Michael Morabito and Comcare
[2013] AATA 450
[2013] AATA 450
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1669
Re
Michael Morabito
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Dr IS Alexander, MemberDate 2 July 2013 Place Sydney The Tribunal affirms the decision under review.
.............................[SGD].....................
Deputy President R P Handley
CATCHWORDS
COMPENSATION – injury – employee suffered from chronic, pre-existing psychological condition - whether employee’s psychological injury was contributed to, to a significant degree, by employment – aggravation of pre-existing condition was not significant – condition does not satisfy definition of ‘disease’ or ‘injury’ in Safety, Rehabilitation and Compensation Act 1988
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B and 14
REASONS FOR DECISION
Deputy President R P Handley
Dr IS Alexander, MemberDATE 2 July 2013
Mr Morabito (the Applicant) has applied to the Tribunal for a review of the decision of Comcare (the Respondent) to refuse his claim for compensation for a psychological injury.
BACKGROUND
Mr Morabito was born in 1953 and is aged 59. He was formerly married and has three children from that relationship. He also has a young child from a later de facto relationship that has now ended.
Mr Morabito worked as a Client Service Officer (CSO) for the Australian Taxation Office (ATO) from 13 June 2006 to 15 December 2010. Mr Morabito claims he suffered a psychological injury after being publically reprimanded by his Team Leader for using a mobile phone in a ‘quiet area’ on 21 August 2008. On 16 April 2010, he lodged a claim for workers compensation and rehabilitation in respect of a generalised anxiety disorder/depression.
In June 2010, Mr Morabito provided a medical certificate from his treating psychiatrist, Dr S Chaturvedi, dated 23 June 2010, in support of his claim, which states Mr Morabito was unfit for work due to a generalised anxiety disorder. At the request of Comcare, Dr Chaturvedi provided a report on Mr Morabito dated 16 July 2010. The report noted that Mr Morabito’s condition “was partly due to an underlying condition” which had been aggravated by stressors experienced during his ATO employment. Dr Chaturvedi said: “Although there is no permanent damage as such, the experience of losing his employment with intimidation was a devastating event in his life which has further compromised his coping skill and stability.”
Comcare denied liability for Mr Morabito’s injury in a decision dated 19 August 2010, finding the mobile phone incident on 21 August 2008 had not significantly contributed to the Applicant’s claimed condition. The delegate said that even if he had found the injury to be work-related, he “would consider that it resulted from reasonable administrative action taken in a reasonable manner”.
On 11 November 2010, the Applicant requested reconsideration of the determination dated 19 August 2010 because he had additional medical evidence from Dr Chaturvedi. However, on 4 March 2011, the delegate affirmed the original decision, relying on Dr Chaturvedi’s opinion that Mr Morabito was suffering from depression on 4 August 2008 and had been suffering depression for the preceding 14 years, noting that other contributing factors were minor health issues and financial issues. The delegate also found there was no evidence of harsh or unreasonable administrative action. Further, she deemed the date of injury to be 22 August 2008, when Mr Morabito first sought medical attention, excluding further subsequent incidents the Applicant mentioned in his application.
By letter dated 11 November 2010, Mr Morabito was advised that an Invalidity Retirement Certificate had been issued for his employment with the Australian Public Service on the ground that he was incapable of performing his duties as a consequence of mental incapacity. The termination took effect from 15 December 2010.
On 2 May 2011, the Applicant applied to the Tribunal for a review of the reconsideration decision dated 4 March 2011.
THE RELEVANT LEGISLATION
The relevant legislation in respect of claims for workers compensations by Commonwealth employees is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). Section 14 of the SRC Act provides that Comcare is liable to pay compensation under the Act for an injury suffered by an employee which results in incapacity for work. ‘Injury’ is defined in by s 5A to mean:
(1)(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Thus, liability for an injury resulting from ‘reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ is excluded. Section 5A(2) explains the meaning of ‘reasonable administrative action’:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee's performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;
(c) a reasonable suspension action in respect of the employee's employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
‘Disease’ is further defined in s 5B(1) to include an ‘ailment’ or ‘aggravation of such an ailment’ that has been “contributed to, to a significant degree, by the employee’s employment”. In s 4(1), ‘ailment’ is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”; and the word ‘aggravation’ is defined as including “acceleration or recurrence”. Section 5B(2) permits “any predisposition of the employee to the ailment” and “any other matters affecting the employee’s health” to be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. Section 5B(3) states that “‘significant degree’ means a degree that is substantially more than material”.
THE ISSUES
The principal issue for the Tribunal to determine is whether Mr Morabito sustained an injury in the course of his employment in accordance with the definition of ‘injury’ in the SRC Act. This requires consideration of:
(a)whether Mr Morabito’s psychological injury was contributed to, to a significant degree, by his employment at the ATO;
(b)whether his psychological injury has given rise to incapacity for work or impairment; and, if so,
(c)whether he is excluded from receiving compensation under s 14 of the SRC Act because his psychological injury resulted from a reasonable administrative action taken in a reasonable manner in respect of his employment.
THE EVIDENCE
Mr Morabito said that he left school at 18 after completing the HSC. While working, he completed an Advanced Commerce Certificate at Liverpool TAFE and became a member of the National Institute of Accountants. Mr Morabito described his employment from that time, first as a teller with the Rural Bank, which subsequently became the State Bank of NSW, for about two and a half years, then with the Commercial Banking Corporation (CBC), which became National Australia Bank (NAB), for about six and a half years doing loan work and other duties, and later with an Italian Merchant Bank, ‘Monte Pasche Australia’, which was taken over by the Bendigo Bank, for about seven years as a branch manager until he was retrenched. He also worked for about three and a half years for the ANZ Bank until retrenched and for the NRMA for about one and a half years before joining the ATO. There were also shorter periods of employment with other companies including for about eight months with Overseas Telecommunication Commission where he worked as a telecommunications operator. Mr Morabito was very vague about precise dates, which he said he could not remember.
Mr Morabito acknowledged that he has suffered from depression for many years, which he first experienced at the age of about 19 or 20. At various times, he has felt unable to cope with some tasks, he has felt insecure, nervous, and has experienced difficulty getting along with people. He said he married at the age of 24 but experienced problems in the relationship with his wife dating back to the commencement of the marriage. He does not have a clear recollection because he has tried to forget the marital problems. He has also experienced problems in his employment at various times as a result of unreasonable managers and bullying, for example at the State Bank, Monte Pache Australia and at the NRMA. On these occasions, he has been treated for anxiety and has taken medication for short periods. He made compensation claims in respect of bullying against both Monte Pasche Australia and the NRMA but was unable to remember whether he made similar claims in respect of other employment. Mr Morabito agreed that he had been certified as totally and permanently unfit for work because of his mental state before joining the ATO, and received compensation for this. He cannot remember whether he has been certified as totally and permanently unfit for work on another occasion.
Mr Morabito said he has seen a number of general practitioners at the Astley Medical Centre. He first saw Dr Chaturvedi about his problems at work and his marital problems in about 1991. He has seen her on various occasions in the period since then but not for about two years before joining the ATO.
Mr Morabito said at the time he joined the ATO in 2006 he was feeling positive and coping well on a day-to-day basis. His position as a CSO at the Parramatta office was non-ongoing at first but after a year his position was made permanent. His principal duty was to answer telephone queries from members of the public about their tax returns; he would spend between six and six and a half hours every day doing this. In addition, he had other administrative duties including sending out documents. Mr Morabito said that at first he enjoyed his job and did not experience any disciplinary problems.
On 23 May 2008, Mr Morabito ruptured his calf muscle when walking to work. He was subsequently off work until 4 August 2008. His recovery was delayed and complicated by the discovery of a blood clot (a Deep Vein Thrombosis (DVT)) in his left leg which led to him being hospitalised and discharged on self-administered anti-coagulants. Mr Morabito said his leg gave him a lot of pain and the injections of blood thinning medication made him feel weak.
On 31 July 2008, on referral from his general practitioner, he saw Dr Chaturvedi. In her report of that date, Dr Chaturvedi noted that she had not seen Mr Morabito for over two years. She said the reason for his presentation “was his daughter’s decision to sever their relationship”.
On 4 August 2008, Mr Morabito returned to work on a return to work program of restricted hours. This appears to have been associated with his rehabilitation following the leg injury and DVT. He was still working restricted hours at the time of the incident on 21 August 2008.
Mr Morabito worked at the ATO’s Parramatta Call Centre. He said he worked in a team of seven or eight CSOs in an open plan office area under the supervision of a Team Leader, Michael O’Brien. While at work on 21 August 2008, he went into a small room known as the ‘quiet room’ to check the messages on his mobile phone. He was intending to use the landline in the quiet room to phone the specialist who was treating him for his DVT problem, Dr T Daly, Vascular and Endovascular Surgeon, and was looking at his mobile phone to obtain Dr Daly’s telephone number for this purpose. The quiet room was set up to enable telephone calls to be made in the vicinity of the work stations where the CSOs were working in order to avoid the risk of acoustic shock.
The use of mobile phones in a Call Centre was specifically prohibited by the ATO’s Corporate Management Practice Statement. This includes the following direction:
Mobile phones must not be switched on in any call or contact centre environment due to possible interference with the telephony system. This applies to ATO and private mobile phones.
In addition, all staff received an email message each morning which included a reminder to turn off their phones and not just put them ‘on silent’. There were also signs on the floor reminding staff of this. Mr Morabito said he had been given permission by his previous Team Leader, Amanda Wilson, to keep his mobile on.
While Mr Morabito was using his mobile phone at one end of the ‘quiet room’, about two to three metres from other CSOs, Mr O’Brien knocked loudly on the sliding door of the quiet room, drawing the attention of all the other CSOs to what was happening. He then entered the quiet room and asked Mr Morabito whether he was using his mobile phone. Mr Morabito responded that he was doing so having been given permission by Ms Wilson. Mr Morabito said Mr O’Brien called him a liar, said he should know better than that, and told him to get back to work. Mr Morabito described Mr O’Brien’s demeanour as angry, upset, loud and “like a bully”. Mr Morabito said he felt shocked and devastated and could not believe that Mr O’Brien was speaking to him like that.
Mr Morabito said he went back to work immediately after the incident but felt worthless, lacking in confidence, unable to cope with anything, unable to concentrate and needing extra time to complete tasks. He felt physically weak, nervous and worried about what people were saying about him. He could not sleep that night: he felt very anxious, he experienced night sweats because he could not forget the incident, he felt hopelessness, he felt empty and as if he was in a void. Mr Morabito said that next day he sought treatment from the Astley Medical Centre and was given another referral to Dr Chaturvedi.
The Tribunal has been provided with clinical notes from the Astley Medical Centre. Mr Morabito saw a general practitioner at the Centre, Dr P Jayatillake, on 22 August 2008. The doctor made the following record: “Had poor sleep last night, financial worries, work pressure – boss causing constant pressure. Already seeing Dr Chaturvedi. Problem has been for years – not sleeping well, poor self-esteem …” There is no specific mention of the incident involving use of the mobile telephone on the previous day. The doctor completed a Mental Health Care Plan for Mr Morabito to see a psychologist for counselling, but there is a reference in other documents to his not following up on this.
It is not clear from the documents examined by the Tribunal as to when Mr Morabito next saw Dr Chaturvedi. In a report dated 8 July 2009 to Dr Sadia Suleman at Astley Medical Centre, Dr Chaturvedi notes she has seen Mr Morabito “more frequently over the past 6 months since he has taken leave from his employment with ATO”. She states:
Mr Morabito felt harassed and intimidated by his work colleagues which in turn adversely affected his work performance. He has suffered from life long sense of failure, poor self image and lack of self confidence which makes him vulnerable to any criticisms with further decline in his performance and the consequences of it.
…
Mr Morabito has to fulfil his financial obligations beyond his capacity due to his unwise property investments. His 3 children are well settled and are connected with him but the relationships are far from gratifying. He has been ruminating on his failures in life in his many roles which has made him more depressed recently. …
Mr Morabito’s difficulties are deep rooted, part of his personality and circumstance …
In a WorkCover NSW Medical Certificate dated 11 January 2010, Dr Chaturvedi diagnosed Generalised Anxiety Disorder dating from a psychological injury in August 2008. In later WorkCover Certificates dated 10 March 2010 and 21 April 2010, Dr Chaturvedi referred to the date of injury as 21 August 2008. A report from Dr Chaturvedi to a Comcare delegate dated 16 July 2010 referred to his treatment at work aggravating the Generalised Anxiety Disorder from which he suffers. No specific mention was made of the incident on 21 August 2008. Dr Chaturvedi also noted that “other contributing factors are likely to be a few minor health issues and his financial difficulties”. When asked about the lack of mention of the incident on 21 August 2008 in Dr Chaturvedi’s reports, Mr Morabito said she ignored the incident – he does not know why. Later, Mr Morabito said that he cannot remember telling Dr Chaturvedi about the problems with his supervisors.
Dr Daly saw Mr Morabito on 12 September 2008 in relation to his vascular problems and DVT. In a report to Dr Suleman dated 15 September 2008, Dr Daly commented about Mr Morabito:
Generally he has been feeling a bit lethargic and down in the last couple of months. The reason is unclear, he is reasonably satisfied at work but he is noticing that he is having trouble getting to work every day.
Dr Daly made no reference to the incident on 21 August 2008.
At the request of the ATO, Mr Morabito was assessed for his medical fitness for employment by Dr Samir Benjamin, Psychiatrist, who provided a report dated 26 November 2008. Under the heading ‘Clinical Findings’, Dr Benjamin stated:
Michael stated that he started to feel depressed over the past three months or so. He reported concentration difficulties and he felt increasingly anxious and agitated. He found it difficult to persevere with mental tasks and it took him longer to complete simple tasks. He was also worried and preoccupied with his health problems. He found it difficult to relax and he became somewhat impatient. In addition, he reported sleep difficulties including initial insomnia and interrupted sleep. He said he lost interest and motivation and that he found it difficult to enjoy pleasurable activities which he used to enjoy in the past. He felt tired and unenergetic and he also lost appetite and lost some weight. He however, denied thoughts of hopelessness, self harm and suicidal thoughts. He believed that these symptoms occurred in the context of his worry about his physical health problems, including his Prostate and Bowel. He is scheduled for Colonoscopy and medical investigations in relation to Prostate in the next few of weeks.
Mr Morabito said he had told Dr Benjamin that he was happy in his current job because he wanted to keep his job. Dr Benjamin made no mention in his report of Mr Morabito having problems at work. Early in his report, Dr Benjamin referred to Mr Morabito stating that his father had died of prostate cancer and his mother of bowel cancer. Mr Morabito told the Tribunal his father died of prostate cancer, his mother of multiple brain tumours and two of his brothers of cancer. (Mr Morabito told Dr John Champion, Psychiatrist (report dated 4 October 2011) that he had been suffering prostate problems for the past three or four years and had consulted a number of urologists about this. He told psychiatrists Dr Phillip Brown (report dated 11 June 2009) and Dr Kipling Walker (report dated 24 February 2010) that one of his brothers died of bowel cancer.)
Mr Morabito said while the results of the colonoscopy and prostate tests he had were clear, this family history causes him reasonable concern or worry. He also acknowledged that following the DVT problems he experienced in July 2008 (see the report dated 12 August 2008 to the ATO from Dr Ahmed Saafan, Occupational Physician), he was concerned because, as later confirmed by Dr Daly, he had discovered that he had a life threatening injury (the DVT). Mr Morabito said that before 21 August 2008, he had asked Mr O’Brien for two weeks stress leave following his DVT diagnosis.
Mr Morabito was also referred to other psychiatrists for assessment of his capacity to work: Dr Phillip Brown (report dated 11 June 2009), Dr Kipling Walker (reports dated 24 February 2010, 22 March 2010 and 13 May 2010) and Dr Inglis Howe Synnott (report dated 27 May 2010). These reports include reference to Mr Morabito being reprimanded by his manager in August 2008.
Mr Morabito lodged a claim for workers compensation on 16 April 2010, relying on a medical certificate from Dr Chaturvedi dated 10 March 2010. Mr Morabito states the date of injury as being 21 August 2008 and the cause of his injury being “Called a liar by my manager, Mr Mick (Michael) O’Brian re approval to use mobile phone by another manager also falsley [sic] called a malingerer by management.” When asked why he had not lodged this claim until one year and eight months after the incident, Mr Morabito said this was because he wanted to continue working at the ATO. He said he had tried to return to work on a number of occasions but found that he could not cope. He was scared of going to work and could not concentrate: he felt like he “had lost it completely”.
Mr Morabito said that he also submitted a claim for bullying and harassment at work which was subsequently denied. The documents provided to the Tribunal show that on 25 November 2010, Mr Morabito lodged a ‘Bullying, Harassment and Discrimination’ complaint with the ATO requesting an investigation. The ATO engaged investigators to look into these allegations. In their report dated 19 January 2011, no finding was made about the first allegation made by Mr Morabito in relation to the incident on 21 August 2008 because Mr O’Brien was on leave at the time of the investigation and, while the investigators had access to his file notes, no contact had been made with him. However, one of the investigators spoke to three witnesses to the incident nominated by Mr Morabito. None of them had any recollection of the incident. The remaining allegations were found not to be substantiated.
Mr Morabito said that since his employment was terminated on 15 December 2010, he still feels hopeless, devastated, lacking in confidence, unable to cope with anything and is unable to succeed in his personal relationships. He does not cope well around the house with his household chores and, for example, is unable to mow the grass. His financial situation has also deteriorated.
MEDICAL OPINION
Mr Morabito’s treating psychiatrist, Dr Chaturvedi provided a report dated 20 August 2012 at the request of Mr Morabito’s solicitors. She said that in her opinion, Mr Morabito suffers from Generalised Anxiety Disorder which was exacerbated by the nature and conditions of his employment: “his pre-existing vulnerability was exacerbated with already lowered stress threshold”. In her opinion, Mr Morabito is totally incapacitated for work.
The Tribunal was provided with expert reports from Dr Robert Hampshire, Psychiatrist, who examined Mr Morabito at the request of the Applicant’s solicitors, and Dr John Champion, Psychiatrist, who examined him at the request of the Comcare’s solicitors. In his report dated 7 August 2012, Dr Hampshire found Mr Morabito to be suffering “from recurrent Panic Attacks and a more enduring anxiety state but also from a Major Depressive Disorder”. While Dr Hampshire said that Mr Morabito’s “most recent employment was the substantial contributing factor to his current conditions … there is clear evidence that he had pre-existing psychiatric problems”. Dr Hampshire said Mr Morabito “currently has a severe exacerbation of his Generalised Anxiety Disorder and has become severely depressed”. He said Mr Morabito had no realistic prospects of returning to full-time employment.
In his report dated 4 October 2011, Dr Champion said that on the basis of his mental state examination, “there was no reason to suspect that Mr Morabito was currently suffering with any significant psychiatric illness”. Dr Champion said he considered from Mr Morabito’s presentation and history that he was an individual who most likely suffered from “episodes of anxiety and depression experienced against a background of obsessional personality functioning”. Dr Champion said:
91. It is unreasonable to claim that the interaction described by Mr Morabito with his manager in 2008 over his use of his mobile phone and the manager’s reported comments, is the basis of ongoing psychiatric disorder. At the most, a brief Adjustment Disorder in an extremely vulnerable person might produce exacerbation of anxiety/depression for a few days. To claim ongoing psychiatric disorder causing years of absence from work is inconsistent with any possible effects of the claimed stressor and strongly suggests the presence of constitutional disorder which would not qualify as an ‘injury’.
Later in his report, Dr Champion stated:
107. Mr Morabito has had difficulties with symptoms of anxiety/depression on a chronic basis for several decades (Dr. Chaturvedi). In my opinion Mr. Morabito suffers with Chronic Anxiety/Depressive Disorder on the background of an obsessional personality structure. He is prone to misperceptions of harassment and bullying on the basis of that personality structure. The clear history that emerges from Dr. Chaturvedi’s reports is of Mr. Morabito’s Chronic Anxiety/Depressive Disorder causing unstable employment over many years including his employment prior to joining the ATO.
108. When I examined Mr. Morabito, he presented without any indications of current significant anxiety or depression but from the history it is clear that Mr. Morabito is prone to the development of symptoms of anxiety/depression when placed in any situation in which his work performance comes under any form of scrutiny.
…
111. In terms of prognosis, I consider that Mr Morabito is likely to remain unfit for any form of sustainable employment.
Dr Champion stated that he did not consider Mr Morabito to suffer “with any psychiatric or psychological problem that was significantly contributed to by the reprimand on the 21st August 2008”. At most, “there may have been a mild exacerbation of the pre-existing condition however its effects on Mr. Morabito’s underlying disorder would have been brief”. Dr Champion said Mr Morabito does not suffer any current incapacity related to the event of the 21 August 2008.
On the day of the hearing, the Tribunal asked Dr Hampshire and Dr Champion to meet before giving evidence to identify areas of agreement and disagreement. The following are the points of agreement handed by them to the Tribunal on 12 June 2013 which they said were the result of substantial agreement between them:
·Chronic pre-existing anxiety and depression and personality dysfunction of the obsessional type which are traits, and quite possibly Obsessional Compulsive Personality disorder which lead to maladaptive perceptions in the workplace.
·He has had over 15 years (or more) of psychiatric treatment [unreadable] and workplace problems seemingly based on chronic perceptions of bullying.
·That the “telephone incident” of 21/8/08 as written in Dr Champion’s report – para 91 on page 8, reflects our common understanding that that event in itself is not the basis of Mr Morabito’s ongoing (and pre-existing) anxiety and depression.
·We both agree that he is totally and permanently incapacitated and will never work again as a result of his personality dysfunction and the anxiety and depression it produces.
·We both agree that he is occupationally incapacitated, and his prognosis is that he will be poor work wise.
·Although we agree he is unfit to work we disagree on the pervasive extent of his disabilities in other aspects of his life.
In oral evidence, Dr Hampshire said that Mr Morabito was very depressed at the time he examined him on 25 July 2012, but this was just after Mr Morabito’s de facto relationship had ended. Dr Champion examined Mr Morabito on 26 September 2011, some 10 months earlier. Dr Champion said people who suffer from anxiety and depression are very poor judges of the cause of their condition: they tend to look back on their history and may focus on a particular event as the cause, although that event may not actually have been the trigger. Dr Hampshire agreed. He said Mr Morabito’s ruminating and focusing on an event is part of his underlying condition. Dr Champion said anxiety and depression tends to wax and wane. At the time of the incident on 21 August 2008, Mr Morabito’s DVT was likely to be causing him worry because it is a potentially fatal condition. In terms of causality, it is very difficult to attribute a proportion of causality to a particular event. Mr Morabito had other worries at the time of the incident: for example, his DVT, the relationship with his daughter and his financial situation.
SUBMISSIONS
Mr Rowles, for Mr Morabito, said there is no dispute that Mr Morabito suffers anxiety and depression and is totally incapacitated for work. Mr Rowles said the Tribunal should accept Mr Morabito’s evidence of what occurred on 21 August 2008: that at the time of the incident, Mr Morabito was only checking his phone for messages and not making a call. While this may have been in breach of the ATO’s guidelines, Mr Morabito had obtained permission to do this from his former supervisor, Ms Wilson. Mr Rowles contended that the actions of Mr Morabito’s supervisor, Mr O’Brien, were not reasonable: he could have admonished Mr Morabito privately and not in front of other employees. Dr Chaturvedi has identified the incident as the trigger for Mr Morabito’s condition, and Dr Hampshire and Dr Champion agree that it caused an exacerbation of his underlying condition.
Ms Henderson, for Comcare, noted that Dr Chaturvedi said that Mr Morabito had ‘perceived’ negative attitudes by previous employers and bullying and had claimed that he was victimised at work. In reports dated 21 October 1997 and 7 May 2001, Dr Chaturvedi had previously certified Mr Morabito as being totally incapacitated for work for the purposes of his superannuation entitlements. Ms Henderson said at the time of the incident on 21 August 2008, Mr Morabito was experiencing other stressors: in particular, his wanting to re-establish a relationship with his daughter and the DVT following on from his calf injury. As the documents indicate, he did not immediately focus on the incident on 21 August 2008. His general practitioner’s notes indicate that Mr Morabito did not specifically mention the incident on 21 August 2008 when Mr Morabito saw the doctor the next day and the incident is not identified as a significant one in Dr Chaturvedi’s reports.
Ms Henderson noted that the expert witnesses agreed that a person can retrospectively fix on an event as the cause of their problems. The Respondent submits that with the passage of time, Mr Morabito fixed on the incident on 21 August 2008 as one of major significance and the cause of his ongoing problems. However, while the Respondent does not dispute Mr Morabito’s genuine belief in this, the Respondent submits that there was no contribution from Mr Morabito’s employment. In any event, the Respondent contends that any action taken by Mr O’Brien was reasonable administrative action: Mr O’Brien had no way of knowing that Mr Morabito was not using his mobile phone to make a call and Mr O’Brien’s reaction was reasonable given company policy and the risk of harm to other employees from acoustic shock.
Ms Henderson referred to Dr Champion’s evidence that any exacerbation of Mr Morabito’s condition caused by the incident would have lasted for a few days at most.
DISCUSSION
There is no dispute, and the Tribunal also finds, that Mr Morabito suffers from a Generalised Anxiety Disorder of long standing duration. Mr Morabito told the Tribunal that he has suffered from depression for many years and that he first experienced this at the age of about 19 or 20. In a report dated 4 August 1997, Dr Chaturvedi says that Mr Morabito was first referred to her by his family doctor on 14 November 1991 and her reports over intervening years indicate that he has continued to see her on an ‘as needs basis’ in the period since. In her report dated 4 August 1997, Dr Chaturvedi states:
My diagnosis of Mr Morabito in 1991 was Adjustment Disorder with Anxious and Depressed Mood. In my opinion it was aggravated by his work related stress and not caused by it.
Both Dr Hampshire and Dr Champion expressed the opinion that Mr Morabito has an obsessional personality structure and that at any time his work performance is under scrutiny, he is prone to develop symptoms of anxiety and depression. In their points of agreement provided to the Tribunal at the hearing, they said that Mr Morabito suffers from:
Chronic pre-existing anxiety and depression and personality dysfunction of the obsessional type which are traits, and quite possibly Obsessional Compulsive Personality disorder which lead to maladaptive perceptions in the workplace.
The evidence as to his work history, of which Mr Morabito’s recollection was somewhat vague, but which is recorded in the medical reports, particularly those of Dr Chaturvedi, indicates that he has suffered work-related stress on many occasions and that on at least two previous occasions (while employed by the Monte Pache Bank and by the NRMA) he has complained of bullying and made claims for workers compensation. Moreover, Dr Chaturvedi has on two previous occasions, in reports dated 21 October 1997 and 7 May 2001, certified him as being totally incapacitated for work for the purposes of his superannuation entitlements.
Dr Hampshire and Dr Champion agreed:
That the “telephone incident” of 21/8/08 as written in Dr Champion’s report – para 91 on page 8, reflects our common understanding that that event in itself is not the basis of Mr Morabito’s ongoing (and pre-existing) anxiety and depression.
In Dr Champion’s report at paragraph 91, Dr Champion said that in the case of an extremely vulnerable person, the incident on 21 August 2008 “might produce exacerbation of anxiety/depression for a few days”. We note that at the time of the incident, Mr Morabito’s evidence indicates that he was suffering anxiety following the diagnosis of DVT, as a result of wishing to re-establish his relationship with his daughter, as a result of financial problems and as a result of his ongoing concern that he might be suffering from prostate problems and the worry related to his family history of cancer. We also note the joint expert psychiatric opinion that people who suffer from anxiety and depression are poor judges of the cause of their conditions and commonly look back over their history and retrospectively focus on a particular event as the cause when other evidence indicates this to be a false perception.
The Tribunal finds, based on the joint expert opinion of Dr Hampshire and Dr Champion, that Mr Morabito suffered an increase in symptoms attributable to his psychological condition following the incident on 21 August 2008. Relying on this opinion, we find that the increase in symptoms attributable to the incident is likely to have been short-lived and the effect of the incident on Mr Morabito’s psychological condition should have resolved within about a week of the incident. We note that Mr Morabito did not lodge a claim for workers compensation in respect of this incident until 16 April 2010 and we are not satisfied from the medical certificates and reports from Dr Chaturvedi from around that time that Mr Morabito’s ongoing condition was the result of the incident on 21 August 2008.
In terms of the SRC Act and definition of ‘disease’ in s 5B(1), we accept that the increase in symptoms amounted to an exacerbation of an ailment: a short term ‘aggravation’ that arose in the course of Mr Morabito’s employment with the ATO. However, we must also consider whether it was contributed to, to a significant degree, by that employment. As noted above, ‘significant degree’ in the SRC Act “means a degree that is substantially more than material” (s 5B(3)).
Mr Morabito’s evidence (see above at paragraph 22) is that his Team Leader, Mr O’Brien, reprimanded him in the presence of other ATO employees, called him a liar and told him to get back to work. Mr Morabito described (see paragraph 23) his humiliation and the consequent anxiety and depression. He went to see his general practitioner the next day who made reference in his notes (see paragraph 24) to Mr Morabito reporting work pressures, in particular constant pressure from Mr Morabito’s boss. The doctor did not, however, make reference in his notes to the particular incident on 21 August 2008, but did make reference to Mr Morabito’s financial worries. Although the doctor completed a Mental Health Care Plan for Mr Morabito to see a psychologist for treatment, Mr Morabito did not follow up on this and, while Mr Morabito said he was also referred once again to Dr Chaturvedi, the Tribunal has not been provided with any report from Dr Chaturvedi from about that time.
Dr Chaturvedi’s report dated 8 July 2009 refers to her having seen Mr Morabito more frequently over the past six months. She refers to Mr Morabito feeling “harassed and intimidated by his work colleagues” but makes no specific reference to the incident on 21 August 2008. However, in a WorkCover Medical Certificate completed by Dr Chaturvedi on 11 January 2010, Dr Chaturvedi stated the date of injury to be August 2008 and there is specific reference to 21 August 2008 as the date of injury in the WorkCover Medical Certificate she completed on 10 March 2010 which accompanied Mr Morabito’s claim for workers compensation dated 16 April 2010.
The Tribunal Documents provided by the Respondent include an email from Mr O’Brien dated 22 October 2008 in which, amongst other things, he describes the incident on 21 August 2008. He stated that he directed Mr Morabito to turn off his mobile phone, informed him that his behaviour presented a risk of acoustic shock to other CSOs, and directed Mr Morabito to leave the quiet room and return to his duties. A fuller account is referred to by Mr Morabito’s Manager, Colin Williams, in a report dated 19 January 2010. Mr Williams said he had located a note Mr O’Brien had made of the incident on 21 August 2008:
On the afternoon of Thursday 21 August 2008, I observed Michael Morabito to be using a private mobile telephone in Team 13’s quiet room with the transparent door closed. I knocked on the door, informed Michael Morabito that his action of using a mobile phone so close to the other CSRs presented the risk of them incurring an acoustic shock. I then verbally asked Michael Morabito to immediately turn off the mobile telephone. Michael Morabito responded to me, saying that he thought he could use his mobile telephone at work and he alleged that his former Team Leader, Amanda Wilson, had permitted this.
I again directed Michael Morabito to turn off the mobile telephone, to leave the room and to return to providing for his duties.
The Tribunal has also reviewed the ‘Report on Harassment/Discrimination Investigation’ prepared by two investigators engaged by the ATO and dated 19 January 2011. As noted at paragraph 33 above, Mr O’Brien was on leave at the time and the three witnesses to the incident nominated by Mr Morabito had no recollection of the incident.
In the Tribunal’s view, it is likely that Mr Morabito’s perception of the incident on 21 August 2008 and the significance of it in terms of his condition may have changed on his ruminating on the incident over time, as the two medical experts thought likely. However, there was, nevertheless, a brief exacerbation of his condition in the period immediately after 21 August 2008 and, notwithstanding that the exacerbation attributable to the incident was temporary, we are satisfied that this aggravation was contributed to by his employment at the ATO.
But was that contribution ‘significant’ within the meaning of s 5B(3) of the SRC Act? In our view it was not. Mr Morabito has a long term pre-existing psychological condition for which on two previous occasions his treating psychiatrist, Dr Chaturvedi, has certified him as totally and permanently incapacitated for work for superannuation purposes. The Tribunal has found that the aggravation of his condition was for a brief period of about a week and occurred in circumstances where Mr Morabito was subject to other stressors causing him anxiety: related to other health concerns (the DVT and worry over the risk of his contracting prostate or bowel cancer), his relationship with his daughter and his financial circumstances. We note, for example, that Mr Morabito had seen Dr Chaturvedi on 31 July 2008, some three weeks before the incident on 21 August 2008. In her report of 31 July 2008, while Dr Chaturvedi referred to the DVT suffered by Mr Morabito as requiring “intensive therapy”, she stated: “Mr Morabito’s reason for presentation today was his daughter’s decision to sever their relationship”. She noted that he “feels sad, remorseful and disappointed with the image he has left in his children’s life [sic]”.
While the Tribunal finds that Mr Morabito’s employment made a material contribution to his psychological condition for a short period, we are not satisfied on the medical and other evidence that it was a significant contribution. Our finding to this effect means that the aggravation of Mr Morabito’s condition is excluded from the s 5B definition of ‘disease’ and, therefore, the definition of ‘injury in s 5A(1). This means that the ATO is not liable to Mr Morabito in respect of his claim for compensation arising out of the incident on 21 August 2008.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley and Dr IS Alexander, Member. ...........................[SGD]................................
Associate
Dated 2 July 2013
Date(s) of hearing 11-12 June 2013 Date final submissions received 12 June 2013 Counsel for the Applicant Mr T Rowles Solicitors for the Applicant Firths Counsel for the Respondent Miss R Henderson Solicitors for the Respondent Sparke Helmore
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