O'Grady and Comcare
[2004] AATA 23
•16 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 23
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/1
GENERAL ADMINISTRATIVE DIVISION )
Re ISLA O'GRADY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms J Cowdroy, Member Date16 January 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ........(Sgd)..........
J Cowdroy
Member
CATCHWORDS
WORKERS’ COMPENSATION – psychiatric condition – applicant claims her condition was caused by workplace stressors – no connection can be established between her condition and her employment – decision affirmed
Safety Rehabilitation and Compensation Act 1988, s 4 and s 14
REASONS FOR DECISION
16 January 2004 Ms J Cowdroy, Member 1. This decision relates to a review of a decision dated 5 December 2002 to refuse liability in respect to the applicant’s claim for depression/anxiety on the basis that her employment did not contribute to her disease in a material degree.
2. The matter was heard on 4 September 2003. The applicant appeared in person and gave evidence. Mr O’Sullivan of counsel appeared for the respondent. Dr J Sowby, Dr J Reddan, Mr Kerry Santry and Mr Alex Bogicevic also gave evidence. The T-documents were admitted into evidence pursuant to the Administrative Appeals Tribunal Act 1975, together with a number of other documents.
Background
3. The applicant lodged a claim for rehabilitation and compensation on 14 March 2002. That claim relates to her employment at Redcliffe CES from August 1998. She claimed that she suffered from depression/anxiety caused by workplace stressors.
4. The decision under review determined that depression and anxiety were symptoms, rather than a disease and refused liability on the basis that the applicant did not suffer a disease and further, that there was no evidence which established a sufficient material contribution to those symptoms by her employment. The applicant sought review of this decision and this occurred on 21 May 2002. The review did not change the original decision.
The Issue
5. Did Ms O’Grady’s employment at Centrelink Redcliffe materially contribute to an injury or disease in respect of which she is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
The Legislation
6. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) states:
“(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.”
The Act, in section 4(1), defines “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, 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.”
The term “disease” is defined in section 4(1) of the Act as:
“(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…”
The Evidence
7. Ms O’Grady has been on long service leave since 27 June 2003. Since 1989 she has been employed in three work environments, including DEETYA and Austudy. When her position with DEETYA at Chermside was dissolved, she was absorbed into the workforce at Centrelink’s Redcliffe Branch. She commenced working in that office in August 1998.
8. From the outset, it was apparent to her that her presence in that office was unwanted and that her part-time status caused difficulties. She stated that other employees treated her discourteously and were rude to her. She was quite often taken by surprise at the derogatory comments of her work colleagues. Although she thought some of her work colleagues were initially supportive, ultimately they "betrayed" her. She denied that her behaviour contributed in any manner to the treatment she received from other colleagues.
9. She had a difference of opinion on matters with her immediate supervisors, Nancy Giles, Liz Hancock and manager, Graham Aitken as well as problematic relationships with a number of other work colleagues. Throughout her employment at that office, she felt isolated and discriminated against. At team meetings, she felt excluded and/or ignored by other team members, and was not invited to contribute. A performance appraisal was carried out by Ms Liz Hancock, on the basis of which she was denied a salary advancement. After a complaint, it was determined that. the appraisal denied her natural justice and another performance appraisal was carried out.
10. She acknowledged that in 1997 she consulted a doctor, whose clinical notes refer to a complaint she made at that time about work discrimination. It was recorded that she was angry at not having been promoted for 12 years. She could not now recall that being the case, but she acknowledged that she consulted the doctor about feelings of anger, and suggested that the symptoms at that time may have had a connection with her thyroid condition. She acknowledged that she had made a claim for anxiety due to her employment in 1990, which was accepted.
11. Ms O’Grady provided a document headed “Terms of Resolution to Compensation Review” in which she sought equality in the workplace for part-time workers, a speedy resolution to complaints of workplace bullying and harassment and the right to work in an environment which is non-judgmental.
12. In support of the applicant’s contention that she was considered by other employers as an efficient and reliable employee, Mr Alex Bogicevic, who was manager of the Austudy section of Centrelink, Chermside for six years, gave evidence. He worked with the applicant between 1994-1998. He stated that the applicant was a capable and efficient officer. He was not aware that she had difficulties in relationships with other staff members. He expressed surprise to learn that she had consulted a doctor in April 1997 with feelings of anger and anxiety as there was no demonstrable evidence of those emotions in her workplace at that time.
13. Ms O’Grady vehemently denied that any present emotional state stemmed from either disciplinary action and/or failure to obtain a promotion. She contended that she had been traumatised by the use of the performance assessment procedure as a means to apply harassment and allow team bullying (T14-102). Despite difficult family relationships, and a number of relationship breakdowns, her role as a supporting parent, and a childhood which encompassed a violent father, teasing by her peers and frequent changes of location, she considered that her present mental state was attributable solely to workplace stress.
14. Dr John Sowby, Commonwealth Medical Officer, a specialist in occupational medicine had provided a report dated 4 April 2002, which was commissioned by Centrelink to determine the applicant’s continued fitness for duty. He considered that Ms O’Grady suffered from adjustment disorder with associated anxiety and depressive symptoms which “appears predominantly related to the adverse work performance report and other associated issues” (T14-121). He was not charged to report on the specific cause of the condition. In order to do so, he would have required further information. He considered at that time that if Ms O’Grady received appropriate treatment, she would most likely be able to return to work within a matter of months.
15. He described the applicant as generally defensive and reserved, that her answers to his questions were given in a circumspect manner and that she only had partial insight about outbursts at work. The outbursts to which he refers were based on information contained in other reports. He agreed his opinion as to causation was reliant on the applicant’s belief that her emotional problems were caused by her work situation. He was unable to form a view whether the applicant’s perception that she was being poorly treated was realistic.
16. If he had been aware that previously the applicant had complained about treatment in two other work environments, that she had been pulling out her eyebrows due to severe anxiety for the previous 20 years, that she had health problems with breast implants and had been in receipt of a more detailed personal history, he would have had difficulty in remaining confident in his opinion that her symptoms were attributable to her work environment. He acknowledged that a psychiatrist, armed with a full history and who had been commissioned with the task of determining both diagnosis and causation, was in a better position to provide an opinion.
17. Dr J Reddan, psychiatrist provided a report dated 12 May 2003, in which she opined that Ms O’Grady has a personality disorder which is caused “by a complicated interaction between her genetic endowment, her temperament and early childhood, and was not caused by her employment”.. She considered that whilst displaying some of the symptoms, these were insufficient to meet the diagnostic criteria for adjustment disorder.
18. Dr Reddan acknowledged that a person suffering from a personality disorder could outwardly appear to be performing satisfactorily in all lifestyle areas. She stated that frequently people with that diagnosis become preoccupied with gleaning other’s intent through their comments or actions, which is often misinterpreted and elaborated upon. Dr Reddan considered that a repeated theme in the applicant’s history was that others have treated her badly, discriminated against her, been vindictive or neglected her.
19. Dr Reddan considered that the applicant’s history indicates the presence of significant paranoid and some avoidant personality traits, as well as some histrionic personality traits. The avoidant personality component has the effect that the person tends to feel inadequate, is hypersensitive to negative evaluation and tends to assume that others will be critical of them.
20. When questioned by the applicant, Dr Reddan expressed the view that at times, Ms O’Grady leaped to a conclusion without seeking out other facts which, if obtained, might have influenced the ultimate conclusion and that her emotional response to minor incidents tended to be in the extreme range.
21. Mr John Santry, was performing the role of Industrial Officer of CPSU when Ms O’Grady made contact with the union. She requested the presence of a union officer when the applicant attended a meeting with Ms Liz Hancock in regard to a performance assessment. Mr Santry’s evidence was that it was quite clear from his observation of the interaction between the applicant and Ms Hancock that they did not enjoy an amicable working relationship. He believed his presence at the meeting was to ensure that any feedback was conveyed in a fair manner. He described the demeanour between the participants of as one of animosity. He called the meeting to a close and he did not feel it was productive
Submissions
22. For the respondent, it was contended that the applicant has not suffered an injury or disease which is attributable to work. Support for that contention is found in the report of Dr Reddan and whilst there is opinion from Dr Sowby to the contrary, that doctor had acknowledged during his evidence that, in providing his report, his primary task was to determine the applicant’s fitness to work.
23. The alternative proposition is that if the Tribunal considered that the applicant suffers from a disease which was contributed to in a material degree by the employee’s employment, then such injury falls within the exclusionary provisions of the definition of “injury”, in that the incidents complained of by the applicant in founding her claim occurred in the context of reasonable disciplinary action or failure by her to obtain a promotion or benefit, (the benefit being the provision of a positive performance appraisal).
24. The applicant submitted that Dr Reddan’s opinion placed undue weight on other life events which she believed she had come to terms with and accepted. Regardless of Dr Reddan’s opinion that she suffers a personality disorder, the work environment placed her under undue stress. Of particular significance was the fact that she had not been accorded recognition of her knowledge and skills by management or colleagues. She acknowledged that the absence of such recognition constituted a considerable part of her grievance.
Findings and Conclusion
25. The first issue for the Tribunal is whether the applicant suffers from a diagnosed condition. When the application for review was lodged, a diagnosis of adjustment reaction with mixed emotional features had been adopted, based no doubt on the opinion of Dr J Sowby dated 4 April 2002. Dr Sowby did not specifically provide an opinion as to the cause of this condition, however he related the applicant’s perception that her employment was the contributing factor.
26. Since then a report from Dr J G Reddan dated 12 May 2003 has been provided which provides a diagnosis of personality disorder. Given that Dr Reddan’s opinion was specifically sought on the issues of diagnosis and causation, I consider that her report is to be preferred and I am satisfied that her diagnosis is appropriate.
27. The issue then becomes whether that condition has a sufficient material contribution with the applicant’s employment. Dr Reddan is of the view that it does not.
28. Whilst the applicant was critical of some aspects of Dr Reddan’s report, generally she did not challenge any of the history which Dr Reddan had attributed to her, to an extent which would suggest that reliance could not be placed on Dr Reddan’s opinion.
29. I find that the applicant’s performance assessment was not conducted in accordance with the provisions of Centrelink’s Development Agreement and natural justice principles. A letter from the Office of the Merit Protection Commissioner dated 5 June 2002 acknowledges that this was the case and agreement was reached to implement certain actions, including a recommencement of Ms O’Grady’s performance assessment cycle. This would suggest that all efforts were made to rectify an undesirable situation.
30. In respect to Ms O’Grady’s other complaints, these largely revolved around what she perceived as “harassment”.. I note in a document produced by Centrelink titled “Workplace Harassment – an Introduction” (T14-124), Ms O’Grady has circled the following: “standing over other employees” and “continual exclusion of a person or group from work-related activities”. Ms O’Grady gave evidence that she felt isolated from her colleagues and that she was not encouraged to participate at team meetings. However, her evidence does not point to an act of exclusion perpetuated by others, rather it is her perception that she was being excluded.
31. I note that on 14 September 2001 Ms Giles circulated a memorandum which touches upon instances where “staff had been less than courteous to each other and unwilling to assist other staff when requested” (T6-52). This certainly supports the finding that relationships between staff members were not always harmonious. The applicant’s own evidence demonstrates overwhelmingly that she had difficult personal relationships with team leaders as well as her colleagues. It is not an exceptional situation in offices where a collection of people work in different roles in close proximity, for there to be a degree of ambivalence or even dislike for some of the other staff. In considering this aspect, I was mindful of the fact that the applicant’s emotional response to minor incidents tended to be in the extreme range. The fact that the applicant’s work relationships were not as she would have liked them to be does not constitute a contribution to her medical condition by her employment.
32. Mr Santry’s evidence was that he observed antagonism between Ms Hancock and the applicant. Indeed, it is noteworthy that much of the complaints that the applicant has made about her treatment revolve around her interactions with Ms Hancock. Ms Hancock did not give evidence and consequently where the applicant’s evidence contradicted her written statement, I have given more weight to the evidence of Ms O’Grady.
33. Apart from Ms Hancock however, Ms O’Grady has had differences of opinion with other team leaders and her manager. Her explanation is that she has never worked in an office where “there is something terribly wrong” and that this is the explanation for the disputes with team leaders and other staff. Some of these related to complaints about the workload, inadequate training and lack of communication. There was also evidence of the applicant filing a harassment claim against the Ms Giles, however this was resolved informally.
34. However, the events at the Centrelink office which have caused Ms O’Grady to react are not isolated instances, in the sense that there have been other work environments about which Ms O’Grady has complained, in particular work discrimination in 1997.
35. Whilst the applicant’s employment at Centrelink during the relevant time may not have been enjoyable, there is nothing in the evidence nor is there any support from Dr Reddan to suggest that any of her experiences at Centrelink have either caused or worsened her personality disorder. I find accordingly.
36. The most significant incident, objectively speaking, is in relation to the applicant’s failure to obtain salary advancement due to her performance review. As I have already determined that the applicant’s personality disorder was not contributed to in a material degree by her employment, it is not strictly necessary to address this issue. I note also the applicant denies that her present condition is in any way attributable to that issue.
37. However, even if it was found to be a significant contributing factor, then the exclusionary provisions under the definition of “disease” or “injury” would have application.
38. Accordingly, I affirm the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member
Signed: S Oliver
Associate
Date of Hearing 4 September 2003
Date of Decision 16 January 2004The Applicant appeared in person
Counsel for the Respondent Mr G O'Sullivan
Solicitor for the Respondent Phillips Fox
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