Meaney v Comcare
[2013] AATA 815
•15 November 2013
[2013] AATA 815
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/5151
Mary Meaney
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 15 November 2013 Place Canberra The reviewable decision is affirmed.
......................[sgd]..........................................
RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth Employees – adjustment reaction – other contributing factors - whether contributed to by employment to a significant degree
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A and 5B
Administrative Appeals Tribunal Act 1975 (Cth) s 44
Cases
Re Meaney and Comcare (2012) 130 ALD 293
Comcare v Mooi (1996) FCA 1587Comcare v Sahu-Khan (2007) 156 FCR 536
Secondary Materials
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision (DSM IV – TR) (2000)
REASONS FOR DECISION
RM Creyke, R, SMember
The primary issue was whether Ms Mary Meaney suffered an ‘injury’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
The issue was decided in Ms Meaney’s favour in the initial decision by the Tribunal (Re Meaney and Comcare (2012) 130 ALD 293). On appeal to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975 (Cth), the appeal was upheld.
At the resumed hearing before the Tribunal on 17 September 2013, the parties provided written submissions and made oral presentations to the Tribunal.
Background
The following chronology is substantially based on the facts as agreed by both parties. Where the notation ‘#’ appears at the beginning, or in, a paragraph, additional facts by Ms Meaney have been provided.
# Ms Meaney commenced with the Australian Public Service on 12 October 1981, and is a career public servant with over thirty years’ experience in the public sector.
In 1997 Ms Meaney became a carer of her widowed mother.
On or around 5 January 2005, Ms Meaney commenced employment as a Director in the Ministerial and Parliamentary Services (MPS) section of the Department of Infrastructure, Transport, Regional Development and Local Government.
# This Agreement remunerated Ms Meaney at a significantly higher salary classification equivalent to a Senior Executive Band 1 (Band 1) approximately $50,000 above the EL2 salary band. The package was in recognition of her superior responsibilities and abilities as compared to officers at a similar EL2 level.
The Tribunal found at the initial hearing that Ms Meaney had negotiated with Mr Chandler on her appointment in 2005 that she could work flexible hours in recognition of the nature of the work in MPS. Ms Meaney said that the arrangement was that she could take a certain number of days per year in lieu of the extra hours worked to manage parliamentary business, with additional days in an election year. For this purpose, Ms Meaney kept a diary of her hours.
On 15 January 2009, Ms Meaney’s mother fell, broke her hip and required hospitalisation and an operation. Her mother was 86 years old at the time, and it was anticipated she would not survive the fall, and the operation. The last rites were administered prior to the operation.
# After the operation the mother’s health improved and there was an expectation that she would gain full recovery, following some six to eight weeks rehabilitation at home. After she left hospital, the mother had rehabilitation care for three weeks in a respite care facility prior to her return home on or about 25 February 2009.
# At the time of the mother’s fall Ms Meaney was on approved three days’ recreation leave. At 8.03am on 16 January 2009 Ms Meaney contacted her supervisor, Mr David Banham, to inform him of her mother’s accident: ‘David – my mum is in hospital and is awaiting a hip operation after a fall. [TA] is looking after the section in my absence’. Mr Banham responded at 9.22am on 16 January 2009: ‘I assume [TA] will be in contact to provide me with the information’. Ms Meaney responded again to Mr Banham at 10.59am on 16 January 2009: ‘I will be away next week due to my mother’s illness. I will not be accessing emails’. This email had followed a number of calls made on 16 January 2009 by Ms Meaney to staff members organising work, and informing them of her absence.
# Ms Meaney had approved recreation leave prior to the fall from 15-17 January and again from 20 January until 2 February 2009. Dr Mills, Ms Meaney’s general practitioner, issued a carer’s certificate from 15 January 2009 to 23 January 2009 to care for elderly and sick mother (next of kin).
# On 2 February 2009, Dr Mills issued a further carer’s certificate to Ms Meaney for 2-6 February 2009. The clinical notes of 9 February 2009 read:
Mother still in hospital in rehab slowing [sic] mobilising awaiting home assessment. Mary planning 6-8 weeks leave upon return home and will need a certificate for carers leave general certificate now specific dates later.
At 9.25am on 2 February 2009, Ms Meaney contacted her supervisor, Mr Banham:
Hello David I am officially away this week but will be popping into the office to keep an eye on things. My mum has now been taken off critical and has been moved to rehab thankfully, but a number of things need to be done to her home so she can return when recovered. I will pop in today or tomorrow and come and see you if you are available. And I owe you some leave forms and I have a carer’s certificate as well. [J ]is keeping me informed of issues. Have a good day David.
At this stage the hospital’s advice was that her mother would require some rehabilitative care and modifications to her home. The Department of Veterans’ Affairs was arranging these including access to the house and modifications to the bathroom.
At 2.48pm on 2 February 2009, Mr Banham emailed Ms Meaney saying: ‘Mary, I am not aware that you are on leave this week – officially or otherwise. Parliament is resuming this week and we have estimates next week. Now is not a good time to be requesting for leave’.
Ms Meaney took this response to mean that her leave application was refused. As a consequence of this refusal, Ms Meaney’s brother, who was a doctor, postponed commencement of a specialist medical course in Victoria to look after his mother for a fortnight.
# On or around 3.00pm on 2 February 2009 Ms Meaney phoned Mr Banham explaining the reason for her absence. Mr Banham returned her call, instructed Ms Meaney to return to work immediately and refused her any further leave. Ms Meaney became teary and had to hang up and then called Mr Banham again. Ms Meaney negotiated with Mr Banham that she could return to work the next day.
On 3 February 2009, Ms Meaney met with Mr Banham and told him that she would need to take further leave for about six weeks to assist her mother upon her return home. # The meeting became acrimonious concerning the type of leave Ms Meaney should take. Ms Meaney said she would enquire from human resources as to the appropriate leave to be taken. Mr Banham agreed, however, to recredit recreation leave taken on 16-17 January 2009 and that Ms Meaney could use some half days during the week to assist in the rehabilitation requirements of her mother. It was agreed Ms Meaney would apply for the whole week as carer’s leave and that leave for the whole period would be approved by Mr Banham. Ms Meaney was to itemise periods of attendance at work and amend the leave accordingly at the end of the week, reaccrediting from the approved leave the hours in attendance at work.
# At 1.45pm on 5 February 2009 Ms Meaney emailed her section and staff:
Apologies for the lateness of this notification. I will be attending half days for this week and next week for approximately four to five hours a day following my mother remaining in hospital. Times will be flexible to allow for me to visit the hospital. David Banham has agreed to continue [TA] acting in my position until I return fully to work.
# During the week 3-6 February a number of meetings concerning work were scheduled by Mr Banham which Ms Meaney attended. An email from Mr Banham on Friday 6 February 2009 at 8.03am scheduled a meeting that morning for 9.45am-10.00am.
There were further instructions to staff on outstanding matters. A request was made by Ms Meaney for staff to place issues on the agenda.
# On 6 February 2009 at 11.15am Ms Meaney emailed Mr Banham to apologise for missing the meeting that morning. Ms Meaney said she was involved in a car accident. Ms Meaney noted that TA would be acting in her position in the next two weeks as discussed and agreed. The email went on:
I have advised the section yesterday that [TA] will be acting for me the next two weeks … as we discussed and agreed. That was well received by the Section as they were unaware she had been acting in the role. I am very supportive of giving [TA] an opportunity to do all the job and this would mean attending quarterly review on Tuesday (8.30-9.30); attending EMT.
The eWorks report is due to be tabled at EMT and I would run [TA] through a briefing of what is expected at the meeting (and yourself if you would like to attend) in the same way as I sat down with her before the Senate’s Estimates Briefing with the EDs to tease out possible questions. The eWorks report just really needs to be tabled. Both of which I am happy to do if you prefer. I have a health assessment booked on Monday at 2.00pm with my mother but can change the time if you would prefer if I attend EMT. If you are ok with me attending the apt on Monday I will confirm. I also have a personal medical apt at 9.am on Monday and will be away for an hour, and will attend the hospital in my lunch hour.
[TA] has expressed a desire to obtain an EL2 and it is important to [TA] and the team that she is seen to be given a chance as to how she performs in this role.
At this stage I will probably work 7.5 hours each day next week but as discussed with you it will be broken by appts which I will seek your approval before attending. Let me know if you would prefer to discuss in person when I come in this afternoon.
# In that week Mr Meaney took only 12 hours 15 minutes away from the workplace.
On 9 February 2009, Ms Meaney attended Dr Mills. His clinical notes state:
Mother still in hospital in rehab slowing [sic] mobilising awaiting home assessment. Mary planning on 6-8 weeks leave upon return home therefore will need a certificate for carer’s leave general certificate now specific dates later’
# On Wednesday 11 February 2009 Ms Meaney was advised by Mr Banham she was being replaced by WF, an officer who would take over control of the MPS section as an acting Senior Executive Officer Band 1, effective immediately. The position was not advertised prior to the decision to act him in the role and [neither] Ms Meaney, nor any of her staff had knowledge of a restructure of the area prior to the 11 February 2009. Ms Meaney considered she had been intentionally broadsided by Mr Banham. The announcement regarding the restructure was made on 12 February 2009 by the Secretary of the Department.
# Ms Meaney was away on sick leave on 12 February 2009.
On 13 February 2009 at 12.47pm, Ms Meaney issued an email to staff:
Apologies I missed the exciting restructure news yesterday. As you will all [WF] know has been asked to head up a new branch of 35 people. … [WF] will be acting while they advertise this SES position. … On the personal front I will be at work for the next two weeks, following which I will spend six weeks on leave until 14 April when my mum returns home from hospital. On a personal front I would like to thank everyone who has extended their support to me and best wishes to my mum following her accident, she was taken to respite yesterday and we hope to have her home soon.
On 18 February 2009, Ms Meaney contacted Dr Mills’s practice. His clinical notes stated ‘Carer’s Certificate 25/2/09 to 15/04/09’ (emphasis added). Dr Mills did not have any record of a telephone conversation with Ms Meaney on 18 February 2009. On 19 February 2009, Dr Mills’s clinical notes state Mr Meaney’s carer’s certificate was reissued for the period from ‘23 February 2009 to 15 April 2009’ (emphasis added). Dr Mills did not have any record of having a telephone conversation with Ms Meaney on 19 February 2009.
The surgery records state: Ms Meaney requests ‘sick leave form 25 February – 15 April, ? Disable car space’, followed by a notation by Dr Mills[1]: ‘Carer’s certificate 25/2/09 to 5/4/09’; on 19 February, the surgery notes state: ‘Mary Meaney certificate – wants change to 23/2 – 15/4 inclusive’, followed by a notation by Dr Mills ‘19/2/09 Carer’s cert reissued – 23/2/09 to 15/4/09’.
[1] At the hearing Dr Mills confirmed that his practice was to respond to telephone requests to the surgery during the day and sign off his response in the surgery book.
The Tribunal accepts no conversation occurred between Dr Mills and Ms Meaney given the surgery’s system of recording telephone calls to the surgery, the absence of clinical notes by Dr Mills, and Dr Mills’s inability to remember any personal discussions with Ms Meaney on either day.
# Dr Mills did issue another medical certificate dated 19 February 2009 citing ‘medical illness’ of Ms Meaney. At the hearing he gave evidence that he does not backdate medical certificates and could not explain the date on this certificate given his practice and the fact that he had issued another certificate that day. The certificate was stamped by the agency and dated 20.3.09 indicating it was not received until that date.
In these circumstances, the Tribunal infers that on this occasion Dr Mills agreed to issue a backdated certificate and did so on 18 March 2009, following a consultation with Ms Meaney on that day.
# On 19 February 2009 Ms Meaney sought to amend her leave absences for the week 3-6 February as agreed at her meeting with Mr Banham on 3 February 2009.
At 12.55pm on 19 February 2009, Ms Meaney emailed Mr Banham, as follows:
David – seeking your approval as discussed to amend leave in the week 3-6 February 09. As we agreed I provided a leave application for four full days which was approved and our agreement was I would amend the leave to take account of attendance during this period. [Then following discussion of her claimed credits for work time during that week.] Would be grateful for your approval to amend the pcl [personal carer’s leave] leave accordingly refunding leave credits. … Also as discussed I will provide a further application for extended leave given my pcl circumstances for your consideration. As of yesterday I am approximately 53 hours in credit on my diary attendance entries.
At 6.27pm on 19 February 2009, Mr Banham emailed Ms Meaney:
Mary, On this occasion I will approve the variation but, as we have previously discussed, I am still unclear as to the flexible arrangements agreed between you and [JC][2] wrt [with regards to] your attendance. You currently enjoy SES terms and conditions wrt your remuneration but essentially operate under arrangements similar to APS4-6 flex-time. This is an issue I need to address, or at least understand, but it can wait until you return from leave.
At 10.36pm on 19 February 2009, Ms Meaney emailed Mr Banham saying:
I am not applying for flex or toil [time off in lieu] credits. I believe our agreement was I was to attend work as you requested in your email to me on Monday 3 February (sic) and then reclaim the unused pcl portion, depending on attendances, which I did not know until the week’s end. Both [WF] and [TA] were aware I was not attending in full capacity’… I have not claimed any toil but merely mentioned my attendance balance to indicate that I am not in debit in any way owing the dept. My expectation of attendance is that my obligation is to work whatever hours is [sic] required to do the job. If you prefer to keep the unusual pcl, I have nine months of the stuff.
[2] JC had previously been in the position of Mr Banham and was Ms Meaney’s supervisor.
# At 10.38pm on 19 February 2009 Mr Banham sent an email to [TA], acting in Ms Meaney’s position, Ms Meaney and [WF]. The email responded to an email from [TA] to the Deputy Secretary. Mr Banham regarded the response as inappropriate. Ms Meaney had nothing to do with the email or issue in question. Mr Banham wrote:
At the parliamentary business committee meeting held this afternoon there was further discussion regarding the growing concern/perception by our Executive that MPS was disconnected with the activities of our Minister specifically and parliament more generally. I think that is a good example of the disconnect. We cannot afford to send dismissive emails to the deputy secretary’s telling them what they already know particularly when they are wrong. MPS needs to become more engaged with the office and make better use of our DLOs [Departmental Liaison Officers]– how many meetings has the head of MPS had with the Chief of Staff in the last week, month, year? MPS are meant to be our eyes and ears in parliament. It has become evident that this is not the case. Increasing MPS’s knowledge and awareness of our political environment as well as increasing the efficiency of their processes must be a priority for us over the next couple of months. We need to put together a plan of action, show some leadership and start delivering.
At 10.55pm on 19 February Mr Banham emailed Ms Meaney and said:
Mary, your actions are inconsistent with your email. You know my issue is not with your use of PCL – it is about your approach to your job. We also seem to continuously differ on our understanding on what we ‘agreed’. However, I don’t think it is useful in pursuing this conversation by email. Can you please arrange a meeting with [my EA] so we can discuss in person.
On 23 February 2009, Ms Meaney sent an email to, WF, Branch Head, copying Mr Banham and TA. The subject was ‘Leave Application’. Ms Meaney advised:
[WF] – as discussed with you last week and in the spirit of no surprises I flagged that I may be away this week depending on my personal circumstances. I would like to make an application for pcl leave for medical illness from today until 16 April which comprises our discussion re my need to take pcl earlier than first planned. David asked me to check procedure with People Branch re extended leave when I first flagged this with him. [AC] said I must provide, if asked, a medical certificate which cites as medical illness as the reason for non attendance and will provide you a copy together with personnel. David has separately asked me to talk to him after my leave re issues and I am happy to do so. I am also happy to do that if he prefers.
# Ms Meaney’s email continued as follows:
On the work front my understanding from our discussions is that you would like [TA] to take full control of running the section given the extended absences (including [her using] the office which I have claimed.). Re SE [Senate Estimates] I understand [TA] and C have taken full carriage of these and [TA]and yourself will attend with C and B in secretariat. Please feel free to contact me on any matter, and if I can assist I would be more than happy to do so. Regards Mary.
In response on 25 February 2009 Mr Fletcher emailed Ms Meaney, copied to Mr Banham, to suggest she seek approval from Mr Banham. Ms Meaney then forwarded WF’s email to Mr Banham that afternoon, with a copy to WF.
At 4.43pm on 25 February 2009 Mr Banham emailed Ms Meaney as follows:
Mary, In our earlier discussions I indicated that the intent of PCL for carers leave was to cover incidental or unplanned needs. You advised that you had adequate recreation and long service leave. Are you now advising that you have a personal medical condition?
At 1.00pm on 26 February 2009, Ms Meaney emailed Mr Banham and said:
David – You asked me to check with People Branch – advice to me from People was that there was no such limitation re carers leave – incidental and unplanned – although when first introduced this was the case. Only limitation was to give certificate which I can provide if necessary. It was subject to operational needs which I think we are covering with [TA] and [WF] (subject to your views). If People Branch provide with different advice I’m happy to reapply if that’s what’s required, Heard Estimates went well yesterday. Good news.
At 9.04pm on 2 March 2009, Mr Banham emailed Ms Meaney:
Mary, I do not recall asking you to check with People and Performance with regard to PCL. My advice to you was that, in my view, PCL for the purpose of caring was aimed at incidental requirements. If the caring arrangements could be planned then normal recreation leave should be taken. Given these and my previous comments I have declined your request for PCL through SAP [database used for personnel functions].
At 5.58pm on 3 March 2009 Ms Meaney emailed Mr Banham: ‘Thank you David for your advice – I am seeking some advice and then will resubmit a proposal for your consideration’.
At 2.00pm on 15 March 2009, Mr Banham emailed Ms Meaney: ‘Mary, I am concerned that you are currently absent from the workplace – ie you are not covered by approved leave. Can you please give priority in resolving this matter’.
On 18 March 2009, Ms Meaney attended Dr Mills. Dr Mills’s clinical notes recorded:
Recent hot flushes and night sleep generally disrupted with frequent waking considering change of Risperdal dose recent stress secondary to mother’s illness treatment options discussed could increase Risperdal however has concerns regarding dreams and flushes could change to Solian as 100mg table ½ night for a week and 1 at night for a week Risperdal 1mg at night for 1 week then 1/2mg at night for 1 week review in 2 weeks work certificate 25 February - 15 April listed as medical condition. (emphasis added)
# Ms Meaney responded to Mr Banham on 18 March at 10.22pm:
Hello David, Apologies for not responding earlier to your email but I have been unwell and wanted to discuss my circumstances with my doctor. I have a medical certificate for the time in question and have discussed this with my doctor today. He has certified that I am medically unfit to attend work for the period. The certificate has been sent via express post ref en351105 which you should receive shortly – if not Thursday, Friday.
I will access my workplace [the personnel information system used for leave applications] and forward a request for pcl with a certificate for your consideration/approval. Thank you David and I hope all is well with Corporate Services and MPS. Mary.
# On or about 1 April 2009 Ms Meaney received a letter from People and Performance Branch advising her AWA was to be terminated and in the attachment to the letter that Ms Meaney’s salary was to be reduced [by $39,000].
Ms Meaney was notified on or about 6 April 2009 that her medical leave had been approved by Mr Banham. At 5.17pm on 6 April 2009, Ms Meaney emailed [WF], copying Mr Banham saying: ‘I will be returning to work on that day [16 April 2009] as agreed with David which was six weeks from the time my mum returned home’.
# At 9.27pm on 7 April Mr Banham emailed Ms Meaney:
Mary, on a point of correctness – there was no ‘agreement’ with me as you state in your email. As you are fully aware I did not approve your request for PCL to provide care for your mother for this period as I did not consider it to be an appropriate use of PCL under our guidelines. You subsequently obtained a medical certificate stating that you were personally suffering from a medical condition which is coincidentally for the same period for which I declined your PCL. David.
On 15 April 2009 [WF] enquired by email to Ms Meaney whether she was returning to work on the day her certificate expired.
# At 9.35pm on April 15 2009, [WF] emailed Ms Meaney:
Mary Could we meet at 10.00am for a return to work catch up, assuming my previous meeting does not run over? Also I have a Portfolio Budget Estimates (PBS) meeting in the Minister’s Office at 11.00am, and hence I need to depart NLT [no later than] 10.45am. However, I will be free in the afternoon to meet with you if the 10.00am timeslot does not prove practical. This meeting request follows up on my voice mail message to you this afternoon on your blackberry where I mentioned that in the short term at this stage until 30 June, I have asked [TA] to continue acting as EL2 and to run with day to day operations of MPS in order to free you up to concentrate on MPS Strategic and Policy issues, and to progress some whole of Branch initiatives including the formation of ATSB [Australian Transport Safety Bureau]; and I would like to sit down with you and discuss where we have been and where I see MPS and the Branch going.
# Mr Banham agreed at the AAT hearing that MPS did not have a policy role.
On 10 November 2009, Ms Meaney submitted a claim for compensation. Ms Meaney claimed she suffered an illness affecting her mental state, which she first noticed (and for which she first sought treatment) on 16 April 2009. Ms Meaney claimed that she was made ill by the ‘mistreatment of leave requirements following [her] mother’s incapacity’.
Medical evidence
Dr Mills
Dr Ian Mills, Ms Meaney’s general practitioner since 1995, was also her mother’s doctor. He reported on 30 July 2009 that he had issued a sick certificate dating from 23 February 2009 for Ms Meaney. He had continued to issue medical certificates of her unfitness for work ‘given the ongoing instability at work’.
In his report of 13 March 2010 he noted that his carer’s certificates for Ms Meaney ‘became sick certificates from 23 February 2009’, and noted ‘Her symptoms are reactive to her perceived workplace stress’. As he said:
… when Mary told me that there were problems at work resulting in symptoms of stress and anxiety. I was not aware of the details however Mary stated that there were problems with her work position and that legal action was pending. Given her previous conscientious work-ethic and her noticeable worried state I decided that time away from the perceived threatening environment was the best form of management.
He had initially diagnosed ‘Acute Situational Crisis’, but having seen the report of Dr George, he agreed this had become chronic adjustment disorder. He noted ‘Generally she has been well but minor exacerbations over the years have resulted from various stressors usually related to her employment’. As he said ‘Given her difficulties at work I felt it best to provide her with sick leave until the waters settled’. His report went on:
With regard to Ms Meaney’s employment relationship, the main factors which have contributed to the claimed medical condition relate to alleged inappropriate workplace actions by one of her supervisors. Ms Meaney believes that as long as this supervisor remains within the departmental chain of command her vocational future with the department remains limited. Hence the continuing certificates relating to her being unfit to return to the current department.
At the hearing, Dr Mills confirmed that Ms Meaney has suffered a chronic mental illness since 1995/96 which was controlled by an anti-psychotic drug. That condition was usually provoked by stress. He confirmed that to his recollection he had not spoken to Ms Meaney on 18/19 February 2009 when he issued a carer’s certificate and then a revision of the dates. He had done this in response to a message to the surgery. He did have a consultation with her on 18 March 2009 when he changed her medication because of her stress. Dr Mills said he did not backdate medical certificates so he could not explain why there was a sickness certificate for Ms Meaney dated 19 February when his clinical notes suggest that he only saw her on 18 March 2009 and issued a certificate on that day.
He said he understood, given the general history of rehabilitation, that Ms Meaney’s mother had returned home on or about 25 February 2009. Dr Mills confirmed that on 18 March 2009, ‘There was stress in relation to her mother’s illness’. He also confirmed that ‘the rehabilitation of Mrs Meaney after the acute phase was relatively uneventful’. He also said he was probably not aware of work issues in relation to Ms Meaney’s condition on 18 March 2009 since his clinical notes make no mention of work issues until May 2009. Dr Mills also agreed that if Ms Meaney had been suffering from work-related stress he probably would have recorded it.
Dr Lark
Dr Andrew Lark, occupational physician, in his report dated 23 July 2009, had diagnosed anxiety, depression and severe insomnia. In his opinion Ms Meaney was not then fit to return to work either full or part time on 20 July 2009. In his view, ‘it would be very difficult for Ms Meaney to return to her previous position given the history as she sees it’. In his report Dr Lark noted that Ms Meaney said ‘she had lost half a stone over the last six weeks’ which Dr Lark noted was ‘a significant weight loss’. He also noted that she had long-standing insomnia (since she was prescribed Risperdal[3] in 1996) and she estimated she was getting only three to four hours’ sleep at night. He noted that Ms Meaney reported ‘The difficulty sleeping increases if she feels stressed’ and that ‘Her mother breaking her hip in January resulted in increased stress, and increased difficulty sleeping’. His report also noted ‘She indicated that she had felt more stressed this year because of her mother’s health and the Department’s response to her request for leave’.
[3] Risperdal (Risperidone) is a drug used to control more serious forms of psychological disturbances.
Mr Aldridge
On 31 August 2009, Mr Greg Aldridge (psychologist) assessed Ms Meaney. He diagnosed her as moderately depressed, severely anxious and extremely stressed. He also noted that ‘Ms Meaney is a woman who finds it very difficult to articulate her distress. She is able to exercise considerable control and so her presentation is much better than she actually is’. The history given to Mr Aldridge by Ms Meaney included:
David B denied Ms Meaney’s request for 6 weeks PCL leave [sic] and advised her … to take recreation leave. Ms Meaney however did not apply for recreation leave as she thought David B may refuse that as approval is not automatic. She instead sought personal sick leave for the same period as this could not be vetoed by David B.
Dr George
Dr Graham George, consultant psychiatrist, in his report of 15 September 2009, diagnosed ‘chronic adjustment disorder (related to her mother’s illness and also, the manner in which she has been treated within the workplace)’ but noted she had recovered. In summary Dr George noted:
At the time when she left work she would have suffered an anticipatory grief reaction as well as, perhaps, some generalised agitation and depression in relationship to her mother’s suffering a fractured hip and in imminent danger of dying at that stage. It does appear that she has been treated unfairly with respect to refusal of personal carer’s leave, given the situation in which she found herself at that time. Her depression would have been compounded by the fact that she was replaced in very short time during the time that she was off work.
He recommended she not return to work in the Department, nor have contact with her previous supervisor.
Associate Professor Robertson
Associate Professor Michael Robertson, consultant psychiatrist, in his report dated 19 August 2010 for work assessment purposes, diagnosed ‘Panic Disorder with Agoraphobia, Obsessional Personality Traits, with a differential diagnosis of Adjustment Disorder with Anxious Mood’. He said that Ms Meaney reported that in January/February 2009 she had ‘received “intimidating threatening” emails from her supervisor’. As he reported:
Ms Meaney contended that she needed six weeks to help her mother convalesce from the hip surgery and as a result, she took this as sick leave’. Whilst on leave, she received a request for a meeting in April 2009 during which time she also discovered that she had been removed from her position. … Ms Meaney found that her mother’s injury was exceptionally stressful for her but also the tone taken by her superior and the declinature of leave.
He also said in his report:
In taking a parsimonious view of the situation, I am inclined to take the view that Ms Meaney has likely suffered from a severe long-term anxiety disorder on the back of a likely obsessional personality style and that the most recent exacerbation of her anxiety relates in part to the difficulties around her mother’s hip injury, but secondly the indifferent and unhelpful response she describes experiencing from her supervisor, particularly with regards to her seeking to take leave to care for her mother. Regardless, she presents as being relatively symptom-free and able to partake of a graded return-to-work programme.
He recommended she not work ‘with her previous supervisors’.
In his report he attributed Ms Meaney’s adverse health reactions equally to her mother’s illness, and to her work situation. At the hearing, however, initially he agreed, based on the history put to him: ‘There is no work contribution discernible’ and he ‘would apportion a far greater weighting to the injury and subsequent clinical course of her mother’ and he agreed that the mother’s circumstances were ‘significant’ and that they were ‘the major factor’ impinging on Ms Meaney’s illness at the time.
In re-examination, he agreed that the conversations and email exchanges between Ms Meaney and Mr Banham ‘would be … more significant to the onset of psychological distress’ and that in the context of Ms Meaney’s evidence of waking at night, symptoms of sweats, feeling of being nauseous, and feelings of fear in going to the work place ‘The workplace factors would be weighted more heavily … more significant’ than family distress. At the same time he expressed surprise that no mention of this distress was made to Dr Mills.
Dr Reutens
Dr Sharon Reutens, consultant psychiatrist, who assessed Ms Meaney on 17 March 2011, said in her report of 1 April 2011:
… the main contribution to the Adjustment Disorder with Anxious Mood at the time of 23 February 2009 would have been Ms Meaney’s mother’s ill health’ but that ‘Ms Meaney’s perception that her supervisor was not sympathetic to her request for leave would have contributed to an exacerbation of what would have already been a significantly anxious period for her’.
She said:
From Ms Meaney’s account, her symptoms exceeded the boundaries of normal mental functioning at 23 February 2009’ and that Dr Robertson’s report indicated ‘symptoms developing in the context of work-related stress’ and went on ‘this suggests a vulnerability toward developing psychotic symptoms in the context of stress’ and that Ms Meaney’s ‘longstanding anxious traits in her personality’ mean ‘that Ms Meaney is prone to exacerbations of anxiety with stressful events’.
In her supplementary report of 23 May 2011, Dr Reutens diagnosed under Axis 1, an adjustment disorder with anxious mood probably of mild to moderate severity. Under Axis IV she noted ‘Significant stressors of mother’s ill health. Potential demise. In Ms Meaney’s perception that her workplace was not sympathetic to her personal circumstances’.
Although she maintained that ‘it was the stress and anxiety of Ms Meaney’s mother’s illness which was the predominant cause of [Ms Meaney’s psychological condition]’ she noted that ‘It was [the] refusal of additional leave and the refusal of carer’s leave which occurred in February 2009 which I consider exacerbated [the psychological condition].
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 4(1) defines an ‘ailment’, section 5A defines an ‘injury’, including when liability for an injury is not payable because the ‘disease, injury or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner’, and section 5B defines a ‘disease’.
Issues
The relevant issues are set out the findings of Justice Buchanan listed in these reasons under ‘Consideration’. Specifically, however, the issues are:
·Whether the Tribunal failed to apply, or misapplied, the definition of ‘disease’ as it appears in section 5B of the Act;
·Whether the Tribunal failed to apply, or misapplied, the definition of ‘injury’ as it appears in section 5A of the Act.
Consideration
The Federal Court (Justice Buchanan) found the Tribunal had failed to provide adequate reasons for its decision. Otherwise, Buchanan J found no erroneous findings of fact or other errors of law.
Whether injury was contributed to, to a significant degree, by Ms Meaney’s employment by the Commonwealth
Nature of condition
At the initial hearing, the Tribunal found that Ms Meaney suffered from Chronic Adjustment Disorder. The condition is recognised in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision (DSM IV – TR) (2000),[4] an authoritative source, and it is accordingly a psychological ailment which is outside the boundaries of normal mental behaviour and functioning.[5] It is significant that the condition may arise any time up to three months after the onset of the stressor(s),[6] and usually resolves within no more than six months of that initiator.[7] When the condition persists beyond six months, it is described as chronic.[8] No challenge has been made to that diagnostic finding.
[4] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision (DSM IV – TR) (2000) 679-680.
[5] Comcare v Mooi (1996) FCA 1587.
[6] American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, Text Revision (DSM IV – TR) (2000) at 679.
[7] Ibid.
[8] Id at 680.
The medical experts were of the opinion that Ms Meaney had recovered from her adjustment disorder condition. On 16 April 2009 Dr Mills was prepared to provide a graduated return to work certificate from the beginning of May 2009. Associate Professor Robertson said by August 2009 Ms Meaney was able to return to work, and by September 2009, Dr George said she was no longer suffering symptoms of the condition. Although Dr Lark said she was not fit for any work in July 2009 the symptoms he described of anxiety, depression and insomnia were also side effects of her anti-psychotic medication and were recurrent. The Tribunal prefers the findings of Dr Mills, her treating practitioner since 1995, on the date of her recovery, to that of Dr Lark who had seen her on one occasion only. Accordingly from early May 2009, Ms Meaney was no longer suffering from the adjustment disorder which is the subject of the claim.
The Tribunal notes additionally that the condition, according to Dr Reutens, was of a ‘mild to moderate’ variety at most. As Dr Reutens said in her 1 April 2011 report:
Ms Meaney told me that these symptoms appeared prior to 23 February 2009, and around the time she was discussing her potential leave arrangements with her supervisor. In the absence of any collaborative history, I am therefore reliant on Ms Meaney’s account, however, I note that she was sufficiently capable of caring for her mother prior to the establishment of home services, and providing psychological support to her mother after services were established, indicating a mild to moderate level of severity.
Dr Reutens conclusion is not displaced by evidence from the other medical experts. In particular the Tribunal notes that Dr Mills’s clinical notes indicate that Ms Meaney had consulted him on 9 February 2009 and not again until 18 March 2009 and 16 April 2009. Although there is a reference to Ms Meaney’s distress at the March 2009 consultation, that was said to be ‘secondary to mother’s illness’. The Tribunal takes into account the observation of Mr Aldridge that Ms Meaney ‘is a woman who finds it very difficult to articulate her distress’. Nonetheless, Ms Meaney had indicated her stress levels to Dr Mills in the past and did so again on 18 March 2009. So if she had been stressed in the period February to mid-March the Tribunal infers both that Dr Mills would have identified her symptoms, given she was a long-standing patient, and Ms Meaney would have indicated them to him and sought his assistance. The Tribunal is accordingly satisfied that Ms Meaney’s condition was at most in the mild to moderate range only of the disorder.
Ms Meaney also suffered from another psychiatric condition which was controlled by medication. She had apparently experienced only two florid episodes of that condition: in 1996 and again in 2010. There was no suggestion in the medical evidence that the ailment from which she suffered in the early months of 2009 was an aggravation of that condition although the medical evidence indicates that both that condition and her adjustment disorder were triggered by stress. Dr Reutens, a psychiatrist and someone whose specialty is appropriate to make this assessment, specifically commented that there was no evidence of psychosis as at February 2009.
Cause of Ms Meaney’s ailment
The principal issue is whether Ms Meaney’s condition was contributed to, to a significant degree by her mother’s illness or by her employment.
Comcare submitted that ‘in the circumstances the evidence establishes on the balance of probabilities that:
·Any ailment suffered by Ms Meaney was sustained as a result of her mother’s illness;
·In the alternative (and without concession), any ailment suffered by Ms Meaney was not contributed to, to a significant degree, by her employment. In this regard, any contribution from employment was outweighed by Ms Meaney’s mother’s illness.
In particular Comcare submitted that the contemporaneous reports of Dr Mills should be preferred over the later medical reports based on a history provided by Ms Meaney.
Counsel for Ms Meaney disagreed with the correctness of these submissions in light of the overall fact-finding and said: ‘clearly all the evidence was referred to and taken into account in the fact finding process though perhaps not specifically or repeatedly referred to’. Counsel submitted that ‘The respondent’s true concern (in particular) is the Tribunal did not assess Dr Mills’s evidence and contrast it to other evidence in the manner [Comcare] would have liked. This in conjunction with an assessment of what is alleged to be inconsistent findings of fact that the actions on 2 and 3 February 2009 were inadequately explained’.
In her evidence to the Tribunal Ms Meaney had said:
‘I think it was the 19th, I rang – I went back to my office and I remember sitting in my office and saying to myself, ‘I can’t cope with this any more’. I picked up the phone and called Dr Mills on the 19th … and I said to Dr Mills … I wanted to have a meeting with him. I had a conversation with him and he said - I said to him that the work situation was getting very difficult and I couldn’t cope. He said to me that he thought with my history of anxiety and the need to care for my mother, he said that it wasn’t possible for me to go to work and care for her and as a result he thought that it was then affecting my medical – myself, my medical situation at work, the intimidation and the harassment that I felt was happening was affecting me and he thought that at that stage the situation at work had deteriorated. … I definitely remember picking up the phone to make a medical appointment with Dr Mills and I can’t remember whether I got in or not. … I have not been [back to work since].[9]
[9] Transcript page 75.
Ms Meaney also said in evidence:
I am of the view that I was suffering stress from my mother’s condition and that stress was a real stress. I’m of the view that, following her fall, or before she had her surgery that was a significant stressor, but the events from about 16 January with my workplace and the treatment that was provided to me by my workplace in dealing with those matters were the causes of the need for me not to be able to attend work. It wasn’t at that stage my mother’s stress.[10]
[10] Transcript page 105.
The issue for the Tribunal is whether Ms Meaney’s employment contributed, to a significant degree, to her short-term adjustment disorder. The requirement that for liability to arise, employment must contribute to the injury to a significant degree means that the contribution must be ‘substantially more than material’.[11] ‘Material’ had been determined in prior case law to be more than de minimis, that is, ‘more than a mere contributing factor’,[12] and to be ‘an evaluative threshold below which a causal connection may be disregarded’.[13] The interpretation is best captured by the meaning in the Shorter Oxford English Dictionary as ‘in a material degree; substantially, considerably’.[14] That meaning was picked up in the amendments which led to section 5B(3), namely, that the contribution must be ‘substantially more than material’.[15] As the discussion indicates, the contribution must be one of substance and must be considerably more than de minimis, or a ‘mere contributing factor’.
[11] Act s 5B(3).
[12] Comcare v Sahu-Khan (2007) 156 FCR 536.
[13] Id at 542.
[14] Id at [15]-[16].
[15] Act s 5B(3).
Ms Meaney has a predisposition to develop anxiety leading to a psychological disorder due to stress. Ms Meaney was under stress due to her mother’s condition in the period from 15 January 2009 following her mother’s fall. She was with her mother on the occasion on which she fell and broke her hip and witnessed her distress in the hour prior to the arrival of the ambulance. She was also under stress in the period leading to her mother’s operation on 18 January 2009 when it was anticipated her mother might not survive. There was, it can be inferred, stress during the period immediately following the operation until it was apparent that Mrs Meaney was to recover. This acute period would have concluded, according to Dr Mills’s evidence, on or about 12 February 2009. Thereafter, the Tribunal accepts the evidence of Dr Mills that Mrs Meaney’s recovery and rehabilitation was ‘uneventful’. In other words, the immediately stressful period had concluded and, it can be inferred, Ms Meaney’s stress due to her mother’s medical condition was significantly reduced.
Nonetheless, Ms Meaney was the principal carer of her mother. It fell to her to manage the physical arrangements to the home which would be required to enable Mrs Meaney to return to live there. Although the Department of Veterans’ Affairs was organising the renovations to the home, supervision of these changes was required and that supervision was to be provided by Ms Meaney. In addition, after her brother returned to Victoria in mid-February, it was Ms Meaney who was principally responsible for visiting her mother in hospital and during her period of respite care, taking her mother to medical and other appointments, and ensuring she continued her rehabilitation. So although the immediate stress from the period leading up to and following the operation had passed by about 12 February, after that time Ms Meaney continued to take on the additional task of caring for her mother.
The Tribunal concludes from these facts that Ms Meaney was under continuing pressure due to her caring obligations before 23 February 2009. In the period prior to her leaving work, Mr Banham had given Ms Meaney permission to take some leave to assist her mother. The evidence indicates that in the week commencing 2 February 2009, Ms Meaney was only absent on leave for about 12 hours. Thereafter until 23 February 2009, with the exception of her day’s sick leave on 12 February 2009, which the Tribunal infers was because of her disappointment about loss of her team leader position, Ms Meaney took no time off work. This suggests, as Dr Reutens indicates, that Ms Meaney was managing any stress she was experiencing and there was no triggering of her adjustment disorder during this period.
That is contrary to Ms Meaney’s evidence. She said she was under stress at this time from her employment and this led to her not returning to work on 23 February 2009. The Tribunal does not accept this account. Since 2 February 2009 when Dr Mills had told her of the need, Ms Meaney’s intention had been to take six to eight weeks off work to care for her mother on her mother’s return home. She had foreshadowed this to Mr Banham on 3 February 2009, she so indicated to Dr Mills on 9 February 2009, she had foreshadowed this to her immediate supervisor in the week commencing 9 February 2009, she repeated this intention in an email to staff on 13 February 2009, she obtained a carer’s certificate on 18 February, revised on 19 February 2011, for the period 23 February to 15 April 2009, she again informed Mr Banham on 19 February 2009 of her intention, and finally she sought that period of leave from Mr Banham by email on 23 February 2009. This account confirms that although Ms Meaney may have been under some stress at this time, the Tribunal is not satisfied that it was that stress which led to Ms Meaney not returning to work on 23 February 2009. The reason for her absence from that date was her intention to take leave to care for her mother.
The Tribunal has inferred that Ms Meaney’s being side-lined in her workplace, and her loss of status from mid-February 2009, would have come as a blow. Ms Meaney had worked in the MPS area of the Department since 2005, she was a committed and efficient officer as evident from her special salary package, her efforts to provide for operational needs during her absences in January and early February 2009 during her mother’s medical crisis, the professional manner in which she informed staff of her removal as head of MPS, and of the benefits of the restructure, and with understandable exceptions, in her emails to Mr Banham. So these factors would have been very disappointing and stressful for her. Nonetheless, in the period to 20 February 2009, with the exception of her day of sick leave on 12 February immediately after notification of her loss of position, Ms Meaney’s absences from work were all to assist her mother.
After 23 February 2009, Ms Meaney’s contact with her workplace diminished. She had a disagreement with Mr Banham, evidenced in the email exchange on 23 February 2009 concerning whether PCL (carer’s leave) should be used for a longer term planned absence. No further correspondence occurred until 2 March 2009 when Mr Banham formally declined her request for PCL (carer’s leave). That would have been distressing to Ms Meaney. However, she did not seek medical assistance for any stress until 18 March 2009 following a subsequent email from him on 15 March 2009 asking her to regularise her leave arrangements. The medical certificate she obtained on 18 March 2009 was one Ms Meaney knew Mr Banham could not refuse and this would have settled that issue. Although Mr Banham did not approve that leave until 6 April 2009, ten days before Ms Meaney was due to return to work, there is no indication in the evidence that the absence of that approval until that date was causing Ms Meaney particular stress.
The Tribunal is not satisfied that Ms Meaney’s employment made a significant contribution to her medical condition after she left work. The Tribunal found Dr Mills to be a witness of truth. Ms Meaney had sought no medical assistance from Dr Mills for herself between 23 February and 18 March 2009. On 18 March 2009 he had issued a medical certificate for Ms Meaney for the period from 23 February to 16 April 2009. That action was supported by his concern for Ms Meaney’s health, evident in his prescription for an alternative and presumably more efficacious medication for her psychological state. As her longstanding general practitioner he was aware that Ms Meaney was prone to suffering psychological stress. His actions indicate she was under stress at that time. However, the cause of that stress which he noted was the health of Ms Meaney’s mother, not stress at work.
There are no further consultations with Dr Mills until 16 April 2009 and the Tribunal infers that this consultation was because Ms Meaney wanted a certificate for a further fortnight’s leave. The Tribunal notes, however, that Dr Mills indicated in his consultation with her on 16 April 2009 that Ms Meaney would be able to return to work on a graduated program from the beginning of May 2009. So at that point, he considered she had recovered sufficiently to return to the workplace and he had suggested no restrictions other than hours should apply.
In summary, after Ms Meaney left work, the stress entailed in both managing work and her mother’s illness was relieved. There continued to be some stressful interactions with work including the refusal of PCL (carer’s leave) on 2 March, the notification on 1 April 2009 of her reduction in salary, and some email interchanges with Mr Banham. However, as Dr Reutens indicates, and her evidence is supported by the absence of visits to Dr Mills, there is no corroborative evidence that Ms Meaney was unwell and that this was due to her employment.
In addition, the report of Dr Reutens on 1 April 2011 noted a statement by Ms Meaney ‘that she felt “relaxed now that I am out of the workplace’, and that despite her assertions as to her stress level, Ms Meaney ‘was sufficiently capable of caring for her mother prior to her establishment of home services, and providing psychological support to her mother after services were established’. Associate Professor Robertson expressed his surprise that Ms Meaney made no mention to Dr Mills of her stress at work. Although the other medical experts were of the opinion that Ms Meaney was under stress from both her mother’s illness and the events in her workplace, it is significant that each of them referred primarily to her mother’s illness.
Inevitably those opinions were based on the history provided by Ms Meaney. However, the evidence of Associate Professor Robertson and of Dr Mills was supplemented with supplementary material prior to the hearing, and their evidence was vigorously tested in cross-examination. The evidence of Associate Professor Robertson at the hearing was equivocal in that under cross-examination he said initially of the causes of Ms Meaney’s condition ‘There is no work contribution discernible’ but then he reversed that opinion on re-examination. His ambivalence does not provide strong support for employment making a significant contribution.
Dr Reutens said Mr Banham’s responses to Ms Meaney’s request for leave ‘would have contributed’ to an exacerbation of her condition, but she did not specify the extent of that contribution. Although Dr Lark noted Ms Meaney’s ‘significant weight loss’, the period specified from mid-June is after the Tribunal’s findings that Ms Meaney had recovered sufficiently from her adjustment disorder to commence a gradual return to work. Mr Aldridge did not venture an opinion as to causation. He did note, however, that her requested sick leave was designed to avoid the planned leave being vetoed by Mr Banham, suggesting Ms Meaney’s condition was not the reason for the request. Dr George said her depression ‘would have been compounded’ by her removal from her position and ‘that it does appear that [Ms Meaney] has been treated unfairly’ in relation to the refusal of her carer’s leave. These opinions could be said to be supportive of some contribution from employment but not whether that contribution was significant. The views of all these specialists were formed some time after Ms Meaney suffered her mild to moderate form of adjustment disorder and relied heavily on the history supplied them by Ms Meaney. They could not be based on clinical evidence.
The cumulative effect of this evidence does not satisfy the Tribunal that Ms Meaney’s employment contributed to her adjustment disorder ‘to a degree that is substantially more than material’. In these circumstances, there is no need for the Tribunal to consider the reasonable administrative action issue. For these reasons, the reviewable decision is affirmed.
I certify that the preceding 96 (ninety -six) paragraphs are a true copy of the reasons for the decision herein of RM Creyke, Senior Member. .........................[sgd].........................................
Associate
15 November 2013
Date(s) of hearing 17 September 2013 Counsel for the Applicant Ian Bradfield Advocate for the Applicant William McCarthy Solicitors for the Applicant Bradley Allen Love Lawyers Counsel for the Respondent Peter Woulfe Advocate for the Respondent Luke Woolley Solicitors for the Respondent Sparke Helmore
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