Re Michael Munday and Comcare

[2015] AATA 314

[2015] AATA 314

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3342
Michael Munday
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	8 May 2015
Place	Canberra

Comcare’s decision on 13 May 2013 is affirmed.

................................[sgd]........................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — whether Applicant suffered a psychological injury — whether outside normal mental functioning and behaviour — whether Applicant suffered a physical condition — decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 14

CASES

Comcare v Mooi (1996) 69 FCR 439

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

Hart v Comcare (2005) 145 FCR 29

Munday and Comcare [2015] AATA 123

REASONS FOR DECISION

James Popple, Senior Member

8 May 2015

Summary

1. I affirm Comcare’s decision to deny the applicant compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  The applicant did not suffer a physical or psychological condition arising out of his employment with the Department of Human Services (the DHS).  Accordingly, Comcare is not liable to pay him compensation.

   Background

2. Mr Michael Munday worked for the DHS. On 22 November 2012, he submitted a claim for workers’ compensation for “panic attacks”. He said that this condition had been caused by his treatment in the workplace and that he had suffered “ongoing exposure to management representatives not acting professionally”. On 4 March 2013, Comcare disallowed Mr Munday’s claim. Comcare determined that it was not liable to pay Mr Munday compensation under s 14 of the SRC Act because his employment with the DHS was not a significant factor in the development of his claimed condition. On 13 March 2013, Mr Munday requested a reconsideration of that determination. On 13 May 2013, Comcare affirmed its determination.

3. On 11 July 2013, Mr Munday applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.

   Decision under review

4. The decision under review is Comcare’s decision on 13 May 2013 affirming its determination that Comcare is not liable to pay compensation to Mr Munday.

   Issues

5. The issues in this review are:

   ·did Mr Munday suffer a physical or psychological condition arising out of, or in the course of, his employment; and

   ·if he did, was his condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment?

   Did Mr Munday suffer a physical or psychological condition arising out of his employment?

6. Mr Munday had worked in the Internal Budgets and Reporting Branch of the DHS.  On 6 June 2011 he commenced what was to have been a 12-month temporary assignment to the Pharmaceutical Benefits Branch (the Branch).  He would appear to have been a respected member of the Branch.  The head of the Branch said that Mr Munday was intelligent, methodical, thorough and principled.  His supervisor said that Mr Munday was generally a good worker who acted with professionalism and usually followed directions.

7. Mr Munday says that he was bullied and harassed by his supervisor.  He says that she unreasonably denied him access to leave.  He says that she required him to account for his working hours to an unreasonable extent, essentially out of spite.  Mr Munday returned to his previous branch two weeks earlier than had been intended.  He says that this was also done deliberately as part of a campaign by his supervisor to “white-ant” him.  He says that the DHS’s internal processes for resolving complaints about the behaviour of his supervisor and others, have failed him.  He also says that the human resources area of the DHS conducted—and continues to conduct—a campaign against him, which has left him “illegally locked out of the workforce”.

8. There were many personal and financial issues affecting Mr Munday’s life at the time.  I do not need to detail those in these reasons, except to note one thing: Mr Munday was diagnosed with post-traumatic stress disorder (PTSD) in 2008 following a distressing event, unrelated to his work.

9. Mr Munday’s claim for workers’ compensation was for “panic attacks”.  His claim was supported by a medical certificate from his general practitioner, Dr Patrick O’Callaghan, dated 8 November 2012, which said that Mr Munday was suffering from “adjustment disorder / panic attacks”.  On 22 February 2013, Dr O’Callaghan diagnosed Mr Munday as suffering from an adjustment disorder with anxiety.  Dr O’Callaghan’s report of that date says that this was due to “a background of recent personal and work related stresses”.  His report sets out some of the detail of those personal stresses, then Dr O’Callaghan says that “[t]hese events coupled with the perceived lack of understanding and help from his workplace led to his symptoms of anxiety”.

10. On the basis of Dr O’Callaghan’s diagnosis, Comcare described Mr Munday’s claim (which it disallowed) as relating to “adjustment reaction with anxious mood”.  Mr Munday denies that he suffers from an adjustment reaction or an adjustment disorder.  He says that he “reacted exactly how anyone else would react” to the situation he was in.  If he has adjusted to these stresses in a normal way, he says, how could he have suffered an adjustment disorder?  He says that he presented to his doctor with physical symptoms (set out in Dr O’Callaghan’s report) which are not normal.  He says that he is now “not able to cope and not tolerant at all with any form of bureaucracy”.  Mr Munday characterises his condition as “burnout”.

11. At the hearing, three psychiatrists gave evidence about their assessments of Mr Munday: Dr Robert Athey and Dr Norman Rose (who each saw him in December 2013), and Dr Derek Lovell (who saw him in December 2014).

12. Only Dr Rose’s report mentioned Mr Munday’s earlier PTSD.  When asked, at the hearing, Dr Athey said that Mr Munday must not have told him about it; I think it likely that the same was true of Dr Lovell.

13. All three psychiatrists said that Mr Munday was angry.  Dr Athey said that Mr Munday appeared to be “a very frustrated man who had difficulty coping with the structure of his work and with a number of people with whom he was working”.  Dr Rose said that Mr Munday was “decidedly resentful, angry and blaming”.  Dr Lovell said that he was “an extremely angry man” and that “the undercurrent of anger was pervasive but not associated with significantly depressed mood”.

14. All three psychiatrists said that Mr Munday was not, when they saw him, suffering from a diagnosable psychiatric condition.  Dr Lovell said that Mr Munday was not suffering from a diagnosable medical condition.  All three said that they did not think that he had ever suffered from a psychiatric illness, apart (as Dr Rose noted) from PTSD.

15. Dr Athey said that Mr Munday “appeared to be angry and frustrated, but the degree of anger and frustration in my opinion was relevant to the situation and not outside of normal for a highly frustrated man”.  Dr Athey clarified that by “relevant” he meant “proportionate”.  At the hearing, I asked Dr Rose and Dr Lovell whether they thought that Mr Munday’s condition was outside the boundaries of normal mental functioning and behaviour.  That is the test that the Federal Court enunciated in Comcare v Mooi for deciding that a person suffers a compensable mental condition even though there is no specific diagnosis.[1]  Dr Rose said that he did not consider Mr Munday’s condition to be outside those boundaries.  Dr Lovell said that Mr Munday was “angrier than most people that I have seen in this circumstance for [a] fitness for duty [assessment]”, but I do not take him to mean that his condition was outside the boundaries of normal mental functioning and behaviour.

    [1] (1996) 69 FCR 439 at 443–444 per Drummond J.

16. There is some evidence that Mr Munday was suffering from a psychological condition when he made his claim.  As noted above, Dr O’Callaghan diagnosed him as suffering from “adjustment disorder / panic attacks” on 8 November 2012, and from an adjustment disorder with anxiety on 22 February 2013.  On 4 December 2012, Mr Sleiman Abou-Hamdan, then a provisional psychologist and rehabilitation consultant, reported that Mr Munday presented “with symptoms which would satisfy a diagnosis of Adjustment Disorder, Chronic, with Mixed Disturbance of Emotions and Conduct”.  In March 2013, Dr Kumari Fonseka became Mr Munday’s general practitioner.  She noted Dr O’Callaghan’s diagnosis, and extended Mr Munday’s medical certificate until she became more familiar with him and his medical history.  By 29 October 2014, she was of the view that he was not suffering from a mental illness.

17. These diagnoses of a psychological condition were made by one—or, arguably, two—general practitioners and a provisional psychologist.  I give greater weight to the evidence of the three psychiatrists that Mr Munday did not suffer from a psychological condition.  Mr Munday pointed out that the psychiatrists saw him a long time after he was seen by Dr O’Callaghan, Dr Fonseka and Mr Abou-Hamdan.  I still favour the psychiatrists’ evidence, especially given that there was some evidence that Mr Munday’s condition has not improved since he made his claim.

18. Having regard to all of this evidence, I find that Mr Munday does not, and did not, suffer a psychological condition arising out of his employment.  There is no doubt that he suffered physical symptoms of anxiety, and there is some evidence that those symptoms continue.  But there is not sufficient evidence for me to find that Mr Munday suffered a physical condition arising out of, or in the course of, his employment which caused those symptoms.  Accordingly, I find that he did not suffer such a physical condition.

    Was Mr Munday’s condition suffered as a result of reasonable administrative action taken in a reasonable manner?

19. The definition of “injury” in s 5A of the SRC Act includes “an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”. But s 5A excludes from that definition an injury “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

20. I have found that Mr Munday did not suffer a psychological condition arising out of his employment. Comcare has identified three actions which it says would have contributed to the development of Mr Munday’s psychological condition, if he had suffered one. Mr Munday disagrees. He also says that Comcare is “cherry picking” these actions from a large number of actions whose combined effect was unreasonable. But, if only one cause of a condition satisfies the exclusion in s 5A, the exclusion applies—even if the condition had many separate causes.[2]

    [2] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at [24] per Gray J, citing Hart v Comcare (2005) 145 FCR 29 at [21]–[23].

21. The three actions that Comcare identified are: interactions between the DHS and Mr Munday regarding the DHS’s guidelines on standards of dress; Mr Munday’s supervisor’s refusal to approve him taking two days of special leave; and the early termination of Mr Munday’s temporary assignment to the Branch.  A large proportion of the submissions and evidence at the hearing related to these three actions.

22. Because of my conclusion that Mr Munday did not suffer a psychological condition arising out of his employment, I do not need to consider the effect of any administrative action taken by the DHS.  However, in my view, all three of the identified actions were reasonable administrative actions taken in a reasonable manner in respect of Mr Munday’s employment.

23. This does not mean that I disbelieve Mr Munday’s evidence about what happened during his time in the Branch.  Much of it is unchallenged: for example, e-mail discussions involving Mr Munday and other staff of the DHS.  Mr Munday says that this evidence demonstrates that DHS’s actions were unreasonable.  I do not agree.  Some of Mr Munday’s evidence is contradicted by evidence introduced by Comcare: for example, evidence about things that were said in conversations and at meetings, and how it was said.  Even if I accepted this contested evidence from Mr Munday, the uncontested evidence would still support findings that the DHS’s actions were reasonable and taken in a reasonable manner, though not as professionally as they could have been.

24. So, even if I had found that Mr Munday suffered a psychological condition arising out of his employment, that condition would not have been an injury for the purposes of s 5A of the SRC Act, and Comcare would not have been liable to pay compensation.

    Other matters

25. As noted above, Mr Munday says that he is the victim of continuing institutional harassment by the DHS, especially its human resources area, which has left him “illegally locked out of the workforce”.  I did not allow Mr Munday to introduce, in this review, evidence of this alleged behaviour by the DHS.[3]  If these allegations are true, Mr Munday has or had other avenues of redress.  The allegations are not relevant to the question whether Comcare is liable to pay him compensation.

    [3] Munday and Comcare [2015] AATA 123.

    Conclusion

26. Mr Munday did not suffer a physical or psychological condition arising out of his employment with the DHS. Accordingly, Comcare is not liable to pay him compensation under s 14 of the SRC Act.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

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Associate

Dated 8 May 2015

Dates of hearing	20–22 April 2015
Applicant	In person
Counsel for the Respondent	Mr Andrew Dillon
Solicitors for the Respondent	Australian Government Solicitor