Montesinos and Comcare
[2006] AATA 706
•17 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 706
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/382
GENERAL ADMINISTRATIVE DIVISION ) Re JAN MONTESINOS Applicant
And
COMCARE
Respondent
DECISION
Tribunal
J.W. Constance, Senior Member Dr M.D. Miller AO, Member Date 17 August 2006
Place Canberra
Decision The decision of Comcare made 11 November 2004 is set aside and in substitution it is decided that as at the date of this decision Comcare is liable to pay to Ms Montesinos compensation in accordance with the provisions of the Act in respect of the injury of Adjustment Disorder with Anxiety and Depression suffered by her on 10 March 2004.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – Applicant employed as custodial officer – Series of workplace injuries causing distress – Adjustment Disorder with anxiety and depression – Whether suffered as a result of failure to obtain a promotion or benefit – Whether material contribution of employment.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Canute (2005) 148 FCR 232
Hart v Comcare (2005) 145 FCR 29
REASONS FOR DECISION
17 August 2006
J.W. Constance, Senior Member
Dr M.D. Miller AO, Member INTRODUCTION
1. Ms Montesinos has made her career in corrective services in Tasmania and the ACT. She began as a part time Prison Officer at Risdon Women’s Prison in Tasmania and during her time there rose to the position of Acting Deputy Superintendent. In 1996 she began working at the Belconnen Remand Centre in the ACT and the next year obtained the rank of Custodial Officer Grade 2.
2. During Ms Montesinos’ period of employment in ACT Corrective Services a number of incidents in her workplace caused her to suffer considerable distress and subsequent illness. One of the medical practitioners who gave evidence described Ms Montesinos as “a perfectionist, well-disciplined and sociable, with high standards” and as a person who “values equity and justice and has a social conscience.” [1] Unfortunately for Ms Montesinos, and with serious detrimental effect to her health, these characteristics were not always shared by some of her superiors. She applied to Comcare for compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for an acute reaction to stress as a result of these incidents. Comcare rejected the claim.
[1] Ex. A14, p.276.
3. Ms Montesinos has sought a review of Comcare’s decision. For the reasons which follow we have decided the decision should be set aside.
FACTS
4. Unless otherwise stated the following findings of fact are based on the evidence of Ms Montesinos. Having observed her giving evidence and having considered the numerous documents which corroborate what she has said we accept her as a truthful witness. Ms Montesinos gave her evidence carefully and clearly and had thoroughly prepared herself to do so.
5. Ms Montesinos commenced employment with the ACT Department of Justice and Community Safety as a Custodial Officer on 16 May 1996. Her present substantive rank is Custodial Officer Grade 2. During her employment Ms Montesinos changed her surname from “Shaw” to “Montesinos” and for this reason some documents referred to may relate to “Jan Shaw”.
6. At the time of her employment by the Department Ms Montesinos was a very experienced and successful custodial officer. Previously she had been employed by the Tasmanian Department of Justice and as already mentioned, had been promoted to the position of Deputy Superintendent of the Risdon Women’s Prison.[2]
[2] Ex. A8.
7. From about 1998 Ms Montesinos experienced increasing problems with the management of the Corrective Services section of the Department. She was anxious to tell us of many instances she saw as examples of mismanagement within the system. Whilst we accept that the incidents happened as she described and we understand her concerns, it is not the Tribunal’s role to review the management of the Remand Centres. We are satisfied, however, that there were several incidents in her workplace which caused Ms Montesinos to suffer varying degrees of distress which caused her to develop the disease of Adjustment Disorder with Anxiety and Depression. We outline these below. These are also the incidents which Comcare has argued are relevant to the determination of Ms Montesinos’ claim.
The overtime issue 1998-2000
8. On 20 October 1998 Ms Montesinos received a letter from her Deputy Superintendent, Mr Gordon Collins.[3] This letter advised Ms Montesinos that she had a substantial amount of overtime to be completed by the end of that year and failure to complete this overtime may result in action to recover money she had been prepaid. Ms Montesinos replied to Mr Collins that she had completed her overtime obligations some months previously and in fact was owed money for additional overtime worked. Correspondence ensued [4] but the matter was not resolved and Ms Montesinos lodged a grievance on 17 October 1999. The correspondence indicates that the Department dealt with this issue poorly. Ms Montesinos was eventually paid what was rightfully owing to her in August 2000. No explanation for the delay has been given. Ms Montesinos was annoyed by this process and believed that it reflected badly on her professionalism.
[3] Ex. A14, T8, p. 19.
[4] Ex. A14, T10 - T20.
9. Ms Montesinos has argued that this issue influenced her perception of the Department’s ability to manage staff and management’s unjustified perception of her. This may be true but we are not satisfied on the evidence that this issue contributed to the development of her illness. In this regard we accept the argument of Comcare that it was “insufficiently significant in her developing mental condition.” [5]
[5] Written Submissions Lodged by the Respondent, 29 May 2006, p. 10.
The higher duties issue 1998-2000
10. In February 1998 a number of officers, including Ms Montesinos, were ranked in an Order of Merit following interviews to determine which officers would be allocated to higher duties. Ms Montesinos was ranked second. In 1998 a CO3 position became vacant. At the time Ms Montesinos was the next ranking officer in the Order of Merit [6] but she was not appointed to the position.
[6] Ex. A14, T6.
11. In June 1999 Ms Montesinos and others were interviewed in relation to the performance of higher duties in a CO3 position. Although the first ranked officer did not take up the position Ms Montesinos was not rostered to it. However she was rostered to act in a CO3 position subsequently from time to time.
12. In early 2000 a Custodial Officer Grade 1 was rostered to act in a CO3 position. Ms Montesinos (CO2) was available to be rostered to this position but was not. Her request that she be rostered to this position was refused. On 18 January 2000 CO3 Scanlon stated to a hand-over meeting of custodial officers (including Ms Montesinos) words to the effect, “No matter what my opinion of you [Ms Montesinos] you should be CO3, that sucks.” [7] We accept Ms Montesinos statement that this was humiliating as it was said in front of team members. It also supports the view of Ms Montesinos as to the correct protocol which should have been followed to which we refer in the next paragraph.
[7] Transcript of Proceedings, 13 October 2005, pp 294 - 295.
13. On 31 January 2000 Ms Montesinos wrote to the Manager, Human Resources stating her dissatisfaction with the allocation of higher duties.[8] She did this because she was “under the impression that the superintendent and deputy superintendent were not going to deal with the protocol as I and others understood, and the CO1 would continue to be rostered above me.” [9] Ms Montesinos described the effect upon her as follows:
“Now, that is a very marginalising experience to have that recorded in your workplace. It’s very demeaning to be set aside in such a ranked environment where……it was understood that a substantive CO2 would act as the CO3.” [10]
[8] Ex. A14, T44.
[9] Transcript of Proceedings, 13 October 2005, p. 297.
[10] Transcript of Proceedings, 13 October 2005, p. 297.
14. On the basis of this evidence we are satisfied that it was the management process which caused Ms Montesinos to feel she had been humiliated and demeaned, not the failure to obtain the higher duties. Even if the failure to obtain the higher duties did cause her distress we are not satisfied on the evidence before us that this contributed to the illness which is the subject of her claim for compensation.
The direction given by Deputy Superintendent Collins on 18 September 1999.
15. On 18 September 1999 Ms Montesinos was the Duty Chief at the Belconnen Remand Centre and as part of her duties checked the staffing roster for the following day. The roster had been prepared by her superior officer, Deputy Superintendent Collins. She observed that the rostering did not comply with a Memorandum of Understanding with the relevant Union. To remedy this she cancelled the shift of a casual employee and replaced this casual employee with a permanent officer. The casual employee whose shift she cancelled was the wife of Mr Collins. Ms Montesinos telephoned Mr Collins and informed him of the action she had taken and her reasons for so doing. Subsequently Mr Collins telephoned Ms Montesinos and directed her to operate the roster as prepared by him. Ms Montesinos requested a copy of this direction in writing. Mr Collins refused, despite Ms Montesinos pointing out that this would contravene the MOU with the Union. Ms Montesinos recorded the conversation in the Station Log [11] but did not reinstate the roster as drawn by Mr Collins. On 24 September 1999 Ms Montesinos provided a written report of the incident to her superior, Superintendent Folpp.[12]
[11] Ex. A14, T26.
[12] Ex. A14, T29.
16. On 14 January 2000 Ms Montesinos received a written assessment report by Mr Collins carried out as part of her employer’s ongoing assessment of staff.[13] The report contained the statement:
“Miss Shaw refused to comply with direction given to her by a senior officer on one occasion during the year.”
[13] Ex. A14, T45.
Ms Montesinos refused to sign the assessment report and requested an interview with the Superintendent. By a letter delivered to the Superintendent on 25 January 2000 [14] Ms Montesinos requested that the comment be removed from her assessment as she did not acknowledge its veracity.
[14] Ex. A14, T41.
17. Ms Montesinos was very concerned to have it acknowledged that she had not acted improperly in refusing to comply with the direction and that the reference to this in her assessment be removed. She made a number of representations in this regard. By letter of 7 February 2000 [15] Superintendent Folpp advised Ms Montesinos he “concurred with the assessment” and “advice given is that the matter [of the failure to follow a direction] will go no further……”. Understandably, Ms Montesinos was not satisfied with this response and she continued her efforts to have what she quite properly saw as her unfair treatment remedied.
[15] Ex. A14, T46.
18. By letter of 8 March 2000 Corrective Services advised Ms Montesinos that the Director had requested advice from the Government Solicitor “to inform considerations as to whether or not you acted legally and appropriately, as you have suggested”.[16] The letter also informed Ms Montesinos that it was expected the advice would be available shortly and the Director would then be able to respond to her earlier correspondence. Unbeknown to Ms Montesinos in December 1999 Corrective Services had received advice from the Government Solicitor that Ms Montesinos had not failed to comply with a lawful and reasonable direction of Mr Collins as the direction was not reasonable. This letter of advice was not disclosed to Ms Montesinos until September 2004. This disclosure was after the claimed compensable injury had occurred. It is relevant, however, in deciding the veracity of allegations made by Ms Montesinos regarding her treatment.
[16] Ex. A14, T51.
19. Ms Montesinos continued her efforts to have her concerns addressed. In November 1999 she made disclosures to the Ombudsman under the Public Interest Disclosure Act 1994 regarding contractual and administrative matters at the Belconnen Remand Centre. By letter of 11 January 2001 [17] the Ombudsman advised that after investigation he found that the allegation that Mr Collins “had interfered inappropriately with rostering arrangements for custodial officers to advantage his wife was substantiated.” He recommended that the adverse comment on Ms Montesinos’ performance appraisal be removed.
[17] Ex. A14, T67.
20. It was not until Ms Montesinos received a letter shortly after 7 May 2001 that she was advised of the Government Solicitor’s advice that she had not acted illegally in relation to the direction given to her.[18] The letter did not state that she had acted legally and appropriately as Ms Montesinos had requested. The letter did include the following advice:
“The……comment placed on your work performance assessment for the period December 1998 to December 1999 was deleted from your assessment on 29 March 2001. Therefore no record of this comment is recorded on your individual assessment file.”
On 3 May 2001 Ms Montesinos saw a copy of her assessment and discovered that the comment had simply been ruled through in a manner which left it clearly legible to anyone reading the file. The file had been noted by the Superintendent as follows:
“ * Removed as per Ombudsman’s direction 29/3/01” [19]
[18] Ex. A14, T70.
[19] Ex. A14, T45.
On 21 November 2003 Ms Montesinos wrote to Mr Keady, the Chief Executive Officer of the Department, in relation to her ongoing concerns.[20] In a letter of 4 December 2003 Mr Keady conceded “the copy of the assessment …….does not adequately eliminate the notation.” He said in the letter he had directed the assessment be further amended.
[20] Ex. A14, T79.
21. Ms Montesinos was still trying to obtain a satisfactory response to her concerns when she became ill in March 2004 and we are satisfied the manner in which she was treated by her employer in her endeavours to have these matters addressed caused her considerable distress and contributed to her illness. We will refer to the medical evidence in this regard later in these reasons.
The incidents of 25 December 1999 and 5 January 2000
22. In November 1999 Ms Montesinos had been acting in higher duties as a CO3. In this role, she had been responsible for organising the routine for Christmas Day including giving instructions as to the provision of lunch for the detainees. These instructions were in accordance with those previously given by the Superintendent.
23. On 25 December 1999 Ms Montesinos was on duty as CO2 of the Security Block at the Belconnen Centre. Her position was subordinate to Acting CO3 Scanlon. Later that day Mr Scanlon made the following entry in the Control Room diary, which was available to other staff members:
“The shift will be run my pissing way not yours Jan – back off !” [21]
[21] Ex. A14, T35.
This comment related to the arrangements for lunch. Mr Scanlon later recorded in the diary a brief apology for his comment.[22]
[22] Ex. A14, T35.
24. On 5 January 2000 there was a disagreement between Ms Montesinos and Acting CO3 Scanlon as to a direction given by Mr Scanlon to Ms Montesinos to telephone the father of one of the detainees. This incident is referred to in a report to the Superintendent of 5 January 2000.[23] During an exchange between the two, Mr Scanlon repeatedly said “you will obey my instructions.” [24]
[23] Ex. A33.
[24] Ex. A33.
25. The incident of 5 January 2000 caused Ms Montesinos to feel distressed. On 8 January 2000 she felt ill and recorded in her diary that she felt stressed by Mick [Mr Scanlon] and fearful of being given unlawful directions. She felt he had placed her in a position of “obey or else”. She felt cold inside and was tearful.[25] We accept this as an accurate description of her condition at that time.
[25] Ex. A33.
26. Ms Montesinos consulted Dr Lee on 8 January 2000 and he reports that she was feeling “very stressed” about incidents at work.[26] He particularly related her feelings of stress to the September 1999 direction issue. Dr Lee certified Ms Montesinos unfit for work on 8 and 9 January 2000. We accept his evidence.
[26] Ex. A14, T111.
The Studybank issue – 1999 to 2000
27. In 1999 Ms Montesinos applied to her employer for study leave on two occasions. She received no acknowledgement of these applications. She again applied in 2000 and this application was refused.[27] Some financial assistance was approved but leave to attend examinations was not. Ms Montesinos was dissatisfied with this outcome and an issue arose as to the validity of the approval of financial assistance without the approval of leave. Ultimately she took recreation leave to attend the examinations.
[27] Ex. A22.
28. Again, it appears that Ms Montesinos managed this issue satisfactorily and although she did not achieve the outcome she desired we are not satisfied on the evidence that it contributed to her illness.
Meeting of 3 November 2000 following the Women in Corrections Conference
29. On 31 October 2000 Ms Montesinos presented a paper at the Women in Corrections conference in Adelaide. Prior to attending the conference she applied to her employer for financial assistance and this was refused. Ms Montesinos paid her own expenses. About a week before the conference an issue arose between Ms Montesinos and her employer as to whether Ms Montesinos was representing her employer at the conference.
30. Ms Montesinos attended a meeting with Mr Ryan, Director of ACT Corrective Services, on 3 November 2000 at Mr Ryan’s request. At that meeting Ms Montesinos’ attendance at the conference was discussed. Mr Ryan was adamant that Ms Montesinos had not represented the Department at the conference, with which Ms Montesinos agreed. Ms Montesinos described her feelings immediately after the meeting as follows:
“I felt devalued, I felt, well, this guy is supposed to be dealing with something as a manager and he’s being aggressive to me, what – as far as I could ascertain I had done nothing to deserve aggressive management. I’d attended the meeting as I should have in good faith to discuss the conference. I thought perhaps he was going to refer my application for assistance and comment on whether that was appropriate or not but was actually castigated in that meeting…[28]
[28] Transcript of Proceedings, 13 October 2005, p. 326.
We accept this evidence as to the effect of the meeting on Ms Montesinos.
31. Counsel for Comcare has argued that the failure of Ms Montesinos to obtain the agreement of her employer to meet some or all of her expenses of attending the conference was an operative factor in the development of her illness. Whilst Ms Montesinos did seek reimbursement of her expenses we are satisfied that the refusal of her request did not contribute to her distress or subsequent injury. It was the manner in which she was treated by Mr Ryan in relation to her attendance at the conference and her presentation of the paper which caused her to feel the way she has described.
Recreation leave application 2003-2004
32. In late 2003 Ms Montesinos decided to request recreation leave for a period in May 2004. She checked with the roster clerk that leave time was available for the period she sought and was told that it was. On 22 December 2003 she submitted the necessary written application for the leave [29] in accordance with the Department’s guidelines.[30] In January 2004 the application form was returned to Ms Montesinos through the internal mail with an attached note which read “who is this person?” The application had not been dealt with. The leave application had been made in the name “J.M.Montesinos”. Ms Montesinos had previously been known by the surname “Shaw” but she had informed Deputy Superintendent Giucci of her change of name before she lodged the application. Mr Giucci was the officer responsible for dealing with the application. Taking into account that the application bore Ms Montesinos’ AGS number and Pay Centre number and that the form was returned to Ms Montesinos, we are satisfied that someone within the organization failed to properly process the request and intended it to cause Ms Montesinos some distress.
[29] Ex. A55.
[30] Ex. A56.
33. Mr Giucci gave evidence but did not adequately explain the delay in processing Ms Montesinos’ request. We accept Ms Montesinos’ evidence, supported by documentation,[31] that in a previous instance (in mid-July 2002) she was told by her employer that her leave forms had been misplaced when in fact they had not. We are satisfied that this earlier event contributed to Ms Montesinos’ anxiety concerning the manner of processing her December 2003 request.
[31] Ex. A3.
34. Ms Montesinos resubmitted her request for leave and on 3 March 2004 she received written notification that her request had been denied. There was no explanation given for this decision at the time. Later the roster clerk advised her that after she initially submitted her request the guidelines as to the number of officers who could be granted leave at any one time had been changed. Ms Montesinos understood this to be the reason her request was not approved.
35. On the basis of the medical evidence to which we refer in the following paragraphs we are satisfied that the manner in which Ms Montesinos’ application was dealt with (rather than the fact her application was refused) caused Ms Montesinos distress which contributed to her illness.
MEDICAL EVIDENCE
Dr Lee
36. Dr Lee has been Ms Montesinos’ general practitioner since September 1993. She has consulted him on many occasions. Dr Lee has provided reports dated 15 July 2004 and 6 October 2004 [32] and gave evidence. He is an experienced practitioner and has been able to assess Ms Montesinos on numerous occasions over a long period. With the exception of the expression of an opinion which is irrelevant to the issues before us, Comcare does not dispute the opinions expressed by Dr Lee. We accept his evidence and rely upon the matters set out in the following paragraphs.
[32] Ex. A14, T111 & T127.
37. On 27 November 2003 Dr Lee recorded a consultation with Ms Montesinos in which she referred to her ex-boss having returned to work and again being her superior officer. He also recorded that she complained of feeling a cold shiver at work, of losing sight, feeling pressure in her head and being unable to concentrate. In Dr Lee’s opinion this condition was related specifically to events in the workplace.[33]
[33] Transcript of Proceedings, 24 March 2006, p. 703.
38. Ms Montesinos consulted Dr Lee on 8 January 2004 which was shortly after the incidents on 25 December 2003 and 5 January 2004. Dr Lee recorded in his notes “stress about Christmas Day arrangements.” In giving evidence he confused the rostering incident of September 1999 and December but he did recall that Ms Montesinos was fairly distressed because she had been reprimanded for disobeying a senior officer for doing something she believed to be correct.[34] In his report of 15 July 2004 [35] Dr Lee specifically refers to the incident in September 1999 as being a cause of the stress being suffered by Ms Montesinos in January 2004.
[34] Transcript of Proceedings, 24 March 2006, p. 699.
[35] Ex. A14, T111.
39. On 11 March 2004, eight days after she was told that her leave request for May 2004 was refused, Ms Montesinos again consulted Dr Lee. On that occasion he found Ms Montesinos to be “teary, shaky, visibly distressed and……unable to speak very clearly and clearly very distressed on that day.” [36] In his report of 15 July 2004 [37] he noted that Ms Montesinos was suffering from “insomnia, feelings of indignation, anger, anxiety and stress, manifested by tremor, tearfulness and hyperventilation.” He diagnosed her as suffering a “nervous breakdown” in that she was in such an emotional state that she was not able to think clearly and rationally or to perform logical functions. In his opinion Ms Montesinos was totally unfit for work. He stated that:
“The immediate precipitating factor appeared to be that the leave that she had applied for was denied and that she was asked to act n a capacity or location in which she was most uncomfortable.”
[36] Transcript of Proceedings, 24 March 2006, pp 694-5.
[37] Ex. A14, T111.
40. Ms Montesinos has not returned to work since 10 March 2004. In a report of 6 October 2004,[38] in response to a question raised by the Department as to his diagnosis, Dr Lee expressed the opinion that Ms Montesinos was suffering from “adjustment disorder/anxiety, anger, DSM IV diagnosis 309.28” and that she had suffered an emotional injury as a direct result of her employment at the Department. Dr Lee has been consulted by Ms Montesinos on twenty-four occasions in the twelve months up to 16 March 2006 and in his opinion she continues to suffer from the condition described.
[38] Ex. A14, T127.
Dr Veness
41. Dr Veness has been Ms Montesinos’ treating psychiatrist since September 2004. She was referred to Dr Veness by Dr Lee. Dr Veness diagnosis is that Ms Montesinos has an ongoing condition of Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.[39] In giving evidence Dr Veness confirmed his diagnosis. He also identified the following workplace stressors as having caused the condition: the claim that Ms Montesinos had not worked the required overtime, the rostering issue and the appointment of Mr Collins as Ms Montesinos’ supervisor.[40] In Dr Veness’ opinion Ms Montesinos is not fit to return to work.
[39] Ex. A14, T130, Report of 12 October 2004.
[40] Transcript of Proceedings, 24 March 2006, p. 716.
42. Dr Veness quoted the following statement by Ms Montesinos as really summarising the connection between the workplace stress and her condition;
“I always believed in the rules, always believed in the system, I protected the system, but the system didn’t want to be protected.” [41]
[41] Transcript of Proceedings, 24 March 2006, p. 717.
Mr Nomchong
43. Mr Nomchong, Clinical Psychologist, has treated Ms Montesinos since February 2002. He initially treated Ms Montesinos following her involvement in a motor vehicle accident but did note at the time of her first consultation that she was experiencing a problem at work in relation to her having changed a roster. Subsequently he diagnosed Ms Montesinos as suffering from “Adjustment Disorder with anxiety and depression…. as the result of workplace actions and is not part of any pre existing condition or situation”.[42] The causal features upon which he relied in making this diagnosis he stated as follows:
The causal features was the fact that Ms Montesinos was becoming alienated from work. She was being criticised by colleagues and she was the subject to rumour and innuendo, and she was meeting difficulty with her line management in day-to-day instructions. This increased level of tension and stress that she became subjected to over a protracted period of time. Eventually she began to develop the symptoms.[43]
[42] Ex. A14, T129, Report of 12 October 2004.
[43] Transcript of Proceedings, 24 March 2006, p. 731.
Mr Nomchong was specifically asked whether Ms Montesinos’ concern as to the denial of her leave request related to the process rather than the denial itself. He responded that she saw the denial as “just another indication of the kind of processes that [she had] been subjected to in the form of harassment which was what elicited [her] symptoms in the very beginning.” [44]
[44] Transcript of Proceedings, 24 March 2006, p. 732.
Dr Mickelburgh
44. Dr Mickelburgh, Consultant Psychiatrist, assessed Ms Montesinos in August 2004, that is, within six months of her last ceasing work. This assessment was at the request of her employer. Dr Mickelburgh diagnosed Ms Montesinos as suffering from Adjustment Disorder with Mixed Anxiety, Depressed Mood and Anger, Chronic.[45] It is important to note that Dr Mickelburgh described Ms Montesinos’ personality in the following terms:
“Ms Montesinos presented as a perfectionist, well-disciplined and sociable with high standards. She values equity and justice and has a social conscience.” [46]
[45] Ex. A14, T118, Report of 1 September 2004.
[46] Ex. A14, p. 276.
In the Doctor’s opinion Ms Montesinos’ condition was “a consistent reaction to the workplace stresses by a person of her perfectionist and obsessive character.” [47]
[47] Ex. A14, p. 277.
Concession by Comcare as to Ms Montesinos’ present medical condition
45. At the conclusion of the evidence Comcare conceded that Ms Montesinos presently suffers the condition of Adjustment Disorder with Anxiety and Depression and that this condition was apparent on 10 March 2004.[48] We are satisfied that this was an appropriate concession based on the evidence and we find accordingly. There was no concession as to the cause of this condition.
[48] Transcript of Proceedings, 24 March 2006, p. 733.
LEGISLATIVE FRAMEWORK
46. By reason of section 14 of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work. The relevant part of the definition of “injury” in section 4 is:
“(a) a disease suffered by an employee….
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.”
The definition of “disease” is “any ailment suffered by an employee…… being an ailment…… that was contributed to in a material degree by the employee’s employment ……”.
ISSUES
47. In view of the concession made the following issues require determination:
1.did Ms Montesinos’ employment contribute in a material degree to her Adjustment Disorder with anxiety and depression; and
2.if so, was the disease suffered by her as a result of the failure by her to obtain a promotion or benefit in connection with her employment?
DETERMINATION OF THE ISSUES
Did Ms Montesinos’ employment contribute in a material degree to her Adjustment Disorder with anxiety and depression?
48. If this question is answered “yes” the accepted condition or ailment comes within the definition of ‘disease” in section 4. In discussing a provision in the 1971 compensation legislation relating to the contribution of employment to an injury, the Full Federal Court in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 said “[t]he causal connection must be established on the probabilities and not left in the area of possibility or conjecture.” This statement was said to be not controversial by the Full Federal Court in Comcare v Canute (2005) 148 FCR 232. In that case the Court went on to say that
“…it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a "but for" test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be "more than a mere contributing factor" and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word "material" contained in the definition of "disease" in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of "material" and nothing more need to said about this issue.” [49]
[49] At p. 249.
49. Although Comcare has not conceded the causal link required by the definition of “disease”, the evidence that such a link exists has not been strongly contested. On the evidence of Ms Montesinos, Dr Lee, Dr Veness, Dr Mickelburgh and Mr Nomchong, we are satisfied that Ms Montesinos’ condition was contributed to in a material degree by her employment. Whilst there was some suggestion of other causes which may have contributed to the condition this evidence was very limited and inconclusive. We are satisfied that the causal connection is substantial and cannot properly be disregarded.
Was the disease suffered by Ms Montesinos as a result of her failure to obtain a promotion or benefit in connection with her employment?
50. This was the main issue of contention between the parties. It is clear that if the disease was suffered as a result of one of the excluded factors (whether wholly or in part) there is no “injury” within the meaning of the Act: Hart v Comcare (2005) 145 FCR 29.
51. Adopting the words of Dr Mickelburgh we are satisfied that Ms Montesinos is a perfectionist, well-disciplined and a person with high standards who values equity and justice and who has a social conscience. We make this finding on the evidence of the medical practitioners, the psychologist Mr Nomchong and from observing and listening to Ms Montesinos over a number of days as she gave her evidence.
52. As we have stated in relation to the particular incidents referred to earlier in these reasons, we are satisfied that it was the manner in which Ms Montesinos was dealt with by others within the Department, rather than the failure to obtain a promotion or a benefit, which caused her the distress which ultimately led to serious illness. This finding is based on the evidence referred to in the preceding paragraph. We also take into account that Ms Montesinos’ evidence in this regard is supported by what she wrote in her claim for compensation in April 2004. Question 20 on the form was “what started the chain of events that led to your injury or illness?” Ms Montesinos answered:
“inconsistent management, unresolved issue/s in workplace, lack of confidence in management support, protection of corrupt behaviour, administrative anomalies.” [50]
[50] Ex. A14, T100.
This response is consistent with her concern as to the observance of proper process rather than with the outcomes.
DECISION
53. The decision of Comcare made 11 November 2004 is set aside and in substitution it is decided that as at the date of this decision Comcare is liable to pay to Ms Montesinos compensation in accordance with the provisions of the Act in respect of the injury of Adjustment Disorder with Anxiety and Depression suffered by her on 10 March 2004.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member and Dr M.D. Miller AO, Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 1 September 2005, 28 September 2005, 5 - 6 October 2005, 13 October 2005,
25 November 2005, 21 – 24 March 2006.
Date of Final Submissions 28 June 2006
Date of Decision 17 August 2006
Representative for the Applicant Self
Counsel for the Respondent Ms L Walker
Solicitor for the Respondent Australian Government Solicitor
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