Moi and Comcare - [2006] AATA 726

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 726

ADMINISTRATIVE APPEALS TRIBUNAL № V2005/921

GENERAL ADMINISTRATIVE DIVISION

Re: KIN YUN MOI
Applicant

And: COMCARE
Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date:22 August 2006
Place:Melbourne
Decision:The Tribunal sets aside the decision of the respondent dated 15 August 2005 affirming the earlier decision of 10 May 2005 and substitutes the decision that:
1.the applicant’s major depressive disorder is a compensable injury arising from his employment and predated the disciplinary action imposed for his breach of the Public Service Code of Conduct. The respondent is liable to pay compensation in accordance with s 14, s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988;
2.the applicant is not entitled to compensation for his condition of cervical spondylosis without myelopathy and right rotator cuff strain; and
3.the matter is remitted to the respondent to determine the compensation payable. The respondent to pay the applicant’s legal costs, if any.
(sgd) E. A. Shanahan
Member

WORKERS COMPENSATION – chronic depressive disorder – harassment in the workplace – breach of the Public Service Code and Conduct – sanction applied – alternative duties aggravating pre-existing degenerative changes and rendering them symptomatic.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

22 August 2006 Miss E.A. Shanahan, Member

Mr Moi has made application to the Administrative Appeals Tribunal for review of the respondent’s decision of 15 August 2005 which affirmed the determination of 10 May 2005 that his claimed manic depressive disorder, cervical spondylosis and right rotator cuff strain were not compensable. The respondent had determined that these conditions were secondary to disciplinary action attracted by Mr Moi’s breach of ss 13(3) and 13(11) of the Public Service Act 1999 (the Public Service Act).
The applicant was self-represented and the respondent was represented by Mr Ferwerda of Counsel, instructed by the Australian Government Solicitor. The Tribunal was provided with the documents lodged pursuant to the s 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents – Exhibit R1). The respondent tendered the summonsed medical record of Dr Goh, Mr Moi’s treating general practitioner and this was assigned the notation of Exhibit R2. Mr Moi and Mr John Shaw gave evidence before the Tribunal.

BACKGROUND TO THE APPLICATION

On 24 June 2004 Mr Moi, having been reprimanded by Ms Linda Hughes for not recording his lunch break on his timesheet, “gesticulated widely with his arm in a threatening manner” and told Miss Hughes to “just fuck off” (T8, p 33). This altercation was reportedly observed by four co-workers. The incident was reported to senior officers and Mr Moi was “suspected” of breaching ss 13(3) and 13(11) of the Public Service Act. An investigation was ordered (T10, p 37). The investigation was conducted by Mr John Shaw who found that Mr Moi had indeed breached ss 13(3) and 13(11) of the Code of Conduct and after the investigation was completed, imposed the sanction of a “reassignment of duties”. In addition, Mr Shaw determined that the “over zealous monitoring of Kin Moi’s attendance record was a contributing factor in him telling Linda Hughes to “fuck off” and that the Child Care Payment team attendance strategy initiated on 1 March 2004 was not in the spirit of the Centrelink Development Agreement (CDA) 2003-2005 nor was it in accordance with the employees responsibilities, as prescribed in the People Handbook. Mr Shaw said that these mitigating circumstances were sufficient to limit the sanction imposed by him to a reassignment of duties.
Mr Moi challenged the recommended sanction on the basis that he had been subject to harassment, which he described as “picking on me”, by Miss Hughes for two years, leading to emotional and psychological distress (T40, p 144). During this two year period he had reported to his general practitioner an array of symptoms all of which had been thoroughly investigated and found negative for organic disease (T40, p 144). Mr Moi believed in retrospect that these symptoms were indicative of anxiety and depression.
Mr Moi was transferred from the Moreland Branch to the Heidelberg Branch of Centrelink where he performed the tasks of opening, sorting and stamping mail. This reassignment of duties commenced on 3 November 2004. He subsequently reported the development of neck and right shoulder pain with limitation of movement, which he attributed to the repetitive physical nature of these employment tasks. On 17 May 2005 he lodged a claim for compensation for “cervical spondylotic (sic), osteophytes, depression”.
Mr Moi had not volunteered, nor had he been asked by his general practitioner for, information concerning his workplace conflicts until October 2004. On 22 October 2004 Dr Goh, his general practitioner, attributed Mr Moi’s multiple psychosomatic symptoms to work (T25, p 92). Mr Moi’s diagnosed medical conditions prior to October 2004 were Type 2 diabetes (poorly controlled) and sleep apnoea. Both Dr Goh and Centrelink sought specialist medical opinions, culminating in a diagnosis of a major depressive disorder attributed by Centrelink’s medical expert (Dr Smith) to the disciplinary action and by Drs Goh and Wong to pre‑disciplinary workplace conflict. Mr Moi’s neck and right should pain was also investigated further after the lodgement of his claim on 17 January 2005. This investigation revealed cervical spine degenerative changes.
Mr Moi claims that workplace stresses experienced prior to 24 June 2004 resulted in the development of depression and this in turn led to his behaviour on 24 June 2004, when he told Miss Hughes to “just fuck off”. In addition, he claims the sanction imposed for this breach of the Public Service Act resulted in him being employed to perform repetitive low‑grade manual work and his pre‑existing age related cervical degenerative changes became symptomatic.
Thus the issues before the Tribunal are: first, whether Mr Moi had a pre‑existing depressive disorder arising from workplace conflict and thereby compensable; secondly, whether this condition led to his behaviour on 24 June 2004 which breached the Public Service Code of Conduct; and thirdly, whether the alternative duties imposed by the sanction caused his degenerative cervical spine condition to become symptomatic.
The Tribunal finds that Mr Moi developed this depressive disorder, reactive in nature, as a result of workplace stress and this in turn led to his claimed “out of character” behaviour on 24 June 2004. This injury is compensable.
The Tribunal finds that Mr Moi’s pre-existing cervical spine degenerative changes were rendered more symptomatic as a result of the alternative duties he was assigned in the form of a disciplinary sanction. There is evidence that Mr Moi had had minor symptoms of this condition prior to the institution of disciplinary action and this condition is not compensable.

EVIDENCE BEFORE THE TRIBUNAL

Mr Moi migrated to Australia in 1985. He was born in Penang in Malaysia and had worked in the Malaysian Department of Treasury. On arrival in Australia he worked in private enterprise until he obtained a position in the Public Service. He worked in the Department of Family and Community Services but was transferred to Centrelink in approximately 2000 as he did not want to relocate to Canberra. He was employed at Centrelink as a Customer Service Officer working in the Childcare Payments Section. He stated that he had been picked upon by Miss Linda Hughes over a period of two years and had been required to account for all the time he was away from his desk. Over these years he had seen his general practitioner for symptoms of headache, recurrent diarrhoea, lethargy, chest pain and nervous cough; and eventually had become fearful of attending work.
Mr Moil said he received numerous e-mails from Miss Hughes regarding the time he spent in the tea-room, at the photocopier, in the toilet and at lunch. Initially he responded to the emails but eventually he “gave up”. On 24 June 2004 Mr Moi went for his usual walk during the lunch hour. He did this as part of an exercise program advised because of his diabetes. He did not fill in his time sheet before leaving and on his return recorded the time at 1.00 pm. Miss Hughes challenged this entry, saying she saw him return to the office at 1.15 pm. Mr Moi says he then entered this time i.e. 1.15 pm on his flex sheet.
Miss Hughes repeatedly demanded an explanation as to why he had not completed his flex sheet accurately and in his words “he lost it”.
Mr Moi disagreed that Mr Ilia Vurtel, the Manager of the Child Care Payment Unit could have overhead his discussion and altercation with Miss Hughes as had been reported (T9 pp 35-36). Mr Moi’s team leader, Miss Margaret Soemawinata, had not seen the reports of Mr Vurtel or Miss Hughes’ undated Incident Report.
Mr Moi explained that a new Attendance Strategy (T6, page 28) was discussed at a staff meeting in October 2002. The form of strategy was to commence on 1 March 2004 and continue for three months. All staff were to undergo “random daily monitoring, twice weekly” and enter their actual start and finish times and their meal breaks “at the time they occur”. Each team leader was to check the attendance records across both teams. Mr Moi was not in Miss Hughes’ team.
Mr Moi showed his general practitioner these entries in the T-Documents and Dr Goh then considered that these workplace practices explained Mr Moi’s stress symptoms.
Mr Moi said Miss Hughes had commenced monitoring his absences from his desk in 2003 and other co-workers were similarly monitored. Miss Hughes had stated on several occasions that service officers failure to log their times amounted to defrauding the Commonwealth.
Mr Moi had intended to obtain a report from or call his team leader Miss Soemawinata to give evidence before the Tribunal, but she had resigned and abruptly left Centrelink and he had not been able to contact her since.
Under cross-examination Mr Moi confirmed that he had not told Dr Goh about his workplace conflicts nor had she asked if there were any conflicts. Mr Ferwerda suggested to Mr Moi that after his disciplinary sanction he had searched his memory for a relationship between his work and his symptoms and in particular whether he had been harassed by Miss Hughes. Mr Moi agreed he had “looked back” but had not been “picked on” by Miss Hughes until late 2002 when she became a team leader within his section. Mr Moi was unaware if others had been treated similarly; but he had been told of one other Centrelink employee who had been monitored. Mr Moi agreed that in 2002‑2203 his diabetes was not properly controlled and that this was a source of concern. He said his relationship with Mr Vurtel was purely professional in contrast to the relationship with his team leader Miss Soemawinata, whom he regarded as a friend.
Mr Moi agreed that after his first six months at Centrelink he was unhappy in the position and desired to return to the Department of Family and Community Services. He described the Centrelink Childcare Payment Section as dysfunctional.
Mr Moi accepted that he had not always “clocked on and off” as required by the attendance strategy (T6, p 28) and had on one occasion altered his computer setting to deny Miss Hughes access and thereby divert her e-mails to his team leader. He stated that he had not done so on 30 March 2004, as alleged by Miss Hughes. Mr Moi was aware that all the e-mails sent to him by Miss Hughes were copied to Miss Soemawinata and Mr Vurtel. Given the volume of the e-mails she sent, Mr Moi queried what other work Miss Hughes did at Centrelink.
Mr Moi generally agreed that the records of what he had said to Mr Vurtel, Mr Shaw and his doctors would be accurate. He denied that he considered the work he did sorting mail at Heidelberg was demeaning. He considered it to be a waste of his time and skills.
Mr Moi denied he used the word “bastard” in the telephone conversation with Mr Shaw, as it was not a word he commonly used. However, he could not be absolutely certain of this as he was very upset at the time.
(Tribunal note: ‑ during his evidence and when obviously stressed by the cross-examination, Mr Moi used the adjective “bloody” on many occasions. The Tribunal stopped counting after five such expletives. He also used the term “shit” on several occasions. When the Tribunal pointed out his use of these expletives he was mortified and appeared totally unaware that he had used these words).
Mr Moi agreed with Mr Ferwerda that he perceived Mr Vurtel and Miss Hughes to be “against him” and he also agreed that his work output at Heidelberg was poor. Mr Moi believed this was due to his ongoing depression, which had also affected his work output while at Moreland; i.e. prior to the sanction being imposed. Once more, Mr Moi denied that his depressive symptoms occurred after the events of 24 June 2004.
While the medical records and reports state that in January 2005 Mr Moi had experienced neck and right shoulder pains for twelve months with a flare-up in December 2005, Mr Moi denied he had any such symptoms prior to December 2004.

MR JOHN SHAW

Mr Shaw is the Privacy Officer for Area North Central at Centrelink, with responsibility for investigating breaches of the Code of Conduct (Public Service Act). He had previously investigated the events of 24 June 2004 and reached a decision (T17, p 18) that Mr Moi had breached the Code of Conduct. Mr Shaw recommended the sanction of a reprimand and re-assignment of duties. The sanction imposed by Mr Shaw was relatively minor due to mitigating circumstances. Mr Shaw found that the attendance monitoring of Mr Moi was excessive and that the attendance strategy put into effect from 1 March 2004 was not in the spirit of Centrelink’s policy and practise and was excessive but appeared to have been applied to all team members.
Mr Shaw said he had been in contact with Mr Moi via telephone since the breach. Mr Moi had telephoned him on several occasions to say he was unhappy working at Heidelberg and wanted a transfer to Box Hill. Mr Shaw referred him to a case manager. However, Mr Moi was not qualified to work at Box Hill.
Under cross-examination Mr Moi asked if Mr Shaw had recorded the telephone calls, but he advised he had not. He did however remember that Mr Moi had used the term “bastard” on several occasions on 9 July 2004 (T12). Mr Shaw had been told by Mr Vurtel and Miss Hughes that members of the Childcare Payment team were not being supervised as closely as required. Where a team leader felt greater supervision was required, monitoring of flex sheets was increased. Mr Shaw denied that this approach was harassment. However, his investigations have revealed that Mr Moi’s flex sheets were correct and that there was no evidence of cheating. Mr Shaw had never received a report from or was aware of Miss Soemawinata complaining about Mr Moi or his performance.
On re-examination Mr Ferwerda asked Mr Shaw if there was any personal relationship between Miss Soemawinata and Mr Moi to his knowledge. Mr Shaw said he had been told by Mr Vurtel that there was a close personal relationship between the two outside of Centrelink and Miss Soemawinata was known to have assisted Mr Moi with his work. After some heated verbal exchanges it became clear that Miss Soemawinata’s son and Mr Moi’s son attended the same school.
The Tribunal asked if this association outside of work created problems for a Childcare Payment team, to which Mr Shaw replied “No”. The Tribunal also asked Mr Shaw his opinion of the attendance monitoring that had taken place. He described this as “way over the top”.

MISS LINDA HUGHES

Miss Hughes had been listed to give evidence and was to accompany Mr Shaw by car to the Tribunal. She became acutely distressed in transit and did not attend. The respondent requested that she be excused from giving evidence and Mr Moi consented, given the reported level of her distress.

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

ATTENDANCE STRATEGY

This document which is undated outlines a new strategy for recording attendance. The Centrelink Development Agreement (CDA) 2003-2005 required employees to record their attendance for duty as follows:
2.9 Employees must maintain a record of their times of commencing and finishing duties.

The strategy also relies on the Centrelink People Handbook which states:

employees are required to record their actual start and finish, from the time of their meal break each day at the time these occur. Absences of leave and public holidays must also be recorded.

The strategy was to follow these guidelines for a period of three months from 1 March 2004.

MR MOI’S ATTENDANCE RECORD AS REPORTED BY MISS HUGHES

This has been referred to in the bulk of this decision and records Mr Moi’s failures to record the various lunch breaks in the period January 2003 until the event of 24 June 2004. (T7, p 40).

ENQUIRIES BY MR JOHN SHAW

Miss Hughes provided undated statements recording the event of 24 June 2004, that Mr Moi had recorded the time he returned from lunch as 13.00 hours when she had, in fact, observed him returning at 13.15 hours. Miss Hughes had outlined the conversation that took place and after her repeated enquiries as to why he had incorrectly filled in his flex sheet, Mr Moi responded by raising his left hand above his head in what was described as a threatening manner and in a loud voice telling her to go away and just fuck off. Miss Hughes stated that this incident was witnessed by Mr Illa Vurtel, Luke Vosinthavong, Roydan Ashdown and Deanna Wong.
Mr Vurtel provided a record of the meeting between himself and Mr Moi dated 25 June 2004, relating to the incident of 24 June 2004. Mr Vurtel declared that he had overhead parts of the discussion between Mr Moi and Miss Hughes on 24 June 2004. He confirmed that Mr Moi had raised his voice and told Miss Hughes to fuck off. He also confirmed that he saw Mr Moi return to his work station at 13.15 hours on 24 June 2004. Mr Vurtel had re-acquainted Mr Moi with Centrelink’s expectations and the Australian Public Service (APS) values. Mr Vurtel advised Mr Moi that a Code of Conduct breach would be reported and investigated. Mr Vurtel asked Mr Moi to apologise to Miss Hughes and that Mr Moi undertake to accurately record his attendances in the future.
Mr John Shaw was directed to undertake the investigation of the breach of conduct by Mr Moi (T10, p 37). As part of the investigation Mr Shaw spoke with Mr Vurtel and confirmed his statement, with Miss Hughes to confirm her statement and spoke with Miss Wong and Mr Ashdown. Mr Ashdown provided a statement dated 19 July 2005 (T15, p 51), stating that he had intentionally walked away from the conversation so that he was out of earshot and had not heard Mr Moi swear at Miss Hughes. Miss Wong said she only heard part of the conversation between Miss Hughes and Mr Moi and she preferred not to be involved in the matter (T19, p 60).

MR SHAW’S DECISION

Having investigated Mr Moi’s alleged breach of the Code of Conduct, Mr Shaw made the recommendations that Mr Moi receive a reprimand and a reassignment of duties as he had been found to have breached the Code of Conduct under s 13(3) of the Public Service Act. Section 13(3) provides that an APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment. Mr Shaw also found that there had been a breach of s 13(11) of the Act. Section 13(11) provides that an APS employee must at all times behave in accordance with APS values and the integrity and good reputation of the APS.
Mr Shaw had available to him, under the APS Code of Conduct, the sanctions of (s 15(1) of the Public Service Act):
·           termination of employment;
·           reduction of classification;
·           reassignment of duties;
·           deduction in salary;
·deduction from salary, by way of a fine which is 10 percent of annual salary; or
·           a reprimand.
(T17 and T13).

In the detailed report sent to Mr Moi dated 29 July 2004, Mr Shaw listed the mitigating circumstances which had resulted in the sanction of a reprimand and a reassignment of duties. These were:
(1)The Childcare Payment team attendance strategy was not in the spirit of the Centrelink Development Agreement 2002-2005;
(2)The Childcare Payment team attendance strategy was not in accordance with the employee’s responsibility as prescribed in the People Handbook;
(3)Over-zealous monitoring of Kin Moi’s attendance record was a contributing factor in him telling Linda Hughes to fuck off.

Mr Shaw concluded that had there not been any mitigating circumstances, the sanctions imposed would have been greater than a reassignment of duties (T19).

MEDICAL EVIDENCE BEFORE THE TRIBUNAL

DR. MUTTON

Dr Mutton of Health Services Australia provided two reports and opinions to the employer, Centrelink. (T-20, T-22 and T-29). He first saw Mr Moi on 31 August 2004 and diagnosed non-insulin dependant diabetes, sleep apnoea, irritable bowel syndrome and anxiety. He concluded that these medical conditions were unrelated to his employment and that Mr Moi retained the capacity to perform his duties as required, without restriction, on a full‑time basis. Dr Mutton had noted that Mr Moi was on occasions forgetful and this in itself might be due to his diabetes (which was poorly controlled) and his sleep apnoea. Further, Dr Mutton was of the opinion that Mr Moi’s stress / anxiety was such that he did not cope well with stressful situations and he recommended that such situations be avoided. On 7 October 2004, in response to a query from the employer, Dr Mutton recommended that Mr Moi undergo neuropsychological testing and recommended that this be done by Miss Vanessa McKay. Dr Mutton was later provided with the result of Miss McKay’s testing. This did not change his opinion, as the testing did not identify any particular neuropsychological deficit. The testing did however confirm slowness in processing data, which could be secondary to anxiety related to the working environment. Dr Mutton recommended that Mr Moi should work at a site closer to home as this may benefit his lethargy, which he attributed to sleep apnoea.
Dr Mutton reviewed Mr Moi on 17 January 2005. This review consultation had been precipitated by Mr Moi’s development of pain in the neck and right shoulder, which he attributed to repetitive work undertaken at the Heidelberg Branch of Centrelink. Dr Mutton noted that Mr Moi’s pain improved overnight and improved greatly on weekends. On examination Dr Mutton stated that Mr Moi appeared depressed. Examination revealed a moderate reduction in the range of movement of the cervical spine and well-preserved shoulder movement with only a slight loss of abduction on the right. Dr Mutton viewed the CT scan of the cervical spine, performed on 4 January 2005, and agreed with the report which stated there was spondylitic lipping present on all the disc margins but that the disc spaces were normally preserved. Osteophytes protruded into the vertebral canal and prominent osteophytes at C4-5 in the anterior aspect were causing slight compression of the cord. Similar, but less marked changes were present at all other levels. The spine otherwise appeared normal and the intervertebral foramina were not narrowed. Dr Mutton diagnosed musculoskeletal difficulties relating to the neck and right shoulder and a deepening of depression. This depression, he said, may have resulted in a slowing of mentation, which might account for Mr Moi’s deteriorating work performances as identified. Dr Mutton concluded that Mr Moi retained, from a cognitive viewpoint, his capacity to undertake all his duties. He recommended a programme of exercise at a gymnasium or physiotherapy for his neck and shoulder symptoms. Dr Mutton determined that the CT changes as previously described were long-standing and preceded the development of symptoms. He advised that Mr Moi seek further treatment and medication for his depression.

MISS V MCKAY, PSYCHOLOGY REGISTRAR OF HEALTH SERVICES AUSTRALIA

At the request of Dr Mutton, Miss McKay performed a psychological assessment including extensive psychometric testing. She obtained a detailed history which is reported at T21. The neuropsychological testing did not reveal any cognitive or functional reason that Mr Moi could not perform his duties. He demonstrated an over-all general cognitive ability in the average range of intellectual function. There was however a significant weakness in his processing speed. Mr Moi did demonstrate symptoms of anxiety and some depression with heightened anxiety levels over the last 24 months. Miss McKay assessed Mr Moi as being cognitively fit for his current employment. She also recommended that he work at an office closer to his home; that his workload be temporarily reduced; that Mr Moi commence low dose antidepressant therapy and that a further neuropsychological review testing take place in 6‑12 months time.

DR B GOH

Dr Goh is Mr Moi’s general practitioner and has been for the past nine years i.e. since 1997. She provided two reports, dated 22 October 2004 (T25) and 20 March 2005 (T36). In addition, Dr Goh’s medical records regarding Mr Moi were summonsed and provided to the Tribunal (Exhibit R2).
In her first report Dr Goh listed Mr Moi’s conditions as diabetes with onset in April 2001 and sleep apnoea diagnosed on 18 October 2001. There followed various symptoms of diarrhoea, nervousness, shortness of breath and headaches associated with tiredness and lethargy. The latter symptoms had been investigated and no organic cause found. She later concluded that these symptoms were psychosomatic and related to stress at work. Dr Goh’s more detailed report of 20 March 2005 again referred to Mr Moi’s multiple symptoms all of which were investigated and found to have no organic cause.
On 1 October 2005 Mr Moi, for the first time, reported his stress at work. On 10 December 2005 Mr Moi presented with back ache, shoulder and neck ache and was ‘emotionally fragile’. He told Dr Goh that he felt his pride had been hurt when he was transferred to Heidelberg to work as a mail sorter and in addition the physical demands of this work had impaired his health. On 22 December 2004 Mr Moi requested that Dr Goh refer him to a psychiatrist. He also informed her that he had applied for a redundancy package. At the time he reported suicidal ideation. Dr Goh diagnosed a right should rotator cuff strain, cervical spine degeneration (given the findings on CT scan) and made an urgent appointment for Mr Moi to see a psychiatrist. Dr Goh expressed the opinion that Mr Moi’s conditions were consistent with the stated cause i.e. that his depression was caused by workplace stress and his right shoulder and neck pain were due to repetitive work that he had undertaken since November 2004. Dr Goh assessed Mr Moi’s prognosis as good provided he continued counselling with the psychiatrist, his medication and physiotherapy for his neck and right shoulder.
Dr Goh’s clinical notes support her opinions expressed in these two letters. The clinical notes include letters from various specialists to whom she referred Mr Moi. Associate Professor McCorey had seen Mr Moi on 27 January 2005 regarding his neck and shoulder pain and agreed with the MRI findings of multiple level degenerative changes but no specific neuro-compression. Associate Professor McCorey referred Mr Moi for physiotherapy. On review on 14 April 2005 Associate Professor McCorey noted that Mr Moi’s neck pain was less and steadily improving. He believed that the right shoulder pain was a separate issue and should be assessed by a rheumatologist. He arranged a referral to Associate Professor Hall. Dr Hall saw Mr Moi on two occasions and provided reports dated 21 June 2005 and 16 August 2005 (Exhibit R2). On the first occasion, based on the history, examination and investigation, Dr Hall decided that Mr Moi’s symptoms related to his cervical spine degenerative changes. He prescribed the anti-inflammatory drug Mobic 15 mgs per day. On review on 16 August 2005 Mr Moi’s pains were now localised to his neck and trigger point injections around the right shoulder girdle had relieved some of the pain and tenderness but the benefit had worn off after a period of two or three weeks.
Dr Hall concluded that most of Mr Moi’s problems related to what he called his Workcover claim. He expressed the opinion that the critical issue for Mr Moi was to achieve a resolution of his Workcover claim. Dr Hall did not think there was anything more that he could offer in the way of treatment and advised a rehabilitation program.

DR SMITH – PSYCHIATRIST

Dr Smith, a psychiatrist with Health Service Australia, saw Mr Moi on 20 March 2005 at the request of Centrelink. Dr Smith obtained the history that Mr Moi had felt mildly distressed at work for the past few years. Dr Smith recorded that Mr Moi was symptom free and functioning well until early 2004. During this period he was harassed by a team leader and in June 2004 stated he “blew up”. Dr Smith stated Mr Moi’s significant psychiatric symptoms from that time i.e. mid June 2004. Dr Smith recorded the pre-existing symptoms of nervous cough and diarrhoea and the development of right shoulder and neck pain after Mr Moi’s transfer to Heidelberg. Mr Moi was taking 10 to 15 mgs of Mobic per night as prescribed by Dr Wong. Dr Smith recorded the presence of moderate obsessional tendencies in that Mr Moi was meticulous and fastidious by nature, his self-esteem had been considerably lowered and Mr Moi had rated his self-esteem at 2 to 3 on a scale of 1 to 10. In addition, he had feelings of helplessness and hopelessness. Dr Smith diagnosed a depressive disorder of 9 to 12 months duration with an onset after the episode of 24 June 2004. He regarded Mr Moi’s prognosis as guarded. In addition, Dr Smith found that Mr Moi had a ‘total occupational incapacity’ and that it was improbable that he would be able to undertake any other form of work, although he could possibly resume work after a further 6 months of treatment. Ongoing psychiatric treatment was recommended but a return to work program, at the present time, was considered to be likely to fail. Dr Smith advised that psychiatric re‑assessment should be undertaken in 3 to 6 months time (T34, p 115).

DR. WONG – PSYCHIATRIST

Dr Wong saw Mr Moi on referral from Dr Goh on 15 January 2005 and subsequently reviewed him at 2 weekly intervals until 16 March 2005. Dr Wong diagnosed a Major Depressive Disorder having taken a detailed history and performed a mental examination. Dr Wong commenced therapy with Zoloft at 50 mg per day, increasing if tolerated, and instructed Mr Moi on relaxation techniques. On 2 February 2005 the oral dose of Zoloft was increased to 100 mgs per day. Despite the medication, Mr Moi remained anxious and depressed. A further increase in the dose was not tolerated. Despite the side effects from Zoloft, Dr Wong encouraged Mr Moi to increase his dose to 200 mg per day.
Dr Wong diagnosed a major depressive disorder directly resulting from his workplace stress. His depression had been aggravated by the development of pain in the neck and right shoulder. Dr Wong recommended further psychiatric treatment and physiotherapy. Dr Wong predicted that Mr Moi would require psychiatric treatment for at least 6 to 9 months, if not longer, and that he was currently mentally unfit to work.

DR. TRIFILETTI

Dr Trifiletti is an occupational health physician employed by Health Services Australia. At the request of the employer she performed a work site visit on 24 March 2005 at the Centrelink, Heidelberg Customer Service Centre. She concluded that the Mail Team had a range of physical tasks with some low level handling of mail stamping using a date stamp. Employees could vary their postures and tasks were mixed. The keying in of data required was of a non complex low level variety.
Dr Trifiletti provided a further report regarding Mr Moi who she had seen on 10 March 2005. Dr Trifiletti took into account Dr Smith’s earlier assessment. Dr Trifiletti took an exhaustive history part of which is produced below:
MEDICAL HISTORY:
Mr Moi provided me with a very detailed and complex history which he states commenced in approximately 2004, in the context of perceived interpersonal attacks upon him in the workplace.
He reported that he had no past history of psychiatric symptoms at any time, although over the last two years has developed a range of physical symptoms for which no cause could be found. This included loose bowels, diarrhoea, abdominal pain, palpitations and chest pain. He states that he has had numerous investigations, including colonoscopy, gastroscopy and cardiac investigations, but has been found to have no cardiac or gastrointestinal disorder.
He reported that in 2004, within the Moreland Customer Service Centre where he was working, that he had difficulties with a particular staff member. He states that at Moreland there were two teams, and he was working at the Customer Service Level 2 at the time. Of the two teams, he states that the team leader of the team he was not part of “caused problems” for him.
But he reported a series of difficulties which included being scrutinised, being asked to account for his time which he felt was unnecessary, being unfairly accused of taking longer than normal for various breaks, and stating that there was a series of long term disputes with numerous emails to him, of the “please explain” variety which he felt were on the basis of minor incidents.
He states as a result of his diarrhoea, which became worse when under stress, that he would often have to leave his desk in order to go to the toilet, and he felt that she was trying to get him to account for his time, which he felt was an unnecessary level of scrutiny upon him.
He states that over many, many months the relationship difficulties escalated and on a particular day when he had neglected to put on his time sheet the time he had walked back into the office that she had stated that he had misconstrued the time by some 15 minutes. He states that he eventually ‘lost it’ and swore in retaliation after what he felt was months of petty, vindictive behaviour. He acknowledges that he swore in retaliation, and that this was atypical for him and it was not something he was proud of, and that he wished to apologise, however this then escalated the incident to a code of conduct and he was subsequently removed into his current position in the Mail Centre at Heidelberg.
He states over the latter half of 2004, that he had developed symptoms of mood disturbance, trouble with sleep, somatic symptoms as reported, irritability, poor concentration and fatigue. (T38, p 135)
Dr Trifiletti also obtained a history of right shoulder and neck pain which had occurred after Mr Moi’s transfer to Heidelberg and assignment to repetitive manual tasks. On examination Dr Trifiletti found Mr Moi to be an extremely depressed man with an absence of spontaneous affect and speech. He was noted to have psychomotor retardation, slowness of speech and depressed affect. Examination revealed a slightly reduced range of movement of the cervical spine and normal painless range of movement in both shoulders. Dr Trifiletti noted the finding of CT scan of the cervical spine and ultra sound of the right shoulder.
Dr Trifiletti agreed that Mr Moi was suffering from clinically severe depression which was disabling. This level of depression precluded all employment. With respect to his degenerative spinal disease, ongoing treatment was required as was ongoing psychiatric treatment. Dr Trifiletti advised against a rehabilitation program given the level of Mr Moi’s depression although she anticipated that he would improve within a period of 3 months. She recommended a return to work program over a period of 12 weeks once Mr Moi’s depression was controlled. Dr Trifiletti acknowledged that Mr Moi had experienced significant difficulties in the workplace in the previous 12 months.

RELEVANT LEGISLATION

Section 4 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) defines an injury as:
(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, this employment…
Section 14 of the SRC Act provides for compensation for injury. Section 16(1) of the SRC Act relates to compensation in respect of medical expenses etc:
14.(1)   Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(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.
…
16(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.
Section 19 of the SRC Act refers to compensation for injuries resulting in incapacity and in particular 19(2) provides:
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NEW - AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
The Public Service Act which provides the Code of Conduct for public servants (Exhibit T4) has already been addressed in the bulk of this decision as have the sanctions available under s 15(1) of the Public Service Act.

SUBMISSIONS

The respondent submitted that Mr Moi had not provided sufficient material evidence to persuade the Tribunal that his injury, a depressive disorder, preceded the disciplinary action arising from his breach of the Code of Conduct on 24 June 2004. In particular, Drs Goh and Wong and Miss Soemawinata had not been called to give evidence and the respondent was therefore deprived of the opportunity to test the doctors’ opinion and Miss Soemawinata’s knowledge of Mr Moi’s work performance, the monitoring strategy and whether Mr Moi was subjected to stress.
Mr Ferwerda contended that Mr Moi had reconstructed the events of the past to assist his claim and that there was little evidence to support Mr Moi’s claim of workplace stress prior to 24 June 2004. He submitted that the evidence before the Tribunal did not show any impairment of mental function prior to this date, while there was evidence that Mr Moi’s cognitive functions diminished after his re‑assignment to duties at Heidelberg.
Mr Ferwerda submitted that there was evidence that Mr Moi was suffering from neck pain for many months prior to re-assignment to Heidelberg and that there was medical opinion that his neck and shoulder symptoms were psychosomatic in origin and related to the stress reaction he developed after 24 June 2004 (Exhibit R2).

As the disciplinary action had been appropriate and Mr Moi’s evidence was unreliable, Mr Ferwerda submitted that the decision under review should be affirmed.
Mr Moi stated that he had been unwell for many months and possibly 1 to 2 years before the events of 24 June 2004, but neither he nor his general practitioner recognized that he was suffering from depression until he told Dr Goh of his workplace stresses in October 2004. Prior to June 2004 his many generalised symptoms of diarrhoea, lethargy, headache and chest pain had been investigated and no organic cause found. Drs Smith and Wong had diagnosed a depressive disorder which Dr Smith attributed to the events of 24 June 2004 and Dr Wong believed predated this event. Treatment with Zoloft was commenced in December 2004 following these psychiatric opinions.
Mr Moi maintained he had not suffered sharp neck pain prior to November 2004 and that the onset of this pain was associated with the repetitive manual work he performed at Heidelberg Centrelink Office.
Mr Moi challenged Mr Shaw’s recollection of the telephone call Mr Moi had made to him and insisted he had sought transfer to Box Hill while he was still at the Moreland Office. (The Tribunal does not consider this relevant to the decision).

TRIBUNAL’S DELIBERATIONS ON THE EVIDENCE

The Tribunal found Mr Moi to be a credible and truthful witness. He had suffered numerous somatic symptoms all of which can be ascribed to a depressive state and all of which were very thoroughly investigated with no physical or organic cause being found. He has admitted that his concentration deteriorated from early 2004 and that this had contributed to a diminished work performance during that year.
Miss Hughes “report on Kin Moi and attendance record” (T7, p30) indicates that monitoring of Mr Moi’s attendance commenced in January 2003. The attendance strategy for the Childcare Payment team was to start on 1 March 2004 and continue for 3 months, with staff being monitored twice daily (T6, p 28). It continued beyond the 3 months period. In March 2004 Miss Hughes recorded what appear to be failures by Mr Moi to record his attendance on 5 occasions; in April on 8 occasions; in May on 13 occasions and in June, until 24 June 2004, on 13 occasions. It would appear that each of these failures to record attendances generated e-mails to Mr Moi with copies to Miss Soemawinata and probably Mr Vurtel. Mr Shaw has described this monitoring to be not only “over the top” but also that “Linda Hughes was not justified in trying to make Kin Moi record meal breaks each day at the time they occurred and a more reasonable approach on her behalf may have lessened the potential for conflict” (T11, item 5.3, p 39). Mr Shaw also determined that the Centrelink Handbook does not require staff to record their meal breaks at the time they occur.
The Tribunal has presumed that the practise of e-mailing between team leaders and their staff is undertaken in order to provide electronic recording of the communications, even though the parties are situated less than 4 metres apart, and that the need to read and reply to such e-mails is time consuming when each e-mail is sent to multiple computer sites.
The Tribunal agrees with Mr Shaw that the monitoring of breaks “was over the top” and not required by the Centrelink Handbook or the CDA. In contrast to Mr Shaw’s decision that this was not harassment nor did it single out Mr Moi, the Tribunal finds that such monitoring and the numbers of e-mails sent particularly in June 2004 would be stressful to many persons be they Centrelink employees or employed elsewhere.
Mr Moi has not denied, although he initially doubted, that he told Miss Hughes to “just fuck off” on 24 June 2004. Mr Moi was born and raised in Malaysia and worked as a Treasury official until he migrated to Australia in 1985. He is of Chinese ethnicitity. He has told the Tribunal that it is not his habit to use swear words. However, the Tribunal has noted in the course of the hearing that when agitated Mr Moi frequently said “bloody” and less frequently ”shit” . He was totally oblivious of his swearing until the Tribunal commented upon it. Mr Moi appears to have adopted the Australian vernacular. The Tribunal does not doubt that he told Miss Hughes to “just fuck off”, but does doubt that he was aware of his use of this so-called swear word.
Mr Moi has proven cervical spine degenerative disease which he claims was minimally symptomatic or asymptomatic before his re-assignment to repetitive manual duties. Drs Mutton, Trifiletti and Associate Professors McCorey and Hall’s reports suggest that Mr Moi’s neck pain was of up to 12 months duration, preceded his re-assignment and had improved with the cessation of repetitive tasks. In his evidence before the Tribunal Mr Moi acknowledged that his symptoms had improved. They should further improve if the medical opinions are correct.
The Tribunal finds that the monitoring of Mr Moi’s attendance times at work was excessive, not justified by the CDA or the Centrelink Handbook requirements and equated to an ongoing stressor in his workplace resulting in a major reactive depressive disorder. This depression, although not being recognised or diagnosed as such despite being symptomatic, resulted in a diminution in Mr Moi’s work performance and precipitated the incident of 24 June 2004.
The Tribunal accepts that in making his statement to Miss Hughes, Mr Moi breached the Public Service Act Code of Conduct and that Mr Shaw, in his decision to sanction Mr Moi and re-assign him to other duties, appropriately considered the mitigating circumstances.
Mr Moi’s neck and right shoulder pain pre-existed his reporting of major symptoms in November or December 2004, but were aggravated by the repetitive work imposed as a disciplinary action. These symptoms have almost completed resolved and medical evidence is to the effect that they will resolve.
The Tribunal finds that Mr Moi suffered a major depressive disorder secondary to workplace stress bordering on harassment and has done so from at least January 2004. The respondent is liable under s 14, s 16 and s 19 of the SRC Act to compensate Mr Moi. The matter is remitted to the respondent to determine the compensation payable. The respondent is to pay Mr Moi’s legal costs, if any.

I certify that the seventy‑seven [77] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd) Felicia Amoroso
Clerk

Dates of Hearing:  5‑6 June 2006
Date of Decision:  22 August 2006
Solicitor for the applicant:            Nil – Self‑represented
Counsel for the respondent:        Mr J. Ferwerda
Solicitor for the respondent:        Australian Government Solicitor