.
Mr Martin’s symptoms prior to 13 July 2009
11. Mr Martin gave evidence before the Tribunal that, when he went off work in March 2009 suffering from an anxiety condition, he was feeling distressed and was suffering from sleeplessness and headaches, and a feeling of tightness of the chest and trouble breathing. He later learned from his doctor that these were symptoms of panic attacks. At the time he went off, they were occurring approximately once a week and would last 10 minutes or so.
12. Mr Martin gave oral evidence that he was recovering from his anxiety condition when the e-mail incident occurred. About five or six weeks after leaving work, the panic attacks had “sort of subsided” and were no longer happening weekly. As best as he could recall, his last panic attack prior to seeing the e-mail on 13 July 2009 was probably five or six weeks earlier, around the last time he had contact with his employer. Although he still experienced sleeplessness, it had improved and become “scattered”. His doctor had prescribed medication to help him sleep but he had only taken it for a week.
13. Mr Martin gave oral evidence that, prior to 13 July 2009, his intention was to try to return to work as soon as possible, although not in the same area where he had previously worked.
14. In June 2009, Mr Martin met with Lynda Atherton, an AFP welfare officer, and Kathleen Ho, his rehabilitation case manager. He says at that meeting he proposed several suitable locations where he could work, and says had he been offered work at Lucas Heights, he would have commenced immediately. However, he says, he had no contact from Ms Atherton or Ms Ho following that meeting, despite sending numerous e-mails to ascertain what the AFP intended doing about his return to work.
15. The respondent contends that Mr Martin was not seeking to return to work prior to July 2009. A note made by Ms Atherton on 17 June 2009 appears to refer to the meeting she and Ms Ho had with Mr Martin. It states:
PCF Steve, advised he is still waiting for the Comcare claim to be resolved. Concerned about his leave and financial situation, he advised he does not want to return to [the] Airport. He advised he is seeking independent legal advice. Feels he wants to see a Psychiatrist, discussed this and encouraged him to speak with GP and seek referral...
16. Mr Martin denies that Ms Atherton’s note suggests that he was resisting returning to work. We have not heard from Ms Atherton, and the mere reference to wanting to see a psychiatrist does not necessarily mean that Mr Martin was resisting a return to work. However, read in the light of a report from Dr Anne-Marie Rees, a consultant psychiatrist, who saw Mr Martin a week earlier, it does suggest that he was indicating to Ms Atherton and Ms Ho that he was not yet recovered.
Dr Rees’ report
17. On 12 June 2009, Mr Martin saw Dr Rees for assessment at the request of Comcare. Her report records a detailed history following the jet-ski incident including Mr Martin’s current problems. It makes passing reference to an email discovered by Mr Martin when he went into work to pick up an e-mail “yesterday”.
18. Dr Rees’ report suggests that she took a somewhat different history from Mr Martin than what he described in oral evidence. Under current problems, she noted:
Mr Martin reported his sleep is still very poor and he is sleeping on the lounge since he is awake until 3.00am and this disturbs the others in the family. He still has to get up at 7.00am to help with his young children. He stated he feels depressed and anxious and his appetite is poor and he is continuing to lose weight. He is unmotivated and is not enjoying life as usual and is irritable and angry, particularly focusing on his wife whom he is arguing with more again… He stated that if he had to go to his previous workplace he would experience high levels of anxiety…
19. Dr Rees concluded that Mr Martin was suffering from an adjustment disorder with anxious and depressed mood which included panic attacks. She thought he was currently unfit for work; it reasonable to think his condition would cease in three to six months. She noted that he had not received any reasonable medical treatment for his adjustment disorder and panic attacks, and she did not consider Mr Martin able to perform his duties until his mental health had been addressed with treatment.
20. Although he could not recall the exact conversation he had with Dr Rees, in oral evidence Mr Martin did not dispute that he told her he was not fit to return to work. He did not dispute telling her he had had a panic attack approximately a week before seeing her. He could not recall specifically the conversation with Dr Rees about his sleeplessness. He agreed, as far as he could recall, that he told her those things “but not in that timeframe”.
The offending email
21. On Monday 13 July 2009, Mr Martin went into the AFP office at Lucas Heights to check his e-mails. While doing so, he found an email that had been circulated the previous Friday by one of his workmates to approximately 15 people including to Mr Martin.
22. The e-mail was headed “A good reason why you girls shouldn’t have let Marto slip through your fingers”. It contained a link to a news article with the headline “Ugly men make more sperm during sex, study suggests”. The article commenced: “Women wanting to get pregnant should find themselves an ugly man, new research suggests”. The e-mail was clearly a reference to Mr Martin who was known at work as “Marto”.
23. The evidence about the date of this e-mail is somewhat confusing. Dr Rees’ report of the consultation on 12 June 2009 records that the previous day, Mr Martin had gone into work at Lucas Heights to collect an e-mail when he “found a recent email with further harassment ridiculing him”. Other correspondence in evidence confirms that date on Dr Rees’ report is correct. Mr Martin could not explain why she referred to an apparently similar e-mail in June.
24. A copy of the e-mail circulated on 10 July 2009 which Mr Martin read on 13 July 2009 is in evidence. As we refer to below, there was apparently a culture of circulating e-mails of this sort in the office, including by Mr Martin, and the one referred to by Dr Rees may simply have been a different e-mail.
25. A report of Dr Michael Robertson, a consultant psychiatrist, who saw Mr Martin on 13 November 2009, records him as saying he received this particular e-mail, which he described in identical terms, in June 2009. There is no issue as to the genuineness of the 13 July 2009 e-mail, and nothing of itself turns on whether it was received in June or July 2009. It is possible that Dr Robertson simply recorded the month incorrectly. It is also possible that Mr Martin told Dr Robertson the wrong date because, at the time, the e-mail was relatively insignificant to him.
Mr Martin’s involvement in practical jokes and sending e-mails
26. Mr Martin gave evidence that there was a culture in the office of sending “bad taste” e-mails. He told the Tribunal that “probably in excess of a hundred” would be sent each day among members of the office including his former team leader. If this is so, it seems an extraordinary number. In any event, Mr Martin does not deny sending “bad taste” e-mails himself, although he denies being a key player in doing so, and he disputes that anyone would find the e-mails he sent offensive.
27. Several e-mails circulated by Mr Martin at work are in evidence. They were sent on various dates to circulation lists that included some of those on the circulation list for the July 2009 e-mail. It is fair to say that the content of the e-mails and attachments circulated by Mr Martin are in poor taste.
28. Mr Martin also does not deny being involved in, or present at, several practical jokes on workmates, although he denies being the instigator.
29. We are not concerned with Mr Martin’s conduct in sending any e-mails or being involved in any practical jokes. However, it forms the background against which we have to assess the impact on him of the e-mail in July 2009 and the probability that he suffered the severe reaction he claims.
After the e-mail
30. Mr Martin gave evidence that his immediate reaction on seeing the e-mail was to feel shocked, betrayed, extremely hurt and distressed. He experienced an almost instantaneous recurrence of his symptoms. His panic attacks resumed but, whereas previously they had lasted for 10 to 20 minutes, now there were a few occasions when they lasted several hours, and they occurred two or three times a week. He had trouble sleeping about 80 per cent of the time. He had headaches, loss of appetite and decreased mood, and did not want to do anything that he would normally do.
31. Mr Martin forwarded the offending e-mail to his home account. He did not report it to anyone at work. Although he agreed in oral evidence that it was one of the most distressing things that has happened to him, and more emotionally distressing than what followed the jet-ski incident, he did not consult a doctor until he saw a general practitioner, Dr Paul Lumbewe, on 8 September 2009.
32. In the meantime, on 28 July 2009, Comcare rejected Mr Martin’s first claim for compensation. On 3 August 2009, Mr Martin requested reconsideration of this decision.
33. Mr Martin says he did not see a doctor sooner about his reaction to the e-mail because he did not see what a general practitioner could do at that time. He says that, as a general rule, he would only see a doctor for something of an urgent nature or a major trauma, and he had not been given anything previously that helped with his symptoms other than for sleeplessness.
34. Dr Lumbewe recommended Mr Martin see a psychologist or psychiatrist and prescribed medication to help him sleep. Mr Martin gave evidence that he did not see a psychologist or psychiatrist because he could not afford the cost. He took the medication for approximately seven days.
35. On 19 October 2009, Dr Lumbewe reported to Comcare that he had only seen Mr Martin on two occasions, one of which was on 8 September 2009 regarding the e-mail. He noted that Mr Martin did not return for his scheduled Workcover review on 6 October 2009. He recorded that Mr Martin said Comcare wanted him to see a doctor and that he was to see a psychiatrist on 14 September 2009; he had not been sleeping well and was not happy but had no thoughts of self-harm. There is no reference to panic attacks or the other symptoms Mr Martin described in evidence.
36. There is no other evidence that Mr Martin saw a doctor or sought any treatment in relation to his symptoms following the e-mail.
37. Mr Martin gave oral evidence that the panic attacks gradually abated and reached a point where they were no longer significant to him by “probably say late 2009”; by January 2010, he thought he was fit to return to work.
Dr Robertson’s report
38. Dr Robertson saw Mr Martin at Comcare’s request on 13 November 2009. His report of 17 November 2009 is before the Tribunal.
39. Comcare’s letter of instruction shows that Dr Robertson was asked to see Mr Martin in connection with his complaint of anxiety due to sexual harassment arising out of the e-mail. As noted above, Dr Robertson recorded the date of the e-mail as June 2009 but this may simply be a mistake.
40. Dr Robertson noted that, in the context of the jet-ski incident and the e-mail incident, Mr Martin developed panic attacks in both florid and limited symptom forms. He recorded that Mr Martin reported that “his panic attacks subsided in June 2009, but worsened after the email incident… By August 2009 Mr Martin had begun to experience episodes of tearfulness and tremulousness, which appeared to correlate with worsening of his panic symptoms”.
41. Dr Robertson diagnosed Mr Martin as suffering from an adjustment disorder with anxious and depressed mood. He stated that his symptoms began in March 2009. He noted that Mr Martin reported:
… feeling quite dysphoric, with significant self-reproach, although denies ever feeling hopeless and having suicidal ideation or losing interest in his usual enjoyed activities. … He continues to experience panic attacks, usually two or three per week, but these are usually in response to circumstances reminiscent of his work or salient to the crisis he has experienced over the last nine months. In spite of this, he continues to show a degree of generalised phobic avoidant behaviour linked to his anxiety, although this phobic avoidant behaviour is particularly focussed on salient queues to his work. He is not currently receiving any psychological or medical treatment.
42. What Dr Robertson recorded about Mr Martin’s panic attacks subsiding in June 2009 but worsening after the e-mail is consistent with Mr Martin’s oral evidence. However, his note that Mr Martin’s panic attacks were still occurring two to three times a week is not consistent with Mr Martin’s oral evidence that they were no longer significant to him by late 2009 (and, by January 2010, he thought he was fit to return to work).
Dr Synnott’s evidence
43. Dr Inglis Synnott saw Mr Martin on 11 October 2010 at Comcare’s request. He has provided a written report and gave oral evidence.
44. Dr Synnott’s report described the jet-ski incident in some detail. He wrote that it appeared, at the time Mr Martin went off work in March 2009, that he had:
… sufficient psychological symptoms to meet the diagnostic criteria of an adjustment disorder - which seemed to improve over the next four months, and by July 2009 the adjustment disorder was at least in partial remission. He then sought a return to work.
45. Dr Synnott gave evidence that he had the impression that, in the period March to July 2009, Mr Martin felt his psychological state was “significant and impacted on his capacity to work”. After that, however, Dr Synnott said “I gained the impression that things had improved and, in fact, I think that he had tried to go back to work but he hadn’t been allowed to”.
46. When he saw Mr Martin in October 2010, Dr Synnott thought he was “at least in partial remission in July 2009” and “had no significant psychological symptoms - certainly none to cause a psychiatric condition since that time”.
47. Dr Synnott noted that Mr Martin had not had any specific treatment for his psychological symptoms since early 2009. He thought that, by October 2010, Mr Martin had residual psychological symptoms but not a specific condition.
48. There is no reference in Dr Synnott’s report to the e-mail incident. Dr Synnott gave evidence that Mr Martin did not mention anything about it to him.
49. Dr Synnott gave evidence about his practice when taking a history from a person. In broad terms, he takes a history of events and psychological symptoms and he asks whether the person has any questions or information they would like to give him. He dictates his report in the person’s presence including how the person appears to him. To prevent any misunderstanding or having a person feel he has missed something, he always asks at the end whether there is anything a person wishes to add. He gave evidence that this is what he did when interviewing Mr Martin.
50. Mr Martin agrees that he did not tell Dr Synnott anything about the e-mail. He told the Tribunal the reason was that he did not feel as comfortable talking to Dr Synnott as he did with Dr Rees or Dr Robertson; he felt rushed and did not have time to give the full story. He felt Dr Synnott was not interested and only asked specific questions, to which he gave specific answers.
51. The letter of instruction from Comcare’s solicitors to Dr Synnott included the information that Mr Martin had two claims for compensation including a claim for “anxiety due to sexual harassment” caused by seeing “an email which constitutes sexual harassment which had been circulated about me to at least 15 other people”. The letter noted that Mr Martin had indicated he “may appeal this decision”. (At the time, Mr Martin’s second claim had been rejected but not yet reconsidered by Comcare).
52. It was submitted for Mr Martin that, regardless of whether he told Dr Synnott about the e-mail, the letter of instruction made Dr Synnott aware of it and he should have asked Mr Martin about it.
53. We have no way of knowing whether Dr Synnott was aware of the e-mail, although it is fair to assume that he read the letter of instruction. However, whether or not he knew, and whether or not he should have asked Mr Martin specifically about the e-mail, it does not satisfactorily explain why Mr Martin made no mention of it to him.
54. We do not accept Mr Martin’s explanation for failing to tell Dr Synnott about the e-mail. We accept he may have felt less comfortable with Dr Synnott than with the other doctors. It is possible he felt rushed. However, neither of those explanations satisfactorily explains his failure to make any mention of the e-mail incident. In our view, his explanations are not plausible.
Dr Canaris’ evidence
55. Dr Christopher Canaris, a consultant psychiatrist, saw Mr Martin on 13 May and 16 May 2011 at the request of his then solicitors. He has provided a written report and gave oral evidence.
56. Dr Canaris’ six-page report contains a fairly detailed account of the difficulties Mr Martin had at work after December 2008. One paragraph concerns the offending e-mail. Dr Canaris records a brief description of the e-mail which Mr Martin told him “put me further back”.
57. Dr Canaris gave oral evidence that the fact that Mr Martin had his last panic attack several weeks before 13 July 2009, and then a next panic attack the following day, suggested “a significant causal relationship”. However, he acknowledged that he did not ask Mr Martin any specific questions about the direct impact of the e-mail. He did not ask whether he had any more panic attacks, headaches, or sleep disturbance because “very simply … when assessing this matter, the focus was entirely - was almost entirely on the jet ski incident and its aftermath”.
58. Dr Canaris noted in his report that Mr Martin told him he believed he would have been well enough to get back to work had the AFP “been willing to take him back without creating further dramas”. It is not clear from his report whether Dr Canaris took Mr Martin to be referring to the period prior to the e-mail or sometime after it. However, Dr Canaris told the Tribunal that he understood Mr Martin’s symptoms had not abated by the time of the e-mail but were still preventing him from doing his work at the AFP; he “certainly did not think he had recovered” by the time of the e-mail. Dr Canaris told the Tribunal that led him to the conclusion that there was “some evidence of aggravation” in the sense of some delay in his recovery, although he could not quantify the duration or severity of the aggravation.
59. Dr Canaris thought that Mr Martin’s delay in seeing his doctor following the e-mail could be explained by the stigma attached to mental health treatment as well as the culture in the military and police. He also ventured that Mr Martin may have been reluctant to go out because he was suffering ongoing symptoms. Dr Canaris agreed he did not take any history from Mr Martin of any of those matters.
60. We did not find Dr Canaris’ evidence particularly helpful in assessing the effect on Mr Martin of the e-mail. However, it is relevant that, in contrast to Mr Martin’s oral evidence, Dr Canaris had the clear impression that he was still unwell at the time of the e-mail.
CONSIDERATION
61. We did not find Mr Martin a particularly impressive witness. There are significant inconsistencies in his evidence and some of his explanations are not plausible. For the following reasons, we are not satisfied that he suffered an aggravation of an anxiety condition as a result of the e-mail on 13 July 2009.
62. The respondent has submitted that a number of matters which concern Mr Martin’s first claim for compensation go to the credibility of his evidence in these proceedings. A number of witness statements are before the Tribunal concerning events surrounding his first claim about which Mr Martin was cross-examined.
63. Mr Martin disputes a lot of what is in those statements. None has been tested in oral evidence and we have not made any findings about the truth or otherwise of specific matters referred to in them. However, it is clear there is a good deal of disagreement between Mr Martin and others at his workplace about events leading up to, and after, the jet-ski incident.
64. Mr Martin’s evidence before the Tribunal that his symptoms had all but abated prior to 13 July 2009 is at odds with the contemporaneous evidence. It is true that there is no evidence that he was experiencing panic attacks right up to the time he received the e-mail. However, based on the history he gave Dr Rees in June 2009, she thought he was still suffering significant symptoms. Although Ms Atherton’s note is not entirely clear, it indicates that, around the same time, Mr Martin was telling her and Ms Ho that he was still experiencing symptoms for which he wished to see a psychiatrist.
65. Mr Martin’s oral evidence that his panic attacks had all but subsided by the end of 2009 is at odds with the history taken by Dr Robertson that, in November 2009, he was still experiencing panic attacks two to three times a week. Dr Canaris had the clear impression that he had not recovered by the time of the e-mail.
66. The fact that Mr Martin did not seek medical attention for over six weeks after the e-mail undermines his claim that he experienced an immediate recurrence of his symptoms, in particular more frequent and more severe panic attacks. We accept he may not be someone to see doctors frequently and that he may not have found any previous treatment particularly helpful.
67. However, that does not satisfactorily explain why Mr Martin did not see his doctor for so long, especially given his evidence that the e-mail was one of the most distressing things that had ever happened to him, even more so than the jet-ski incident, and that he was having panic attacks several times a week in the period immediately after it. In our view, the delay suggests that the e-mail did not affect Mr Martin as he claims. That view is reinforced by the absence of evidence that Mr Martin saw anyone else for treatment.
68. Mr Martin did not report the offensive e-mail to anyone at work when it happened. He does not appear to have made his workplace aware of the e-mail until he lodged his claim for compensation on 17 September 2009. Given that he was in some conflict with his employer, this might be understandable but, considered in light of all the evidence, it also suggests that the e-mail affected him less than he claims.
69. We have taken into account the culture of “bad taste” e-mails that Mr Martin acknowledges was present in his workplace and in which he does not deny he participated. Such a culture does not make it impossible that a person might be deeply offended by a particular e-mail, especially one directed at himself. However, in our view it makes it less probable.
70. Considering the evidence as a whole, and the course of both Mr Martin’s claims, we agree with the respondent that a pattern emerges which suggests that Mr Martin has exaggerated the significance of any effect of the e-mail on him in retrospect, after his first claim was rejected on 28 July 2009.
71. While Mr Martin’s first claim was on foot, he maintained that his symptoms were continuing prior to, and after, the e-mail. That is what he told Dr Rees in June 2009 and what he told Dr Robertson in November 2009. We are satisfied that Ms Atherton’s file note in June 2009 reflected that Mr Martin indicated to her that he had still not recovered. He now says something different. It is difficult to escape the conclusion that the e-mail assumed significance only after his first claim was abandoned. In our view that is the most probable explanation for the way his evidence has unfolded and the inconsistencies in it.
72. We have already noted that we do not accept Mr Martin’s explanation for failing to mention the e-mail at all to Dr Synnott. The more plausible explanation is that advanced by the respondent: that it was a trivial event which did not assume significance until after his first claim was rejected.
CONCLUSION
73. We accept that Mr Martin may have felt upset at the e-mail. However, the weight of the evidence before us leads to the conclusion that any effect was short-lived at most, and so minimal as to be insignificant. To the extent that it had any effect on him, we are not satisfied that it was outside the boundaries of normal mental functioning and behaviour (see: Comcare v Mooi (1996) 69 FCR 439).
74. We affirm the decision under review.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member and Dr I Alexander, Member.
Signed: .....[sgd].........................................................................
AssociateDates of Hearing 4, 8 July and 16 September 2011
Date of Decision 27 September 2011
Counsel for the Applicant Mr A Anforth
Solicitor for the Applicant Mr D Steiner
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Ms D Shiells
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