McKeon and Comcare
[2001] AATA 910
•31 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 910
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1804
GENERAL ADMINISTRATIVE DIVISION ) N1999/1548, N1999/1549
Re PHILIP BRIAN McKEON
Applicant
And COMCARE
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date31 October 2001
PlaceSydney
Decision The decision in application number N1998/1804 is set aside. The Tribunal substitutes its decision that the Respondent is not liable to compensate the Applicant in respect of any incapacity but the Respondent may be liable to compensate the Applicant under s 16 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of physiotherapy expenses if he can comply with the requirements in that section of the Act. The matter is remitted to the Respondent for its consideration and further decision. The Applicant is entitled to costs in accordance with the Tribunal's General Practice Direction in respect of this application for review. The decisions in applications numbered N1999/1548 and N1999/1549 are affirmed. No costs are payable to the Applicant in respect of these applications.
..............................................
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – workplace stress in relation to introduction of new work practices and conflict with colleagues – anxiety – foot injury – whether applicant suffered psychiatric injury – failure to obtain benefit in connection with employment
Safety, Rehabilitation and Compensation Act 1988, sections 4(1) (definitions of "ailment", "disease", "injury"), (9), 14(1), 19(1), (2).
Comcare v Mooi (1996) 137 ALR 690
Re Patrick and Comcare (AAT 11609, 12 February 1997)
Re MacFarlane and Comcare (AAT 13244, 2 September 1998)
Trewin v Comcare (1998) 156 ALR 615)
REASONS FOR DECISION
31 October 2001 M J Sassella, Senior Member
HISTORY OF THE APPLICATIONS
N1998/1804
The application for review in this matter is made in respect of an injury, which Mr Philip Brian McKeon ("the Applicant") claims to have sustained on 19 February 1998 during the course of his employment at the Sydney Call Centre of Centrelink. Whilst descending the stairs at work, the Applicant claims to have sustained "torn ligaments in left foot".
The Applicant lodged an injury report on 19 March 1998 (Exhibit TD1, T3) and a claim for compensation (Exhibit TD1, T5) with Comcare Australia ("the Respondent") dated 9 March 1998, for the period 6 March 1998 – 11 April 1998 in respect of the "torn ligaments in left foot". In his claim the Applicant advised that he had previously fractured his left foot in September 1995. He also identified a number of factors he claimed contributed to his injury such as:
stress and confusion related to new work practices, including the introduction of the MATE telephone system, a new personal growth program, and new rosters;
having to use the stairs - he considered the lift an unsafe option because he had found a used syringe in an empty lift on one occasion (Exhibit TD1, T5).
Attached to this claim was a report dated 9 March 1998 by Dr Hassim, general practitioner, in which the doctor stated that the Applicant was suffering from "torn ligaments in left foot" (Exhibit TD1, T4).
A determination (undated) was made by the Claims Manager denying liability (Exhibit TD1, T11). In this determination, the Applicant's claim for compensation was disallowed on the basis that the injury could not be causally linked to his employment with Centrelink.
On 10 July 1998 the Applicant requested a reconsideration of the determination which he said was dated 23 June 1998 (Exhibit TD1, T14). With his request he attached a series of documents supporting his statements regarding his experience of work related stress, problems with new work programs and alleged harassment, all of which he claimed contributed to his injury.
On 19 November 1998 an independent review officer within Comcare (the Respondent organisation) affirmed the decision dated 23 June 1998, which disallowed the Applicant's claim (Exhibit TD1, T18). In her decision, the review officer stated she was not satisfied that the Applicant sustained an injury on 19 February 1998. She also noted that, even if she was satisfied that the injury was sustained on 19 February 1998, she could not be satisfied that the time off work from 9 March 1998 to 16 April 1998 was as a result of that injury.
On 15 December 1998 the Applicant sought from the Administrative Appeals Tribunal ("the Tribunal") a review of the decision of the independent review officer dated 19 November 1998 (exhibit TD1, T1). That is this first application beefore the Tribunal.
N1999/1548, N1999/1549The application for review in this matter is made in respect of injuries which the Applicant claims to have sustained on 5 August 1998, 11 November 1998 and 23 March 1999, during the course of his employment with Centrelink.
Following the claim made in early 1998 in relation to the "torn ligament in left foot", the Applicant lodged a further three compensation claims in relation to alleged "anxiety" related injuries:
1.On 17 November 1998 the Applicant submitted a claim for compensation for the period 11 November 1998 to 20 November 1998 in respect of an injury occurring on 11 November 1998, at the Darlinghurst Regional Office of Centrelink. He described this injury as "fear and dread of returning to a Centrelink workplace" (Exhibit TD2, T8). Attached were certificates from Dr Hassim, general practitioner, dated 12 and 16 November 1998, diagnosing the Applicant with "anxiety neurosis" (Exhibit TD2, T7).
2.On 20 November 1998 the Applicant submitted a claim for the period 5 August 1998 to 28 August 1998 in respect of an injury occurring on 5 August 1998, at the Sydney Call Centre of Centrelink, which he described as "extreme trauma over incessant harassment in the work place" (Exhibit TD2, T9). Attached was a report by Russel Sykes, psychologist, describing the Applicant as being "anxious" (Exhibit TD2, T4).
3.On 26 March 1999 the Applicant submitted a claim for an injury occurring on 23 March 1999, at the Sydney Call Centre, which the Applicant described as "shock when a staff member who was harassing me relocated next to me" (Exhibit TD2, T17). Attached was a certificate from Dr Hassim dated 23 March 1999, diagnosing the Applicant with "acute anxiety and nausea" (Exhibit TD2, T16).
In a statement dated 23 August 1999, the Applicant said that his injuries of "anxiety" had induced "sweating, nausea, inability to concentrate and headaches". He stated that these were "caused by being required to work with staff members who had harassed and threatened me, including death threats and harassment with judicial process" (Exhibit A2).
On 17 May 1999 three determinations were made in relation to the claims dated 17 November 1998, 20 November 1998 and 26 March 1999. The claims were disallowed as the Applicant had not shown that he had suffered any "injury" or "disease" as defined under the Safety, Rehabilitation Compensation Act 1988 ("the Act"). Further, the decision-maker was not satisfied that the Applicant's employment had materially contributed to his condition (Exhibit TD2, T22, T23 and T24).
On 15 August 1999 the Applicant submitted a request for reconsideration of the above determinations (Exhibit TD2, T27).
On 13 September 1999 an independent review officer working for the Respondent made a decision affirming the decisions denying liability for the claims dated 17 November 1998, 20 November 1998 and 26 March 1999. This was on the basis that the Applicant had not suffered "disease" as defined under s 4 of the Act, and therefore that no compensation was payable (Exhibit TD2, T33).
On 11 October 1999 the Applicant sought from the Tribunal reviews of the determinations of the independent review officer dated 13 September 1999 (Exhibit TD2, T1).
BACKGROUNDThe Applicant was born on 2 January 1952. His wife of 3 years died on 24 July 1998 from a cerebral vascular accident (stroke). He has no natural children although he was involved in a relationship with a woman prior to his marriage for ten years, during which time he reared her two children as his own. The Applicant now lives alone in a rented apartment.
The Applicant worked with Centrelink from 8 June 1996 to 24 November 2000. He initially worked as a telephone assessor in the Pensions Section, Sydney Call Centre. On 31 August 1998 he commenced work at the Darlinghurst Regional Office where he worked at the counter in a supervisory role until 24 November 1998. He returned to the Sydney Call Centre on 25 November 1998 in a new team with a new Team Leader. He remained at the Call Centre until 21 August 2000.
The Applicant has a long history of conflict with work colleagues at Centrelink as indicated by the evidence.
Whilst working at Centrelink, in addition to the time off work on the days the alleged injuries took place, the Applicant took the following periods off work in relation to his alleged injuries:
9 March 1998 – 16 April 1998 (Sydney Call Centre)
5 August 1998 – 28 August 1998 (Sydney Call Centre)
11 November 1998 – 20 November 1998 (Darlinghurst Regional Office)
1 April 1999 – 25 June 1999 (Sydney Call Centre)
The Applicant took a further six weeks off work beginning in January 2000 from the Sydney Call Centre due to work related stress.
The Applicant worked as a sub-contract driver with the Darling Harbour Airport Bus service from 31 August 2000 to 18 October 2000.
MEDICAL AND OTHER EVIDENCE /CHRONOLOGY – relevant to "torn ligaments in left foot" injury (Exhibit TD1)The Applicant was on flex-leave from 9 February 1998 to 13 February 1998 during which he took up rock fishing (Exhibit TD1, T14).
According to Mr Pigram, a Centrelink middle-manager (Exhibit TD1, T8), the Applicant, on returning from his flex-leave, advised Mr Pigram that he had injured his ankle while on leave, having slipped on rocks while fishing at either La Perouse or Yarra Bay. The Applicant however disputes having made any reference to an ankle injury (Exhibit TD1, T14).
On 18 February 1998 the Applicant sent a CC-mail message (CC-mail is a form of electronic mail)(referred to by Mr Pigram at Exhibit TD1, T8) stating that he was anticipating taking sick leave. The Applicant stated:
"I anticipate that I will have to take some sick leave over the next few weeks as a result of my roster… I anticipate that my health will be compromised by having to conform with irregular lunch break times…" (Exhibit A4).
He advised Mr Pigram of this immediately before the alleged the injuries occurred.
On 19 February 1998 the Applicant claims to have sustained an injury to his left foot on a stairwell at work, detailed in an accident report dated 9 March 1998 (Exhibit TD1, T3).
On 24 February 1998 the Applicant consulted Dr Hassim complaining of a bruised and painful left foot (MFI 2), certified in a report dated 8 July 1998 (Exhibit TD1, T13).
On 9 March 1998 Dr Hassim reported on the Applicant's injury, certifying the Applicant unfit for the period 9 March 1998 to 16 April 1998, due to "torn ligaments in left foot" (Exhibit TD1, T4). He was told by the Applicant that this injury was sustained at work. Dr Hassim stated that he advised the Applicant to stay off work for this period because, although in a clerical position, he would have to walk around the office during the course of his working day (Exhibit A1).
The Applicant claimed time off work for the period 9 March 1998 to 16 April 1998. He submitted his claim for this time off on 25 March 1998 (Exhibit TD1, T18).
On 10 March 1998 Mr Chris Griffith, acting Office Support Unit ("OSU") Manager, had a conversation with the Applicant (reported in a memorandum dated 19 March 1998, Exhibit TD1, T7). In this conversation the Applicant asked about leaving work due to pain in his foot. Mr Griffith stated that the Applicant explained that he had injured his foot whilst rock fishing and that he thought he had exacerbated the injury in the stairwell at work a day or so earlier. He asked Mr Griffith if he thought the agency would accept liability for compensation.
In a report dated 11 March 1998, with respect to a CT scan of the Applicant's left foot and ankle, Dr Leung, radiologist, concluded that a soft tissue injury involving the ligaments of the left foot had been sustained. He also reported soft tissue swelling possibly due to the presence of a partial tear, and that there was no other significant abnormality detected (Exhibit TD1, T6).
On 19 March 1998 the Applicant was seen by David Pierce, the Centrelink Change Manager, walking along Oxford St "with no apparent difficulty" (recorded by Mr Pierce in a note dated 23 March 1998, Exhibit TD1, T9).
On 20 March 1998, in response to the Applicant's accident report, Mr Michael Pigram, Manager of the Pensions Section, reported further information regarding statements the Applicant had made in relation to his injury (Exhibit TD1, T8):
· the Applicant on returning from his flex-leave, advised Mr Pigram that he had injured his ankle while on leave, having slipped on rocks while fishing at either La Perouse or Yarra Bay;
· the Applicant also spoke to another employee, Mr Brian Baker, stating that this incident occurred whilst he was on leave and that his injury was antagonised by having to wear shoes to work everyday;
· in response to the Applicant's reference in his claim that work-related stress contributed to his injury, Mr Pigram stated that he was aware of the Applicant's disapproval of new work practices (the MATE program) and his problems in dealing with the use of scheduling within his workplace;
· concerned that there were no witnesses to the incident, Mr Pigram stated that the Applicant failed to tell anyone of the injury until a month after the event;
· the Applicant had also sent a CC-mail dated 18 February 1998 suggesting that he anticipated taking sick leave and so advising Mr Pigram immediately before he alleged the injuries occurred;
· the Applicant's injury report was signed and dated 9 March 1998, however the earliest date that he requested the form from Mr Pigram was 13 March 1998.
In a report dated 8 July 1998, Dr Hassim certified that the Applicant had consulted him on 24 February 1998 complaining of a painful left foot. Once examining x-ray and ultrasound results [these in fact appear to be CT scan results – T6], Dr Hassim concluded in his report that the employee sustained a soft tissue injury involving the ligaments of his left foot and that at the time of the examination the employee's injury appeared to be only a few days old (Exhibit TD1, T13).
On 10 July 1998 the Applicant requested a reconsideration of the determination dated 23 June 1998. In this request he again stated that the stress he was experiencing due to changes in his work patterns and practices led him to be disorientated on the day of the injury, contributing to his foot slipping on the stairwell. He stated:
"the disorientation, combined with the recollection and review of harassment and stress I had been experiencing over many months, appears to have led… to my left foot slipping over the edge of the polished tiles in a stairwell…" (Exhibit TD1, T14).
He also emphasised that his injury was sustained at work, and was not related to the rock fishing he engaged in while on leave.
BACKGOUND EVIDENCE – relevant to "anxiety" injuries (Exhibit TD2)
1995
In October 1995 the Applicant tendered his resignation as District Officer – Aboriginal, at the Fairfield office of the then Department of Social Security (Exhibit R5). In his letter of resignation the Applicant stated his reason for resigning as being due to stress encountered at work, stating "I …cannot continue to jeopardise my health and my marriage under the unreasonable working conditions I have encountered."
The Tribunal notes, however, that on his compensation claim forms dated 17 November 1998, 20 November 1998 and 26 March 1999 the Applicant indicated that he had never had "a similar injury or illness before, work related or otherwise" (Exhibit TD2, T8, T9 and T17).
1996On 21 August 1996 the Applicant indicated in a Public Service Medical Questionnaire that he had never suffered from anxiety state or stress (Exhibit R7). This was despite having stated in Exhibit R5 that he had experienced stress to such a degree as to have had to resign from his position as District Officer – Aboriginal in 1995 (Exhibit R5).
1997In a CC-mail dated 21 November 1997 the Applicant refused representation from a female officer, Ms T Bennett (an officer involved in the incident of 5 August 1998 not now before the Tribunal), on the "Core Committee", stating that he did not think he could be adequately represented by a woman and a member of a non-indigenous union (Exhibit R10). In this CC-mail the Applicant indicated a degree of animosity towards this woman, particularly in relation to her conduct in her capacity as his "boss".
MEDICAL AND OTHER EVIDENCE/ CHRONOLOGY – relevant to "anxiety" injuries (Exhibit TD2)
1998In a statement dated 8 September 1998, in support of his claim for compensation for the period 5 August 1998 to 28 August 1998, the Applicant outlined a history of his difficult relationships with Ms T Bennett, an acting section manager and other staff at the Sydney Call Centre (Exhibit TD2, T5). He stated that, on returning from an absence in April 1998, he experienced distress in reaction to an "offensive depiction" (a skeletal picture) displayed at his colleague's workstation. The Applicant stated that he had made complaints of "physical, sexual, verbal and cultural harassment" concerning the acting manager's behaviour. Further, he claimed that the acting manager ignored his concerns and continued to harass him once she had returned from an absence during the week commencing 20 July 1998.
The Applicant claimed that on 5 August 1998 he suffered an injury diagnosed as "anxiety" at the Sydney Call Centre of Centrelink, as detailed in his claim form dated 20 November 1998 (Exhibit TD2, T9). In his statement dated 8 September 1998, the Applicant described his feelings of anxiety as relating to the conduct of his colleagues and an "offensive depiction" in his workplace. He claimed that these feelings of anxiety culminated on the morning of 5 August 1998, the day he had returned to work after a period of bereavement following his wife's death, and that on this day he was particularly "traumatised at the presence of [his colleague]" (Exhibit TD2, T5).
The Applicant took leave from work for the period 5 August 1998 to 28 August 1998 for reasons of "distress, anxiety". In addition to his claim for compensation, the Applicant later lodged a Comcare claim for time off work for this period on 23 December 1998 (Exhibit TD2, T14).
In a report dated 9 August 1998 Mr Russel Sykes, psychologist, noted that he had seen the Applicant on two occasions in August 1998 and that the Applicant was distressed at the attitude of workplace management who passed off the matters he had raised as trivial. Mr Sykes described the Applicant as anxious and also noted that he was experiencing grief due to the death in July 1998 of his partner of three years (Exhibit TD2, T4).
On 31 August 1998 the Applicant commenced work at Centrelink's Darlinghurst Regional Office.
The Applicant claimed that on 11 November 1998 he sustained an injury diagnosed as "acute anxiety and nausea" at the Darlinghurst Regional Office of Centrelink. He claimed that this was caused by alleged comments and threats from a colleague, as detailed in his claim dated 17 November 1998 (Exhibit TD2, T8 ). In his claim form he stated "I was threatened by a staff member who said he would not forget me and he would get me and that I was a bastard". However, the Tribunal records that Mr Pigram stated in a report dated 18 December 1998 that the incident on 11 November 1998 related to an "offensive depiction" which the Applicant claimed he could see from the counter at which he was working and which subsequently caused him distress (Exhibit TD2, T12). These details of the incident on 11 November 1998 do not appear on the claim form.
The Applicant took time off work for the period 11 November 1998 to 20 November 1998 for reasons of "anxiety". In addition to his claim for compensation, the Applicant later lodged a claim for time off work for this period on 23 December 1998 (Exhibit TD2, T13).
On 12 November 1998, Dr Hassim certified that the Applicant was suffering from "anxiety" and was unfit for work on 11 and 12 November 1998 (Exhibit TD2, T6).
On 16 November 1998 Dr Hassim examined the Applicant, diagnosing him as suffering from "anxiety neurosis" and as being unfit for work from 16 to 22 November inclusive (Exhibit TD2, T7).
In a statement dated 8 December 1998, in relation to the claim of 17 November 1998, Ms Melanie Scott, the Applicant's manager, stated that the Applicant had not fully detailed the incident of 11 November 1998 to which he had related his condition (Exhibit TD2, T8). She stated that the incident vaguely described to her by the Applicant as having occurred on 11 November 1998 arose from a build up over time of events both at home and at work. Ms Scott also stated that she had made an attempt to mediate between the Applicant and the officer involved in the incident (described in T8, p20 as "tension" between the two officers), however the Applicant refused to attend a meeting. At no stage did Ms Scott consider the workplace to be unsafe. She did not consider that the Respondent should accept the claim.
In a report dated 18 December 1998, in relation to the Applicant's claims dated 17 and 20 November 1998, Mr Pigram provided a descriptive history of the Applicant's work relationships with his colleagues and team leaders. He stated that he had received a number of complaints from other team members regarding the "domineering manner with which [the Applicant] allegedly carried himself in team meetings" (Exhibit TD2, T12). Mr Pigram addressed the issues and allegations raised in the Applicant's application for compensation stating as follows:
1.The "offensive depiction" was a computer drawing of a skull "located in the SmartPics product that Centrelink has placed on the LAN". Its use in other products would have made it difficult for anyone to realise that this picture was offensive.
2.The Applicant's allegation of being subjected to harassment for over two months is misleading as the picture was only on display for four days. Once advised that it was offensive to the Applicant, the team member concerned removed the picture.
3.The Applicant claimed that one colleague had harassed him, telling him to "fuck off". This comment, although unprofessional and unacceptable, was however made in response to the Applicant's aggressive manner towards the officer in question.
4.The Applicant made reference to another "offensive depiction", however his association of this picture with the same team member was unfounded. This was a picture of Brandon Lee in white face makeup and was located on a desk well removed from the other team member's desk.
5.The Applicant reported that on 11 November 1998, while interviewing a customer at work he was distressed to see a picture of skeletal material at the same team member's desk. This however is highly unlikely as the team member's desk is located 25 metres away from the counter and the view of this desk is obstructed by a red partition and frosted glass.
Mr Pigram concluded that contrary to the Applicant's allegations, management dealt with his concerns in an appropriate manner. Further, Mr Pigram stated that although the Applicant had suffered personal loss likely to cause anxiety and trauma, it is incorrect to attribute his anxiety, stress and trauma to workplace harassment. He stated:
"[The Applicant's] application raises many issues that [the Applicant] states have caused him to feel harassed. When viewed in their context and knowing both sides of the story it is apparent that his claims are unsustainable…
There is no doubt that Mr McKeon has had a traumatic time but I do not believe that any action of staff of the Sydney Call Centre have contributed to his trauma in any significant way" (Exhibit TD2, T12).
1999
The Applicant claimed to have sustained an injury on 23 March 1999, diagnosed as "acute anxiety and nausea", at the Sydney call Centre of Centrelink, in his claim form of 26 March 1999 (Exhibit TD2, T17). The Applicant said in an attached statement that he had experienced previous conflict with a particular female officer, whereby she had threatened his life and had "harassed" him with the judicial process by taking out an apprehended violence order ("AVO") against him. Given this previous conflict, the Applicant stated that he was "immediately distressed, overcome by a cold sweat and commenced shaking as I was in fear for my life", once he saw this colleague relocated near his workstation. It was this incident which prompted his claim for workers' compensation (Exhibit TD2, T18).
On 23 March 1999 the Applicant was examined by Dr Hassim (certified in a report by Dr Hassim dated 21 October 1999, Exhibit A3). The doctor stated in that report that the Applicant was unable to perform his duties because of his anxiety that "precipitated nausea, vomiting and sweating". In a certificate dated 23 March 1999 Dr Hassim stated that the Applicant was unfit for work on 23 March 1999 due to "acute anxiety and nausea."
The Applicant took time off work for the period 1 April 1999 to 25 June 1999 in respect of the claim dated 26 March 1999.
In a report dated 7 April 1999, relating to the Applicant's claim dated 23 March 1999, Ms Gloria Arsenich, Acting Manager Sydney Call Centre, stated that she had spoken to the employee whom the Applicant had accused of threatening his life. She said that this employee denied threatening the Applicant in any way and that:
"[the Applicant's] claim that his life was threatened caused a great deal of stress to the female staff member in question, to the point that she needed to take a week off work (on her own time) to recover from the shock. The accusation also caused her fear, as she perceived Mr McKeon's behaviour to be irrational and unstable. This led her to …ultimately issue an AVO against [him]." (Exhibit TD2, T20).
Further, Ms Arsenich stated that the Applicant came into conflict with many people in the Call Centre who were reluctant to have him on their teams. Moreover, in response to the Applicant's claim that he was distressed to find the female officer in question relocated to a desk near him, Ms Arsenich stated that on that particular day the female officer was only temporarily placed at a desk behind him. The officer was conducting call monitoring and the workstation behind the Applicant was a monitoring station. The Applicant's request for the officer's removal was considered unreasonable.
Ms Arsenich concluded that the Applicant's "alleged stressed condition was not caused by the work environment itself, but by his own perceptions of what it should be and unreasonable expectations of others". She noted that many attempts were made to deal with the Applicant's numerous complaints and requests relating to work practices and policies however he has dismissed these attempts as "management inaction or a failure to support him" (Exhibit TD2, T20).
The Applicant was examined by Dr Lovell, psychiatrist, on 20 May 1999. In a report dated 24 May 1999 Dr Lovell stated that the Applicant appeared extraordinarily sensitive to criticism and seemed to lack the interpersonal skills to work in a team. He also noted that the Applicant was distressed by his wife's death but had problems prior to this in the workplace. Dr Lovell concluded:
"[The Applicant] does not have any psychological diagnosis but clearly is repeating his history of being alienated and estranged. He is quite capable of work if he wishes but does not feel supported by his manager. He appears to lack the capacity to get on with others and tolerate co-workers. He does not require any treatment." (Exhibit TD2, T25)
In a "Final report of fitness for duty" dated 27 May 1999, Dr Kerri Fogg, Medical Adviser of Health Services Australia, stated that given the psychiatric evidence available from Dr Lovell, there is no psychological diagnosis and hence the Applicant is fit for work. The doctor concluded that the Applicant's personality traits, rather than any specific medical condition, impact on his ability to communicate with individuals (Exhibit TD2, T26).
On 13 September 1999 the Respondent affirmed the three determinations dated 17 May 1999, to disallow the Applicant's claim for workers' compensation.
FURTHER EVIDENCE – following lodgement of application for review
1999On 26 November 1999 Dr Lewin, Consultant Psychiatrist, assessed the Applicant. In a report dated 2 December 1999, Dr Lewin concluded that the Applicant had not at any stage suffered from any psychiatric condition as a result of the situation in his workplace, and that he was fully fit for duties without restriction. Dr Lewin stated that the Applicant had described "acute symptoms of distress, but there was no history indicative of evolving psychiatric illness." He noted that during the Applicant's three month leave (1 April 1999 to 25 June 1999), he did not experience any symptoms or seek psychiatric treatment. The doctor also noted that the Applicant told him he had seen Dr Martinus on three occasions after his wife's death (although there are no records or reports from Dr Martinus in evidence). Dr Lewin concluded:
"It appears that [the Applicant] was distressed, angry and hurt in the acute context of the circumstances described above. It would be reasonable for him to withdraw for a short period of time, perhaps two or three days in order to allow his emotions to settle. I do not believe he was suffering from a psychiatric condition at that stage. However it would have been reasonable for him to remove himself from the situation where he was experiencing acute distress." (Exhibit R1)
2000
Beginning in January 2000, the Applicant took six weeks off work due to work-related stress.
On 28 March 2000 the Applicant claims to have suffered from nausea and vomiting as a result of stressful work-environment (Exhibit R6).
On 23 May 2000 Dr Dark, Consultant Psychiatrist to Health Services Australia, assessed the Applicant and concluded that he could not find any evidence of a psychiatric disorder. Dr Dark stated that the Applicant:
"presents with an extensive history of conflict with colleagues in his workplace. As part of his personality, he displays a high degree of interpersonal sensitivity. However I find no evidence of psychiatric disorder… He is fit to work." (Exhibit R4)
On 19 June 2000 the Applicant reported an injury described as "a mild feeling of anxiety" (Exhibit A5). This claim and its handling by the Respondent is not before the Tribunal in the instant proceedings.
On 19 June 2000 Dr Hassim examined the Applicant and stated in a report that he was fit for work on that day. The doctor stated however that it would be unlikely that the Applicant would be "fit for duty if he is continually subjected to what he describes as workplace harassment" (Exhibit A5).
On 29 August 2000, in an application to become a sub-contract driver with the Darling Harbour Airport-Hotel Bus Service, the Applicant stated his reason for ceasing his employment with Centrelink as "stress" related. He also indicated on an OH & S questionnaire that he had taken "3 weeks stress leave" from Centrelink beginning on 4 April 1999 (Exhibit R9).
On one occasion in 1999 and throughout 2000, the Applicant made a series of complaints to various people at Centrelink regarding the Darlinghurst Customer Service Centre Manager's work practices. His particular concern related to a framed quotation from "The Prince" by Machiavelli located on his manager's desk, which the Applicant found offensive, and his manager's alleged "incessant harassment". He noted his grievances to a number of people on 14 March 1999, 3 April 2000, 13 April 2000, 14 April 2000, 15 April 2000, 21 June 2000, 27 June 2000 and 3 July 2000 (Exhibit A5).
The Applicant also made complaints in relation to other colleagues.
The Applicant claims to have suffered distress and anxiety as a result of what he described as his manager's "intimidatory" manner (Exhibit A5).
Relevant legislationLegislation relevant to the applications for review consists of the following provisions from the Safety, Rehabilitation and Compensation Act 1988: sections 4(1) (definitions of "ailment", "disease", "injury"), (9), 14(1), 19(1), (2).
"Section 4 Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation;
…
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
…""Section 14 Compensation for injuries
14. (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 19 Compensation for injuries resulting in incapacity
19. (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
…"
Relevant Federal Court authority
The Respondent relied on the decision of Drummond J in the Federal Court in Comcare v Mooi (1996) 137 ALR 690 as authority for the proposition that the Applicant has no injury or disease attracting compensation, especially in view of the assessment of Dr Lewin (see above, paragraph 58). Given the central importance of that case the Tribunal considers that it may be useful to consider its findings at this stage.
The Tribunal had found in the applicant's favour. In its published reasons the Tribunal wrote, amongst other things:
"16. The respondent contended that the legislative provisions are a sufficient blueprint as they talk about ailment, defect, morbid condition and disorder. In other words, they talk about harm which produces measurable symptoms. The tribunal is of the opinion, however, that the type of work-related stress suffered by the [respondent] although producing no overt signs, constituted a reactive depression no less debilitating than a clinical depression with pathological signs.
"18. ... It became apparent in the evidence given by [the respondent] that he was unhappy doing menial tasks when what he felt was his area of expertise lay elsewhere. It would be most frustrating to be in such a position. There is no doubt that the conditions at work contributed to the applicant's depressed condition.
"20.... The tribunal was not of the opinion at any stage that [the respondent] was mentally ill or mentally disturbed or suffered from a psychological disorder. In the tribunal's view he did not fit the diagnostic criteria in any of the diagnostic manual lists of mental or behavioural disorder. Psychological stress does not constitute a disorder which means no more than that there will be cases regarding stress in which psychiatric evidence will not help one way or another.
"21. Dr Tym's evidence in the tribunal's assessment established no more than that there was no label available from the manuals to attach to what he saw and knew of Mr Mooi's overall situation in life, including his situation in his work life and place."
At pages 692-693 Drummond J said as follows:
"Having said this, the tribunal did not go on to expressly find that the respondent's condition was an 'injury', but referred to the respondent's reliance on reports of Dr Tym, psychiatrist, and Dr Jones, a general practitioner, as support for the contention that he was suffering from an ailment or mental injury and the pressures at work, whether perceived or real, contributed in a material way to his disabled condition. The tribunal next referred to Dr Jones' report of 8 March 1993 to the appellant and quoted what Dr Jones had to say about the respondent suffering a reactive depression. In para 27 of its reasons, the tribunal turned to the question whether the respondent's condition resulted in his incapacity for work or impairment of that the capacity: it referred, first, to the respondent's submission that the doctors' reports showed that he could not work at the Directorate of Aircraft Engineering because of subjective psychological stress at work which gave rise to anxiety symptoms and, secondly, to the submission of the exclusion from the range of compensable injury set out in the definition of 'injury' in s 4 of the Act did not apply to the respondent's condition. The tribunal made no finding or comment on the first of these submissions, although in para 18 of its reasons, the tribunal had already recorded its conclusion that the respondent's employment had contributed to his depressed condition. In para 28, it expressly accepted the second of those submissions. (It had already, in para 18, dealt with and rejected the appellant's submission to the contrary.)
"In the final paragraph of its reasons, para 29, the tribunal simply stated that it would set aside the decision adverse to the respondent and substitute its decision that the respondent was incapacitated for work and was entitled to compensation in an amount to be assessed. It must therefore be taken to have found that the respondent's condition was an 'injury' within s 14(1) and that it resulted in his incapacity for work for the period in question.
"It was not suggested, and I do not consider, that the tribunal made inconsistent findings when, at one point, it expressed the opinion that the work-related stress suffered by the applicant constituted a reactive depression no less debilitating than a clinical depression with pathological signs and when, at another point, it expressed the opinion that at no stage was the respondent mentally ill or mentally disturbed or suffering from a psychological disorder. It is apparent from para 16 of its reasons that the tribunal accepted what Dr Jones said in his report to the effect that the respondent's work experiences produced in him a condition of reactive depression. It is also apparent from paras 18, 28 and 29 that the tribunal accepted that this condition impaired his capacity for work. But paras 20 and 21 of the tribunal's reasons show that the tribunal also accepted what Dr Tym said both in his reports and in his oral evidence, including what he said about the psychological stress which the respondent suffered not amounting to any form of mental illness or disorder and to their having produced in him reactions that were within the range of normal human responses to distressing events. The tribunal thus cannot have accepted what Dr Jones said in oral evidence to the effect that the respondent 'was suffering from an illness rather than being sad'. The tribunal nevertheless found for the respondent. It seems clear that the tribunal found that the respondent was entitled to compensation on the basis that, although he was not suffering from any mental illness, mental disturbance or psychological disorder as a result of the work-related stress he was subjected to, the condition that those stresses contributed to produce in him, which the tribunal described as 'psychological stress' and 'work-related stress', had an effect on his capacity for work and was still sufficient to amount to injury within s 14. It is readily understandable why the tribunal came to this conclusion: it reflected acceptance of the submissions made on behalf of the respondent, repeated in the hearing before me, to the effect that, once an employee could show he was in a condition brought about by his employment and that condition impaired his capacity for work, he was entitled to compensation under its 14 (1).
"I do not accept the respondent's submission that s 14(1) is satisfied by proof of the nexus between the employment-caused mental or bodily condition of the employee and incapacity to work or an impairment of the employee's capacity to work. This submission faces the difficulty that, if well-founded, the Legislature has, in s 4, gone to unnecessary trouble by deliberately defining 'injury' as comprising diseases, physical or mental injuries (other than diseases) and aggravations of both kinds of condition: there would be no need for that if section 14(1) makes compensable any condition or circumstances in which an employee finds himself, so long as it arose in the course of his employment and so long as it interferes with his capacity for work. A reading of the Act, including the relevant definitions, in my opinion, shows that before an employee can have any entitlement to compensation under s 14, one of things he must show is that he has suffered something that can be regarded as injury or something that can be regarded as a disease."
At page 694 Drummond J wrote:
"It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant behaviour, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within in the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under section 14(1(1)."
Hearing and appearances
The Tribunal convened a hearing in Sydney that occupied the days of 12-14 July 2000 and 7-9 November 2000. The Applicant represented himself. The Respondent was represented by Mr Paul Jones of counsel. The final day of hearings, 9 November 2000, was given over solely to the delivery of final submissions by the parties. The Applicant was, however, unable to attend for medical reasons. The Tribunal heard the Respondent's representative, provided the transcript to the Applicant and invited him to lodge written final submissions. These were lodged on 30 May 2001. There is some reference to them below. The Tribunal has marked them as Exhibit AFS1.
The Tribunal had access to the following documentary material:
Exhibit TD1 – Section 37 statement and associated documents for application number N1998/1804.
Exhibit TD2 – Section 37 Statement and associated documents for application numbers N1999/1548 and N1999/1549.
Exhibit A1 – Report by Dr M A Hassim, general practitioner, undated.
Exhibit A2 – Letter dated 23 August 1999 from the Applicant to the Respondent's solicitor.
Exhibit A3 – Medical certificate by Dr Hassim, 21 October 1999.
Exhibit A4 – Electronic mail messages dated 18 February 1998 and 25 February 1998 passing between the Applicant and Mr M Pigram.
Exhibit A5 – Documents relating to a dispute between the Applicant and Mr Homersham, a Centrelink manager.
Exhibit A6 – Applicant's record of remark allegedly made to him on 26 February, year undisclosed but apparently 1999.
Exhibit A7 – Applicant's record of remark allegedly made to him by "Dennis" on 19 March 1999.
Exhibit A8 – Electronic mail messages dated 12 February 1998 and 18 February 1998 passing between Ms D Boun Van and the Applicant.
Exhibit A9 – Applicant's 1995 group certificate issued by the University of New South Wales.
Exhibit R1 – Report by Dr R D Lewin, psychiatrist, 2 December 1999.
Exhibit R2 – Respondent's statement of facts and contentions, 1 February 2000.
Exhibit R3 – Report by Dr Lewin, 8 March 2000.
Exhibit R4 – Report by Dr A Dark, psychiatrist, 23 May 2000.
Exhibit R5 – Letter dated 5 October 1995 from the Applicant to his employer.
Exhibit R6 – Applicant's record of lack of assistance provided to him by a colleague regarding a new claim for newstart allowance, 8 March 2000.
Exhibit R7 – Record of examination of Applicant by Australian government Health Service, 21 August 1996.
Exhibit R8 – Applicant's employment records provided by the University of New South Wales on 3 October 2000.
Exhibit R9 – Applicant's employment records provided by Sydney Airporter bus service on 24 October 2000.
Exhibit R10 – Electronic mail message from the Applicant to Ms T Bennett and Mr M Pigram, 21 November 1997.
Exhibit R11 – Stress survey form.
Exhibit R12 – Copy of quote from The Prince by Niccolo Machiavelli.
Exhibit R13 – Copy of quote from inaugural speech by Nelson Mandela, 1994.
Exhibit R14 – Record of meeting held on 18 April 2000 attended by the Applicant with Manager of the Centrelink Customer service Centre at Darlinghurst, Ms J Crane of the AEC People Team and Ms R Sharp, the Customer Service Manager.
Exhibit R15 – Ms Crane's notes of events on 18 April 2000.
Exhibit R16 – Statement by Ms J Crane, 8 November 2000.
Document marked for identification no 2 ("MFI 2") – Medical certificate by Dr Hassim, 24 February 1998.
MFI 3 – Letter dated 25 November 1999 from Ms J Hill to the Applicant.
What the Applicant is seeking from these applications
When the Tribunal queried what the Applicant was seeking from his applications he said that he wanted the following outcomes:
Recognition of the correctness of his position as regards Centrelink management.
Protection of his leave record, ie compensation leave to replace certain sick leave, recreation leave and leave without pay taken by him.
Some medical expenses.
Findings on material questions of fact with reference to the evidence and other material in support of those findings
N1998/1804 (Exhibit TD1) – left foot injury
Should the Applicant succeed in this application he would appear set to gain the recredit of certain sick leave entitlements but he left Centrelink late in 2000 and such re-crediting would appear impossible. The leave he took in association with his left foot injury between 9 March and 16 April 1998 was considered as sick leave. It will retrospectively become compensation leave if his application succeeds. According to T12 he also had physiotherapy treatments commencing about 13 March 1998. If the Applicant paid for his physiotherapy he may be able to claim reimbursement under s 16 of the Act if he succeeds before the Tribunal. In Exhibit AFS1 the Applicant stated that the physiotherapy costs amounted to $410.00.
The chronology here is as follows.
9 February to 13 February 1998 – the Applicant is off work on flex leave (T10). He engages in rock fishing while on leave (T8). Mr Pigram says that he reported injuring his ankle (T8). The Applicant denies this (T14).
18 February 1998 - the Applicant, dissatisfied with management decisions about rosters and flex leave writes to Mr Pigram (T8) foreshadowing that he will have to take some sick leave over the following weeks as a result of the roster. He anticipates that his health will be compromised by having to break for lunch at irregular times.
19 February 1998 – the Applicant claims to have sustained an injury to his ankle on the stairs at work.
24 February 1998 – the Applicant sees Dr Hassim about a left foot that is sprained and has ligament problems (MFI 2). The doctor certifies him unfit for work on that day. In T13, on 8 July 1998, Dr Hassim writes that the Applicant saw him on 24 February 1998 about a painful left foot that he was said to have injured running down stairs at work on 19 February 1998. An x-ray and CT scan indicated soft tissue injury involving the ligaments in the foot. Dr Hassim certified that the injury had occurred only a few days before 24 February 1998. He finished, "Hoping that this information will assist you in your reconsideration of the decision." It is clear that the Applicant solicited this report to assist him in his compensation claim.
24 February 1998 – the Applicant is on leave as per Dr Hassim's medical certificate of that date (MFI 2).
4 March 1998 – the Applicant is on "personal leave" (T10).
5 and 6 March 1998 – the Applicant is on flex leave (T10).
9 March to 3 April 1998 – the Applicant is on sick leave as per Dr Hassim's certificate of 9 March 1998 (T4). This was because of a torn ligament in his left foot. In Exhibit A1 Dr Hassim explained why he thought the Applicant unfit at the time for even clerical work. This was because he would have to walk a kilometre twice a day to go from home to work and back again. He would have to use stairs at work, refusing to use the lift because a syringe was found in the lift on one occasion.
10 March 1998 – the Applicant speaks to Mr C Griffith, office support unit manager, about leaving work because of a pain in his foot (T7). He tells Mr Griffith that he injured his foot whilst rock fishing and that he thought it was healing. He thinks he has exacerbated the injury in the stairwell at work a day or so earlier and asks if Mr Griffith thinks a compensation claim would be accepted. The Applicant is advised to complete an injury report form and claim compensation and to take sick leave, meanwhile, if in pain.
11 March 1998 – Applicant has CT scan of left foot and ankle showing torn lateral collateral ligament (T6).
13 March 1998 – the Applicant commences a course of 11-20 physiotherapy treatments (T12).
13 March 1998 – the Applicant requests from Centrelink an injury report form (T8).
18 March 1998 – the Applicant lodges his injury report form relating to the alleged injury on 19 February 1998. The form is signed and dated as if completed on 9 March 1998 (T3, T8).
19 March 1998 – Mr D Pierce, change manager at the Sydney Call Centre, reports seeing the Applicant during the lunch period walking along Oxford Street with no apparent difficulty.
6 April 1998 – the Applicant is absent on flex leave (T10).
7 April 1998 – Applicant appears to have returned to work, there being nothing in the Section 37 Statement or exhibits to suggest anything to the contrary.
Mr Pigram in T8 recorded doubts as to the validity of the Applicant's claim. In addition to the peculiar aspects surrounding the dating of the injury report form and the other events above of which Mr Pigram was aware, he referred to the fact that there had been no witnesses to the injury alleged to have occurred on the stairs at work. The Applicant did not report the alleged injury until weeks after the event. Mr Pigram considered that the claim could be for a pre-existing, presumably non-work-related, injury.
In T14 the Applicant refuted these views. He insisted that the only ill-effects he suffered from the rock fishing were muscular soreness in his right shoulder and in his calves and thighs. The Applicant insisted that he did injure his "ankle" at work on 19 February 1998. The injury, he said, initially caused little inconvenience and he did not report it. It worsened on 20 February and became very sore on 23 February 1998. He saw Dr Hassim as a consequence on 24 February. Dr Hassim arranged for x-rays to be taken on 28 February 1998 and for a CT scan "the following week". He wrote:
"Dr Hassim suggested that it was unlikely that either the muscle soreness from rock fishing, or my commencement of high blood pressure medication in early February 1998, would have contributed to the injury. Dr Hassim also indicated that it was unlikely that I would have carried the injury over 9 days, including 6 working days, before seeking treatment, had the injury been sustained from rock fishing on Saturday 14th Feb."
At the Tribunal hearing there was some relevant oral evidence. The Applicant had nothing to add to his written remarks except that he said he offered to return to work in a limited capacity (presumably to minimise the need to walk around) during March 1988 but Mr Pigram did not take him up on the offer.
Mr Jones, for the Respondent, put to Mr McKeon that he saw Dr Hassim on 24 February 1998 about pain around his little toe. The Tribunal notes that Dr Hassim's clinical notes, which were summonsed but are not exhibits, state for 24 February 1998, "Injury to left foot > very painful around small toe > problem [?] left lateral. U/S>." The Applicant conceded that "that may have been the case" but he insisted that the damage was to the ligaments and the pain was all over his foot. The Applicant agreed that he never required plaster, a walking stick or crutches for the foot problem. He said he did not get around much for six weeks on the advice of his doctor and physiotherapist.
Mr Griffith was called to give evidence. The Applicant challenged his statement at T7 (see above, paragraph 27) on the basis that he was not at work on 10 March 1998, the day when Mr Griffith says the Applicant spoke to him about possible compensation for his foot injury. Mr Griffith's statement is dated 19 March 1998. The witness conceded that the discussion may have occurred a day either side of 9 March, suggested that Mr McKeon's leave may have been for a part day or incorrectly recorded, but insisted that the event occurred. He did not accept Mr McKeon's suggestion that Mr McKeon had mentioned only shoulder problems as stemming from the rock fishing.
Mr Pigram gave evidence explaining that he prepared T8 (see above, paragraph 28) as manager asked to comment on the Applicant's compensation claim. Mr Pigram said that the Applicant has never discussed the stairwell incident with him. Mr Pigram said that he did recall the Applicant discussing his shoulder problem with him.
Dr Hassim gave evidence. He was not told how the small left toe injury that he treated on 24 February 1998 had occurred. Dr Hassim agreed that his notes for the 24 February consultation were out of sequence. He explained that this was because of two discrete card systems used in his surgery. Dr Hassim saw the Applicant on 17 March 1998. His notes record that he injured his foot on 19 February 1998. He was asked why he certified the Applicant as unfit to work in a clerical job from 9 March to 17 April 1998. He responded that Mr McKeon had told him that he could not do the work. He had not suggested any bandaging or walking aids for the Applicant. Dr Hassim agreed that there was no reference to the Applicant experiencing stress in the workplace in his 1998 notes.
The items of evidence from the above summary that seem to the Tribunal most cogent are:
The recollections by Mr Pigram and Mr Griffith that the Applicant spoke of an injury to his ankle or foot from rock fishing before the alleged injury on the staircase.
The Applicant's action in sending the electronic mail message foreshadowing sick leave immediately before the alleged accident on the staircase.
The lack of any contemporaneous report or witnessing of the alleged incident on the staircase.
The fact that the Applicant was seen walking unimpeded down a street on 19 March 1998.
Dr Hassim's oral evidence that certified the Applicant as unfit for work because of the left foot injury because the Applicant's view was that he was unfit to work. This evidence substantially undercuts the value of Dr Hassim's evidence in Exhibit A1.
The evidence that the Applicant apparently dated the injury report form retrospectively.
The fact that, if the Applicant was injured at all at work, the injury would appear trivial. Dr Hassim described it as an injury to the small toe, although later deciding to conduct an ultrasound or, perhaps more accurately, a CT scan. The evidence cited above that the Applicant was seen to be able to walk freely along the street is crucial in this regard.
The Tribunal regarded Messrs Pigram and Griffith as witnesses of truth whose attitude to the matters at hand was professional and credible. They appeared to be doing their best to be fair to both the Applicant and the employer and were prepared to concede where their evidence might be unreliable in any respect.
On the other hand the Applicant appeared to the Tribunal to be keen to try and filter all of the factual material through his perception that he had been harassed and treated unfairly in the workplace, this somehow precipitating the injury in the stairwell. This had the tendency to reduce the value of his evidence as to factual matters making it less convincing and apparently more self-serving than it might otherwise have been.
The Tribunal finds, on the basis of the above evidence, that the Applicant probably sustained an injury of a trivial nature to his foot and/or ankle when he went rock fishing in the week commencing 9 February 1998. The Tribunal finds that the Applicant more probably than not did experience an incident on the staircase at work on 19 February 1998. The Tribunal finds, however, that the aftermath of that incident did not affect the Applicant in any substantially adverse way at work. This stems from the Applicant's delay in reporting the incident, the fact that Dr Hassim saw the injury as only to the small toe, the fact that pain killers were not prescribed, the fact that Dr Hassim saw no need for bandaging, plaster, a walking stick or crutches, the fact that the Applicant was seen walking comfortably along the street on 19 March 1998 and Dr Hassim's oral evidence that certified a lengthy time off work for the Applicant more as a result of the Applicant's request than as a result of his own active and independent judgment. The CT scan or ultrasound was possibly commissioned because of the level of complaint by Mr McKeon and was convenient to organise as Dr Hassim has his own machine.
Whilst the Tribunal was inclined to find that the Respondent is not liable to pay any compensation to the Applicant in respect of the left foot injury because it seems to have produced no incapacity, the Respondent may be liable in respect of the physiotherapy costs. The Tribunal notes that Mr Pierce saw Mr McKeon walking, apparently comfortably, along the street on 19 March 1998. The physiotherapy certificate (T12) indicates that physiotherapy commenced on 13 March 1998. That certificate identifies that work was done on the left foot to reduce pain and improve movement with a view to the Applicant returning to work. The Tribunal considers it unlikely that a reputable physiotherapist would issue a misleading certificate and accepts that the Applicant received physiotherapy treatment which he genuinely needed. It may be that the early effects were beneficial and that is why the Applicant was able to walk freely on 19 March 1998, as observed by Mr Pierce. The Tribunal considers that the Applicant may be entitled to reimbursement of his $410 for physiotherapy treatment in accordance with s 16 of the Act if he can satisfy the Respondent that he spent that money for that purpose. If he can do this, and if the physiotherapist was properly registered as required in the Act, then the Respondent should pay the money to Mr McKeon.
In the terms of the Act the Tribunal has found that the Applicant sustained an injury in accordance with paragraph (b) of the definition of an "injury" in s 4(1) of the Act. The Respondent is therefore liable to pay compensation to the Applicant under s 14(1) provided compensation is payable under another provision in the Act. The Applicant was seeking incapacity payments and compensation for the cost of his physiotherapy. The Tribunal has not found that the Applicant suffered any incapacity under s 4(9) of the Act on 24 February 1998, 4 March 1998, or between 9 March and 3 April 1998 because the compensable injury, if any, was relatively trivial and would not interfere with his ability to do clerical work. The Tribunal does not accept Dr Hassim's rationalisations in Exhibit A1 for certifying the Applicant as unfit to attend work. If he had to travel only a kilometre from home to work and another kilometre to return home the Tribunal considers that the Applicant could have travelled such a short distance cheaply by taxicab. As regards the use of stairs at work, it is difficult to believe that the Applicant could be much at risk of discarded syringes in the workplace lift for a period of only a few weeks. In any case, the presence of such an object would be clear from a quick inspection of the floor before entering the lift. The Tribunal has found that the Respondent may be liable to pay compensation to the Applicant in respect of his physiotherapy expenses under s 16 of the Act, however.
N1999/1548, N1999/1549 (Exhibit TD2) – psychological/psychiatric injuryThe Applicant relies on a number of incidents at work, and several work relationships in pressing these claims. In a claim lodged on 17 November 1998 (T8) he described the injury or illness as "fear and dread of returning to a Centrelink workplace". He cited sweating and shaking as the "part of body affected". The sequence of relevant events was stated as, "I was threatened by a staff member who said he would not forget me and he would get me and that I was a bastard." The Applicant wrote that "Betty" in Centrelink, Darlinghurst, and several customers had heard this but there were no written statements by witnesses. Mr McKeon said that Dr H Martinus, a psychiatrist, had assessed him for anxiety neurosis.
In a claim lodged on 20 November 1998 (T9) he described the injury or illness as "extreme trauma over incessant harassment in the workplace". This affected his "psychological system". He had a fear and dread of attending the usual place of work. He described the sequence of events as, "harassment by a staff member over two months using depictions of skeletal material; failure of management to relieve harassment; continuation of harassment following a bereavement (also associated with the harassment)". A Mr P McNally was identified as the person who caused the harassment. The injury was "distress, anxious". At the Tribunal hearing on 12 July 2000 the Applicant told the Tribunal that he did not wish to pursue his application in respect of this claim because discussion about skeletal material would be too disturbing to him. The Tribunal will affirm the Respondent's decision in respect of this matter. This renders irrelevant the material above in paragraphs 26 to 38 relating to Ms T Bennett.
In a claim lodged on 26 March 1999 (T17) he described the injury or illness as "I went into shock when a staff member who was harassing me relocated next to me". This affected his "brain and body". He "was unable to continue work on the day". He cited as a similar illness or injury, "received a death threat from a staff member at Darlinghurst CSC in Nov '98". He identified Brendan Lovell as a witness. He cited "anxiety" as the disease in question. On 6 April 1999 the acting manager wrote (T17, p52), "The claim by Mr McKeon that the staff member who caused him stress relocated 2m behind him on 23.3.99 is NOT correct. There is no evidence to suggest his stress is work related. See attached statement."
The statement referred to is T18, by the Applicant, dated 26 March 1998. The main features of that statement are:
About a month earlier the Applicant complained by electronic mail to his team leader about a staff member located near the Applicant who, the Applicant alleged, "constantly talked about herself during the day, making it difficult to concentrate on the delivery of customer service". The staff member was Ms J Tyler Francis.
Ms Tyler Francis had made a remark to the Applicant which he regarded as culturally insensitive but which a manager did not agree was insensitive. Management also declined to act generally in relation to the other staff member.
Ms Tyler Francis is alleged to have said to Mr McKeon, "I just wanted to let [you] know that you ever say anything or write anything about me again your life will be in danger". This is the quote recorded in Exhibit A6.
The deputy manager moved the Applicant's workstation so that he and Ms Tyler Francis were at opposite ends of the floor about 30 metres apart.
Three days before the compensation claim the Applicant was summoned to attend Newtown Court to answer an application by Ms Tyler Francis for an apprehended violence order ("AVO") but Ms Tyler Francis failed to attend. She had been at work all day. He saw this as harassment of him via the judicial process. He regarded Ms Tyler Francis as behaving in an erratic and irrational manner.
On the day of the compensation claim Ms Tyler Francis relocated herself to a workstation immediately behind the Applicant and within two metres of him. He was immediately distressed, overcome by a cold sweat and he commenced shaking as he was in fear of his life. He attended his doctor.
Amalgamating the matters cited in support of the Applicant's condition variously described as anxiety neurosis and anxiety the following work-related matters are cited as contributors:
An alleged threat by a staff member who called him a bastard and said he would get him.
The decision by a staff colleague to relocate herself near the Applicant after having allegedly threatened his life and after allegedly engaging in "judicial harassment" of the Applicant.
The Applicant in the course of providing paperwork to the Respondent and in the course of the hearing made many other allegations about alleged poor management practices in Centrelink. However, as these are not cited directly by him as a cause of the conditions caught up in these claims, they will be addressed only where the written or oral evidence has them presented by the Applicant as making some particular contribution to the claimed conditions.
Claim in T8As a part of T8 (pp20-21) Ms M Scott, manager of the Applicant's workplace, submitted comments on the Applicant's claim. She made the following points:
A conflict situation between the Applicant and the other staff member who was subsequently identified as Azzedine Benmedjdoub had been developing for some time before 17 November 1998, the date of claim. The Applicant worked on counter reception. Mr Benmedjdoub worked in an interviewing bay and would attend to customers whom the Applicant had greeted and registered when they arrived. The Applicant alleged that often Mr Benmedjdoub did not call a customer after the customer had arrived. The customer would return to the Applicant. Mr Benmedjdoub would say that he had called the customer but the customer had not responded. The customer would have to be re-booked for an interview. The Applicant disapproved of how Mr Benmedjdoub was doing his job and seems to have taken up the matter on behalf of himself and other staff, as the Applicant saw it. The Applicant allegedly recorded some comments about the reasons for re-booking a customer and these appeared on the customer's computer record. Mr Benmedjdoub saw them and became upset. Both then became upset. Ms Scott attempted to mediate but the Applicant went home on 11 November 1998. He returned on 23 November 1998, having of course lodged a claim on 17 November 1998.
The Applicant had agreed with Ms Scott that he had other pressures in his life additional to those at work.
The Applicant had been on placement in Ms Scott's office following problems in his home office. He returned to his home office on 24 November 1998.
Ms Scott did not think Comcare should accept Mr McKeon's claim because he had refused to participate in what was an appropriate response to the issue that had arisen.
Claim in T17
In T20 Ms G Arsenich, manager of the Applicant's home base in Centrelink, provided a statement dated 7 April 1999. The chief points in that statement are:
Comcare should not accept the claim.
The conversations between Ms Tyler Francis and her colleagues (other than the Applicant) took place during scheduled breaks and were of a nature found in any workplace. Nevertheless, an attempt was made to cater to the Applicant's concerns by moving his workstation.
On the morning of the Applicant's move to the new workstation site the Applicant approached Ms Arsenich in a distressed state. He claimed that the woman in question had threatened his life. Ms Arsenich as an interim measure organised for Mr McKeon to move to yet another workstation on the opposite side of the floor.
Ms Arsenich spoke to Ms Tyler Francis who explained that she had approached the Applicant after he had moved "in order to tell him that she was glad that he moved and that she hoped they [could] still work together". However the Applicant abruptly moved away before she finished. She was definite that she had not threatened the Applicant in any way. Ms Arsenich had worked with Ms Tyler Francis for some time and had no doubt that she was telling the truth.
Ms Tyler Francis was shocked by the allegation that she had threatened Mr McKeon's life and she took a week off, unpaid, to recover from the shock.
Ms Tyler Francis was allegedly put in fear of Mr McKeon's behaviour. His behaviour appeared irrational and unstable. She consulted a "court magistrate" and sought an AVO against the Applicant. She failed to attend court to argue for the AVO because she did not receive notice of the date of the hearing.
Ms Tyler Francis's usual workstation was about eight metres away from the Applicant. He could see but not hear her. In April 1999 he asked that she be relocated so that he could not see her. Management regarded that an unreasonable request and did not accede to it.
On the morning in question she was required to monitor call centre calls and the monitoring station was located behind the Applicant.
"In summary", she wrote, "I believe from observation that Mr McKeon's alleged stress condition is not caused by the work environment itself, but by his own perceptions of what it should be and unreasonable expectations of others. Over time, Mr McKeon has demonstrated an inability to work cooperatively in a team environment and unwillingness to compromise. Any action taken by management in the past to address Mr McKeon's concerns which did not meet his expectations, has been dismissed by him as management inaction or failure to support him."
Oral evidence
In a statement to the Tribunal the Applicant alleged that severe harassment at work had caused him to become incapacitated. He was sweating and vomiting in November 1998 and March 1999. He argued that this was outside the boundaries of normal functioning and behaviour as required in the Mooi case (supra). The Tribunal notes that in T8 in November 1998 the Applicant referred to sweating as induced by the workplace incident cited. However, there was no reference to vomiting. In T17 and associated material there is no reference to vomiting, although a "cold sweat" is mentioned in T18. The omissions are peculiar if the Applicant indeed suffered from them.
The Tribunal can find no reference to sweating and vomiting in Dr Hassim's notes around these dates. However, on 21 October 1999 Dr Hassim wrote a report stating, "This is to certify that Philip McKeon attended the above practice on several occasions viz: 12/11/98, 16/11/98, 23/3/99 and 12/4/99 for treatment for anxiety. The reason why Mr McKeon was unable to perform his duties was because the anxiety episodes precipitated Nausea Vomiting & Sweating making it impossible for him to concentrate or communicate with people." The Tribunal is dubious about accepting such evidence from Dr Hassim in view of the lack of similar evidence in his contemporaneous notes, the lack of some of this in the Applicant's own contemporaneous documentation, and in view of Dr Hassim's own evidence that he was inclined to write in his reports what the Applicant asked him to write. Dr Hassim had also recorded that the Applicant was hepatitis C positive. He agreed with Respondent's counsel that that could explain the Applicant's nausea, vomiting or diarrhoea.
The Applicant told the Tribunal in relation to Mr Benmedjdoub that Mr Benmedjdoub did work against him after their disagreement. He had been the Applicant's designated trainer earlier in 2000 and refused to assist the Applicant to deal with a customer.
Counsel for the Respondent put to the Applicant that the November 1998 incident involving Mr Benmedjdoub went as follows. Mr Benmedjdoub was at lunch. The Applicant saw him there and said a customer was waiting for him. He said that Mr Benmedjdoub should see the customer immediately. Mr Benmedjdoub said he wanted to finish his lunch first. The Applicant annotated the customer file with a statement that the customer should not be penalised because of confusion in the office. Mr Benmedjdoub was irritated by the annotation when he saw it a few days later. He called the Applicant a bastard but did not threaten "to get" him. They each reported the other to management.
The Applicant created the document admitted as Exhibit R6 on 28 March 2000. It is a minute by minute account of Mr Benmedjdoub's activities from 1.45 pm until 5.00 pm. The document suggests that Mr Benmedjdoub was not available at various times to assist the Applicant. The Applicant recorded that he vomited at 4.30 and 4.42 pm. The Tribunal takes this opportunity to observe that during the course of the hearing the Applicant on a number of occasions produced not dissimilar documents. The impression was created that the Applicant was prone to observing colleagues of whom he disapproved for one reason or another and compiling a virtual dossier of their alleged misdeeds. As the Tribunal observed at least once when this type of material was proffered, the compilation of such material must have diverted the Applicant from his core duties and cannot have contributed to a happier workplace. As many of these dossiers are irrelevant to the events generating the particular decisions under review not all of them will be canvassed in these reasons for decision.
Mr Jones for the Respondent referred the Applicant to answer 18 in the compensation claim form in T8 where he said that he had not had a similar injury or illness before, the illness described by the Applicant as anxiety neurosis. The Applicant replied that he had not been threatened previously by a colleague. However, Mr Jones referred the Applicant to Exhibit R5, a letter he wrote on 5 October 1995 to his supervisor in the NSW Department of Community Services tendering his resignation. He wrote, amongst other things, "Please accept my resignation from the position of District Officer – Aboriginal due to stress arising from my uncertain status with regard to training, as well as the affront to my wife from Koori staff, in what is already a stressful job. … [I] cannot continue to jeopardise my health and my marriage under the unreasonable working conditions I have encountered." Mr Jones submitted that this reflected adversely on the Applicant's credibility.
Mr Jones, for the Respondent, referred for like reasons also to Exhibit R7, a record of a medical examination of the Applicant dated 21 August 1996. The Applicant answered no to question 13, which inquired whether the Applicant had ever suffered from anxiety state, stress, etc. This was despite the evidence in Exhibit R5 about his stress in 1995. The Applicant explained that he had answered no because he had not been treated for these conditions.
The Applicant told Mr Jones about the incident, the alleged death threat, that led to the claim in T17. He said that when he received the death threat he immediately wrote down what had been said. Mr Jones observed that the Applicant was not so shocked as to be unable to write. The Applicant replied that his first instinct was to note what Ms Tyler Francis had said. He recalled that the word "murder" had been used. The document he wrote was not available to the Tribunal on that day. It subsequently surfaced and became Exhibit A6. It does not in fact contain the word, "murder".
The Applicant explained that the problem was that Ms Tyler Francis insisted on exposing her personal life in the workplace. It was impossible to avoid hearing her. Mr Jones suggested that he and the other officer just did not get along, that he simply wanted her moved and that he was watching for her to make errors. The Applicant rejected these suggestions. He said he simply wanted to be able to do the job to the best of his ability.
The Applicant disclosed some other grievances against Ms Tyler Francis. He alleged that she had said in February or March 1999, in relation to the year 2000 Olympic Games and possible protests, that the Aboriginal people were a minority group of little importance. This caused concern to the Applicant who identifies as Aboriginal. This had been shortly before the incident prompting the compensation claim. He also mentioned that he returned from leave early in February 1999. He had spent time with an Aboriginal community in Moree. Ms Tyler Francis asked him where he had been. He replied that he had been "up bush in Moree". She had said she "didn't think there was any bush left in Moree". The Applicant took this to mean that she was expressing the view that Aboriginal culture had been removed from Moree and the district. The Applicant insisted that there is a significant association between bush and indigenous cultures. The Applicant had noted this comment for possible future reference. Later he told the Tribunal that he kept a dossier on Ms Tyler Francis from that time.
Mr Jones put to the Applicant that he had experienced two severe stressors in his private life. His house had burned down and his wife had died (aged 47), both events fresh in 1998. These were said to be far more serious than anything that had occurred at work. The Applicant denied this. He said he was affected much more by a powerful government agency that had used its power over him and refused to support him.
Mr P McNally gave evidence before the Tribunal. However, Mr McNally's evidence was germane to the claim in T9, the decision which the Applicant was no longer seeking to challenge. Mr McNally's evidence is therefore of little relevance.
Ms T Bennet, a former colleague of the Applicant and a person against whom he harbours a number of grievances, gave oral evidence. The issues involving her were germane, however, only to his claims in the matter he no longer seeks to dispute. The Applicant seemed most upset by her office behaviour which was alleged to involve crude language and some high-handed dealings with some staff. It is not possible, however, to discern anything in the Applicant's cross-examination of Ms Bennet that links her alleged conduct with the claims actually in contention before the Tribunal.
Mr Benmedjdoub gave oral evidence in the Tribunal. He was born in Algeria and has a PhD in physics. He came to Australia in 1991. He joined the Commonwealth Department of Social Security in 1993. He was an inaugural staff member in Centrelink when it was created out of the Department of Social Security in 1997. The witness met the Applicant at the Darlinghurst Client Service Centre in 1998 when both were doing broadly similar public contact work at the office counter. In about November 1998 a new system was introduced. Customers made appointments to see Centrelink interview staff. A half to ¾ of an hour per interview was allowed in the system.
In about November 1998 an incident occurred involving Messrs McKeon and Benmedjdoub. Mr Benmedjdoub was sitting at the counter waiting for a customer to arrive. He called the customer's name several times in the ensuing half hour. He then went for lunch at noon or 12.15 in a room at the corner of the floor. He was due for a one-hour break. While he was at lunch Mr McKeon came up to him and said that his customer had arrived and was waiting. The witness had been on lunch for about 15 minutes at that stage and he told the Applicant to re-book the customer for a second appointment. He said he could possibly see the customer in the afternoon if the customer was in hardship and another interviewee did not turn up. The Applicant said nothing in response. The witness finished his lunch and went back to his workstation. The witness then looked at his computer and saw that the Applicant had inserted a message advising the customer to complain about the witness because the witness had refused to serve him. The witness was adamant before the Tribunal that he had never refused to serve the customer. The witness deleted the message and he then saw the Applicant when the Applicant had no customers. That was when he called the Applicant a bastard. He expressed surprise to the Tribunal that the Applicant could do this to him when, in his view, the witness works extremely hard and has an extremely good reputation. The witness denied he ever said that he would "get him" or be violent towards him. The witness said, "I do not use these words lightly". He explained this was because of the violent background from which he had come in Algeria. The witness could recall no response from the Applicant. He then saw the manager, Ms Scott, and explained the events to her. He worked on for the afternoon and he returned to work the next day. He resumed a courteous, normal relationship with the Applicant. The Applicant left at the end of 1998 to return to the call centre. Mr Benmedjdoub had encountered the Applicant again in 2000 when he was required to be his trainer.
In cross-examination the Applicant referred Mr Benmedjdoub to certain events that allegedly occurred on 11 November 1998. The Applicant had a statement he said that he had written at 12.30 pm on that day. He put elements of the statement to Mr Benmedjdoub. This questioning suggested that Mr Benmedjdoub's version of the November 1998 events was incorrect. The differences were that the witness had refused to do the interview a week earlier. It was days later when he saw the message that Mr McKeon had placed on the customer record. He printed it and approached the Applicant with the print-out in the reception area where the alleged threats were made in front of customers. Mr Benmedjdoub did not agree that this was what occurred. The witness repeated that he would only ask that a customer be re-booked when he or she was late. He also reiterated that he would try and accommodate a late arrival who was in hardship on the same day at a later time, especially if someone else failed to attend. Mr Benmedjdoub agreed that a delay in the date of the interview could in some cases mean that a customer missed out on some money.
Mr Benmedjdoub was asked about the contents of the alleged threat against the Applicant. He agreed that he had said, "Why did you do this?", "You can't do this" and "You bastard". He did not remember whether he had said "I will remember this". He denied that he had said "I will get you". He insisted that, as far as he was concerned, the incident was over the next day. He said that the two had a "closer relation" after. "I forgot totally about this and we met, we had jokes, we had discussion, normal discussions". Mr Benmedjdoub said he would not threaten anyone because it would traumatise himself. He said he fled a country where people get slaughtered and he would not want to do anything similar. He was clear that he does not bear grudges.
The Applicant asked Mr Benmedjdoub about events in year 2000 when Mr Benmedjdoub has been his team leader deputed to assist the Applicant adapt to work on newstart allowance administration. The Applicant described the witness as his trainer but the witness was not comfortable with that description. The Applicant sought to suggest that Mr Benmedjdoub had continued his vendetta against the Applicant by not assisting him. The Applicant made use of Exhibit R6 which he described as a report he had written on 28 March 2000. The Applicant put certain discrete incidents to the witness suggesting that on these occasions the witness had not given him the sort of assistance he required. This was said to be to the detriment of some customers. Mr Benmedjdoub described the problem differently. He considered that the Applicant was demanding considerably more training than anyone else in the office had required or received and that other staff members were able to assist the Applicant when the witness could not because he was busy at the time. Mr Benmedjdoub explained that the Applicant's problem was in time management. He could do the technical interviewing tasks required but spent far too long with individual customers so that later interviews ran behind time and this caused the witness stress. He asked after two weeks to be relieved of the job of training the Applicant. When this request was ignored he removed himself from that task. He considered that Mr McKeon was trained by that time.
Mr Benmedjdoub then had contact with the Applicant as a quality assurance checker of the Applicant's work. The Applicant suggested that Mr Benmedjdoub was frequently unavailable to check his work when Mr McKeon wanted and needed it and he would have to approach others who were often very busy. Mr Benmedjdoub insisted that he would engage in such a refusal only if he himself was busy on more urgent matters. He would usually suggest the Applicant come back later.
On the basis of the totality of the Benmedjdoub evidence the Tribunal finds that there was at different times considerable tension and misunderstanding between the Applicant and Mr Benmedjdoub. The Tribunal finds that Mr Benmedjdoub did not enjoy working with the Applicant and was frustrated by aspects of the Applicant's functioning. However, the Tribunal was impressed by the manner in which Mr Benmedjdoub gave his evidence rejecting the allegation that he had threatened the Applicant. He was clearly uncomfortable talking about his Algerian past and was entirely credible in explaining that that past was a reason why he would not ferment vendettas and ongoing bad relations in the workplace. It is far more likely from his evidence that he resolved to have as little to do with the Applicant as he could, leaving it to others to interact with the Applicant. The Tribunal finds that it is not satisfied that the Applicant threatened to "get" Mr McKeon.
Ms J Tyler Francis gave oral evidence. She told the Tribunal that she met the Applicant in about January 1999 when both were at the Centrelink Call Centre. They were at adjacent desks but in different teams. They were never formally introduced but were on nodding terms. She gave her version of the comments she had made when the Applicant returned from holidays in Moree. When he said he had been to the bush, to Moree, she said that she did not think Moree had any bush, that it was taken over by cotton fields. She had been surprised later when the Applicant wrote a report on her comment.
In February 1999 she learnt of the complaint against her. Her manager, Mr K Jordan, showed it to her. She was shocked and astounded. It was unprecedented in her 35 years of working. He had completely misconstrued her comments and had branded her as racist because she had not acknowledged that there are Aboriginal wetlands in Moree. The Applicant had given her no opportunity to respond to this. He began watching everything she did and writing reports. In his complaint the Applicant alleged that the witness was a useless worker. Mr Jordan reassured Ms Tyler Francis that she was performing well. The Applicant had wanted the witness moved. The witness resisted this and the Applicant was the officer shifted. They were located about nine metres apart. The witness told the Applicant she hoped they could forget about the problem. He did not respond. Ms Tyler Francis said that she never threatened the Applicant in this conversation. A colleague told her that the Applicant was telling people that she had said she would kill the Applicant. She took recreation leave.
Ms Tyler Francis saw her local court about a possible AVO. The chamber magistrate suggested she apply for an AVO. She thought she needed to protect herself given that the Applicant had made unsupported assertions about her. She felt that the Applicant was stalking her because of the reports he was writing. Some of these included material regarding her chest and body. She saw the mention of murder as a big leap from the allegations of racism he had raised earlier. She wondered where the Applicant might go next.
The AVO was not granted immediately. The witness remained at home for several weeks. She received no advice of the return date for the AVO proceeding.
Mr McKeon cross-examined Ms Tyler Francis. She could not recall discussing possible Aboriginal protests at the Olympic Games. She doubts that she did. She was enthusiastic about the Olympics and would not be concentrating on any threatened protests.
Mr McKeon challenged Ms Tyler Francis with examples of some of the personal matters he alleged she discussed frequently in the workplace. These included such matters as reading out some personal contact advertisements from a newspaper while lunching at her desk, telling colleagues her weight, telling colleagues she had found a skirt for $5 in an op shop, discussing the cost of gym fees and discussing chicken and baked beans as sources of protein. As regards the AVO hearing, the witness reiterated that she was not notified of the date of the hearing and she did not think to inquire of the court. She was grieving the death of her son at the time. She had no recollection of Ms Arsenich or Ms Savage of Centrelink reminding her of the court date.
Ms Tyler Francis denied telling the Applicant that his life would be in danger.
In Exhibit AFS1 the Applicant provided further information about Ms Tyler Francis and her attempts to obtain an AVO against him. He provided a copy of a summons to attend the Newtown Local Court on 23 November 2000 to answer a complaint by Ms Tyler Francis in respect of which she again sought an AVO from the Court. She provided a statement of circumstances behind the complaint. Included in these she wrote, "A previous application listed before the Court in February, 1999. The Complainant did not proceed with that application because of ill health." Mr McKeon wrote in Exhibit AFS1, "She failed to attend the Local Court hearing on 22 March 1999 but made good her determination when giving evidence to reapply for the Order, telling a different story within two weeks of her testimony to the Tribunal in an application to a Chamber Magistrate by stating that she was too ill to attend the original Hearing …, although she wasn't too ill to attend a Centrelink workplace and receive a full day's pay on 22 March 1999." According to Exhibit AFS1 the November 2000 AVO hearing did not proceed until 16 May 2001 because of the Applicant's ill health. The complainant did not appear on that day. The application was dismissed and the Applicant was awarded costs. He proceeded to state in Exhibit AFS1, "Ms Tyler Francis told one story that she wasn't informed of the return date of the original Local Court Hearing in testimony to the Tribunal then within two weeks she told another, untruthful story to a Chamber Magistrate that she was too ill to attend the original Local Court Hearing although she wasn't too ill to go to work, indicating that none of her testimony is reliable."
The Tribunal has considered Mr McKeon's submissions on this point. The Tribunal is not, however, prepared to draw the same conclusions as to Ms Tyler Francis's credibility as the Applicant. Ms Tyler Francis's evidence suggested that she found the entire incident and its aftermath extremely unpleasant and unsettling, causing her to take periods of leave up to near the time of the AVO hearing. She had told the Tribunal that she was grieving over the death of her son at the time. It is understandable that she would refer to these matters, giving them a general tag of "ill health" in explaining why the earlier matter had not proceeded because this seems to have been a part of the explanation. Ms Tyler Francis in this context told the Tribunal that she had not kept tabs with the court regarding a return date for the first AVO application. It is conceivable that she did not tell the court that she had not received notice of the date of the earlier hearing, instead preferring to rely on her general health condition at the time, because a reference to the non-receipt of notice might be seen as an implied criticism of the court.
The Tribunal finds that Ms Tyler Francis did not threaten Mr McKeon's life. The Tribunal was impressed by Ms Tyler Francis's general demeanour as a witness, by her clear distress at the allegations by Mr McKeon, and by the remarks about her from Centrelink managers who gave evidence. The Tribunal considers that such conduct would be totally out of character.
Ms B Savage, a Centrelink manager, then gave evidence. She canvassed a number of matters, but only the evidence regarding Ms Tyler Francis is relevant to this matter. She recalled the Applicant complaining about Ms Tyler Francis's remarks about Moree, buying the skirt and her general discussions with team members. Ms Savage checked Ms Tyler Francis's work performance and ascertained that she was a very high performer. She was experienced and skilled. She had worked at the Department of Employment, Education, Training and Youth Affairs and had had contact with the Minister in her work. Ms Savage spoke to both parties. The issues seemed settled until the Applicant reacted again . She referred the matter to Mr D Pierce for investigation.
Mr D Pierce then gave evidence. He investigated the Applicant's complaint against Ms Tyler Francis. The Applicant told Mr Pierce that he wanted Ms Tyler Francis counselled. Mr Pierce did not agree that she should be. Mr Pierce approached Mr Leon Donovan, a local indigenous co-ordinator, to see what he made of the alleged comments that Ms Tyler Francis had uttered to the effect that she did not think there was much bush left in Moree. Mr Donovan did not see it as displaying cultural insensitivity. The Applicant had shown Mr Pierce copious notes of conversations and snippets that he had overheard. Mr Pierce thought that collecting this material would impede the Applicant from doing his core work. Mr Pierce considered referring the matter for independent mediation but the AVO proceedings intervened. He considered moving one or other officer but wanted to avoid allocating blame. The Applicant said he would prefer not to move. Mr Pierce moved on to other matters in his work. He said that the Applicant and Ms Tyler Francis were always many metres apart at work. Their line of sight was interrupted. In the final configuration one would have had to "pop up" to see the other. He was aware of no other complaints involving Ms Tyler Francis. She was a very good worker, an active team member. She was involved.
In cross-examination the Applicant put to Mr Pierce that he (the Applicant) disagreed about the need to "pop up" before either he or Ms Tyler Francis could see each other. Mr Pierce did not alter his evidence.
There were several other witnesses. Mr Homersham, a Centrelink manager, gave evidence about matters of complaint by the Applicant in year 2000 which are not before the Tribunal in these proceedings. Ms R Sharp of Centrelink also gave evidence on these matters. However, in one point of relevance she did say that Mr Benmedjdoub had not seen the Applicant's training plan and had given the Applicant the task of doing "ESL interviews", which were not in the plan for him.
The resolution of the issues raised in Exhibit TD2 depends on whether the Tribunal is satisfied that the Applicant has or had an injury under the Act and, if so, whether that sounds in any compensation. The network of statutory provisions requires that the following steps be taken. To have an injury under s 4(1) of the Act the Applicant must have a disease which, in broad terms, is defined in s 4(1) as an ailment or the aggravation of any such ailment. Section 4(1) permits an ailment to be any physical or mental ailment, disorder, defect or morbid condition whether of gradual or sudden onset. There could, in the alternative be an injury (other than a disease) being a mental or physical injury arising out of, or in the course of, the employee's employment.
If the Applicant can show an injury then s 14(1) of the Act is satisfied and compensation will be payable if a provision of the Act allows for it. The Applicant may qualify for incapacity payments under s 19 if he was or is incapacitated by the injury under s 4(9) of the Act. He may qualify under s 16 for compensation for medical expenses reasonably incurred in relation to the injury. In the present case in Exhibit AFS1 the Applicant claims incapacity payments for the periods 11 – 20 November 1998, 23 March 1999 and 1 April 1999 to 25 June 1999.
If the Applicant's condition is not outside the boundaries of normal mental functioning and behaviour then he does not have an injury under s 4(1) of the Act and his application must fail. Psychiatrist Dr Lovell (T25) considered that the Applicant does not, and did not, suffer from any psychiatric disorder. He wrote as his opinion:
"Mr McKeon was rather alienated at school. He embraced the Aboriginal community when learning in the mid 1970s that his father's grandmother had some Tasmanian Aboriginal blood. He tried to express Indigenous culture through art and did a thesis (which was not passed) on male and female lines of communication. Mr McKeon appears to be extraordinarily sensitive to criticism and seems to lack the interpersonal skills to work in a team. He was distressed by his wife's death but had clear problems prior to this workplace.
"He does not have any psychological diagnosis but clearly is repeating his history of being alienated and estranged. He is quite capable of work if he wished but does not feel supported by his manager. He appears to lack the capacity to get on with others and tolerate co-workers. He does not require any treatment."
Counsel for the Respondent suggested to the Applicant that he had described Dr Lovell's report as "white racist propaganda". The Applicant replied that he had not said this, although the report could be so considered. In his view Dr Lovell needs training so as to be sensitive to Indigenous concerns.
Dr R D Lewin, psychiatrist, in Exhibit R1 concluded that "Mr McKeon is not currently suffering from any psychiatric condition. It is my opinion he has not suffered from any psychiatric condition as a result of the situation in the workplace. He described acute symptoms of distress, but there was no history indicative of evolving psychiatric illness".
In oral evidence Dr Lewin addressed symptoms advanced by the Applicant to show his distress. These included a cold sweat, vomiting, fearfulness, nausea, tremulousness and sweating. He said that these were clinical symptoms which were manifestations of physiological arousal. He said that physiological arousal is not a recognisable illness disease, incapacity or anything similar. He said that physiological arousal is a normal response to thoughts, feelings and ideas. Later he said that was the Applicant may have wished to absent himself from the workplace in order to avoid making a scene or to avoid a confrontation, that is not indicative of a psychiatric condition. He said that the avoidance has to be more than just understandable, something that is understandable in terms of avoiding responsibility that is unpleasant, before one moves on to diagnose a psychiatric condition.
Dr Lewin said in his oral evidence:
"The enduring quality of the symptom, even in the absence of that particular stimulus, the symptoms keep happening. Whereas this gentleman told me something quite different in his case. He told me that when he was away from the workplace, generally felt reasonably well. For example, in the 3 month period of leave, he reported that he was asymptomatic during the time. He had no ongoing treatment and that he functioned in a manner which appeared to be competent during the time. For example, he described setting up a website on the Internet and placing on the net his political manifesto. He was able to function in a different setting in a competent manner in the period of time. Whereas if he had illness, it is likely that he would have ongoing symptoms, that he would have got some psychiatric help or some medical help from his general practitioner in that time or that he would have been, in some other sense, unable to function." (Transcript, p 188)
In Exhibit AFS1 the Applicant provided further evidence along the lines described by Dr Lewin. He wrote, "Over the past six months I have experienced no recurrence of hypertension, anxiety neurosis and profuse rectal bleeding during my employment as an airport shuttle bus driver and have returned to good health, a clear indication that my illness was generated specifically from employment with Centrelink and not by any other condition such as personality traits or that I have had a single positive test for hep c." The Applicant appears not to have understood Dr Lewin's point that, if he had a recognised psychiatric illness, that illness would have persisted rather than wax and wane as he has described.
In cross-examination the Applicant asked Dr Lewin whether he conducts cultural awareness programs in his teaching activity. Dr Lewin replied that he does, as appropriate. In response to further questioning Dr Lewin explained that psychiatry trainees have access to cultural awareness education. Dr Lewin said that he has treated many Indigenous patients. He has not himself undertaken any specifically Aboriginal cultural awareness programs.
Mr McKeon asked Dr Lewin when distress, upset and anger (accepted by Dr Lewin as affecting Mr McKeon in Exhibit R3) could become a recognised psychiatric disorder. Dr Lewin replied that that these can develop into a psychiatric condition in certain circumstances. There is a need, however, for other symptoms to be present such as symptoms that are psychotic, depressive anxiety in type (eg phobic avoidance, panic disorder, obsessive compulsion). These could result in workplace incapacity. There were no such symptoms in Mr McKeon's case upon examination or in reports.
Mr Russel Sykes, a psychologist, provided a report on a counselling session with the Applicant (T4). He saw the Applicant twice in August 1998. He spoke with the Applicant about the death of the Applicant's wife in July 1998 and about workplace issues that were significant in the previous few months. He wrote, "Given the various issues such as the stress he has experienced in recent months, and the organisations [sic] stated support for Indigenous workers, and their employment and retention, I recommend that Phillip [sic] be transferred to another section at Centrelink."
In oral evidence Mr Sykes said he had no awareness of any workplace engendered stress prior to the death of Mr McKeon's wife. He considered that the Applicant may have certain personality attributes which contribute to the way he interprets events in the workplace but he had not been in a position to make a full assessment of the Applicant.
Counsel for the Respondent dealt with Dr Hassim's evidence in his final submissions. Dr Hassim noted that the Applicant complained of sweaty hands and nausea allegedly caused by stress when Dr Hassim first saw him in May, 1995 (transcript, p 257). There were subsequent complaints of nausea, sweaty hands, etc, allegedly caused by stress which were consistent with his condition in May, 1995 when there was no mention of stress (transcript, pp 257, 261). There was no mention of stress at the time of the left foot injury (transcript, p 256). Dr Hassim merely accepted what the Applicant told him in relation to history (transcript, pp 256, 261). Hepatitis C could explain sweating hands, nausea and vomiting (transcript, p 260). Dr Hassim had observed hand tremors. There can be many causes of hand tremor (transcript, p 262). The Applicant's blood pressure was more abnormal when Dr Hassim saw him on 26 May 1995 than in February, 1998 (transcript, 264).
Dr Dark, a psychiatrist, saw the Applicant and reported on 23 May 2000 (Exhibit R4). Dr Dark wrote:
"Mr McKeon states that he has found these situations of conflict at work to be stressful and resulted in anger, short-lived anxiety and demoralization. However, he denies pervasively depressed mood and there is no evidence of vegetative disturbance. There is also no evidence of any anxiety disorder. … Mr McKeon states that he attended the psychiatrist, Dr Martinus, on three occasions after the death of his wife. It appears to have been for the purpose of coming to terms with the death. He required no further consultation or treatment. … He denies any knowledge of a family history of psychiatric disorder."
Dr Dark described the Applicant's mental state examination:
"Mr McKeon presented as an informed and articulate man of stated years. His speech was normal in rate and volume. He appeared to be mildly anxious during the interview. He denied being depressed. His affect was reactive and appropriate. His thought form was normal. His thought content centred on the events outlined. There was no evidence of delusional beliefs. He denied suicidal ideation or intent. There was no evidence of perceptual abnormalities. From the history-taking, his cognitive function appeared to be intact. … Mr McKeon presents with an extensive history of conflict with colleagues in his workplace. As part of his personality, he displays a high degree of interpersonal sensitivity. However, I find no evidence of a psychiatric disorder. I am in agreement with Dr Lovell's assessment that he neither has a psychiatric disorder nor requires treatment. He is fit to work. Some strategies to resolve workplace conflict may benefit the situation."
The Tribunal finds in accordance with the Mooi case (supra) that the Applicant has not satisfied it that he was mentally ill, mentally disturbed or suffering from any psychological disorder that was outside the boundaries of normal mental functioning and behaviour. It further finds that there is no injury to the Applicant in the matters encompassed in Exhibit TD2 arising out of or in the course of his employment. It finds this on the basis of the consistent medical evidence from psychiatric experts such as Drs Lovell, Lewin and Dark. Dr Martinus, the psychiatrist seen by the Applicant at one stage, has not provided an opinion. His treatment records were summonsed but include nothing in the nature of opinion material. Dr Hassim provides the best support the Applicant could muster for any suggestion that he suffered from a compensable medical condition. However, his expertise is not in psychiatry and he told the Tribunal that he tended to certify the Applicant for time off work pretty much as and when requested by the Applicant, and he conceded that some of the Applicant's physiological manifestations might be explained by his hepatitis C status.
These findings mean that the Tribunal finds also that the Respondent is not liable under s 14(1) of the Act to pay compensation to the Applicant. This in turn means that the Applicant is not entitled to incapacity payments or medical expenses in respect of the injuries claimed in T8 or T17.
In this part of its reasons the Tribunal has made a number of findings indicating that it prefers the versions of events given by others rather than Mr McKeon's version. This should not be taken as a suggestion that the Applicant has falsified his evidence. The Tribunal's conclusion is that the Applicant sincerely believes that his version of events is in all cases correct. It was obvious to the Tribunal that the Applicant's attitude to his work, his colleagues and his management at Centrelink was affected by deep seated concerns he had about Centrelink management practices and the attitudes, as he saw them, of other staff. In the Tribunal's view, these problems caused the Applicant to misunderstand, suspect and misconstrue the comments, actions and attitudes of his colleagues. This assessment receives support from Dr Lovell (T25).
Before finishing on these matters the Tribunal should, perhaps, refer to the considerable evidence it received as to the Applicant's disgruntlement with aspects of Centrelink organisational policy and Centrelink's handling of workplace grievances. The Tribunal has given these matters little emphasis in these reasons because they were not raised in his claims by the Applicant as direct causes of these particular injuries. However, considerable attention was devoted to these matters during oral evidence and it might be argued that they did contribute to causing the Applicant an injury under the Act.
The Tribunal has already found that the Applicant suffered no compensable injury in any event. However, in relation to these organisational matters the Tribunal also refers to the definition of "injury" in s 4(1) of the Act where the Act states that an injury "does not include any such disease, injury or aggravation suffered by an employee as a result of … failure by the employee to obtain a … benefit in connection with his or her employment". In the present case the Applicant's main grievances against Centrelink were threefold. The first was that he did not agree with aspects of the so-called MATE program running in the call centre. This involved, amongst other things, senior staff listening in to a small sample of reach operator's calls. The Applicant appears either to have wanted not to be audited, or to be audited in a larger sampling of calls, and/or not to be supervised by a woman.
This last point leads to another of the themes in his criticisms. He has written a thesis on what he sees as different male and female modes of communication. His views have been interpreted as meaning that a woman should not be required to supervise or manage a man in the workplace and, the Tribunal understands, that a man should not supervise or manage a woman. The Applicant did not, however, wholeheartedly endorse this characterisation of his views. The Tribunal cannot, unfortunately, do better than this in reflecting his thoughts.
His final general grievance against Centrelink is that he does not agree that Centrelink acted appropriately in dealing with his complaints about other staff members and about managers.
The Tribunal considers that each of these matters constitutes an attempt by the Applicant to bring about a change in the Centrelink workplace that actually failed, or that the Applicant considers to have failed. The decided cases (eg Re Patrick and Comcare (AAT no 11609, 12 February 1997), Comcare v Mooi (supra), Re MacFarlane and Comcare (AAT no 13244, 2 September 1998), Trewin v Comcare (1998) 156 ALR 615) have held that not dissimilar failures have amounted to a failure to obtain a benefit in connection with the Applicant's employment within s 4(1) of the Act. Any deleterious effects that might otherwise have been compensable injuries are then not compensable. That would apply in the instant case also.
ConclusionsThe Tribunal has found that the Applicant's claim in respect of a left foot injury was properly made but that it sounds in no outstanding compensable incapacity for work, although the Applicant may be entitled to reimbursement for physiotherapy costs incurred in relation to the left foot.
The Tribunal has found that the Applicant's claims for anxiety were properly disallowed by Comcare.
DecisionThe decision in application number N1998/1804 is set aside. The Tribunal substitutes its decision that the Respondent is not liable to compensate the Applicant in respect of any incapacity but the Respondent may be liable to compensate the Applicant under s 16 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of physiotherapy expenses if he can comply with the requirements in that section of the Act. The matter is remitted to the Respondent for its consideration and further decision. The Applicant is entitled to costs in accordance with the Tribunal's General Practice Direction in respect of this application for review.
The decisions in applications numbered N1999/1548 and N1999/1549 are affirmed. No costs are payable to the Applicant in respect of these applications.
I certify that the 157 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 26 July 2000
Date of Decision 31 October 2001
Self-represented ApplicantCounsel for the Respondent Mr Jones
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