Nelson and Comcare
[2008] AATA 214
•19 March 2008
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 214
ADMINISTRATIVE APPEALS TRIBUNAL )
)N2006/1488 and
GENERAL ADMINISTRATIVE DIVISION ) 2007/1962
Re MICHAEL NELSON Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr I Alexander, MemberDate19 March 2008
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decisions under review.
...........[sgd]...............................
Ms N Isenberg
Senior Member
CATCHWORDS
Workers’ Compensation – claim employment contributed to a condition in a material degree – entitlement to compensation for medical treatment – incapacity payments – psychological injury
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – ss 4, 14, 16, 19, 20, 21, 21A
CASE LAW
Comcare v Mooi (1996) 69 FCR 447
Comcare v Sahu-Khan [2007] FCA 15
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626
Wiegand v Comcare Australia [2002] FCA 1464
Canute v Comcare (2006) 226 CLR 535
REASONS FOR DECISION
19 March 2008
Ms N Isenberg, Senior Member
Dr I Alexander, Member
INTRODUCTION
1. Mr Nelson (“The Applicant”) was employed by Centrelink at its Gosford Call Centre. He has complained of a psychological condition, contending it was sustained because of his employment.
2. Application N2006/1488 involves a claim for compensation for psychological injury (disease) pursuant to sections 4 and 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”), which was allegedly materially contributed to by the Applicant’s employment with Centrelink. Application 2007/1962 involves a claim for compensation for medical treatment and incapacity, pursuant to sections 16 and 19, 20, 21 or 21A of the Act, allegedly resulting from the Applicant’s claimed psychological injury.
ISSUES FOR DETERMINATION
3. We have had to decide:
· Did the Applicant suffer from a psychological injury which resulted in impairment or an incapacity for work?
· If so, did the Applicant’s employment with Centrelink contribute to the illness in a material degree?
· If yes, is the Applicant entitled to compensation for medical treatment under section 16 of the Act and to compensation for incapacity under sections 19, 20, 21 or 21A of the Act?
LEGISLATIVE FRAMEWORK
4. The relevant legislation in this matter is the Act, in particular sections 4, 14, 16, 19, 20, 21 and 21A.
5. Section 4 of the Act defines “disease” and “injury” as follows:
4(1) In this Act, unless the contrary intention appears:
...
“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.
...
6. Subsection 14(1) of the Act provides for liability for compensation for injured workers, and section 16 of the Act provides for reasonable medical expenses to be paid in that regard.
14 Compensation 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.
…
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 ofthe 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.
(5) Where a person is liable to pay any cost referred to in
subsection (1), any amount paid under subsection (4) to the person
to whom that cost is payable is, to the extent of the payment, a
discharge of the liability of the first-mentioned person.
(6) Subject to subsection (7), if:
(a) compensation in respect of the cost of medical treatment is
payable; and
(b) the employee reasonably incurs expenditure in doing either
or both of the following:
(i) making a necessary journey for the purpose of obtaining
that medical treatment;
(ii) remaining, for the purpose of obtaining that medical
treatment, at a place to which the employee has made a
journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c) in respect of the journey—of an amount worked out using the
formula:
Specified rate per kilometre x Number of kilometres travelled
where:
specified rate per kilometre means such rate per kilometre as the Minister specifies by notice under this subsection in
respect of journeys to which this subsection applies.
number of kilometres travelled means the number of whole
kilometres Comcare determines to have been the reasonable
length of such a journey as it was necessary for the employee
to make (including the return part of the journey).
(d) in respect of the employee remaining for the purpose of
obtaining the treatment—of an amount equal to the
expenditure so reasonably incurred in remaining for that
purpose.
(7) Comcare is not liable to pay compensation under subsection (6)
unless:
(a) the reasonable length of such a journey as it was necessary
for the employee to make (including the return part of the
journey) exceeded 50 kilometres; or
(b) if the journey made by the employee involved the use of
public transport or ambulance services—the employee’s
injury reasonably required the use of such transport or
services regardless of the distance involved.
(8) The matters to which Comcare shall have regard in deciding
questions arising under subsections (6) and (7) include:
(a) the place or places where appropriate medical treatment was
available to the employee;
(b) the means of transport available to the employee for the
journey;
(c) the route or routes by which the employee could have
travelled; and
(d) the accommodation available to the employee.
(9) Where:
(a) an employee suffers an injury;
(b) a person has reasonably incurred expenditure in connection
with the transportation of the employee, or, if the employee
has died, of his or her body, from the place where the injury
was sustained to a hospital or similar place, or to a mortuary;
and(c) the employee, or the legal personal representative of the
employee, does not make a claim for compensation in respect
of that expenditure;
Comcare is liable to pay compensation to the person who incurred
the expenditure of an amount equal to the amount of that
expenditure.
EVIDENCE
7. The Applicant gave evidence that he had left a previous job as a Sheriff’s Officer in 1991 because he had suffered Post-Traumatic Stress Disorder (“PTSD”) as a result of an altercation with a judgment debtor in which violence was threatened. He said he had 2 visits to a psychiatrist and was regularly monitored by his GP for about 18 months. He had a variety of other jobs before joining Centrelink in May 2000. He said that between 1993 and 2000 he had no symptoms, nor any medical treatment.
8. The Applicant said that he first became stressed at Centrelink once he was "fully on the phone". In his letter to Comcare dated 15 March 2006 he estimated this to be in about September 2000. He found dealing with the customers to be "quite a burden". Specifically, he alleged that he had problems with changing policies, dealing with various team leaders, work pressures to perform and aggression from customers. Nonetheless, he said he thought Centrelink was a nice environment in which to work.
9. The Applicant conceded that he was trained in the changing Centrelink policies and that if a customer did not accept what he had to say he could get a team leader to listen to the complaint. He was also able to make an appointment for a customer to have their matter explained face-to-face. He could also terminate a call but said he was unaware he could transfer a call to a supervisor.
10. As to changing teams, he said that he did not like too much change.
11. Sometimes customers would be abusive and dissatisfied with ”the system” and that would cause him to become anxious, but not fearful.
12. In late 2001 he changed to part time work, working 4 days a week instead of 5, because he could not cope. He agreed that his wife had a medical condition that required him to make a greater than usual contribution at home.
13. He was adamant that at some stage he saw a doctor and was prescribed anti-depressants, which he took for some months. He was given no coping strategies nor advised to discuss his concerns with his supervisors. He said he may have seen the doctor in relation to other matters at that time as well.
14. On 24 March 2003 there was a verbal altercation between the Applicant and a co-worker who sat nearby. For some months there had been tension between them. Mr Nelson said that he tried to give the co-worker ”as good as he got”. He said he felt “very annoyed, very frustrated, very angered within [himself] and very very hurt.” There was no sense of fear, although previously the co-worker had mentioned that his mother knew criminals. The Applicant said he was embarrassed in front of other colleagues.
15. The Applicant then took 2 sick days off work. He went to see a doctor because he was continually crying and was unable to sleep.
16. The Applicant complained to the team leader about the incident. As a result the co-worker was moved and the Applicant saw this as vindication of his complaint, although he felt that management was on the co-worker’s ”side”.
17. For ”what seemed like months” the co-worker constantly remained in his thoughts. The Applicant said he was unable to relax at home and was short with his children. He, the co-worker, was ”always with [Mr Nelson]”. In April 2003 the Applicant was referred to the Employees Assistance Program (EAP), which provides psychological counselling for workers. In 3-4 sessions he was given strategies to rid himself of those thoughts, including ”blocking him [the co-worker] out”. This included ”stopping the car and letting him out” and writing the co-worker’s name on a piece of paper and throwing it in the bin.
18. In addition to the incident involving the co-worker, the Applicant said it was the nature of Centrelink itself and the problems it was causing people in the community which led to his emotional problems.
19. Following a meeting on 26 August 2003, an internal inquiry into his complaint concluded in September 2003. Mr Nelson was annoyed at the outcome, namely that nothing was to be done.
20. On 13 October 2003 he reported to his GP that he was feeling stressed at work. He agreed this was probably as a result of his disappointment with the outcome of the inquiry. He was diagnosed as suffering from depression and was prescribed Mirtazapine. He could not explain why the medical records show numerous attendances between March and October of 2003 with no mention of any work-related stress issues.
21. In 2004 there were some relocations in the workplace and the Applicant was in closer proximity to the co-worker. He found his, the co-worker’s, voice ”irritating”. He asked for the co-worker to be moved, but this was refused. Some meetings, which further upset him, followed. Again his sleep was interrupted and he felt sick and was crying once or twice a week.
22. On 8 September 2004 the Applicant made a formal complaint in relation to the March 2003 incident. In October 2004 a formal response was provided, stating that the matter has already been dealt with in the past and “is now closed”.
23. The Applicant saw another EAP counsellor for about 6-10 sessions. The coping strategies were reinforced. His feelings continued on and off for several months. He was also advised to undertake an anger management course, but he did not do so. He was also advised to get more involved in family matters.
24. Christine Calbert, who was the union delegate at the Gosford Centrelink call centre gave evidence. She said the Applicant was becoming more and more ”stressed out” between March and August 2003. There were also a lot of team changes in 2004 and the problems re-emerged. It was she who suggested the Applicant attend the EAP. She thought she also suggested he see his GP, but could not recall when that was.
25. Cathie Angelkovic, the Gosford Centrelink call centre manager, gave evidence. She confirmed she wrote a note dated 15 October 2004 which stated that she was told by another person that Mr Nelson had made niggling remarks about the co-worker’s stepson and that the co-worker re-acted to that. She remembered having that conversation.[t1]
26. Her observation of the Applicant was that he lacked interest in a team environment and that he did not accept feedback easily.
27. She referred to moving to a new building in November 2003 and that the size of the call centre doubled in 18 months. Over several months someone might be re-located once or twice. Team leaders might change once every 6 months.
28. As to work performance she did not suggest that the work environment was statistically driven.
29. She recalled that the EAP psychologist had recommended anger management for the Applicant.
MEDICAL EVIDENCE
30. Dr Butler, the Applicant’s treating psychiatrist, gave evidence that he had seen the Applicant about 4 times in 2006. He had shown significant improvement and no further consultation was required. He considered the Applicant to have a psychological injury which was contributed to by his employment. He considered the activities which the Applicant had described by way of coping strategies to be outside normal mental functioning.
31. Dr Butler did not think getting angry (with the co-worker) was outside the bounds of normal behaviour, nor was being embarrassed, but getting excessively angry and preoccupied with the person was.
32. Although he had diagnosed chronic adjustment disorder with mixed emotions of depression and anger, he agreed that if the stressors the Applicant had provided in his history were not as severe as described to him then his diagnosis was not so reliable. He agreed that he had been told: it was the Applicant who had been moved, not the co-worker; that the environment was statistically driven; that there was constant telephone abuse by customers. He strongly expressed the view that the incident with the co-worker was only one of the reasons the Applicant became symptomatic.
33. Dr Butler agreed that he had come to the view that the Applicant had some personality problems. He stated that irritability was a strong indicator of a person having personality problems, as were lacking interest in a team environment, not accepting feedback and having an attitude problem.[t2] He agreed that a personality problem would not have stopped someone functioning in a work environment.
34. Dr Butler also agreed that if the Applicant’s GP ceased prescribing Mirtazapine in 2004 then it was possible that the effects of the March 2003 incident had ceased.
35. Dr Sagar, psychiatrist, saw the Applicant on 31 August 2005 at the request of the Respondent. He diagnosed the Applicant‘s condition on the basis of the Applicant’s reporting of symptoms. He described the Applicant‘s condition as decompensation, that is when ”an individual uses a certain personality style to defend themselves in the world”. He described the Applicant as being in a melancholic depressive state. He said the Applicant had an obsessional or defensive narcissistic personality.
36. Dr Sagar described the incident with the co-worker as ”the straw that broke the camel’s back”. It was “entirely possible” that the Applicant had already decompensated prior to his employment with Centrelink. Dr Sagar had not been informed that the Applicant had previously been diagnosed with PTSD, a condition that carries, in his view, a very poor prognosis. Typically, on securing a job, a person with PTSD quickly has interpersonal problems. It was possible that the Applicant’s PTSD never resolved.
37. Dr Sagar qualified his view that the Applicant’s work at Centrelink had caused him to decompensate, noting that he did not think the Applicant gave him a complete history. He did not press the Applicant because he did not want to irritate him. The doctor found him to be a man with a very difficult personality who does not fit in. He considered it was “a matter of time” before some incident was going to “derail” him.
38. Dr Akkerman, psychiatrist, gave evidence on behalf of the Respondent. He found the Applicant to have a personality problem which was unaffected by his employment. An altercation with another employee was consistent with someone who has a personality disorder. To experience problems at work soon after commencing work was indicative of a high level of severity. If not for the incident the Applicant would have experienced other problems elsewhere. Dr Akkerman was unable to say if the prescription of medication in October 2003 was related to the March 2003 incident. He took the view the prescription of that medication was inappropriate in any event as it was only appropriate for major depression, a condition from which the Applicant was not suffering. He did not believe there was a link between the 2003 incident and the prescription of medication in 2005. He said that 10% of the population suffers from abnormal personality traits like the Applicant and “so their life has ongoing conflict in it and they habitually blame other people”. Interpersonal conflict is part and parcel of the condition.
SUBMISSIONS
39. It was submitted on behalf of the Applicant that his evidence, particularly with regard to his fixation that the co-worker was “with him” in his car and at his dining room table, clearly indicates that the Applicant was suffering from a condition which was outside the boundaries of normal mental functioning and behaviour. The Applicant relied on the evidence of Dr Butler, his treating psychiatrist, to the effect that the Applicant’s condition was outside of the boundaries of normal mental functioning and behaviour.
40. It was submitted that the sole contributing factor to the Applicant’s condition was his employment with Centrelink. In Dr Butler’s opinion there were no non-work related matters on the Applicant’s mind, and that he was “fixated” with the co-worker, to the extent that it was outside the boundaries of normal mental functioning and behaviour.
41. It was submitted that Dr Sagar’s opinion that the co-worker incident was “the straw that broke the camel’s back” and caused Mr Nelson to decompensate, is consistent with the legal test that the Applicant’s work materially contributed to his condition. The same applied to aggressive telephone calls, although to a lesser extent. In submissions it was conceded that the Applicant undoubtedly suffered from some underlying condition, but that it was “largely asymptomatic” beforehand.
42. It was submitted on behalf of the Respondent that the Tribunal should prefer the evidence of Dr Akkerman, who concluded that the Applicant had abnormal personality traits, which had a constitutional basis and were not related to his employment with Centrelink.
43. As to entitlement to payment for medical treatment (section 16 of the Act), it was noted that the Applicant attended a GP in the days following the co-worker incident and was certified as unfit for work. It was submitted that the Applicant received medical treatment from Dr Fairbrother and Dr Butler in relation to his condition, and that Comcare is therefore liable to pay for the costs of the Applicant’s treatment and medication. The Respondent’s position was that the Applicant is not entitled to compensation for medical treatment under section 16 as any medical treatment obtained is not in relation to a psychological injury which was materially contributed to by his employment.
44. As to incapacity payments (sections 19, 20, 21 and 21A of the Act) it was submitted that the Applicant, since March 2003, has been from time to time incapacitated for work as a result of his medical compensable condition. The Respondent contended that the Applicant is not entitled to compensation for incapacity under sections 19, 20, 21 or 21A of the Act as any time off work was not the result of a psychological injury which was materially contributed to by his employment.
CONSIDERATION
Did the Applicant suffer from a psychological injury?
45. The Respondent conceded at the commencement of the hearing that the Applicant suffered a psychological condition. The Respondent’s case, however, based on Dr Akkerman’s reports, was that the Applicant suffered from abnormal personality traits, not chronic adjustment disorder as alleged by the Applicant.
46. An employee can be entitled to compensation for a psychological condition, notwithstanding that it cannot be identified under DSM IV. While it is not necessary to identify the condition the employee suffered from, it is essential for the employee to demonstrate that he or she was “in a condition that is outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi (1996) 69 FCR 447.
47. We accept the Applicant’s evidence and the evidence of Dr Butler, his treating psychiatrist, that he was “fixated” with the co-worker, to the extent that it was outside the boundaries of normal mental functioning and behaviour.
Was there incapacity for work or an impairment?
48.Section 4 of the Act defines the terms ‘incapacity for work’ and ‘impairment’.
49. We consider the objective medical evidence from his GP’s practice that the Applicant satisfied both definitions, at the time he was certified unfit for work due to conditions variously described as “hypertension” (25 March 2003); “work stress” and “depression” (13 October 2003); ”depression and anxiety” (28 May 2005).
Did the Applicant’s employment with Centrelink contribute to the condition in a material degree?
50. This is the crux of this case.
51. Employees suffering from a disease have to prove that, having regard to all relevant contributing factors, their employment significantly contributed to the disease: Comcare v Sahu-Khan [2007] FCA 15.
52. The contributing factor must be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed: Windeyer J in Federal Broom Co Pty Ltd v Semlitch[1964] HCA 34; (1964) 110 CLR 626. There was no dispute that some incident involving a co-worker occurred in March 2003.
53. In Wiegand v Comcare Australia[2002] FCA 1464, on the question of “material contribution”, von Doussa J’s opinion was that it was sufficient if the incident actually occurred, and created a perception in the mind of the employee, whether reasonable or otherwise, and the perception contributed in a material degree to an aggravation of the employee’s ailment.
54. In this regard we were particularly referred to Dr Butler’s evidence where he said that the incident with the co-worker and the aggressive telephone calls were the only contributing factors in the history that he took from the Applicant, and that these were the only contributing factors to his condition. We were also referred to Dr Sagar’s evidence that he believed the Applicant perceived these incidents as having occurred and as causing him stress. Counsel also referred to Dr Fairbrother’s report dated 16 June 2006 wherein he opined that the causation factors of the Applicant’s condition were work related.
55. We observe however that the Applicant, by his own evidence, was having difficulties coping with full time work and his domestic obligations in support of his wife’s illness as early as 2001, when he applied for part time work. He was also adamant that at about that time, or at least well before the incident with the co-worker, he was prescribed anti-depressants, which he took for some months. His estimate of when he first became stressed in the job was about September 2000, that is, almost immediately upon taking up his fully-fledged role, citing dealing with the customers, changing policies, dealing with various team leaders, work pressures to perform and aggression from customers. There was evidence however of the strategies available to him to diffuse situations with customers. In any event, no telephone contact was likely to produce any fear for his physical safety.
56. We also noted that the co-worker incident, upon which he primarily relied as giving rise to his condition, resulted in only 2 days off work. The GP’s medical notation appears to record the Applicant’s elevated blood pressure as the major aspect of the consultation. It was the blood pressure which was to be reviewed in 2 weeks. No further notation in respect of any stress issues appears in the GP’s notes until October 2003, despite the Applicant’s visits to his doctor every few weeks. It is also clear from the medical notes that the Applicant’s insulin-dependent diabetes mellitus was uncontrolled and a cause for concern. Concern was being expressed about the sedentary nature of his job.
57. Against this account of his medical treatment is the medico-legal evidence. Dr Sagar’s evidence was that the aggressive calls and the co-worker incident were the “straw that broke the camel’s back”. This is not inconsistent, in our view, with the Applicant having suffered some underlying condition. Indeed, this was the opinion of Dr Akkerman: that the Applicant had an underlying personality disorder.
58. It does not follow, in our view, that the Applicant’s work, through aggressive telephone calls and the co-worker incident, materially contributed to his condition. The co-worker incident, in our view, produced only an episodic increase in his pre-morbid stress condition.
59. The concept of “material contribution”, particularly with reference to the meaning of the phrase “in a material degree”, was further developed in Comcare v Sahu-Khan [2007] FCA 15. In that case, Finn J at [12], endorsed the decision in Canute v Comcare (2006) 226 CLR 535, that the changes brought about by the enactment of the Act “were intended to require that the contribution be ‘more than a mere contributing factor’” and that the inclusion of the term “material” imposes an “evaluative threshold below which a causal connection may be disregarded”. Finn J concluded at [16] that the correct test for the application of the section 4 definition of “in a material degree” required “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” and that whether this will be so in a given case “will be a matter of fact and degree”.
60. After considering all the evidence, in particular the possible factors that may have contributed to the onset or aggravation of the Applicant’s psychiatric condition, we find that the circumstances of the Applicant’s employment with Centrelink did not substantially contribute to his disease. Mr Nelson is not entitled to compensation pursuant to section 14 of the Act. It follows that he is not entitled to compensation in respect of medical expenses under section 16, nor is he entitled to compensation for incapacity under sections 19, 20, 21 or 21A of the Act.
DECISION
61. The Administrative Appeals Tribunal affirms Comcare’s decisions dated 27 September 2006 and 2 May 2007.
I certify that the preceding 61 paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr I Alexander, Member.
Signed: ........................[sgd]..............................................
Tal Aviram, AssociateDate of Hearing 21-22 January 2008
Date of Decision 19 March 2008
Counsel for the Applicant David Richards
Solicitor for the Applicant Doug Williams
Counsel for the Respondent Matthew Gollan
Solicitor for the Respondent Marie Mittiga
[t1]More in line with the transcript p91.
[t2]This is more in line with the transcript p101.
5
0