Randall and Comcare
[2006] AATA 433
•28 April 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 433
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/331
GENERAL ADMINISTRATIVE DIVISION ) Re KENNETH RANDALL Applicant
And
COMCARE
Respondent
DECISION
Tribunal JW Constance, Senior Member Date 28 April 2006
Place Canberra
Decision The decision of Comcare made 19 October 2004 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Mr Randall in respect of:
the injury of aggravation of social phobic disorder suffered by him on 17 March 2001; and
the injury of anxiety disorder suffered by him on 25 August 2003...............................................
JW Constance, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employees – social phobic disorder – generalized anxiety disorder – aggravation of disorder – refusal of transfer
Wiegand v Comcare Australia (2002) 72 ALD 795
Re Salters and Telstra Corporation Ltd (2002) 66 ALD 798.
Hart v Comcare [2005] FCAFC 16
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
INTRODUCTION
1. Mr Randall is seeking a review of a decision by Comcare to deny liability to compensate him for a “social phobic disorder” and a “generalized anxiety disorder”. Mr Randall‘s original claim was for “generalized anxiety disorder” which he claims was caused by various workplace situations which have occurred since 1979 when he was employed by the Australian Bureau of Statistics.
2. For the reasons which follow I have decided that Mr Randall is incapacitated as a result of injuries which are compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth). A decision to this effect will be substituted for the decision under review.
FACTS
3. I am satisfied of the following facts on the balance of probabilities. Unless otherwise stated my findings are based on the evidence of Mr Randall. I found Mr Randall to be an honest witness who recounted his recollections to the best of his ability.
4. Mr Randall is 52 years old. On completion of his schooling in 1971 he studied at Sydney University and graduated as a Bachelor of Arts with Honours. He then spent 9 months as a salesperson with David Jones. Although the condition of social phobia was not diagnosed in Mr Randall until many years later, the first symptoms appeared in the early 1970’s.
5. Mr Randall’s Public Service career began in 1978 when he joined the Australian Taxation Office as a Clerk Class 1. He worked successfully in that position and was promoted to Graduate Administrative Assistant. He transferred to the Australian Bureau of Statistics in 1979.
6. From the very first day Mr Randall found the work environment at the Bureau different to that with which he was familiar at the Tax Office. He said that he was “exceedingly shy and felt uneasy about communicating with people [he] did not know terribly well.” [1] Nevertheless he worked successfully at the Bureau for a number of years in a number of different Sections. In 1983 he began to develop his computer skills and in 1984 and 1987 he gained further promotions. His promotion in 1987 was with a rating of “acceptable” but with a reservation as to his communication ability.[2]
[1] Ex.A1.
[2] Ex.R2 attachment 2.
7. In 1988 Ms Mary Pederson became Mr Randall’s Team Leader. In evidence Mr Randall said:
“For the first time since I joined ABS I felt comfortable under her supervision as I felt she practiced [sic] workplace diversity and could cope with the limitations I experienced in dealing with people. She saw those limitations I had as merely an attribute and worked with me in working around them.” [3]
[3] Ex.A1 para.8.
In a reference dated 27 November 1989 Ms Pedersen stated that “Ken is a diligent worker needing minimal supervision. He organises his time well and has a commendable commitment to deadlines……He has demonstrated excellent analytical skills……” [4]
[4] Ex.A2.
8. Between 1991 and April 1999 Mr Randall worked in various Sections with various Team Leaders. He related to some Team Leaders better than others, but throughout this period was able to operate satisfactorily. In April 1999 Mr Randall joined the Technology Application for Technical Services Division Section of which Ms Anne Hare was the Director. Mr Randall described working in this Section in part as follows:
“Ms Hare had difficulty from the beginning with the way I did my job. I would hear her talk in negative terms about me to other Section Supervisors……her criticisms were at a personal level rather than my technical work performance. This made me feel very uncomfortable towards her…….For the first time since I had joined ABS I started feeling harassed……….in 1999 I felt constantly under pressure to have more effective communications with colleagues when I felt inherently incapable of doing that. I felt that the performance appraisal process gave my supervisors a loaded gun to hold at my head, in that I felt that if I was unable to communicate with colleagues and have the kind of social relationship that they were judging me against my job would be threatened. I have had difficulty with communication throughout my career in the Australian Bureau of Statistics but there was now a much sharper focus on what communication meant.” [5]
[5] Ex.A1.
He also stated that at times Ms Hare shouted at him.
I accept that Mr Randall was being honest in giving this evidence. However in view of the evidence of Ms Hare to which I will refer later, I am satisfied that some of the above is Mr Randall’s perception of events rather than an accurate statement of what actually happened.
9. The appraisal process to which Mr Randall referred commenced across the Bureau on a trial basis in 1998 and then on a “live” basis in July 1999. The process required Mr Randall (along with all other employees) to enter Performance Agreements and to take part in regular performance appraisals.
10. Ms Hare gave evidence and I accept her as an honest witness. She denied shouting at Mr Randall and denied personal criticism of him. Ms Hare was aware of the Personnel Department having referred Mr Randall for assessment on various occasions. The Personnel Department made her aware of recommendations made as a result of those referrals but not of the content of reports. To the best of her recollection she was not informed that Mr Randall suffered from a medical condition until 2001. Ms Hare also stated that it was the policy of the Bureau not to transfer an employee from one Section to another whilst that employee was under performance management and that this was the reason Mr Randall was not transferred out of the Technology Application for Technical Services Division Section.
11. In a performance appraisal in January 2000 Mr Randall was rated as “unsatisfactory” in his communication skills. The Human Resources Section referred Mr Randall to Mr Jeff Parsons, Psychologist for assessment in relation to the difficulties he was experiencing in the workplace. In a report dated 9 February 2000 Mr Parsons stated that:
“Assessment identified that Mr Randall suffers marked symptoms of Social Phobia and that these problems have been of longstanding. Mr Randall’s symptoms currently impair his ability to maintain satisfactory social relations at work.” [6]
[6] Ex.R2 attachment 7.
This was the first time Mr Randall had been diagnosed as suffering from social phobia. He delivered a copy of this report to Human Resources on 9 February 2000.
12. Human Resources then requested an assessment by Health Services Australia. This was carried out and on 24 February 2000 Dr Le Leu, Occupational Physician reported that Mr Randall was fit to continue his current duties but that the best solution for all concerned might be for Mr Randall “to be transferred to an area where his abilities are required and his ‘difference’ can be accepted.” [7] Dr Le Leu was uncertain whether Mr Randall had a medical condition.
[7] Ex.A12.
13. On 7 March 2000 the Bureau referred Mr Randall to CRS Australia for vocational assessment. On 5 May 2000 CRS Australia reported to the Bureau that many factors supported the diagnosis of Social Phobia and that “it would be unrealistic to expect significant changes in Mr Randall’s behaviour.” [8]
[8] Ex.A1 attachment “A”.
14. As a result of the information in the Bureau’s possession Mr Randall was not appraised for 2000. The appraisal was delayed until 21 May 2001 and was conducted by Ms Hare. The appraisal was critical of Mr Randall’s technical work and he sought a review. The appraisal was upheld. After negotiations over several months when Mr Randall was assisted by his union the Bureau agreed that the appraisal contravened the provisions of the applicable Certified Agreement and the appraisal was set aside.
15. In April and May 2002 Mr Randall consulted Dr Tym, Psychiatrist. This consultation was “at the urging” of the Bureau.[9] Dr Tym reported:
“When shyness interferes significantly, amongst other of a person’s circumstances or situations, with a person’s occupational functioning then, in psychiatric parlance, it is awarded the appellation or label of Social Phobia……I note in a letter dated 09.02.00 from Mr Jeff Parsons, Psychologist, referring to the consultation you had with him on 01.02.00, the same conclusion was drawn.” [10]
[9] Ex.R2 attachment 19.
[10] Ex.A11.
In his report Dr Tym recommended that the Bureau modify its expectations as to the style in which it was expected that Mr Randall would perform his work. A copy of the report was delivered to the Bureau on 11 June 2002.
16. On 30 August 2002 Ms Jenny O’Connor, in her role as a member of the Performance Management Advisory Unit, advised Mr Randall that the Bureau had already implemented Dr Tym’s recommendations.[11]
[11] Ex A1 para. 42.
17. Mr Randall took leave between 30 September 2002 and 11 April 2003 because of the pressure he was feeling at work. This leave was approved by the Bureau in advance. On 8 October 2002 Ms O’Connor, in her role as Assisitant Director People Management Section, wrote to Mr Randall at his home address informing him that “[at] the end of the day, however, the success of your return to work is largely a matter for you.”.[12] In the same letter she also informed Mr Randall:
“If you are unable to fulfil the inherent requirements of your position, which includes effective communication, regardless of the means of that communication, or wish to dispute the medical recommendations, you will be referred for further assessment under the Fitness for Duty guidelines. This independent medical assessment would include an evaluation of current medical advice with input from the ABS about your current work performance.”
[12] Ex.R2 attachment 19.
Whilst Mr Randall was on leave Ms O’Connor continued to correspond with Mr Randall and maintained the Bureau’s view that Dr Tym had not made a diagnosis.
18. On 26 May 2003 Ms O’Connor wrote to Mr Randall in that:
“I consider I have set out the reasons for my view that Dr Tym has not made a diagnosis……Regardless of whether there has been a definite diagnosis, the ABS has accepted and implemented all of Dr Tym’s recommendations as to your preferred communication style……I am strongly of the view that nothing can be gained by further reference to Dr Tym. Notwithstanding my view that Dr Tym has not diagnosed a medical condition, the ABS is already accommodating your communication preferences to the full extent it reasonably can.
I am presently minded therefore to direct you to attend an independent medical examination under Regulation 3.2 of the Public Service Regulations 1999. Unlike your consultation with Dr Tym, this will be an independent examination and will involve an evaluation of your current medical fitness to perform the inherent requirements of your position.
If you wish to make any comments on my proposed course of action, please provide me with your written comments within 14 days from the date of this email.” [13]
[13] Ex.R2 attachment 20.
19. Mr Randall said that by this time his situation at work was all that he could think about and that he felt “under the microscope”[14]. I accept this evidence.
[14] Ex.A1 para. 47.
20. In an email to Mr Randall on 3 June 2003 Ms O’Connor wrote:
“I have again considered Dr Tym’s report dated 24 May 2002……I am now satisfied that Dr Tym, in referring to Mr Parsons’ letter, and stating that in it “the same conclusion was drawn”, is implicitly endorsing a diagnosis that you suffer social phobia.
I do not consider, however, anything practically flows from me accepting that Dr Tym has diagnosed you are suffering social phobia, as ABS has accepted and implemented all of Dr Tym’s recommendations.”[15]
[15] Ex. R2 attachment 20.
21. In September 2003 Mr Randall commenced a period of sick leave and since then has been absent from his employment for most of the time.
Medical evidence
22. Mr Randall called Consultant Psychiatrist Dr Veness and his General Practitioner Dr McGuiness. Comcare called psychiatrists Dr Glaser and Dr Haik.
23. Dr Veness is Mr Randall’s treating psychiatrist, on referral from Dr Mc Guiness. Dr Veness first examined Mr Randall on 29 January 2004. It is Dr Veness’ opinion that there is no doubt that Mr Randall “has been crippled for most of his adult life”[16] by the psychiatric disorder of Social Phobia. In his report of 29 January 2004[17] Dr Veness stated:
“As a consequence of the increasingly rejecting and seemingly hostile atmosphere in the workplace, Mr Randall’s anxiety condition worsened such that he has not been to work since last September…..This man’s psychiatric condition has been aggravated in the workplace by what appears to be improper management for one with such a disability. should he return to that same workplace, he will be re-injured and the danger arises that his anxiety disorder will become so disabling that he is unable to work at all, indefinitely.”
[16] Ex A9.
[17] Ex.A9.
Dr Veness examined Mr Randall again on 5 August 2005 and reported that “[the] delay in finding him a suitable workplace has acted adversely upon his condition” [18].
[18] Ex.A10.
24. In giving evidence Dr Veness said that Mr Randall had been able to work successfully in other jobs until what were in fact the symptoms of his disorder were interpreted as an attitude problem and this aggravated his anxiety. This meant that his workplace, which had previously been a place of safety for him, now caused him great anxiety. The refusal to accept the diagnosis of social phobia aggravated the problem. His social phobia spread to his workplace making it impossible for him to work. Hypersensitivity to criticism is a feature of social phobia.
25. Dr McGuiness has been Mr Randall’s general practitioner since 2000. He first consulted her concerning his social phobia on 17 March 2001 In August 2003 he presented with poor self care of hygiene and dressing, less coherent thoughts and speech. She diagnosed him as suffering with agitated depression caused by his perception that his employer had disregarded his human rights in relation to his known disability.[19] In September 2003 Dr McGuiness certified that Mr Randall was unfit for work as a result of migraine headache and neck pain caused by stress at work.
[19] Ex.A8.
26. Mr Randall has consulted Dr McGuiness on 5 or 6 occasions per year since January 2004. She is of the opinion that had Mr Randall not been under the scrutiny of performance management review his condition of social phobia would not have been so debilitating.
27. Dr Haik, Psychiatrist, assessed Mr Randall at the request of Comcare’s solicitors in March 2005. Dr Haik’s opinion is expressed in the following from his report of 15 March 2005:
“Should Mr Randall be compensated for Generalised Anxiety Disorder (GAD)?
The short answer is no. On the balance of probabilities, one could find little evidence that his employment with the Australian Bureau of Statistics has materially contributed to his development of GAD. Given the documentation available to me, Mr Randall has fallen short of the minimal requirements expected by his employer (in communications, interactions, work output etc). And when such shortcomings were brought to his attention he took offence and charged the messengers with harassment and discrimination and then he is said to have become more anxious – hence the proposal of GAD. An increase in his social phobic symptoms would be a sufficient explanation.” [20]
[20] Ex.R7.
Dr Haik gave evidence. Despite the views expressed in his report he agreed that when Mr Randall’s work performance was drawn to his attention he felt criticized and this led to increased anxiety which led to increased symptoms of his disorder. He agreed that “it is a vicious circle.” He also agreed that Mr Randall was genuine in his concerns, that he does want to return to work and that work was “a haven” for him.
28. Dr Glaser, Consultant Psychiatrist, examined Mr Randall in March 2004 at the request of the Bureau. In a report to the Bureau[21] Dr Glaser confirmed the diagnosis of social phobia and that it was an identifiable psychiatric disorder. He further reported:
“[The] key problem is his intense anxiety when confronted with unfamiliar situations, or situations where he has to perform to a certain standard, especially if he perceives that others will be taking a particular interest in his responses or performances. Of course, this is precisely the type of situation which has confronted him as a result of repeated reviews of his work performance. It is not surprising that he has reacted to these with increasing anxiety, thus performing in an allegedly poor fashion, and thus setting up even more intensive monitoring and scrutiny of his work activities etc. In other words, the very process of reviewing his allegedly poor work performance has now set up a vicious cycle which is guaranteed to impair his work capacity even more.” [22]
[21] Ex.R6.
[22] Ex.R6.
Dr Glaser gave evidence and confirmed these views.
29. At the request of the Bureau Mr Randall was assessed by Dr Lark, Occupational Physician, of Health Services Australia Ltd on 20 May 2005. Dr Lark reported to the Bureau that as indicated by Dr Veness, Mr Randall has suffered from social phobia for most of his adult life. He recommended that there be a further attempt at occupational rehabilitation along the lines recommended by Dr Veness the previous year.[23]
[23] Ex. A13.
Evaluation of the medical evidence
30. I am satisfied that Mr Randall has suffered from the psychiatric condition of social phobia for most of his adult life and that this condition was not caused by his employment by the Bureau. The great preponderance of the medical evidence supports this finding.
31. I am also satisfied that the methods of management of Mr Randall’s performance whilst employed by the Bureau have caused him to suffer anxiety and has aggravated his condition of social phobia to the extent that he is presently unable to return to his former position. Dr McGuiness, Dr Veness, Dr Glaser and Dr Lark all agree that Mr Randall suffers from such anxiety and that it is ongoing. Dr Haik agrees that Mr Randall has suffered from increased anxiety as a result of the review of his work performance but is of the view that the increase in the symptoms of social phobia is the reason for his problems in his employment.
32. I prefer the opinions of Dr McGuiness, Dr Veness, Dr Lark and Dr Glaser to that of Dr Haik on the question of the anxiety suffered by Mr Randall. In his report Dr Haik displayed a bias in favour of the Bureau in his assessment of Mr Randall’s reaction to the review process. He described Mr Randall’s behaviour and/or his views as “arrogant”, “obdurate”, “discriminatory”, ”inflexible and misshapen” and expressed the opinion that he will continue to exhibit “disabled arrogance.” [24] Dr Haik has not been prepared to consider the explanations for Mr Randall’s behaviour which have been propounded by other medical experts and has taken it upon himself to argue the case for the employer. Whenever the opinion of Dr Haik conflicts with the opinions of other medical practitioners in evidence I prefer the opinions of those others. In reaching this conclusion I have taken in to account that Dr McGuiness and Dr Veness are Mr Randall’s treating doctors and have had more opportunity to assess him. I was also impressed by the objective and straightforward manner in which the practitioners other than Dr Haik gave their evidence.
[24] Ex.R7.
LEGISLATIVE BACKGROUND
33. So far as is relevant to this application subsection 14(1) provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work.
In subsection 4(1) “injury” is defined to include “(a) a disease suffered by an employee……..but does not include any such disease……suffered by an employee as a result of……failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
’”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.”
ISSUES
34. The issues which require consideration are:
1.does Mr Randall suffer a ”disease” within the meaning of subsection 4(1); and
2.if so, has Mr Randall suffered an “injury” within the meaning of subsection 4(1)?
DETERMINATION OF THE ISSUES
Does Mr Randall suffer a “disease” within the meaning of subsection 4(1)?
35. On the basis of my findings above Mr Randall has suffered two distinct diseases, namely:
·an anxiety disorder; and
·an aggravation of his social phobia.
36. On the basis of the medical evidence I have referred to I am satisfied that the anxiety disorder suffered by Mr Randall is “outside the boundaries of normal mental functioning and behaviour”[25] and is within the term “disease”. I rely on the evidence that the condition is sufficiently severe to have prevented Mr Randall from attending his workplace and carrying out the type of work he had successfully carried out for a number of years previously.
[25] Comcare v Mooi (1996) 69 FCR 439
37. The evidence of Dr Veness and Dr Glaser establishes that social phobia is a psychiatric disorder and therefore beyond the boundaries of normal behaviour.
38. Provided that an employee’s condition is not a result of delusion, the employment is said to “contribute to” the ailment or aggravation if a state of affairs existed which created a perception in the mind of the employee and that perception contributed in a material degree to the ailment or aggravation; it matters not whether that perception is regarded as unreasonable on some objective test: Wiegand v Comcare Australia (2002) 72 ALD 795 at paragraph 31; Re Salters and Telstra Corporation Ltd (2002) 66 ALD 798.
39. I have found that Mr Randall was the subject of ongoing performance management, that his supervisor Ms Hare was unaware of his medical condition until 2002 and that Ms O’Connor as Director of the People Management Section persisted in denying the diagnosis of social phobia until 3 June 2003. It is irrelevant whether these management practices were undertaken with knowledge of Mr Randall’s phobia and/or the likely negative effect on him or whether there was any intention to cause Mr Randall any distress. On the basis of Mr Randall’s evidence and the medical evidence referred to I am satisfied that the Bureau’s management practices, as well as Mr Randall’s perception of them, contributed in a material degree to Mr Randall’s anxiety and the aggravation of his social phobia. The medical evidence causes me to reject Comcare’s argument that Mr Randall’s symptoms were simply a manifestation of his phobic disorder.
Has Mr Randall suffered an “injury” or “injuries” within the meaning of subsection 4(1)?
40. This is the more difficult issue as it raises the question of whether either of the diseases was suffered as a result of the failure of Mr Randall to obtain a transfer out of the Section in which he is employed. If either was a result of this failure that disease is excluded from the definition of “injury”.
41. Counsel for Comcare has referred me specifically to the evidence of Dr McGuiness that Mr Randall “first presented with symptoms which rendered him incapacitated from working at ABS in August 2003 which include stress, anxiety and increased frequency of migraines, only after he was unable to obtain a transfer out of his existing section” [26]. On the basis of the decision of the Federal Court in Hart v Comcare [2005] FCAFC 16 Counsel argued that the failure by Mr Randall to obtain a transfer out of his section contributed to his conditions and as a consequence he has not suffered an injury within the meaning of the Act.
[26] Ex.A8.
42. In Hart v Comcare there was a finding of fact by the Tribunal that the disease suffered by Ms Hart was suffered as a result of the failure to obtain a promotion. This finding was not in issue before the Federal Court. In that circumstance the Court held that as a matter of construction the disease was not an injury and it did not matter that the failure to obtain a promotion was only one of a number of work-related factors which resulted in to the disease
43. In this case I am satisfied as a matter of fact that the failure of Mr Randall to obtain the transfer did not result in his anxiety condition. Although Dr McGuiness noted the temporal proximity of the failure and the symptoms she went on to say in the same report that “his symptoms were caused by his perception that his employers were disregarding his human rights in relation to his known disability (ie Social Anxiety Disorder), and were not willing to afford him the steps recommended by an earlier workplace agreement and then various psychiatric reports. There had been a prolonged period of about 5 years of this situation” (emphasis added).
44. On the basis of the medical evidence I have referred to in paragraphs 22 - 32 I am also satisfied as a matter of fact that the failure to obtain a transfer did not result in the aggravation of the social phobia. Again, the evidence establishes that this aggravation came about as a result of the management practices of the Bureau and it was a consequence, not a cause, of that aggravation that Mr Randall sought a transfer as a means of alleviating the circumstances giving rise to it.
45. It follows that neither the anxiety condition nor the aggravation of the social phobia condition suffered by Mr Randall is excluded from the definition of “disease” in subsection 4(1). As I have found that both injuries have resulted in a continuing incapacity for work Comcare is liable to pay compensation to Mr Randall in accordance with Part II of the Act and there will be a decision setting aside the decision under review.
DECISION
46. The decision of Comcare made 19 October 2004 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Mr Randall in respect of:
1)the injury of aggravation of social phobic disorder suffered by him on 17 March 2001; and
2)the injury of anxiety disorder suffered by him on 25 August 2003.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JW Constance, Senior Member
Signed: ..............(P Strauch)..................
AssociateDate of Hearing 27 & 28 February 2006
Date of Decision 28 April 2006
Counsel for the Applicant Wayne Sharwood
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Dibbs Abbott Stillman
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