Perananthasivam and Telstra Corporation Ltd
[2006] AATA 476
•1 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 476
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1339
GENERAL ADMINISTRATIVE DIVISION ) Re SIVANADIAN PERANANTHASIVAM Applicant
And
TELSTRA CORPORATION LTD
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date1 June 2006
PlaceSydney
Decision The reviewable decision is set aside and substituted for it is the decision that:
1. Telstra is liable pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for the injury suffered by Mr Perananthasivam on 9 February 2004, that is Adjustment Disorder with mixed anxiety and depressed mood acute.
2. Telstra is liable to pay Mr Perananthasivam’s medical expenses pursuant to section 16 of the Act in respect of that injury.
3. Telstra is liable to pay incapacity payments pursuant to section 19 from the time of the incident on 9 February 2004 until 3 May 2004 when Mr Perananthasivam returned to work.
Costs
4. The question of costs was not argued at the hearing. My present inclination is that the appropriate order would be that Telstra pay Mr Perananthasivam’s costs pursuant to s 67(8) of the Act. However, I grant Telstra 14 days in which to contact my Associate if it wishes to argue the question. If that is not done, I will make the order I have indicated.
[sgd] Senior Member, Mrs Josephine Kelly
CATCHWORDS
WORKERS’ COMPENSATION – claim for emotional distress – incident at work where bad language was used towards the Applicant – claim only relates to emotional distress that arises out of the incident where bad language was used – medical evidence supports a diagnosis of adjustment disorder mixed with anxiety and depressed mood acute – injury suffered by Applicant – Respondent liable for medical expenses – Respondent liable for incapacity payments for closed period – decision set aside and decision substituted..
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19
CASELAW
Comcare v Mooi (1996) 137 ALR 690
REASONS FOR DECISION
1 June 2006 Senior Member, Mrs Josephine Kelly Introduction
1. Mr Perananthasivam, a former employee of Telstra Corporation Limited (“Telstra”), is seeking compensation for “emotional distress” which he claims resulted from abusive language being addressed to him by two of his fellow employees on 9 April 2004 (“the incident”). In his claim (T6), Mr Perananthasivam stated:
around 10.30 am on 9 February 2004 Steve King in the process of deciding the terms and participants of a meeting, abused me with words such as “Arse” and “Bum” and made advancement towards my person. He did this in the presence of Stuart Sexton. Phillip Cornwell said “You are a disgrace to the team” loudly in front of the team and visitors. He also said “the door is opened you can go” meaning “you can leave the company.” These caused me fear and emotional distress. Steve used “F___K”, “arse” in the past also.
2. It is not in dispute that the Mr Steve King (“Mr King”) said to the Applicant words to the effect “park your little arse in that chair and let’s get on with it” and that Mr Phillip Cornwell (“Mr Cornwell”) said words to “you are a disgrace to the bid team” and “the door is open, you can go”. This was said in a loud voice by Mr Cornwell.
3. Mr Perananthasivam wrote in his written submissions:
I am requesting the Tribunal to set aside the reviewable decision of GIO and to hold Telstra is liable to pay compensation, and to order the managers to give written apologies and order Telstra to reinstate my employment with Telstra.
4. This Tribunal only has jurisdiction to determine if Telstra is liable to pay Mr Perananthasivam compensation for his claimed “emotional distress”. It has no jurisdiction to order reinstatement, or to order the managers of Telstra to give written apologies.
Issues
5. The issues are:
· Did Mr Perananthasivam suffer an injury as defined in the Safety Rehabilitation and Compensation Act 1988 (“the Act”) as a consequence of the incident?
· If so, is he entitled to compensation pursuant to s 14 of the Act?
· It was conceded by Telstra that if I found Mr Perananthasivam had suffered an injury but had no entitlement pursuant to s 14, he would be entitled to reasonable medical expenses pursuant to s 16 of the Act.
6. If Mr Perananthasivam is entitled to compensation pursuant to s 14, is he entitled to compensation for incapacity pursuant to s 19 of the Act?
7. It became apparent at a directions hearing, that Mr Perananthasivam was alleging that other events at work, particularly after the incident the subject of these proceedings, contributed to the condition he alleged. He rejected on a number of occasions the opportunity to adjourn the proceedings and claim in relation to all the relevant events he referred to. Consequently, I am confined to consider his claim in respect of what happened on 9 February 2004 which is the subject of the reviewable decision to deny liability made on 19 August 2004 (T39).
Background
8. On the evidence, the following is not in dispute. Mr Perananthasivam worked as a “Bid Manager” for Telstra. He has no previous history of psychiatric conditions.
9. The Telstra management structure as it related to Mr Perananthasivam was as follows. Mr Stuart Sexton was his team leader and “1-up manager”. Mr Steve King was his “2-up manager”, and Mr Philip Cornwell was his “3-up manger.” Other Telstra managers who dealt with Mr Perananthasivam were Mr Alan Colvin, who is the General Manager of Human Resources in the Business and Government Business Unit, and Mr David Thodey, the General Manger of that unit.
10. Before 9 February 2004, Mr Perananthasivam believed that he had been subject to unfair supervision and work allocation by Mr King and Mr Cornwell. He also believed that he had for some time been subjected to personal abuse and racial slurs, particularly from Mr King. Mr Perananthasivam had been placed on a Performance Improvement Program (“PIP”) because of his poor performance. Mr Sexton gave oral evidence that he placed Mr Perananthasivam on a PIP in January 2004 because he was concerned about his work performance. There had been issues relating to Mr Perananthasivam’s performance from 1998 (Exhibit A2 – SP18-1).
11. Early on 9 February 2004, Mr Perananthasivam sent an e-mail to his team members and a copy to Mr King and Mr Cornwell, in which he requested assistance in handling a bid. He sent a separate e-mail to Mr King and Mr Cornwell saying:
I am not happy with the way this bid was allocated to me. It is another incident of unfair treatment and targeted bullying by Management. If no action is taken on this practice I will take this matter to senior management. (Exhibit A2, SP2-1)
12. It was during a meeting following these communications that the incident occurred as outlined at the beginning of this decision. Mr Sexton was also present.
13. Following the incident, Mr Perananthasivam became distressed. He tried unsuccessfully to contact Mr David Thodey. He telephoned the Telstra Employee Assistance Program (“EAP”) and talked to the staff. He sent Mr Thodey an e-mail at 12.33 pm outlining his complaints and sent copies to Mr King and Mr Cornwell (Exhibit A2 SP2-4). In the e-mail he stated that he had “been subjected to undue stress” by Mr King and Mr Cornwall and that he was “emotionally upset now, today” and “unable to properly concentrate on the work. I need to take some time to recover”. He went home.
14. On 12 February 2004 he consulted Dr Paramsothy, his general practitioner, who recorded that Mr Perananthasivam was agitated, upset, weepy, sleeping poorly and had anxiety symptoms. On that occasion, the doctor certified him unfit for work until 20 February 2004 (T3). Dr Paramsothy referred him to a psychiatrist, Dr Newlyn, on 21 February 2004.
15. On 16 February 2004 Mr Perananthasivam advised Telstra via email that he would be off work for another week due to stress leave. On 20 February 2004 he asked to meet with Mr Thodey and requested no contact with Mr Cornwell and Mr King until the stress issue had been resolved (Exhibit A2 – SP18-1).
16. On 5 March 2004, Mr Perananthasivam had a meeting with Mr Thodey who proposed an independent inquiry (Exhibit A2 SP2-12). On 14 March 2004, Mr Thodey sent an email to Mr Perananthasivam stating:
We agreed in our meeting that the way forward is to get an independent investigator to investigate the situation from all perspectives, then we will be guided by their recommendations as to the appropriate actions that need to be taken. We take these allegations seriously and we will conduct a thorough investigation.
17. A lawyer from Deacons, solicitors, was engaged to undertake the independent investigation. He prepared a report. He found that the language alleged had been used but that neither Mr King nor Mr Cornwell acted in an intimidatory fashion.Following those findings, Mr Cornwell and Mr King apologised to Mr Perananthasivam in writing (Exhibit R3), however, those apologies did not satisfy Mr Perananthasivam. The independent investigation was completed on 16 April 2004 (T16).
18. Meanwhile, on 16 March 2004 a return to work consultant from Work Solutions was engaged but Human Resources directed that this was not to proceed until the independent inquiry was completed.
19. Mr Perananthasivam advised that he would return to work on 3 May 2004 on a 5 hour/day 5day/week basis. On 17 May 2004 it was noted that he was working from home due to stress levels. Dr Paramsothy issued medical certificates for the periods 15 to 28 May 2004 and 28 May 2004 to 11 June 2004 (T23 and T24) stating that Mr Perananthasivam was fit for suitable duties, but was to avoid heavy work load and avoid pressure from other staff, because of emotional distress/anxiety depression.
20. On 19 May 2004 a return to work consultant was re-engaged. On the same day Mr Perananthasivam complained that Mr Cornwell broke the no contact rule by saying “Goodbye Peri,” and “How are you going” and Steven King stated “Good morning.”
21. An independent investigator, who was retained by GIO, also prepared a report dated 11 June 2004 (“the Informed Report”). The conclusion was that there had been no deliberate attempt by Mr Cornwell or Mr King to cause Mr Perananthasivam significant distress. He said:
Indeed, some may say that what was probably a lack of co-operation on the part of Mr Perananthasivam contributed to the actions and comments made by Messrs King and Cornwell on 9 February 2004.
22. On 18 June 2004, Mr Perananthasivam advised Stuart Sexton that he was ill and not coming into work. He arrived at work late on 21 and 24 June 2004.
23. On 28 June 2004, Mr Perananthasivam advised Telstra that he is now working 6 hours a day/ 5 days a week. On 1 July he was away with the flu and did not return until 6 July 2004. On 9 July 2004 he took a day’s leave for a religious holiday but did not provide notice. Other issues were recorded regarding work performance.
24. On 9 August 2004 Mr Perananthasivam advised Telstra that he was only working four hours a day until 20 August 2004.
25. Mr Perananthasivam’s workers’ compensation claim dated 16 March 2004, was refused on 2 July 2004, and upon reconsideration, on 19 August 2004.
26. Mr Perananthasivam was also dismissed by Telstra on 19 August 2004 “following an investigation of your unsatisfactory performance and unacceptable conduct” (Exhibit R6). He took proceedings for unfair dismissal, which were dismissed at first instance and on appeal (Exhibit R2 and R7). He appeared for himself in both proceedings, as he did before me.
The Evidence
27. Mr Perananthasivam gave evidence and submitted a large amount of documentation in support of his case. He described the incident and said that he felt intimidated by Mr Steve King as he felt that he was “not free” to leave the room on 9 February 2004.
28. There was no evidence from Dr Paramsothy or Dr Newlyn that Mr Perananthasivam was on medication at any relevant time. In his clinical notes for the first consultation on Wednesday 10 March 2004, Dr Newlyn records: “Medication: Psychopharmacology trial is not in progress. No other medications indicated” (Exhibit R4).
29. Mr Perananthasivam was studying law. He sat for and passed an examination in March 2004 and in September 2005 but has failed other subjects. Detailed evidence was not provided. In relation to the March exam, he said that he “practically” had all his time to study and prepare for his exam apart from “whatever stressing situation was there”. He also failed an exam in March 2004.
The Medical Evidence
30. There were in evidence medical certificates (T3 to T5) and a report dated 20 April 2004 (T17) from Dr Paramsothy. These certificates covered the period 9 February 2004 to 27 March 2004. Dr Paramsothy’s initial diagnosis was emotional distress, which was expanded in later certificates to include anxiety depression / adjustment disorder. He certified that Mr Perananthasivam was unfit for work. The injury was described in the first certificate as “verbal abuse and physical intimidation at work”. The management plan altered over time to reflect referral to a psychiatrist, Dr Newlyn, followed by ongoing care by him.
31. Dr Paramsothy’s report of 20 April 2004 described the incident. He recorded that one of the managers had been “constantly harassing him for over a year”, that after verbal abuse in the past there had been an apology and: “This incident on 9/2/04 was the last straw which made Mr Perananthasivam feel so unwell”. He described how Mr Perananthasivam “went back to his desk to continue with his work but started trembling and was unable to concentrate” and then left work. He described his symptoms on presentation as including migraine, lack of sleep, fear to answer phone and panic attacks when anyone called from work. At the time of the report, Mr Perananthasivam was looking forward to returning to work but was apprehensive about working with the same hostile staff. The doctor expressed the opinion that the emotional trauma was of a temporary nature but could recur if he were exposed to the same hostile situation at work.
32. In the second half of May Dr Paramsothy issued the medical certificates as set out earlier, which specified suitable duties.
33. Psychiatric evidence was provided by Doctors Newlyn, White and Lewin.
Dr Newlyn
34. Dr Newlyn is Mr Perananthasivam’s treating psychiatrist. His clinical notes for Mr Perananthasivam’s first consultation on 10 March 2004 were Exhibit R4. Under the heading “Psychiatric Metal Status Examination”, he recorded:
…
Facial expression: Anxious.
…
Affect: Anxious. Consistent with thought content. Affective reactions were appropriately modulated. No evidence for cyclic mood changes. Suicidal ideation absent.
35. Mr Perananthasivam had been on leave since 9 February 2004 and was to have a meeting “at work to resolve the situation on 5 March 2004 with his Group Managing Director”. Dr Newlyn recorded Mr Perananthasivam’s statements:
I feel I was humiliated in front of the colleagues. I can’t sleep and concentrate. My wife says I lose concentration when I am driving. I don’t want to answer telephone calls at home. I have uneasy feelings in my abdomen when I think of what happened and what is going to happen. I feel there is anger and I feel unjustly treated. I have worried that a case was parked in front of my house to spy on me”.
36. Dr Newlyn’s diagnosis under DSM-IV Psychiatric Diagnosis was “Axis 1 F43.20 Adjustment Disorder with Mixed Anxiety and Depressed Mood Acute”. His opinion was that psychiatric care was needed, that there was a risk of deterioration in functioning without treatment and that outpatient care was needed. He proposed utilising “the CBT relaxation training CD “The Fine Art of Relaxation”’. The prognosis was: “Resolution of difficulties when his workplace issues are resolved”.
37. Dr Newlyn’s report of 10 May 2004 was Exhibit T18. He also gave evidence by telephone. This report is comprehensive and concludes with answers to questions that had been asked on behalf of Telstra. Dr Newlyn recorded the following consultations:
Diagnostic consultation: 10 March 2004
Subsequent consultations: 17, 24 and 31 March and 7, 15 and 29 April 2004.
He also wrote:
Presentation: On 21 February 2004 Dr Paramsothy requested opinion and management of:
. Unresolved work conflicts.
. Bitterness and anxiety as he had not received support from his superiors
. Nightmares that made it impossible to sleep properly.
. Good family support but his wife feels the pressure
.He has a hostile superior who verbally abused him and physically intimidated him on 9 February 2004.
38. He also recorded Mr Perananthasivam’s comments at each of his subsequent consultations. In summary they reflected Mr Perananthasivam’s worry about the independence of a Telstra appointed investigator, the decline in his trust in senior management and on 29 April 2004 he expressed concerns about the outcome of the completed investigation which had been carried out, his requests for removal of some managers from their positions, his opinion that he was not fully recovered and that he had to negotiate with them about returning to work.
39. Dr Newlyn’s diagnosis was as it was on 10 March 2004: “Adjustment Disorder with mixed anxiety and depressed mood acute”. His opinion was that the incident on 9 February 2004 was a materially contributing factor to that condition. In answer to a further question, Dr Newlyn wrote that:
An adjustment reaction ceases when the stressor is removed or resolved. The resolution of the problem will depend on the outcome of negotiations between management and Mr Perananthasivam. The current symptoms are directly attributable to employment factors.
40. In response to a question about incapacity, Dr Newlyn wrote: Mr Perananthasivam was intending to return to work on 3 May 2004. I have yet to review his return to (sic). In response to a question about restrictions that the condition imposed on his capacity for employment, Dr Newlyn answered: “None”.
41. When questioned about that answer by Mr Perananthasivam, Dr Newlyn confirmed that his opinion at that time was that there no restrictions.
42. In response to my question about his current capacity to work, Dr Newlyn said:
‑‑‑I - Perry and I have talked about this and he points out that he has shown evidence that he isn't functioning as well as he was before and so it may be that he wouldn't be able to function in a job like he did then. On the other hand he is pursuing an academic course, although he has had difficulty with it, but he has recently passed examinations, so from a functional standpoint, he demonstrates the ability to work and probably to work in a similar position in another company. (p 316 of Transcript, 21 December 2006).
43. In his report, Dr Newlyn expressed the opinion that Mr Perananthasivam would benefit from: “Cognitive behaviour therapy, and possibly antidepressant medication. Occupational rehabilitation may assist in resolving workplace problems”.
44. In response to a question from Mr Perananthasivam about his condition during his oral evidence, Dr Newlyn remarked that “over time it’s affected your life more and more”.
45. He agreed in cross-examination by Mr Polin, who appeared for Telstra, that an adjustment disorder is the development of clinically significant behaviour signs or symptoms in response to a particular stressor and that the only symptom Mr Perananthasivam had was anxious affect, and continued “You wouldn’t expect more from this diagnosis …”. Dr Newlyn agreed that there was a fine line between simple distress and anxiety and whether it is to be categorised as a psychiatric injury within DSM-IV, and said: “It is very much a question of opinion”.
46. He also agreed that in relation to the examination on 10 March 2004, a person’s presenting with an anxious affect “could be” within the normal bounds of mental function but pointed out that there is individual variation in responses. He agreed that it would not be outside the boundaries of normal mental functioning to be anxious.
47. He agreed that he expected the condition to resolve in a short period of time, but the problems continued, including Mr Perananthasivam’s termination from Telstra in August 2004 when he wrote to Dr Newlyn saying that there was an incident at work that deeply upset him and that he needed immediate psychiatric treatment. However, Dr Newlyn said that “my position is that the incident of February is a very important incident and that that has been the one that has caused the most trouble but, yes, I agree that the others do have a significant effect”. His opinion was that “… if things had settled down and there had been a way for Peri to feel that he was being heard, then I am sure it would have settled”.
48. In response to questions from me, Dr Newlyn said that Mr Perananthasivam’s condition has moved from “acute” to “chronic”, that is, it has continued for more than six months, and is continuing. He also summarised Mr Perananthasivam’s situation:
Well, what has happened is that Peri has become caught up in the meaning to him of this and the feeling of injustice and has involved his religious beliefs and his care – his worry about other people so that…the whole thing has taken on a life of its own”.
49. Later he said:
My opinion would be that the events of 2004 began the condition and there have been other things that have continued – that have occurred since then that have added to and continued the condition.
50. Dr Newlyn then said:
When you are taking note of what has happened in people’s lives you try and go through all of the significant events that could have had a negative impact and produced symptomatology at the time that you are seeing them, so what happened right at the very beginning in February of 2004, started the chain of events. The other events that occurred since then that have added to the symptomatology and have kept reminding Peri of what happened so that we can have now a – a whole number of symptoms that have their roots in what happened then, but are events that have happened since then as they are causing it to continue.
…. For some people, unless things are resolved in a way that satisfies their feeling of justice that they continue to try and get the resolution so that their feeling of injustice has been resolved.
Dr White
51. Dr White prepared a number of reports for medico-legal purposes. In reports dated 12 May 2004 when he saw Mr Perananthasivam (T22), Dr White set out a history which included the incident and what followed. His conclusion was:
Mr Perananthasivam does not suffer from a formal psychiatric disorder or stress related illness which can be reasonably or logically attributed to his employment … .
52. In response to particular questions Dr White wrote (p 89):
The incident described was a supervisory event.
…
The perceived work related stressors are not sufficient to precipitate a psychiatric disorder in non-vulnerable persons.
…
The work related stressors are objectively mild and supervisory.
…
The work environment was normal.
53. On 28 June 2004, Dr White prepared another report following a review of documentation, including the Informed Report. The “significant information” provided to him was that Mr Perananthasivam “was an unsatisfactory worker who had been on a Performance Improvement Program, who had been difficult to manage, and whose behaviour was somewhat provocative”. He said that the words “arse” and “bum” are part of the Australian vernacular, an ordinary Australian worker would not have taken offence, but taken the remarks in context, and that “Like many first generation immigrants with degrees, it is reasonable to assume that Mr Perananthasivam perceives his present job to be beneath his training and status”. He also noted that Mr Perananthasivam was a teetotaller and non-smoker involved “in a reasonably austere faith” and so would be “unfamiliar with casual use of these words. Even so, the “words and behaviours were insufficient to precipitate mental illness in a reasonable person”. He maintained that Mr Perananthasivam did not suffer from a formal psychiatric disorder or stress related illness “which could be reasonably or logically attributed to his employment”.
Dr Lewin
54. Dr Lewin saw Mr Perananthasivam and provided a report dated 19 January 2005 (Exhibit R5). He took a detailed history. In relating the incident, Dr Lewin reported that Mr Perananthasivam felt that his dignity had been affronted. Dr Lewin noted Mr Perananthasivam’s report of worry, fear, anger and other emotions, preoccupation with concerns about the workplace, some sleep disturbance, including bad dreams, worries and reduced appetite after he ceased work following the incident. He did not report morbid depressive or anxiety symptoms. He took into account that he continued to function during this period in other aspects of his life. I think it possible that Mr Perananthasivam suffered from an Adjustment Disorder but consider it unlikely as he functioned competently away from the work situation. He acknowledged that Mr Perananthasivam was very distressed. He concluded that Mr Perananthasivam was not suffering from any psychiatric condition at the present time and that no such condition was caused by the incident or other aspects of Mr Perananthasivam’s work.
55. During his oral evidence, Dr Lewin was asked to give his opinion taking into account the particulars of Dr Newlyn’s examination on 10 March 2004. Dr Lewin took into account the matters listed under “Present Illness” which included some degree of sleep disturbance and difficultly with concentration, not wanting to answer telephone calls at home, uneasy feelings in his abdomen when he thinks of what happened, anger and “I feel unjustly treated. I have worried that a car was parked in front of my house to spy on me”. He also took into account that Mr Perananthasivam’s affect was “Anxious. Consistent with though content”.
56. Dr Lewin was also asked to accept that the stressors said to have occurred during the incident were bad language, that is to put his arse on a seat and then put his bum on a seat, someone saying in a loud voice in front of other people that he was a disgrace to the team and that he felt intimidated by someone preventing him leaving the room.
57. In response to a question whether he would regard those symptoms “to be outside the boundaries of normal mental functioning, in terms of response to those stressors” he said “Probably not”.
58. In response to the question whether he would find the symptoms were consistent with any form of psychiatric illness, he said “No”, and later, that they would not be sufficient to reach the threshold of psychiatric illness.
59. During cross-examination, Dr Lewin repeated that he had found a possible diagnosis of Anxiety Disorder following the incident on the basis of the documents he had reviewed, but that he had some qualifications, and that it may or may not have reached a threshold of illness (Transcript p431).
60. In summary, Dr Lewin’s opinions were that it was possible but not likely that Mr Perananthasivam may have suffered from Anxiety Disorder after the incident, and that he did not suffer from the condition when he saw him in 2005.
Rehabilitation Evidence
61. Sharon Wilkenfeld is an industrial psychologist and is employed at Work Solutions. In March of 2004, Telstra referred Mr Perananthasivam to Work Solutions for occupational rehabilitation assistance including a return to work program. However, the Human Resources department recommended that Work Solutions not be engaged and a return to work program should not commence until the independent investigation had been completed. Mr Colvin also believed that the return to work program should not have been commenced as medical advice suggested that Mr Perananthasivam was unable to return to work (Exhibit A2 – Sp 8-8).
62. After the independent report had been prepared, Work Solutions was engaged again on 19 May 2004. Ms Wilkenfeld contacted Mr Perananthasivam about a return to work program. She explained that the purpose of the program was to assist Mr Perananthasivam in returning to full time hours and full time duties. On 19 May 2004 Mr Sexton sent a letter to Mr Perananthasivam asking him to sign a “Medical Disclosure Authority” form so they could obtain records from his treating practitioner (Exhibit A4).
63. Ms Wilkenfeld met with Mr Perananthasivam on 26 May 2004 and recorded that Mr Perananthasivam had a mistrust of Telstra and he stated that he may comply with Work Solutions if there were clear negative consequences or legal implications for him. Mr Perananthasivam described the incident and stated that he had returned to work through his own initiative and with the helps of doctors and prayers rather than with the help of Telstra. Ms Wilkenfeld gave evidence that if there were going to be any negative repercussions that perhaps he would engage in rehabilitation but at this stage Mr Perananthasivam did not want to participate in rehabilitation.
64. Exhibit A2 – SP8-8 is the correspondence between Mr Perananthasivam and Mr Colvin about the return to work program. On 27 May 2004 Mr Perananthasivam emailed Mr Colvin stating the he did not trust Telstra’s motives for getting involved in a return to work program in May 2004, and did not believe the reasons why the return to work program was not implemented earlier. Mr Perananthasivam wrote: “Therefore I do not trust your motive and as such would not get involved with Return to Work Consultant unless there are legal or other compelling reasons for me to comply”. On 1 June 2004, Mr Colvin responded: “Participation in the rehabilitation program is not mandatory, unless you have an accepted claim. Therefore, at your request, Telstra will advise Work Solutions to discontinue your formal return to work program and await the outcome of the determination of your claim by GIO”. Mr Perananthasivam did not reply to this email and the return to work program ceased.
65. In July 2004, Work Solutions was again engaged by Telstra for Mr Perananthasivam. This was after his claim had been denied by GIO. On 29 July Ms Wilkenfeld contacted Mr Perananthasivam and told him that he had been referred again. Mr Perananthasivam’s response was that he would consider the referral only if there was a written letter from Alan Colvin with regard to the process (Exhibit A6). Mr Perananthasivam never entered into the return to work program.
Law
66. Section 4 provides:
"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.
67. Telstra did not contend in these proceedings that the injury, if there was one, had been suffered as a result of reasonable disciplinary action.
Consideration
68. The first question I have to determine is whether Mr Perananthasivam suffered an “injury” as a consequence of the incident 9 February 2004. I find that he suffered an injury, that is Adjustment Disorder with mixed anxiety and depressed mood acute, as diagnosed by Dr Newlyn.
69. I have come to that conclusion because I prefer the evidence of Dr Newlyn, Mr Perananthasivam’s treating psychiatrist, to that of either Dr White or Dr Lewin, both of whom saw him for medico-legal purposes. Dr Newlyn’s evidence was considered, balanced and based on his involvement with Mr Perananthasivam since March 2004, over 2 years. I note that Dr Lewin thought that Mr Perananthasivam may have had Anxiety Disorder in March 2004.
70. As I have come to that conclusion, I should address a submission put by Mr Polin who appeared for Telstra. As I understand his submission, it was that Mr Perananthasivam was functioning “normally” following the incident and therefore in accordance with Comcare v Mooi (1996)137 ALR 690, the condition was not an “injury”. I did not accept that submission because I have found that Mr Perananthasivam did suffer from a psychiatric disorder. The point of Mooi as I understand it, was that if a person is not mentally ill or disturbed or suffering from a psychological disorder, then there must be a disturbance of the normal functions of the body or mind for the condition to be relevantly an “injury”. This is not such a case.
71. The next question is whether Mr Perananthasivam is entitled to compensation pursuant to s 14 of the Act? On the basis of Dr Newlyn’s evidence I find that he was incapacitated for work as a consequence of the incident.
72. As conceded by Telstra, it follows from my finding that he suffered an injury, that Mr Perananthasivam is entitled to s 16 medical expenses in respect of that injury.
73. The final question to determined is whether Mr Perananthasivam is entitled to compensation for incapacity pursuant to s 19 of the Act. Mr Polin put three arguments on this question.
74. First, he argued that on the evidence I would find that Mr Perananthasivam was not incapacitated. As I accept Mr Newlyn’s evidence, I find that he was incapacitated from the time of the incident on 9 February 2004 until 3 May 2004 when he returned to work.
75. Mr Polin’s second and third arguments relied on s 19(4) of the Act and Mr Perananthasivam’s failure to undertake a rehabilitation program and his evidence in other proceedings that he was able to work. As I have found that Mr Perananthasivam was not incapacitated after 2 May 2004, it is unnecessary to consider these arguments further, as the first rehabilitation program was offered at the end of May 2004, after the period of incapacity I have found, and the proceedings where he gave evidence occurred in 2005.
Decision
76. For the reasons give above, I set aside the reviewable decision and substitute for it the decision that:
1. Telstra is liable pursuant to section 14 of the Act for the injury suffered by Mr Perananthasivam on 9 February 2004, that is Adjustment Disorder with mixed anxiety and depressed mood acute.
2. Telstra is liable to pay Mr Perananthasivam’s medical expenses pursuant to section 16 of the Act in respect of that injury.
3. Telstra is liable to pay incapacity payments pursuant to section 19 from the time of the incident on 9 February 2004 until 3 May 2004 when Mr Perananthasivam returned to work.
Costs
4. The question of costs was not argued at the hearing. My present inclination is that the appropriate order would be that Telstra pay Mr Perananthasivam’s costs pursuant to s 67(8) of the Act. However, I grant Telstra 14 days in which to contact my Associate if it wishes to argue the question. If that is not done, I will make the order I have indicated.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 19-22 December 2005 and 7 April 2006
Date of Decision 1 June 2006
Advocate for the Applicant Self Represented
Counsel for the Respondent Mr N Polin
Solicitor for the Respondent Henry Davis York
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