Maurice Hunter and Telstra Corporation Limited
[2015] AATA 218
•13 April 2015
[2015] AATA 218
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6851
Re
Maurice Hunter
APPLICANT
And
Telstra Corporation Limited
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 13 April 2015 Place Brisbane The Tribunal sets aside the decision under review and substitutes a decision that Mr Hunter is entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
.................................SGD.......................................
Deputy President I R Molloy
CATCHWORDS
COMPENSATION – Commonwealth employees - Whether injury a result of reasonable administrative action – Major depressive disorder – Where multiple contributing factors – Decision under review set aside and Tribunal decision substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 5A(1), 67(8)
CASES
Wiegand v Comcare Australia (2002) 72 ALD 795
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
Deputy President I R Molloy
13 April 2015
BACKGROUND
Mr Hunter was born on 3 July 1952. He commenced employment with Telstra Corporation Limited (“Telstra”) on 19 September 1979. From 1990 he worked as a “product implementer” or project manager.
On 19 April 2013 he lodged a claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) for “Major Depressive Episode”. He claimed that he first suffered the condition on 4 April 2010, and that it was caused by: [1]
Intense and sustained very high stress levels as a consequence of long term exposure to high workloads numerous and variable stressors regarding volatile and mentally demanding work coupled with my high motivation, dedication, commitment and desire to achieve positive outcomes for customers and Telstra.
[1] Exhibit A, p 29.
Telstra rejected Mr Hunter’s claim, and this application is to review a decision dated 19 November 2013 upholding that rejection (“the Reviewable Decision”).
At the outset I should say that the medical evidence satisfies me that Mr Hunter suffered from a major depressive disorder or episode (“depression”).[2]
[2] Dr Siddle, Exhibit E; Dr Morris, Exhibit A, p 454.
The primary issues are:
(a)whether Mr Hunter’s depression was contributed to, to a significant degree, by his employment;[3]and
(b)if so, whether his condition was the result of reasonable administrative action, taken in a reasonable manner.[4]
[3] s 5B SRC Act
[4] s 5A SRC Act
As a project manager Mr Hunter was generally responsible for 10 to 15 projects at a time. Fellow employees, as well as Mr Hunter, said that the work could be mentally demanding. Issues could arise requiring urgent attention, and involving a degree of pressure.[5]
[5] Ms Stephens, Exhibit A, p 351; Mr Paraskevopoulos, Exhibit A, p 358; Mr Violo, Exhibit A, p 468.
CONSIDERATION
There is contemporaneous evidence that Mr Hunter believed he had a stressful workload. There are references to work stress, and to time off work, in his general practitioner’s notes in 2010[6] and 2011.[7]
[6] Exhibit B, pp 26 and 27.
[7] Exhibit B, pp 16, 19 and 20.
Telstra’s records also contain various references to Mr Hunter expressing concern with the volume and pressure of work, including his ability to comply with or complete administrative processes.[8]
[8] Exhibit A, pp 50, 117, 122 and 133.
His supervisor from December 2011, Ms Stephens, also said that he raised complaints about his workload during 2012 and 2013.
On behalf of Telstra it was contended that Mr Hunter did not, in fact, have a heavy workload. The evidence, it was said, showed that other project managers were coping with more work than Mr Hunter was being asked to perform. Furthermore, there were offers made to him to reduce his workload.
All of this, together with other matters, was said to reflect badly on Mr Hunter’s credibility, which in turn provided reason why his claim should not be accepted.
One of the other matters said to go to credit concerned Mr Hunter’s general practitioner’s notes. It was pointed out that references in the notes to a member of Mr Hunter’s family had been blacked out.[9] It was submitted that this was to conceal an allegedly contributing cause of Mr Hunter’s stress.
[9] Exhibit A, p 271; compare Exhibit B, p 16.
Now if that was the purpose of blacking out those words then it was a poorly-conceived plan. It simply drew attention to that part of the general practitioner’s notes. However, in my view what happened was merely an attempt to protect the privacy of a third party and not to mislead.
My assessment of Mr Hunter was that he was an honest witness. He was reticent in the way he gave his evidence. That is consistent with observations of him contained in some of the medical reports.[10] However, I did not think there was anything calculating, prevaricating, or otherwise unsatisfactory about his evidence.
[10] E.g. Exhibit A, p 192.
I do think Mr Hunter may have understated how he felt about Telstra’s threats of dismissal, given his age and the length of time he had been employed. However, neither that, nor any of the matters raised by Telstra, is sufficient to detract from my overall finding that his evidence was truthful.
As to the onset of the depression, Dr Morris, consultant forensic psychiatrist, reported:[11]
It appears from the limited information available, that the condition evolved as a consequence of the allegation of workplace stress dating back from 4 April 2010, which his compensation medical certificate states as a Major Depressive Disorder secondary to prolonged workplace stress. Therefore his work at Telstra significantly contributed to his condition.
[11] Exhibit A, p 458.
Dr Siddle, consultant psychiatrist, wrote:[12]
From Mr Hunter’s history and from the contemporaneous material, I am not able to provide a specific starting point from which Mr Hunter suffered this condition. I believe that on the balance of probabilities the condition was likely to have been present from at least mid-2010.
[12] Exhibit E, p 12.
In cross-examination Dr Siddle maintained that opinion. She said her impression was that Mr Hunter’s stress was largely due to him feeling unable to keep up with what he perceived to be an excessive workload.
It is not necessary that Mr Hunter’s workload was objectively excessive.[13] I find that he did genuinely perceive that he had a high and stressful workload, and this perception was based on the fact that he was undertaking a project management workload.
[13] Wiegand v Comcare Australia (2002) 72 ALD 795, [24].
I am also satisfied that this perception contributed, to a significant degree, to his depression. I also find that the onset of the condition was in or around April 2010.
Telstra contended that, notwithstanding the above, Mr Hunter’s condition was excluded from the definition in s 5A(1) of the SRC Act of injury (including disease) because:
[injury]...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.
Several specific administrative actions were referred to, namely:
(a)a “PICM investigation interview on or about 2 November 2011”;
(b)a meeting between Mr Hunter and his supervisor, Ms Stephens, on 8 March 2012; and
(c)a “performance meeting on 12 April 2012 and a written warning issued the same day.”
It was acknowledged on behalf of Mr Hunter that each of these actions satisfied the requirement of a reasonable administrative action taken in a reasonable manner in respect of Mr Hunter’s employment. It was also acknowledged that the relevant administrative action need not be the sole cause so as to create an exception to the definition of injury.[14]
[14] Hart v Comcare (2005) 145 FCR 29.
It was contended, however, that no single action or combination of actions provided the requisite causal connection to enliven the proviso.
My understanding was that Telstra was not confining itself to those specific actions, but also relied on performance management plans and associated meetings in a more general sense, as constituting reasonable administrative action falling within the proviso.
However, whether the issue is those specific administrative actions, or more generally the performance management regime which Mr Hunter experienced, I am not satisfied that Mr Hunter’s depression does fall within the exclusionary provision of s 5A(1) of the SRC Act.
First, I have found that the on-set of Mr Hunter’s depression was in or about April 2010. In my view it pre-dated the administrative action.
Secondly, the medical evidence, which I accept, does not support Telstra’s contention. When asked about performance management as a work stressor, Dr Burgess said that his impression was that the major stressor was work pressure and that was the likely genesis of Mr Hunter’s condition.
Dr Morris only identified “workplace stress dating back from 4 April 2010” as the cause of the depression.[15]
[15] Exhibit A, p 458.
Dr Siddle was of the opinion that performance management did not play a “precipitating” role but only a “perpetuating” role. Her opinion was that the depression was caused by what Mr Hunter “perceived as an excessive workload” and that “his illness then contributed to his poor performance and the performance management added to his stress and acted as a perpetuating factor”.[16]
[16] Exhibit E, p 13.
CONCLUSION
In summary I find that Mr Hunter suffered a “disease” consisting of a major depressive episode that was contributed to, to a significant degree, by his employment with Telstra. I am not satisfied that his major depressive episode was a result of reasonable administrative action.
The reviewable decision is set aside. The decision in its place is that Mr Hunter is entitled to compensation under s 14 of the SRC Act for a major depressive episode.
Pursuant to s 67(8) of the SRC Act I find that Telstra is liable to pay Mr Hunter’s costs.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy ................................SGD...................................
Associate
Dated 13 April 2015
Date(s) of hearing 9, 10 & 11 February 2015 Date final submissions received 13 February 2015 Solicitors for the Applicant Maurice Blackburn Lawyers Solicitors for the Joined Party DLA Piper Australia
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