MLSD and Comcare
[2008] AATA 1018
•12 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1018
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601170
GENERAL ADMINISTRATIVE DIVISION ) Re MLSD Applicant
And
COMCARE
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date12 November 2008
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and substitutes its decision that the Applicant is entitled to compensation pursuant to s 14 and s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
The Respondent shall pay weekly payments of compensation for incapacity between 15 September 2005 and 31 March 2007 under s 19 of the SRC Act for all the periods when MLSD’s normal weekly earnings were less than actual earnings; and the Respondent shall pay the cost of medical treatment reasonably incurred by MLSD under s 16 of the SRC Act.
The Respondent shall pay MLSD’s costs and disbursements in respect of these proceedings under s 67 of SRC Act.
(sgd) Miss E.A. Shanahan
Member
compensation – claim for weekly payment for incapacity and medical expenses – workplace stress – excessive workload – depression – material contribution – contribution of inappropriate behaviour by treating medical practitioner – family and general interpersonal relationships – questionable pre-existing vulnerability – other physical and medical conditions – decision set aside.
Safety, Rehabilitation and Compensation Act 1988 s 4, s 14, s 16
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 533
Re Welsford v Commonwealth Banking Corporation [1984] 1 AAR 42
Re Turnley v Comcare [2008] AATA 560
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Weigand v Comcare 72 ALD 795REASONS FOR DECISION
12 November 2008 Miss E.A. Shanahan, Member
On 7 December 2005 MLSD submitted a claim for compensation for depression and anxiety resulting from an excessive workload as a result of understaffing. Her depression was exacerbated by the alleged inappropriate behaviour (sexual advances and stalking) on the part of the medical practitioner from whom she sought treatment for depression. The Respondent denied liability for compensation in a determination dated 2 June 2006. Following review, the Respondent affirmed the decision on 20 October 2006. The Applicant applied to the Administration Appeals Tribunal (AAT) for review of the decision on 4 December 2006.
MLSD was represented by Mr Mark Carey of counsel, instructed by Slater and Gordon and the Respondent was represented by Mr Joe Lenczner of counsel instructed by Dibbs, Abbott, Stillman. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑Documents). The parties tendered the following documents:
for the Applicant:
·MLSD’s Performance Assessment of September 2005 – Exhibit A1
·PAJA Statistics for 17 June 2005 to 2 September 2005 – Exhibit A2
·the Report of Dr N Serry dated 12 December 2007 – Exhibit A3
·statement of Doula Gerassimou dated 23 January 2008 – Exhibit A4
·statement of Doula Gerassimou dated 28 April 2008 – Exhibit A5
·statement of Kate Gilbert dated 1 May 2008 – Exhibit A6
and for the Respondent:
·statistical data – SAS Report from Centrelink – Exhibit R1
·the Records of Interviews of personal advisers (MLSD) 2005 – Exhibit R2
·the leave records of Doula Gerassimou 2005 – Exhibit R3
·statement of the Applicant dated 17 September 2007 – Exhibit R4
·computer record of Applicant’s absences from work between 2004-2005 – Exhibit R5
·clinical notes of CASA House commencing 19 October 2005 – Exhibit R6
·the Applicant’s leave records relating to the period 29 August 2005 – 2 September 2005 – Exhibit R7
·clinical notes of Caraniche Pty Ltd - Exhibit R8
·clinical notes of Dr Muniratna from 3 September 2001 to 27 November 2001 – Exhibit R9
·report by Dr Humrany dated 24 October 2006 – Exhibit R10
·Dr ZZ clinical notes – Exhibit R11
·clinical notes of Dr Muniratna – Exhibit R12
·extract of Dr Hemeley’s clinical notes – Exhibit R13
·statement of John Schulz dated 10 July 2008 – Exhibit R14
·a collection of emails – Exhibit R15
3. MLSD, Dr N Serry, Dr R Dawes, Ms D Gerassimou, Ms K Gilbert, Dr ZZ, Dr Y Greenburg, Ms A McDonald, Dr Ratnayake, Mr J Schulz and Ms D Baker gave evidence.
4. The matter was heard over a period of nine days between 29 January 2008 and 11 July 2008, with MLSD giving evidence for four and a half days. After the third day of the hearing in January 2008 the Tribunal issued a s 35 Confidentiality Order prohibiting the publication of the names and addresses of the Applicant (MLSD) and the general practitioner who allegedly behaved improperly in his professional dealings with the Applicant (Dr ZZ).
ISSUES
(1)Did the Applicant’s diagnosed depression arise from her employment; and if so, did the employment make a material contribution to the development of her depression?
(2)If the employment did make a material contribution, what was the duration of this effect? Or was the employment contribution overtaken by other factors, so rendering the employment contribution immaterial or minor?
BACKGROUND TO THE APPLICATION
5. MLSD commenced working at Centrelink in the year 2000 initially in the area of reception dealing with new claims. In August 2004 she was appointed to the position of Personal Adviser (PA) at the Moreland Centrelink Branch. This was a new initiative under the Federal Government’s Welfare to Work policy. MLSD was required to acquire new skills such as computer competency and an understanding of the relevant legislation. The position was designed to assist Centrelink customers in the transition from unemployment to work. Prior to the establishment of the PA initiative it was calculated that the Moreland Centrelink office required four trained advisers. In 2005 there were 2.6 effective full-time (EFT) PA’s at Moreland. MLSD and Ms Doula Gerassimou were full time PA’s and Ms Alissa Chien was a .6 EFT PA as she suffered from carpal tunnel syndrome and was on a return to work program. Ms Gerassimou underwent elective jaw surgery in June 2005 and was off work for a month, returning on 8 July 2005. On her return, her work output was limited by her difficulty in speaking. Her interviewing abilities were greatly curtailed for a further period of three weeks. In these circumstances, MLSD claimed that her workload increased. From June onwards, she felt increasingly overwhelmed and not in control, becoming quieter and socially withdrawn. She coped with work and life in general but only just. In September 2005 she attended a local general practitioner, Dr ZZ, seeking medical treatment. Dr ZZ diagnosed her as suffering from depression and recommended counselling. MLSD saw Dr ZZ on seven occasions and found his behaviour toward her inappropriate and distressing. In October 2005 she reported his behaviour to a relevant body and was referred for treatment by a psychologist. She had occasional days off in this period and was on sick leave from 24 October 2005 until 2 November 2005, after which she worked reduced hours. She was then on sick leave from 17 November 2005 to 9 January 2006. MLSD was again on sick leave from 14 September 2006 to 10 October 2006; following which she returned to work on a graduated program. She was not assessed by a psychiatrist until October 2006 and subsequently saw four other psychiatrists for medico-legal purposes.
6. The Respondent denied liability, contending that MLSD’s depression resulted from Dr ZZ’s inappropriate behaviour towards her combined with personal factors relating to her family and partner; all of which rendered any contribution via stress arising from an increased workload, minimal or of short duration.
EVIDENCE BEFORE THE TRIBUNAL
MLSD
7. MLSD detailed her work history, her training for the PA position and the nature of her PA work. Apart from seeing or contacting her designated seven customers per day, she undertook outreach instruction of prisoners at the Carlton Correction Centre fortnightly and then, monthly, conducted seminars for job network members; she provided general information to customers, such as mailing out information brochures (Parent Education Training (PET) brochures) to single and partnered parents explaining the changes in government policy and legislation, and she kept daily and weekly work statistics for herself and at times her PA colleagues as required by the team leader. She enjoyed her work. Activities such as the sending of brochures attracted one point per brochure for the Moreland centre in terms of its work output assessment.
8. The Moreland Centre Centrelink office employed 2.6 EFT – PA’s; MLSD, Doula Gerassimou and Alissa Chien. From January 2005 Ms Chien was employed 0.6 EFT as she had developed carpel tunnel syndrome, could not type for other than short periods and was on a return to work program. Ms Gerassimou had arranged to undergo elective surgery in June 2005 and was absent on sick leave from 10 June 2005 to 8 July 2005 (Ex R3). Following her return to work Ms Gerassimou had difficulty speaking (as a result of the) for at least for two and perhaps three weeks and needed assistance in interviewing clients.
9. MLSD had experienced health problems in May 2005 due to pre-menstrual tension and uterine fibroids but said that she was otherwise well. From early June 2005 onwards she claimed her workload increased. Ms Gerassimou’s appointments, despite notice of her leave, had not been blocked out, that is, cancelled. MLSD, where possible, accommodated Ms Gerassimou’s clients. For example, if she completed an interview with one of her own customers in 40 minutes she would see an extra customer or telephone them. She also undertook more of the statistics recording. After a period of several days to a week or more, PA assistance for two full days per week was provided from the Greensborough Centrelink office. These relieving PA’s attended Moreland or occasionally worked with Moreland customers at Greensborough. One of the Greensborough PA’s was described by MLSD as useless, lazy and of no assistance. MLSD had to help this individual and on occasions correct her errors. At times the Greensborough PA’s worked on Greensborough matters while at Moreland. MLSD complained to her team leader Anna McDonald about the poorly performing Greensborough PA at the end of the relief period but ultimately no action was taken.
10. It was in this setting that MLSD said she commenced feeling overwhelmed, not in control, with a sense of helplessness. She only just managed to cope with her work. Away from work, MLSD became quiet, introverted and socially withdrawn. She realised she was unwell but not why she was unwell.
11. Ms Gerassimou returned to work on 8 July 2005 but required MLSD’s assistance with customers for two or more weeks as her ability to speak was diminished by the surgery to her jaw.
12. On 28 August 2005 MLSD commenced pre-arranged recreational leave. She and her partner went to Phillip Island. She was due to resume work on 9 September 2005 and did so despite feeling she would not be able to cope. After one day she sought sick leave (known as personal leave at Centrelink) for 12 to 14 September. After a discussion with her partner, she had made an appointment to see Dr ZZ, the closest general practitioner to her home, on 15 September 2005. On 13 September 2005 MLSD discussed her health with her neighbour and co‑worker Kate Gilbert but requested that Ms Gilbert keep this confidential as MLSD felt embarrassed and guilty by not being able to cope with her workload. Ms Gilbert proffered a St John’s Wort capsule, said to be beneficial in depression. MLSD took the capsule.
13. MLSD saw Dr ZZ on 15 September 2005. In her evidence she insisted that on this occasion her major complaint was that of excessive workload leading to her feelings of an inability to cope, hopelessness and a withdrawal from social contact. Dr ZZ conducted a computer-based psychological assessment termed DASS (which the Tribunal presumes is an acronym for Depression, Anxiety, Stress Score). MLSD was told this indicated that she suffered from depression. Dr ZZ prescribed Lexapro. Over the course of the following attendances MLSD said Dr ZZ obtained further details of her general health, her short-lived marriage in 2002, details regarding her parents health and her concern regarding her weight. Dr ZZ provided a medical certificate covering the period from 12 to16 September 2005. He also recommended ongoing counselling and provided a referral to a dietician and a gynaecologist.
14. MLSD described Dr ZZ’s treatment or relationship with her as inappropriate in that he requested her to undress when it was unnecessary; tried to remove her singlet; examined her abdomen and skin for lesions when her problems were psychological; hugged and kissed her; telephoned her at home after hours; invited her to accompany him on get fit walks; had walked past her house noting the lights were out; discussed his friend’s extra-marital sexual activities; had arranged consultations late in the day after the receptionist had left and locked the consulting room door during her visits. She became increasingly wary of his actions and thought he was stalking her. MLSD’s last visit to Dr ZZ took place late afternoon on 6 October 2005. Her neighbour Kate Gilbert accompanied her because of her concerns regarding Dr ZZ. The following day MLSD spoke with colleagues at work regarding Dr ZZ’s behaviour and she was referred to the Employee Assistance Program (EAP). Arrangements were made for her to see a psychologist on 12 October 2005. MLSD attended a Sexual Assault Centre she knew of through her work of her own volition.
15. She continued to work while attending the psychologist but took sick leave from 24 October 2005 until 2 November 2005 returning to decreased hours of work until 17 November 2005 when she took sick leave until 9 January 2006. Her depressive symptoms had increased after seeing Dr ZZ and persisted throughout this period. Her work duties and conditions were unchanged from those of June to September 2005 except that her hours varied or were decreased. In Examination‑in‑Chief, Mr Carey questioned MLSD regarding various entries in Dr ZZ’s clinical notes. In relation to the statements that she had cared for her parents, MLSD said she visited her parents fortnightly during which time she cooked for them, cleaned their house and cut their toe nails. At the time, that is September 2005, her sister and her family were living with the parents and did so for eight months.
16. Another entry in the notes stated MLSD was depressed in her twenties when living in Austria. MLSD denied she had been depressed. After four years living and working in Austria she felt homesick and that it was time to go home.
17. MLSD was asked to comment on the entry two to three years ago, met a man, married of different belief. In 2002 MLSD had met Eddie, a Maronite Christian from Nazareth in Israel. MLSD is a Roman Catholic. They married without seeking her parents’ approval, as MLSD believed they would have disapproved. Eddie’s visa expired after six months. Approximately three days into their marriage he returned to Israel, where he applied to migrate to Australia. Eventually he just gave up. MLSD described their marriage as happy. She lost contact with her husband after 2003.
18. Under the clinical notes headed Family History, Dr ZZ had written brother with GAD – depression. MLSD confirmed her younger brother had suffered from anxiety and depression for several years, after being raped by two men at the age of 30. He was receiving medical treatment. She had told Dr ZZ that her brother and her partner lived with her. She said she had made this statement as a form of protection.
19. Dr ZZ had asked if she ever felt suicidal. She agreed that from mid-2005 she had suicidal thoughts approximately once per week. She did not regard herself as being shy, as recorded by Dr ZZ, but as being socially withdrawn.
20. From October 2005 MLSD received counselling from psychologists at the Sexual Assault Clinic, an external psychological service named Caraniche Pty Ltd (Caraniche) on referral from her employer, and also spoke with the Centrelink psychologist. After her sick leave from November 2005 to 9 January 2006, she was assigned a Rehabilitation Officer and in consultation with her general practitioner, Dr Robyn Dawes, a return to work program at reduced hours (approximately 20 hours per week) was devised.
21. At the Sexual Assault Centre, MLSD limited the history she gave to the inappropriate behaviour of Dr ZZ and her interpersonal relationships, with minimal, if any, mention of workplace factors. She considered this appropriate, given the nature of the centre. She attended this clinic between 25 October 2005 and 29 November 2005 and saw three different psychologists, deriving little benefit from their counselling.
22. Ms Deli Baker of Caraniche saw MLSD on 12 October 2005. She said she tried to discuss her work with Ms Baker but it seemed to fall on deaf ears. Ms Baker initiated all of the discussions and concentrated on personal relationships and Dr ZZ. Ms Baker saw MLSD on four occasions. During these consultations she told Ms Baker of an argument with her boyfriend in late October or early November, during which he hit her and pushed her out of the room after she threw a mobile phone at him. She said that they were both drunk at the time. In the same month her brother Patrick had attempted to commit suicide.
23. MLSD commenced seeing Dr Robyn Dawes on 22 November 2005. She developed an excellent rapport and a trusting patient/doctor relationship with Dr Dawes. Dr Dawes listened to her complaints regarding work. Initially, MLSD resisted taking medication but eventually commenced taking the anti-depressant Cipramil. Since then Dr Dawes has changed the medication in accordance with MLSD’s response.
24. MLSD returned to work on 9 January 2006 as a PA. She worked 16 hours per week over four days, increasing to 20 hours until 28 August 2006. She was on then on sick leave on numerous days and was absent for all of October 2006. During this period her symptoms had increased in severity. MLSD attributed her deterioration to bullying and harassment by her Case Manager, Mr Sean Spode. MLSD has never met Mr Spode. He communicated with her by email, requesting medical certificates, suggesting she could resign if her health was not improving and, she believed, threatening her with demotion and a pay decrease.
25. In addition to an in-house Case Manager, Carla Zilles, Centrelink provided an external Rehabilitation Officer from WorkFocus to oversee MLSD’s return to work program. MLSD resumed full-time hours of work by March 2007. The position of PA was abolished in July 2006 and thereafter MLSD was entitled a Customer Service Adviser.
26. In late August 2007 MLSD took recreational leave at which time she ceased taking her medication, as it had reduced her libido. On the day of her return to work she dealt with three angry and verbally abusive customers. She became alarmed and terminated the interviews. Following this event, she recommenced her Lexpro. She did not require any time off work.
27. MLSD provided the Tribunal with copies of her handwritten work statistics from 17 June 2005 to 2 September 2005. These are known as PAJA statistics (Ex A2). They recorded her daily appointments and the work performed. She explained their content in detail.
28. As a Centrelink employee MLSD was required to complete a self-assessment of her performance in August each year, covering the previous 12 months. MLSD’s 2004/2005 self-appraisal was not completed until 29 September 2005 (Ex A1). Performance descriptors are provided and addressed by the individual being assessed. In all categories MLSD described her work performance in detail and assessed it as exceeding expectations. Her PA colleagues were required to complete the same appraisal form in relation to MLSD. Alissa Chien assessed MLSD as meeting expectations with respect to flexibility and adaptability, customer service focus and working collaboratively. She assessed MLSD as exceeding expectations in striving for excellence and interpersonal understanding and responding. Ms Gerassimou assessed MLSD’s performance as meeting expectations in all five categories.
29. MLSD explained that these assessments were a major consideration in qualifying her for a salary increase. While she was unwell and under work pressure from June to 28 August 2005, the assessment was to cover the 12 month period and she thus assessed herself as exceeding expectations overall. MLSD qualified for a salary increase, rising from 2.7 to a 2.9 level. Ms Anna McDonald has made comments pertinent to this assessment. (see below)
30. MLSD perceived her superiors and managers at Moreland as being interested only in statistics regarding the throughput of customers and not the quality or outcome of the services provided. At Moreland there was a high incidence of verbally and physically violent customers. In a three month period, 50 such violent incidents had been reported compared with other Centrelink centres which had less than 20 in the same timeframe. MLSD also reported that while she was at Fitzroy Centre in 2004 she had been physically threatened by a male manager, Mr Appleby.
31. Mr Lenczner cross-examined MLSD in great detail. MLSD did not retract any of her evidence-in-chief but expanded on it in certain areas.
32. After completing Year 12, MLSD toured North Korea, China and the Philippines as part of a choral group. This tour lasted two and a half weeks. In North Korea she met other choral groups, including a group from Austria. She had enrolled in a teaching course but found this not to her liking. At 19 years of age, she travelled to Germany, staying a month as a tourist in that country. She then spent nearly four years in Vienna, where she supported herself by teaching English and, for a period of 12 months, worked as a professional model. She returned to Australia, working for a short period in Melbourne before she joined her parents in Tasmania. In Hobart she worked as a retail manager in several women’s fashion stores, before returning to Melbourne. She lived with her parents and commenced working with Centrelink in the year 2000.
33. In her statement of 17 September 2007 (Ex R4) MLSD had said her condition deteriorated in August 2005 but in a conversation with Ms Erin Bailey of WorkFocus, as recorded by Ms Bailey (T18(c) p 82), she is reported to have said her workload had increased since August 2005. MLSD said it was possible she made that comment but meant to convey that her symptoms peaked in August having commenced in June 2005.
34. Mr Lenczner suggested to MLSD that if she was feeling stressed by her workload, she could have worked shorter hours by surrendering her fortnightly rostered day off or asking for a transfer to another area in Centrelink. MLSD said she had not sought a transfer as it would have involved her being retrained and it didn’t seem feasible to me to put more pressure on myself when I was already suffering.
35. In her statement of 28 December 2005 (T5, p29) Ms Anna McDonald had said she had discussions with all the PA’s and made it clear that no additional expectations were placed upon them due to a reduction in staffing. MLSD agreed that discussions took place but disagreed that Ms McDonald had said, …You are not to worry and can only do what you can do. MLSD maintained throughout her evidence that Ms McDonald repeatedly said I don’t care how you do it, just do it.
36. MLSD agreed that Ms McDonald had recommended she see a specialist, presumably a gynaecologist, regarding her women’s problems. She denied she had discussed her depressive symptoms or experiences with Dr ZZ with Ms McDonald. She may have mentioned general issues such as weight loss and lowered self‑esteem but would not have mentioned depression. Later, in early October, she had told Ms McDonald that Dr ZZ’s conduct toward her had contributed to her inability to cope with the workload. At this time Ms McDonald had discussed the support MLSD might require and had written to the EAP on her behalf.
37. Mr Lenczner took MLSD through all aspects of the sexual assault as recorded in the Caraniche psychologist’s notes, which dealt almost exclusively with Dr ZZ’s actions and their impact on MLSD. MLSD had made reference to work pressures but had not expanded upon them. MLSD confirmed her earlier evidence that she had confined her comments to Dr ZZ’s actions given that she was attending a Sexual Assault Centre. She regarded the support by Ms McDonald as she was doing her duty.
38. Similarly, she had spoken with the Caraniche psychologist about her workload but it appeared Ms Baker had not written down all that she had said.
39. With regard to her parents’ health, MLSD said that both suffered stable chronic conditions. Her father occasionally required short-term, that is one or two day, periods of hospitalisation when he developed fluid on his lungs.
40. Ms Carla Zilles of Human Resources had recorded (T186, p75) on 14 December 2005 that MLSD had said that her maternal grandfather had died. MLSD said that this was incorrect; the person who died was not related but she had referred to him as uncle.
41. MLSD confirmed that her husband returned to Israel within a week of their marriage in 2002. She had known that his visa had expired and that he would be leaving.
42. During the period when Ms Gerassimou was on sick leave, MLSD said she had frequently cut short the length of appointments to fit in other customers. Not all contacts with customers would have been recorded in the PAJA statistics as she might write them on a slip of paper or in a working diary and incorporate them in the weekly reports known as the SAS data. The PA’s were apparently paid by the Department of Education and Workplace Relations and the funding was provided on a customer per capita basis, hence the importance placed on the collecting of statistics. The PA system introduced in 2004 ceased in July 2006.
43. Mr Lenczner had been told by Mr Rod Graves of Centrelink that when Ms Gerassimou was away, head office had reduced Moreland’s customer target. MLSD was unaware of this action. Mr Lenczner could not provide the exact time period when these reductions in targets were made. The Tribunal does note that the PAJA statistics provided (Ex A2) indicate there was a reduction in caseload for the Brunswick PA’s for the period of 15 to 22 December 2005 but not between 10 June 2005 and 26 August 2005.
44. The Tribunal asked MLSD when relief staff from Greensborough commenced working part-time at Moreland. MLSD said she had discussed the need for temporary staff with Ms McDonald prior to Ms Gerassimou going on leave. To her recollection, the Greensborough relieving PA’s arrived towards the end of the first week of this leave period.
MS DOULA GERASSIMOU
45. Ms Gerassimou made four statements in all (T8, T13, Ex A4 and A5). She had worked at Centrelink, and its predecessor, for seventeen and a half years and with MLSD as a PA at the Moreland office since late 2004.
46. Ms Gerassimou confirmed her absence on pre-arranged sick leave from 10 June 2005 to 8 July 2005. On her return to work, following surgery to her jaw for overbite, she was still wearing braces to which were attached elastic bands limiting the opening of her mouth. The bands were removed approximately two to three weeks after her return to work. She said she could only deal with one face-to-face, short interview per day during this three week period and spent most of her time performing clerical work such as typing. MLSD had assisted her by speaking for her to her customers but if MLSD was too busy appointments would be rescheduled by the PA. Only PA’s had the authority to reschedule appointments.
47. On the first day of her return to work Ms Gerassimou noted a marked change in MLSD. She described her as being quiet and withdrawn. She said I was talking to her. She just stared at me and didn’t respond to me. It was really hard. She said that MLSD appeared not to be concentrating, was slower at her work and was taking a lot of days off. Ms Gerassimou gave up trying to talk to MLSD and let her be in her own little world. She had assumed that MLSD was seeing a doctor but was not certain.
48. Ms Gerassimou said that MLSD’s behaviour and attitude contrasted with her personality and work performance prior to June 2005. Ms Gerassimou described her as an efficient worker who enjoyed her work and really cared for and helped her customers. They sat next to each other, discussed their work and lives and both attended the Friday night, after work, social gathering for drinks or a meal.
49. Ms Gerassimou provided details regarding the role and workload of PA’s. Only PA’s could book customers’ appointments. While the Team Leader could deal with overbooking by sending a waiting customer home he or she was required to take the customers’ details and pass them on to the PA for the appointment to be rebooked. PA’s would endeavour to fit in customers with urgent problems such as the cancellation of their payments. Delays could give rise to stress as customers became irritable having to wait. Each month the PA’s were set a number of customers they had to see. This established their work profile and plan, that is the number of appointments per day. While throughput data were collected there was no method of measuring outcomes. PA’s had to keep their records manually; and in her opinion the Department didn’t know what they were doing with reference to the collected statistics.
50. Ms Gerassimou said the PA’s had been advised of the planned termination of the system from 20 June 2006. This advice was given sometime in August 2005. It led to a feeling of insecurity, particularly amongst the external PA’s who had no previous Centrelink experience. Ms Gerassimou and MLSD knew their employment was safe but didn’t know where they would be placed within Centrelink after the termination.
51. In the phasing-out period of the PA system, customers were sent questionnaires prior to their appointment, presumably to limit either the duration of or the need for face-to-face appointments. This questionnaire data had to be entered into each customer’s computer record, at a time when PA’s still had a profile or plan of seven appointments each per day. The third PA, Alissa Chien, who was said to work 0.6 of an effective full‑time position, was limited in her work performance by a carpel tunnel syndrome that worsened during the year. She was frequently absent in order to attend medical appointments and treatment. She could not type. Ms Gerassimou described her as being lazy and having contributed a minimal effort to their workload. Ms Gerassimou had complained officially regarding Ms Chien’s work performance.
52. According to Ms Gerassimou, Team Leaders and Managers had no training in or knowledge of the PA system. They concentrated on the collection of statistics, as these determined funding. When a PA was on planned leave or reduced duties their profiles were meant to be blocked out or reduced. Ms Gerassimou had no knowledge of such a reduction being made during the period of her leave.
53. Despite MLSD’s efficiency and work standards having deteriorated in July and August 2005, Ms Gerassimou believed she was entitled to be assessed at the level attained in the first 10 months of the year as MLSD deserved a pay rise. For this reason she had not mentioned the deterioration in performance in the Annual Assessment Report. Pay was linked to the assessment, that is, those rated as exceeding expectation could receive a two point pay rise. A performance improvement required standard delayed a pay rise while Centrelink provided the employee with instruction in improving their performance.
54. MLSD had told Ms Gerassimou of Dr ZZ’s inappropriate behaviour and she was aware of her referral to psychologists, her prolonged sick leave and treatment.
KATHLEEN GILBERT
55. Ms Gilbert provided three statements (T7, T14 and Ex A6). She commenced working at Centrelink in May 2003 and had worked with MLSD at the Fitzroy and Moreland offices. She is also MLSD’s neighbour. Her statements of 2006 confirmed that she had visited MLSD at home on 13 September 2005 and they discussed her state of health. She had regarded and treated this information as confidential. Ms Gilbert had accompanied MLSD to her last appointment with Dr ZZ. She was aware of the latter’s inappropriate behaviour which in her opinion exacerbated MLSD’s depression and anxiety.
56. The third statement (Ex A6, dated 1 May 2008) was more detailed. Ms Gilbert described the customers attending the Fitzroy office as often being demanding, angry, aggressive and intimidating. MLSD had frequently been verbally abused. Ms Gilbert had herself been overwhelmed by the job requirements and the lack of support and training, particularly with respect to the Social Security legislation.
57. Ms Gilbert said that at Moreland, MLSD had been under constant pressure. Ms Gilbert had seen her in tears at work well before September 2005. She believed MLSD was depressed and had offered her tablets of St John’s Wort. She was also under the impression that MLSD had started drinking (alcohol) heavily.
58. Following the attendances on Dr ZZ, Ms Gilbert noted that MLSD was quiet and didn’t have much to say and seemed unable to do much work.
59. Under cross-examination Ms Gilbert placed the events referred to above as occurring in 2007. This was later corrected to 2005. Ms Gilbert believed MLSD was teary and having difficulty coping with her work while at Fitzroy in 2003/2004 and recalled that MLSD had asked her manager to either move her or provide further training as she did not understand the legislation.
60. The Tribunal asked Ms Gilbert if she had observed other Centrelink staff being upset or having difficulties coping to which she replied:
On a daily basis most members of the staff that I worked with are stressed, harried, upset different times during the day, so, yes, it’s common through the Centrelink office.
When MLSD said to her I can’t take it any more, I am going under Ms Gilbert realised that MLSD needed help. Ms Gilbert said that this type of response was common throughout Centrelink, as all Customer Service Officers now had to deal with the overall range of customers. This was in contrast to past practice where they specialised in defined areas such as disability support pensions, family benefits, newstart allowance etcetera and had developed familiarity with that section of the legislation but not with the entire Act. No extra training had been provided to enable the employees to deal with the overall range of customers.
DR ZZ
61. Dr ZZ’s clinical notes had been summonsed (Ex R11). These notes are sparse. The entry for the initial consultation on 15 September 2005 records:
LEXAPRO SAMPLES GIVEN
PSYCH EDUCATION
Management:
cbt,problrm [sic] solving tech,breathing exercise,counselling
MARRIAGE COUNSELLING
SEPARATION ANXIETY
Actions:
Letter Created – re. DASS 21 M to DASS 21 M.Letter Created – re Mental Health Assessment to Mental Health Assessment.
62. Dr ZZ conducted a DASS (Depression, Anxiety, Distress Score) assessment. This is a computer based program that poses questions which the patient answers by ticking the score of 0 – 3. The degree of the doctor’s intervention depends on the patient’s literacy and computer skills and the program may be completed by the patient alone.
63. MLSD’s score on that test was 15 for depression (normal 0-4), 3 on anxiety (normal 0-3) and 9 on stress (normal 0-7). She thus had severe depression and moderate stress.
64. Dr ZZ completed a Mental Health Assessment computer form over two consultations (15 September 2005 and 29 September 2005) listing MLSD’s problems in order:
1.I FEEL DOWN, ABOUT WORK
2.LACK OF DIRECTION IN YOUR OWN LIFE
3.CARING FOR PARAENTS [sic] WHICH BECOMENG [sic] DEMANDING
and under the heading Mental Health History/Treatment
ONCE DEPRESSD(sic) IN TWENTIES WHEN LEAVE [sic] IN AUSTRIA, FELT ONLEY[sic].BERLIN WALL COME DOWN.FELT WHAT TO BE LIKE MIGRANT ALWAUS [sic] KEPT IT IN MYSELF.LIKE ICE IN THE CAKE.
2.3YS AGO, MET A MAN, MARRIED OF DIFFRN(sic)T BELIEF
65. An undated CHRONIC DISEASE MANAGEMENT. GP MANAGEMENT PLAN (MBS ITEM No. 721) listed MLSD’s problems, the goals to be achieved, the treatment planned and who was to provide such treatment. This form was again computer- generated. MLSD’s problems, goals and their treatment were listed as:
PATIENT PROBLEMS/ NEEDS/RELEVANT CONDITIONS
GOALS – CHANGES TO BE ACHIEVED.
REQUIRED TREATMENTS AND SERVICES INCLUDING PATIENT ACTIONS
OVERWEIGHT
1,REACH TARGET BMI <20-25
2.BODY WAIST <90CM (F), <100(M)1.WEIGHT LOSS PROGRAMME,
2. ACTIVE SCRIPT/DAILY EXERCISE,
3.REG MIX OF CARDIO (WALKING) AND TONING (MUSCLE BUILD)
4. AVOID HIGH FAT MEALS I.E. TAKE AWAY
SMOKING
QUITTING
1. MOTIVATIONAL ACTIVITIES
2. BEHAVIOUR MODIFICATIONS
3. GRADUAL REDUCTION, LOW TAR NICOTINE, SPREADING OUT IN TIMING
4.4 D’S DELAY, AT LEAST OF MI, THE-URGE WILL PASS
DEEP, SLOW, RELAXED BREATHING
DO SOMETHING ELS,E KEEP ENGAGED [SIC]
DRINK SIPS OF WATER SLOWLY
5. ENJOY EARLY FRESH MORNING WALK,
SAME AT NIGHT
6. QUIT LINE 131848 FOR SUPPORT
7. DRUG THERAPY IF NEEDED, NICOTINE-REPLACEMENT.ALCOHOL INTAKE
MANAGEMENT OF WITHDRAWALS
CONSUME IN MODERATION, LIFESTYLE
CHANGES
3. TREAT UNDERLYING, COMORBID FACTORS
4. PREVENT COMPLICATIONS IE. DRIVING LICENCE1. BEHAVIOUR MODIFICATIONS
2. GRADUAL REDUCTIONS
3. PHARMACOLOGICAL TREATMENT
4. SUPPORT GRP AA
DEPRESSION/ANXIETY/ MENTAL ISSUES 1. ASSESSMENT OF STRESS, UNDERLYING
CONTRIBUTING FACTORS,
2. MANAGEMENT OF MIXED SYNDROMES
3. DEVELOP SELF DEFENCES, SELF
CONFIDENCES, STRESS MANAGEMENT1. COUNSELLING, PSYCHOEDUCATION, PSYCHO-
2. ANALYSIS, IMPROVE MENTAL IMAGE
3. POSITIVE THINKING, POWER OF SELF HEALING
3. CBT [COGNITIVE BEHAVIOUR THERAPY]/PROBLEM SOLVING
4. MEDICATION ADHERENCE
PAIN
IMPROVE PAIN CYCLES
EDUCATION: BIO-PSYCH-SOCIAL ASPECTS
1. EDUCATION, COUNSELLING, EXERCISES
REDUCE DRUG DEPENDENCY/ABUSE/OD
LOWER GIT PATH/COLITIS/IBD/IBS
1. EDUCATION, UNDERSTANDING,
2. TREAT UNDERLYING CAUSE
STRESS/CONSTIPATION
1.REGULAR DRE, COLONOSCOPY PRN
2. INCREASED FIBRE INTAKE, FLUIDS
3. MX OF STRESS
4. ADHERENCE TO THERAPY
WOMENS HEALTH
1. REGULAR PAP TESTS >18Y/O
2. REGULAR MAMMOGRAM >50Y/O
1. EDUCATION AND AWARENESS
2. ENROLMENT IN BREAST SCREEN PROGRAM
3. PERFORM PAP TEST/REFERRAL TO RWH/MERCY
SKIN CARE
1. ASSESSMENT OF RECURRENT SKIN PROBLEM
2. SKIN CARE/HYGIENE
3. MANAGEMENT OF CHRONIC CONDITION- SOLAR KERATOSES, DERMATOSIS
1. REGULAR R/V OF SKIN ANNUALLY
2. BIOPSY/EXCISION OF ANY SUSPICIOUS SKIN LESION
3. MANAGEMENT WITH SKIN MOISTURISERS/SAFE USE OF CORTICOSTEROID CREAMS/OINTMENTS.
4. REF IF NEEDED TO DERMATOLOGIST
66. Team Care Arrangement form (No 723(a)) was completed on 27 September 2005. The team was to consist of Dr ZZ, the local pharmacist, a gynaecologist, a dietician and a physiotherapist. Dr ZZ decided that the conditions to be addressed were osteoarthritis, smoking, overweight, GAD/depression and medication adherence. There were no entries confirming any involvement in MLSD’s treatment by any of the other nominated members other than Dr ZZ.
67. MLSD’s second visit to Dr ZZ was on 22 September 2005. Clinical record notes of the visit relate to the setting of goals and marriage counselling. MLSD’s third visit to Dr ZZ was on 29 September 2005. Clinical record notes of the visit record a history of smoking six cigarettes per day and drinking alcohol once or twice per week; and the taking of six or more drinks on one occasion at greater than one monthly intervals. Dr ZZ provided treatment on the day consisting of CBT (cognitive behavioural therapy), counselling and breathing exercises. He makes reference to MLSD’s medical illness and her lack of self-confidence. MLSD agreed to write down her plan. On 1 October 2005 Dr ZZ conducted a physical examination and recorded MLSD’s blood pressure, height, weight and waist measurement. Her BMI was calculated at 28.2. Dr ZZ prescribed Ponstan, an anti‑inflammatory agent used in the treatment of premenstrual tension and dysmenorrhoea.
68. On 4 October 2005 MLSD visited Dr ZZ again. He took blood samples and assessed MLSD as improved, sleeping ok, startrd [sic] walking, weel l organised [sic], gentle counselling plan is working ok. The only entry on 5 October 2005 relates to the creation of the before-mentioned treatment plan and setting of recall visits in 2006. Dr ZZ provided MLSD with a letter of referral to a gynaecologist.
69. MLSD’s last visited Dr ZZ on 6 October 2005 and the entries he made relate to treatment and RESOLVE ISOLATIONS, SUIVCCIDAL[sic] RISK FULLY ASSESED [sic]. He expanded the mental health assessment record to include:
·Family History - BROTHER WITH GAD/DEPRESSION
·Social History – LIVES WITH BOY FRIEND AND BROTHER
·Personal History - KEEPING A LOT IN, BOTTLED HERSELF A LOT
·Mental Status - SUICCIDAL[sic] THOUGHTS, SHY PERSON
·Predisposing Factors – MARRIAGE FAILURE
·Perpetuating Factors – PHYSICAL PAIN
70. Dr ZZ also entered details of the mental status examination; the only abnormalities he noted being low mood and forgetfulness.
71. The clinical notes of 20 October 2005 record Dr ZZ having discussed best option with MIPS (Medical Indemnity Protection Society) and writting [sic] down letter to pat. The clinical notes of 9 June 2006 acknowledge Dr Dawes’ request for MLSD’s file and that Dr ZZ telephoned Dr Dawes.
72. The clinical notes record that the blood tests performed were considered normal.
73. Mr Lenczner took Dr ZZ through the clinical notes in detail. Dr ZZ expanded on the entries in his records, his method of keeping such records, the DASS results and the contents of the various management plans. The final mental assessment document had been constructed after several visits. Dr ZZ agreed MLSD’s first complaint related to her work. While she enjoyed her work she was not coping with the demand. He said …but she has two concern. One is the mother works too much and two is how the boss look at her, is the boss happy …
74. In relation to goal setting and the entry about MLSD having a lack of direction in life, Dr ZZ said she had told him she was caring for her parents and they were demented. He identified the core issue as she had a problem with her marriage and she failed in her marriage. Dr ZZ appeared to be under the misapprehension that MLSD’s country of birth was Austria, that she met her husband there and married him a few days after they met, following which he disappeared. He later corrected Austria to Australia. He believed MLSD was still waiting for her husband to return, despite now being in another relationship. Dr ZZ had not entered any of this detail in his notes and was relying on his memory. He considered work as a minor factor as MLSD had not asked for a Workcover medical certificate, only a standard certificate of ill-health. He considered her depression to be, in the old terminology, endogenous - meaning coming from the inner self and not due to extrinsic factors, although these could be precipitating or perpetuating in their effect. In this respect MLSD’s depression was multi-factorial, including a work contribution.
75. Dr ZZ denied MLSD’s allegations of inappropriate behaviour. Mr Carey in cross‑examination asked Dr ZZ if he had ever been before the Medical Board of Victoria for similar allegations. Mr Lenczner objected. The doctor did not answer the question and Mr Carey withdrew it.
76. Dr ZZ was asked to quantify the contribution of work-related issues to MLSD’s depression. Dr ZZ said he could not do so as the work-related issues occurred in December 2005, some months after he had seen and treated her.
DR ROBYN DAWES
77. Dr Dawes has been MLSD’s general practitioner since November 2005 and has treated her for depression. She had provided two reports in 2006 which attributed MLSD’s depression to progressively difficult conditions at work from May to September 2005. Dr Dawes was aware that MLSD’s parent were elderly and had health problems, knew of the single episode when MLSD’s partner had hit her and was fully acquainted with the allegations of improper conduct by Dr ZZ. In her evidence before the Tribunal she confirmed the content of the earlier reports and did not provide any additional information.
MS ANNA McDONALD
78. Ms McDonald was MLSD’s team leader. She prepared lengthy statements in relation to the compensation claim (T5, T18(a)). Ms McDonald is now a manager at the Camberwell Centrelink office. She said she had worked for Centrelink for seven years and eight days.
79. Ms McDonald confirmed that from January 2005 the Moreland office was staffed at a PA level of 2.6 effective full-time employees, whereas previously it had been three full-time employees. The third full-time PA, Louisa Herbert had resigned and been replaced by Alissa Chien, who worked part-time on a return to work program, following a work-related injury. The office had been aware of Ms Gerassimou’s sick leave and, as far as Ms McDonald could recall, Ms Gerassimou’s profile, that is, the face-to-face interviews, had been blocked. MLSD and Ms Chien only had to meet their own daily plans, which in MLSD’s case were seven customer contacts per day. Ms McDonald explained the PA’s profile was the number of booked face-to-face meetings. The other methods included telephone contact, including contacting lists of customers with certain characteristics that you could get quick wins from. The keeping of statistics was required by the National office and in 2005 had to be recorded manually. These statistics were required to assess the success or otherwise of the PA scheme. Ms McDonald was not involved in the statistical monitoring.
80. The area office had arranged for the Greensborough staff to assist while Ms Gerassimou was away so that Moreland could meet its target for the year. Ms McDonald could not recall if this arrangement was made prior to or during Ms Gerassimou’s leave. Both MLSD and Ms Gerassimou had expressed concerns about Ms Chien’s contribution to the workload and MLSD subsequently complained regarding one of the Greensborough staff’s performance. Ms McDonald maintained her position that each PA was only expected to perform their own set daily work plan, regardless of the staffing level. While she was sure the relieving Greensborough staff was not present from day one of Ms Gerassimou’s leave, Ms McDonald could not recall when they commenced.
81. In answer to a question posed by the Tribunal as to why more staff had not been arranged well before Ms Gerassimou’s leave, Ms McDonald said it had already been estimated that Moreland Centrelink needed four PA’s to meet the annual target set by head office and this had not been approved.
82. Ms McDonald said she would speak to the PA staff daily and ask how they were going. Meetings with all staff occurred fortnightly. She regarded her relationship with MLSD as friendly, open, trustworthy and honest.
83. Mr Lenczner referred to Ms McDonald’s repeated advice to the PA’s that You’re not to worry, you can only do what you can do. I don’t expect you to cover further work, you do absences, don’t worry … as being a regular crisis. Ms McDonald replied that regular crisis … That covers my life in Centrelink, apparently surprising herself by this admission.
84. Ms McDonald said she had no knowledge of MLSD’s psychological problems until October 2005, when MLSD explained what had gone on. MLSD was crying and shaking and obviously very upset. Prior to this, Ms McDonald had discussed MLSD’s absences from work with her and thought these had related to gynaecological symptoms and non‑work related problems.
85. The annual self-assessments and co-worker assessments of MLSD had not revealed any work deficiencies. Ms McDonald had discussed Ms Chien and Ms Gerassimou’s assessments with their authors as she believed their statements didn’t support their rating of MLSD as exceeding expectations. Following these discussions, the two PA’s changed some of their ratings to lower levels, such as ME (meets expectation). While MLSD’s late completion of the assessment form would normally result in a pay increment of one point, that is from 2.7 to 2.8, her performance was such that she warranted and was given a two point rise to 2.9. Ms McDonald said I’ve got no holds barred about MLSD’s performance. MLSD was a staff member you didn’t have to worry, and you don’t worry, because she was doing the job that she had to do. MLSD’s performance levels did not change as far as Ms McDonald was concerned until October 2005.
86. Under cross-examination, Ms McDonald agreed that PA’s would try to accommodate unbooked customers with urgent problems and had the autonomy to do so. While each PA had a defined individual target, the staffing levels were such that Moreland was always going to have difficulty meeting the annual target set by the National office.
87. Ms McDonald said she had been unaware of the poor performance of one of the Greensborough relievers until MLSD complained. This was despite seeing the reliever several days a week. With respect to Ms Chien’s inability to type, Ms McDonald accepted that MLSD would have assisted Ms Chien in this regard and this would have increased her workload. Ms McDonald had no personal knowledge of or training in the work of PAs. She could not comment on the content of their work. Her responsibilities lay in assessing measurable outcomes. It was thus possible that MLSD was performing work in excess of her set daily plan/profile. Ms McDonald described Centrelink as a very high pressure environment.
88. Staff was aware of the set national targets and each officer’s targets were publicised. They were equally aware that the set targets were not going to be met. Ms McDonald herself worried about meeting the targets and thought God I am going to be held accountable for that.
89. It had always been Ms McDonald’s practice to speak with staff after they had taken unplanned leave or personal (sick) leave and to ask if it was work-related. It later became Centrelink policy to ask this question. Ms McDonald was unable to recall whether she discussed MLSD’s extension of her recreation leave by six days in September 2005.
90. Ms McDonald’s statement outlined the assistance provided to MLSD by Centrelink from October 2005 in terms of a referral to EAP, a psychologist and the provision of a rehabilitation officer.
MR JOHN SCHULTZ
91. Mr Schultz gave evidence by telephone. He was the manager of the Moreland Centrelink customer service from March to November 2005. He provided a statement dated 10 July 2008 (Ex R14) in relation to MLSD. He was of the opinion that MLSD coped well with her workload, that the workload had not increased in Ms Gerassimou’s absence and that MLSD had not been expected to do more than her normal work plan.
92. Mr Schultz confirmed his statement. He admitted that during Ms Gerassimou’s absence he had seen a number of customers being rushed in and interviewed very quickly … and rushed out. He said it might have been that the PA’s increased their customers seen by one or two per day.
93. Under cross-examination, Mr Schultz estimated he would speak to the PA’s two to three times per week, ask how they were going and whether they were meeting their targets. He had expected that if there was a problem he would have been told about it. He confirmed there were discussions concerning the insufficient numbers of staff in the office to meet the set target. He had been aware that one of the Greensborough relievers had performed inadequately but he had not made further enquiries or taken any action.
94. The Tribunal asked if, in setting targets, Centrelink’s policy department took into account the profile of the particular Centrelink office, such as non-English speaking clients. To Mr Schultz’s knowledge, it did not.
MS DELI BAKER
95. Ms Baker is a psychologist employed by Caraniche who treated MLSD between October 2005 and 2 December 2005 on referral from Centrelink EAP. She saw MLSD on five occasions between 12 October 2005 and 2 December 2005. The clinical notes relating to these visits were before the Tribunal (Ex R8). Ms Baker confirmed that MLSD had not discussed or mentioned any work-related stresses or problems. The notes refer only to her encounters with Dr ZZ, her partner and her brother.
THE PSYCHIATRIC EVIDENCE
96. MLSD has seen five psychiatrists, four for medico-legal purposes. Their evidence is reported in chronological order. Dr Serry, Dr Greenberg and Dr Ratnayake gave oral evidence.
DR RATNAYAKE
97. Dr Ratnayake saw MLSD on 15 March 2006 at the request of Centrelink. She made a diagnosis of adjustment disorder with depressed mood and attributed the condition to personal issues, although MLSD had herself considered work-related stress to be the most significant factor. The history MLSD provided, as reported by Dr Ratnayake, is at variance with MLSD’s evidence with respect to time factors but does record that by September 2005 MLSD was feeling under stress because of work factors (T18(e), p91).
98. Dr Ratnayake gave evidence by telephone as she was in Sri Lanka. She believed MLSD’s symptoms had commenced in September or one to two weeks earlier and consisted of difficulty concentrating, feeling paralysed, sad and deflated and that she became anxious in anticipation of going to work. Her workload had increased when a colleague went on leave. Dr Ratnayake understood the provision for covering co-workers on leave was part of the person’s position description. Dr Ratnayake had noted that MLSD had various personal and family problems, as outlined in the document authored by Carla Zilles and provided to Dr Ratnayake. The fact that MLSD’s brother had tried to commit suicide and had been depressed for some years indicated to her that MLSD had some genetic vulnerability to the development of a depressive illness.
99. Dr Ratnayake interpreted the results of the DASS test performed by Dr ZZ as showing moderate, but close to the upper limit of moderate, depression.
100. Mr Lenczner outlined the evidence relating to MLSD’s workload from June to late August 2005 and asked Dr Ratnayake what part this had played in the development of her depression. Dr Ratnayake thought this was minimal, as MLSD had been able to perform her normal duties at work until late October or early November. The boundary violation by Dr ZZ had been quite significant and worsened MLSD’s depression symptoms. She considered that the violent behaviour of MLSD’s partner, alone, was capable of causing a depressive illness.
101. When the level of staffing at Moreland between June and August 2005 was explained to Dr Ratnayake by both Mr Carey and the Tribunal, she agreed that MLSD’s workload had increased and could have made a small contribution to bringing about her depressive disorder. While Dr Ratnayake believed MLSD to have a genetic disposition to developing depression, work stresses could have been a precipitant in rendering the depression overt. The fact that MLSD enjoyed her work also lessened the likelihood that work-related stress was significant. Dr Ratnayake was of the opinion that no one would undertake stressful work by choice.
102. In answer to a question from the Tribunal, Dr Ratnayake was not able to completely exclude work-related pressures or stress as a contributing factor but rated it as minimal.
DR GREGORY WHITE
103. Dr White assessed MLSD at the request of the Respondent on 11 May 2006 and provided a report (T22). He was provided with all available records and file data. Dr White diagnosed an adjustment disorder with depressive mood; which in late 2005 may have reached a level of severity sufficient to attract a diagnosis of a major depressive disorder. Dr White identified the initial major cause as workplace issues later compounded by medical abuse and a perceived lack of support from the employer and insurer. He considered MLSD’s prognosis to be good.
DR YVONNE GREENBERG
104. Dr Greenberg had provided four reports to the Respondent (T29, T32 and the reports of 14 February 2007 and 3 July 2007 which were not formally tendered). She also gave evidence before the Tribunal. Dr Greenberg diagnosed a depressive illness requiring psychiatric treatment, followed by a graduated return to work and a rehabilitation program. In her opinion, while the causative factors were multi-factorial, MLSD’s depression was substantially endogenous, given the positive family history. At review on 12 February 2007 Dr Greenberg found MLSD to be remarkably different, smiling and apparently cheerful with no signs of depression. In fact Dr Greenberg had the impression that MLSD was overly cheerful; which raised in her mind the possibility of a bipolar affective disorder. It was possible that MLSD’s marriage in 2002 had occurred during a similar hypo-manic phase. The event of 2005 was therefore thought to represent an intervening depressive phase. MLSD was judged fit to resume duties as a customer service advisor. Whether she suffered from a bipolar disorder would take time to resolve but if this eventually became diagnosable the depression of 2005/2006 would become endogenous or biological in origin. Dr Greenberg held the same opinion in her report of 3 July 2007 and referred to MLSD’s short-lived episode in May 2007 when she became distressed after dealing with two threatening clients. As a result of this confrontation she had ceased her Cipramil but resumed taking her medication soon after.
105. Dr Greenberg maintained her opinion in her evidence. She believed that MLSD’s depression was endogenous - that is genetically and bio-chemically caused. It was possible that extrinsic events could advance an episode that was going to happen in two to three months time. Dr Greenberg said there was no consensus amongst psychiatrists on this particular question of precipitation of overt bipolar disorder by extrinsic events. The major factor influencing Dr Greenberg’s opinion was MLSD’s response to anti-depressant medication, as this indicated an underlying biochemical disorder possibly involving serotonin but more probably multiple brain transmitters.
106. Dr Greenberg said the research on work stress precipitating psychological symptoms had been done predominately by psychologists. Pure workload did not appear to be a factor but job satisfaction, lack of respect, not being appreciated, boredom and frustration had been implicated in these studies.
107. If MLSD’s depression had been caused by an excessive workload, Dr Greenberg felt her symptoms should have improved when she took annual leave in August/September 2005.
108. Under cross-examination Dr Greenberg stated that MLSD had unequivocal clinical depression in 2006 and this had resolved by 2007 following treatment. She remained suspicious that MLSD had a bipolar disorder but this would only be confirmed if there were further episodes. However, if MLSD not only had an increased workload but felt frustrated by the lack of assistance from co-workers and supervisors, this could definitely precipitate a depressive reaction.
DR RAID AL HUMRANY
109. Dr Humrany saw MLSD in October 2006 on a referral from Dr Dawes (Ex R10). He diagnosed an adjustment disorder with secondary mood problem, namely anxiety and depression, and recommended ongoing anti-depressive medication and psychotherapy. On the history given by MLSD, he attributed her condition to an increased workload, resulting in frustration, despair, anger and anxiety. The depression was accentuated by Dr ZZ’s behaviour. He said MLSD had responded well to medication but regressed in July 2006 after changing jobs to a customer service advisor and the rejection of her claim for compensation. Dr Humrany described MLSD’s then current major dilemmas as financial difficulties, inability to work and problems with the workers’ compensation process. He noted that in September 2006 she had developed suicidal thoughts. A change in medication to Avanza had been very beneficial.
DR NATHAN SERRY
110. Dr Serry provided a report dated 12 December 2007 having seen MLSD at the request of her solicitors. (Ex A3) He was provided with MLSD’s statement, clinical notes of Dr Dawes and Dr Hemley and the reports of the psychiatrists’, Doctors Greenberg, Humrany and White. Dr Serry obtained a history of events and stressors in 2005/2006 from MLSD in keeping with her evidence to the Tribunal. Dr Serry did not detect any features suggestive of hypomania. He diagnosed major depression with anxious (including panic) features, causally related to work. When seen MLSD had recovered from her depressive illness. Dr Serry disagreed with Dr Greenberg’s opinion regarding bipolar disorder and also Dr Greenberg’s statement that the symptoms would resolve when work pressure ceased if the depression was exogenous.
111. In his evidence Dr Serry confirmed his earlier opinion. He regarded going to Europe at the age of 19 and getting married at aged 32 after a four-month courtship as being in the realm of normal behaviour and in no way indicative of hypomania. Nor did he accept that one episode of depression raised a possibility of it being endogenous. Dr Serry said he no longer uses the endogenous/exogenous descriptions but did so for the benefit of all parties. He prefers the latest classifications from the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM IV) in terms of severity.
112. Under cross-examination, Dr Serry agreed that MLSD had experienced other contributory stressors. In his experience, people reacted differently to overwork, some developing an anxiety disorder and some depression, In the latter group, some initially reacted by utilising whatever resilience and resourcefulness they have before they break down. He said that the symptoms of despair and helplessness usually appear progressively over time until reaching a particular level of stress following which work performance deteriorates. Dr Serry referred to the research-based Yerkes‑Dodson stress-related curve, showing people can perform above and beyond expected levels before deteriorating.
113. Mr Lenczner asked Dr Serry why MLSD had not chosen to decrease her workload by not taking up the perceived shortcomings arising from her colleague’s absence or by reducing input. Dr Serry explained that persons with depression have a sense of reduced ability to control their internal and external environment. … by the very nature of the illness and the symptoms being experienced, there is no real sense of choice. The prospect of changing her job would be frightening and overwhelming for a person with depression as a depressive illness has a paralysing effect on people.
DOCUMENTARY EVIDENCE
114. The Tribunal has considered the majority of the documentary evidence in its consideration of the oral evidence above. The T-Documents contain a statement from MLSD’s partner, Mr Nicholas Carbines (T12), confirming the evidence given by MLSD in relation to work pressures and the effect of Dr ZZ’s inappropriate behaviour.
115. The documentary evidence included MLSD’s attendance records and her progress with return to work programs devised by WorkFocus with input from Dr Dawes, and ongoing medical certificates.
116. The Tribunal has examined the PAJA statistics which form the content of Exhibit A2 in detail; and according to the weekly and monthly statistics the only period when the target workload of PA’s at Moreland was reduced was in the week from 15 to 22 July 2005.
117. The Tribunal was provided with the clinical records of Dr Muniratna from 3 September 2001 until 27 November 2001 (Ex R9) and from 3 September 2001 until 13 October 2004 (Ex R12). The Tribunal was also provided with extracts from the clinical notes of Dr Hemley (Ex R13). Dr Muniratna’s notes relate primarily to unrelated physical medical conditions; although there are two entries, one on 7 November 2001 and another on 28 January 2003, recording that MLSD had suffered panic attacks in her sleep. Dr Muniratna queried the possibility of sleep apnoea and this was fully investigated and not confirmed. MLSD has not suffered a similar so called ‘panic attack’ in her sleep since 2003. Dr Muniratna’s notes contain a letter from a Dr John Merory dated 25 November 2004. Dr Merory had seen MLSD in relation to a September 2004 episode of severe light-headedness and loss of concentration. This episode was referred to by one of the managers from Centrelink and interpreted as being a cardiac condition. MLSD could not recall this episode immediately in her evidence; although she had been taken to hospital on the occasion but left after waiting for five hours without any treatment. She subsequently underwent investigations including an electrocardiogram (ECG). Dr Merory took a detailed history, made a complete neurological examination and made a diagnosis of neurocardiogenic syncope, which in layman’s terms is a faint.
118. Dr Hemley’s notes refer to MLSD waking in fright in mid-2004. They also record that MLSD felt she was being bullied at work by another employee. An earlier entry in November 2003 refers to work stress and in April 2005 Dr Hemley diagnosed Tietze’s syndrome, which is costochondritis. He queried MSLD further regarding her episodes of waking at night in fright and while she admitted to suffering from insomnia she denied any depression. Dr Hemley suggested counselling.
119. The clinical notes from CASA House (Ex R6) refer only to the inappropriate behaviour of Dr ZZ.
RELEVANT LEGISLATION
120.Section 4 of the Act defines the terms ailment, disease and injury as follows:
4Interpretation
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
121. There is no dispute that MLSD suffers from a depressive disorder/injury nor is there evidence that she failed to obtain a promotion or benefit such that the exclusionary clause would be attracted.
122. Section 14 subsections (1), (2) and (3) establish Comcare’s liability to pay compensation;
14Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
and s 16 relates to medical and like expenses;
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4)An amount of compensation payable by Comcare under subsection (1) is payable:
(a)to, or in accordance with the directions of, the employee;
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost—to that other person; or
(c)if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation—to the person to whom that cost is payable.
123.Section 19 relates to the method of calculation of compensation payable for incapacity.
SUBMISSIONS
The Applicant
124. Mr Carey submitted that the diagnosis of MLSD’s depressive disorder, be it a major depressive disorder or an adjustment disorder was not in doubt or in contention. At the time of the reviewable decision, made on 20 October 2006, all the psychiatric evidence then before the decision-maker had nominated a causal work contribution. Despite this evidence the claim had been refused.
125. As MLSD’s claim had been lodged in 2006, the test to be applied by the Tribunal was whether the work issues made a material contribution to the development of the depressive disorder. The authority for determining a material contribution remained that of the decision in Re Welsford and Commonwealth Banking Corporation [1984] 1 AAR 42.
126. Mr Carey acknowledged that other factors had contributed to MLSD’s depression but contended that these had a lesser effect than the work contribution. These other factors included MLSD’s coping with her elderly parents’ needs, her general status of health, her brother’s depression and attempted suicide, and social issues such as her failed marriage of 2002 and an episode of domestic violence. In reference to the domestic violence, Mr Carey contended that this had occurred on one occasion only and was not a recurring factor, despite the entry in the CASA House notes (Ex R6). Mr Carey noted the maker of that note had not been called to give evidence and MLSD’s relationship with her partner continues and he had been extremely supportive during her illness.
127. Mr Carey submitted that Dr ZZ had listed work issues as the primary problem on MLSD’s presentation on 15 September 2005. His other entries at that time had not been fully explained; in particular the item headed pain. Dr Dawes, MLSD’s treating general practitioner had, since the first appointment in November 2005, regarded work issues as the predominant causative factor. Dr Serry had implicated work as the major precipitating factor of MLSD’s depression and explained in detail that the syndrome of depression took time to evolve and become apparent. Dr Greenberg, although also diagnosing a major depressive episode, was of the opinion that workload increases alone had not been incriminated as a causative factor in the medical literature however, frustration that might arise from such workload was considered an important factor.
128. Mr Carey noted that MLSD had been exposed to stressful events commencing at Fitzroy Centrelink office and continuing at the Moreland Centrelink office. Despite this, she loved her job and the evidence of her team leader, Ms McDonald, was that she was a good and conscientious worker. Staffing issues commenced in January 2005 and became more acute in June 2005 when Ms Doula Gerassimou was absent for a period of four weeks on sick leave. This was only partially ameliorated by part time assistance from Greensborough Centrelink staff. In July 2005 MLSD had complained about the performance of one of the Greensborough relieving staff members. The increased workload continued to impact on MLSD after Ms Gerassimou’s return to work as the latter was unable to conduct interviews. The workload stresses continued until MLSD went on recreational leave on 28 August 2005. Ms Gerassimou had noticed a change in MLSD both in terms of her attitude and her work performance when she returned to work on 8 July 2005. Ms Gilbert had considered MLSD to be depressed and had discussed her health status with her on 13 September 2005, encouraging MLSD to seek medical attention as in her words she obviously needed help.
129. Based on the evidence before the Tribunal, Mr Carey contended that work issues had made a material contribution to the development of MLSD’s depressive disorder. Should the Tribunal so find, he submitted that the Tribunal could provide guidance with respect to s 16 and s 19 of the Act in terms of medical costs and the duration of incapacity payments. ( Re:Turnley) He confirmed that MLSD had returned to full-time work in March 2007.
THE RESPONDENT
130. Mr Lenczner accepted that MLSD was depressed in September 2005 but contended there was no evidence to support that diagnosis from June to August 2005. The Respondent relied on the evidence of Dr Greenberg. If there was a work contribution this had been overwhelmed by the alleged inappropriate behaviour of Dr ZZ to such a degree that, from October onwards, work was not a contributory factor. The Respondent agreed that MLSD remained depressed until early 2007.
131. Both Ms McDonald and Mr Schultz have given evidence that in June, July and August 2005 MLSD was functioning normally in the terms of her work performance. The statistics, it was contended, did not support an increase in the workload during these periods. Additionally, staff levels had remained unaltered during the period from September to November prior to when MLSD went on extended sick leave. Ms Alissa Chien ceased work as a PA at the Moreland Centrelink office in February 2006 and thereafter this particular unit was staffed by MLSD and Doula Gerassimou. Mr Lenczner contended that MLSD had reconstructed her evidence to accentuate any contribution that might have been made by employment issues. He said this contention was supported by her evidence in terms of the history given to Dr Ratnayake that she realised that she was depressed in August 2005 or September 2005.
132. Mr Lenczner referred to the decisions in ReWelsford, Kirkpatrick v Commonwealth of Australia (1985) 62 ALR 53, Weigand v Comcare 72 ALD 795 and Comcare v Canute(2005) 148 FCR 232 to support his contentions.
133. Mr. Lenczner contended that should the Tribunal find that work issues were a contributing factor to the development of MLSD‘s depression, then such contribution had ceased by 29 September 2005. It was on that date that Dr ZZ had revised his problem list, nominating personal factors as being pre-eminent in the development of MLSD’s depression.
THE TRIBUNAL’S FINDINGS AND DELIBERATIONS
134. Based on all the psychiatric evidence, MLSD has suffered from a major depressive disorder or an adjustment disorder with depressed mood, meeting the s 4 definition of a disease. The majority of the psychiatrists diagnosed an adjustment disorder and two of them favoured a major depressive disorder or episode. Three psychiatrists (Doctors Serry, White and Humrany) identified the initial major contributing factor as being work issues. Dr Ratnayake quantified the work contribution as minimal. While Dr Greenberg expressed her suspicion that MLSD had an underlying bipolar 2 disorder, she agreed that in 2005/2006 MLSD suffered from major depression in which work stresses could have been a precipitating factor, in a multi-factorial causal picture. All the psychiatrists acknowledged the contribution of Dr ZZ’s alleged inappropriate behaviour in September and October 2005 and the further impact of MLSD’s brother’s attempted suicide on her symptomatology.
135. The Tribunal accepts MLSD as a witness of truth. She has worked for Centrelink in the customer service area since 2000 in two busy and stressful centres, first at Fitzroy and from August 2004 to the present at Moreland. At Fitzroy a high percentage of customers were disabled, unemployed, drug or alcohol abusers and many were of indigenous origin. Verbal abuse by customers was common and physical abuse not infrequent. Despite the aggressiveness of the customers, MLSD enjoyed her work. Ms Gerassimou, also a PA at Moreland, described MLSD as being compassionate, doing everything in her power to assist the customers and that she really cared.
136. In August 2004 MLSD was appointed to the role of PA at Moreland Centrelink office. Training was provided.
137. The role of PAs was new, being trialled and funded by the Department of Education and Workplace Relations under the government policy entitled Welfare to Work. The aim was to assist the unemployed, disabled and mothers with dependent children older than six years to return to the workforce. MLSD was required to interview customers face-to-face (termed profiles), develop in consultation with the customer a plan for entering or re-entering the workforce, enlist the assistance of relevant experts, involve job network services and oversee the progress of the devised plan. Each full‑time PA had an assigned plan requiring them to deal with seven customers per day. This would include initial face-to-face interviews, follow up interviews and telephone interviews and checks. Statistical data recording the number of activities performed were kept daily and provided to the area office weekly. The national office set numerical targets for each Centrelink facility without reference to their demographics. Prior to commencement of the trial it had been estimated that the Moreland office, based on its set target, required four full-time PA’s. Only three were appointed. As of January 2005, the effective full-time number was reduced to 2.6. Ms Alissa Chien, the .6 EFT PA, was unable to type because of her carpal tunnel syndrome. MLSD and Ms Gerassimou assisted her by performing any necessary typing. This situation existed from January 2005. MLSD coped with this extra workload without problem or complaint, although Ms Gerassimou did lodge a complaint with the team leader regarding Ms Chien’s work performance.
138. In the seven week period when Ms Gerassimou was either away or limited in her work capacity due to surgery, MLSD performed her own assigned plan, assisted the Greensborough relievers, one of whom did very little work, and endeavoured to accommodate urgent customers and those appointments of Ms Gerassimou’s that had not been cancelled. Mr Schultz and Ms McDonald have stated that MLSD was not required to take on this workload. Ms McDonald however acknowledged that MLSD probably did so and that the increased workload continued throughout this period from 10 June to 29 July 2005. It was not suggested that the workload and general milieu at Moreland was chaotic; although Ms McDonald described her seven years and eight days employment at Centrelink as being a regular crisis.
139. While MLSD described her response to the work situation and increased workload as a feeling of hopelessness and an inability to cope, given her perfectionist approach and devotion to assisting her customers, it is difficult to assume that she would not have experienced frustration.
140. The Tribunal is satisfied that MLSD’s work requirements were excessive and stressful from 10 June 2005 to at least 28 July 2005 and this initiated her depressive disorder. Ms Gerassimou had noted a change in MLSD’s demeanour and standard of work when she returned to work on 8 July 2005. MLSD was aware that she was unwell but was hopeful that her pre-arranged recreational leave would resolve her problems. When it did not she sought medical treatment.
141. It is not disputed that Dr ZZ’s inappropriate behaviour impacted deleteriously on MLSD’s depressive state. Had she not been severely depressed there would have been no need for her to consult Dr ZZ. The causal link has not been broken by Dr ZZ’s alleged actions.
142. MLSD did tell Dr ZZ of her work issues and this is acknowledged in his medical records by his placing work issues first in a problem orientated medical history, taken on 15 September 2005, albeit he later revised this listing. MLSD asserted that she told Ms Deli Baker of her work issues but did not mention it to the CASA psychologist given her attendance at that institution related to sexual assault.
143. It is not for the Tribunal to determine whether Dr ZZ’s behaviour, as alleged by MLSD, was inappropriate or amounted to professional misconduct. All that can be said is that his medical notes were sparse and consisted primarily of computer- generated questionnaires answered by MLSD and similarly software-based interpretations of these answers. While management plans were constructed, there was no evidence that MLSD saw the other four nominated members of the management team. Dr ZZ expanded on his notes in his evidence and did so from memory despite the interval of nearly three years. He was unable to give an opinion as to the contribution of work factors because he had perceived that they had post-dated his treatment of MLSD.
144. Based on the evidence, any contribution to MLSD’s depressive disorder by her concern for her parents’ health appeared inconsequential at the time. It was to be expected that she would have such concerns; but in 2005 MLSD’s sister was living with and caring for their parents and MLSD’s assistance was limited to visiting them every second Saturday. Her brother’s depression was a basis for concern but his attempted suicide occurred in November 2005 after MLSD’s depressive symptomotology was well established. It is not clear on the evidence when the episode of so-called domestic violence occurred. MLSD’s evidence was that on one occasion, when both she and her partner were drunk, he hit her. Their relationship continues and he has been very supportive throughout her illness. MLSD did not display any regret regarding her short-term marriage in 2002 or voice any lingering emotional attachment to her ex-husband.
145. The issue for the Tribunal is to determine whether the contribution of the work issues to MLSD’s major depressive disorder was material; having found these work issues, workload and frustration, to be the initiating or precipitating factor in a multi-factorial complex.
146. The applicant relied on the decision in Re Welsford where the Tribunal said:
It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the workers employment.
147. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Federal Court held:
Once it was established that an employee in the doing of his work was exposed to “a state of affairs to which he would otherwise not have been exposed” or to “some characteristic of or condition in which the work was to be performed” and that such exposure was in truth a “contributing” factor to the condition in respect of which he sought compensation then it mattered not whether the contribution was of any particular size or degree.
148. The term material was considered by Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 at 543; where, in reference to the s 4 definition, His Honour made the following points:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)“in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii)whether this will be so in a given case will be a matter of fact and degree.
149. The Respondent contended that MLSD’s claim that workplace issues, and in particular that an excessive workload, had been the initiating factor in her illness represented a later reconstruction of the course of events. The Respondent cited the decision of the Full Court in Kirkpatrick v Commonwealth of Australia (1985) 63 ALR 533 where the Full Court held:
A distinction is to be drawn between, on the one hand, the sequelae making a sick mind sicker and contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity.
150. The Respondent had concluded that the statistical evidence entitled SAS figures (Ex R1) did not reveal an increased workload experienced by MLSD in June, July and August 2005. The Tribunal cannot agree with this conclusion. These figures represent the statistics for all Centrelink offices in the Melbourne area staffed by PA’s. The data covers the period between 12 June 2005 and 2 September 2005, a period of 12 weeks. The figures were reported for the Moreland Centrelink office for 11 of these 12 weeks. The average number of customers seen during those weeks by each PA exceeded 7 on 8 of the 11 weeks. There were two weeks (ending 15 July 2005 and ending 22 July 2005) when the figure was below 7 per day (the assigned plan for each PA). In the week ending 22 July 2005 MLSD was absent for 3 days on sick leave. The highest figures occurred in the week ending 17 June 2005, when the average was 10.3 customers per day, and the following week when the average was 9.5 customers per day.
151. The Tribunal finds that the increased workload and the frustrations arising from that increased workload were the initiating factors in the development of MLSD’s depressive disorder and that the contribution was material. Therefore, the decision under review is set aside. The Tribunal decides that the Respondent is liable to pay MLSD compensation for incapacity until 31 March 2007. The Tribunal also decides that the Respondent is liable to pay MLSD’s ongoing medical costs.
I certify that the 151 preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
Signed: (sgd) Cassie Renfrew
ClerkDates of Hearing 29, 30 & 31 January 2008, 28 & 30 April 2008,
1 & 2 May 2008, 10 & 11 July 2008
Date of Decision 12 November 2008
Counsel for the Applicant Mr Mark Carey, Slater and Gordon
Counsel for the Respondent Mr Joe Lenczner, Dibbs, Abbott, Stillman
0
9
0