Re STDQ and Comcare Australia
[2009] AATA 262
•21 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 262
ADMINISTRATIVE APPEALS TRIBUNAL )
)No V 200300970
)V 200301014
GENERAL ADMINISTRATIVE DIVISION ) Re STDQ Applicant
And
COMCARE AUSTRALIA
Respondent
DECISION
Tribunal Mr B H Pascoe, Senior Member,
Dr K J Breen, A M, MemberDate21 April 2009
PlaceMelbourne
Decision The Tribunal affirms the decisions under review.
(sgd) B H Pascoe
Senior Member
COMPENSATION – stress and anxiety condition – cease liability for condition arising from prior employment in 1993 – deny liability for condition arising from subsequent employment – whether failure to obtain a benefit or retain a benefit in connection with employment – lumbar spine injury – whether effect of injury ceased.
Safety Rehabilitation and Compensation Act 1988
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Rodriguez v Telstra Corp Ltd (1999) FCA 1400
REASONS FOR DECISION
21 April 2009 Mr B H Pascoe, Senior Member,
Dr K J Breen, AM, Member1. These are applications to review two decisions of the respondent. The first decision of 3 July 2003 affirmed a determination of 8 August 2001 to cease liability for a stress-related condition arising from STDQ’s employment with the Australian Communication Authority (ACA) and affirmed a determination of 15 October 2001 which ceased liability for a lumbar spine condition which arose from her employment with the Australian Taxation Office (ATO). The second decision of 4 September 2003 affirmed a determination of 29 August 2001 denying liability for a stress and anxiety condition alleged to have arisen from her employment with the ATO.
2. At the hearing the applicant, STDQ, although assisted for part of the hearing by her son, AB, was unrepresented. The respondent was represented by Mr J Ferwerda of counsel. Evidence was given by STDQ, AB and two employees of the ATO, Mr S Boukas and Ms G Hollingsworth.
3. The two applications were lodged with this Tribunal in September 2003 and relate to a period of employment by STDQ from November 1999 to July 2001. After a period of being legally represented, the solicitors ceased to act and STDQ has been unrepresented. As a result of her seeking other legal representation, several adjournments sought by her for medical reasons and other delays, the actual hearing did not commence until 12 November 2007. At the request of STDQ, subsequent hearing dates were separated in time and, in total, seven days of hearing resulted and were completed on 8 September 2008. Further time was then granted to STDQ for filing of a final written submission which occupied 164 pages and was received on 31 October 2008. It was only after receipt of the respondent’s submission in reply on 27 November 2008 that the Tribunal was in a position to make its findings – some five years after lodgement of the application and over seven years since cessation of the relevant employment. This long delay has caused the inevitable difficulties in seeking to ascertain the factual matters relating to the employment of STDQ with the ATO. Several other employees involved with STDQ in this period were not available to give evidence, those who were available were required to recall incidents of seven or eight years ago and, for STDQ, these matters had dominated her life for that period of time.
4. STDQ commenced employment with the ATO on 15 November 1999. She was employed at the Box Hill office as a Field Officer in the newly formed GST Section prior to the introduction of GST from 1 July 2000. At the outset it should be noted that she had two compensable injuries from her previous employment with the ACA. These were a shoulder injury and anxiety arising from work-related stress. The ATO was not aware at the time of her engagement of these two conditions.
5. On 16 November 1999, her second day at work, STDQ was involved in a motor vehicle accident on her way to work and aggravated her existing shoulder injury. She remained at work to complete a training program but commenced sick leave on 21 November. She had a shoulder dilatation on 14 December. Apart from attending a team meeting on 5 January 2000, she did not recommence work until 11 January for three hours per day. On 25 January STDQ was medically cleared to increase her work to four hours per day, although she said that she had sought to return to full time work. On 2 February she was instructed to attend an assessment by Health Services Australia (HSA). On 7 February, the area manager, Mr Eggington insisted that STDQ limit her hours to three hours per day and, subsequently, insisted that she take leave until 21 March. After returning on limited hours, she finally resumed full time work in May. On 19 June 2000 STDQ had a second shoulder dilatation and was off work for seven days. On her return to work she was given restricted duties with a requirement to be accompanied on all field visits and not to drive. Although STDQ said that she had been medically cleared for normal full time duties, she maintained that Mr Eggington insisted on maintaining her restrictions until October 2000. From then she was able to work alone, visiting country centres on advisory work.
6. STDQ continued her normal role as a GST Field Officer until 5 February 2001. Between that date and 9 February she attended an Occupational Health and Safety course. STDQ stated that she was not provided an appropriate chair in which to sit during the course and, as a result, injured her lower back. As a result of her claim for the back injury she was required to take leave and then undertake a graduated return to work program. STDQ said that on 26 March 2001 she sought to return to work but was told to remain on leave until 17 April 2001.
7. After returning to work on 17 April 2001, STDQ was directed to work on a specific project involving the ATO website. This work was done in the office, working alone and under the supervision of Ms Hollingsworth. On 13 July 2001 STDQ ceased work and has not returned. Her employment was formally terminated in September 2003.
8. It would appear likely that the problems in the relationship between STDQ and her supervisors in the ATO commenced early in her employment when, as a result of her motor vehicle accident, the ATO became aware of her two pre-existing compensation claims and took additional care over return to work plans. It is relevant to note the history of her anxiety condition arising from the previous employment with the ACA. In summary, this was said to have arisen from perceptions of harassment by supervisors, a failure to recognise her abilities and work contribution and isolation. She ceased work in November 1993. Various efforts to return STDQ to work at the ACA were unsuccessful. In 1995 she was offered employment with the ATO but refused to accept the offer on the basis that the position offered was not suitable for her abilities and qualifications. The respondent ceased liability to pay compensation for a failure to accept an offer of reasonable employment and that decision was affirmed by this Tribunal on 28 October 1997. It would appear that, apart from some 10 weeks work for a private employer, STDQ remained unemployed from November 1993 until commencing with the ATO in November 1999.
9. In the Tribunal decision of 28 October 1997, it was said that STDQ agreed that she had suffered episodes of depressive illness during her lifetime, more particularly in association with the birth of her son when she developed post-natal depression, a subsequent custody dispute and divorce, a dispute concerning a neighbouring fence and motor vehicle accident and disputes with the employer in this application and with a former employer Meyer Cookware Australia Pty Ltd.
10. At the hearing of this application, STDQ was provided with over three hearing days to give her evidence-in-chief. In summary, her major complaints of her treatment by the ATO were:
· In January 2000, a belief that her superiors regarded her shoulder injury with suspicion.
· The refusal to accept medical certificates for absences and subsequent queries.
· In February 2000, being instructed to attend HSA for assessment and her understanding that this was on the view that it was appropriate to find out if there is a problem and the extent of it.
· From January 2000, being required to report leave and compensation issues to her area manager, Mr Eggington, rather than her team leader.
· In February 2000, being instructed by Mr Eggington not to drive the office motor vehicle thus restricting her ability to act as a Field Officer.
· In March 2001, not being allowed to return to work until 17 April 2001 although she believed she had been cleared by her medical practitioner.
· In April 2001, the use of a mouse and keyboard affected her shoulder injury.
· In being transferred to the project in April 2001, she was assigned to a work station in the corner and isolated from other staff in a different building.
· She was prevented from attending a training course which colleagues attended.
· She believed that she was under constant surveillance and required to report all absences from her work station.
· On 3 April 2001, the office vehicle assigned to her was removed from her home by ATO Officers.
· An incident where she said her supervisor, Ms Hollingsworth, followed her and thrust a mobile phone at her demanding she speak to Mr Eggington while she was obtaining a cup of coffee.
· A general complaint of constant supervision and harassment by supervisors and managers and a campaign to prevent her working as a Field Officer.
11. It is accepted that STDQ will not consider the previous paragraph adequately describes her concerns and complaints and it is acknowledged that it is a much abbreviated summary.
12. One aspect of STDQ’s issues with the ATO were her allegations of mistreatment in relation to the retrieval of an ATO car she had been allocated. She said that she had the use of an ATO vehicle which was parked at her house. She maintained that on 29 March 2001 she sought advice regarding the vehicle, which she was not using while on leave as a result of her back injury, and received no response. She said that on the morning of 3 April 2001 she was at home preparing for a medical appointment when a Mr S Boukas, her team leader, telephoned her and said that he was coming to collect the car and that he was aware that she was at home. Later, through her window she saw the car being driven off and discovered that some of her personal possessions had been taken from the car and left on her front lawn. She said that this incident caused severe trauma and she became reluctant to go outside without company. She became concerned at other cars parked in the street and regularly believed that she was under surveillance by Tax Officers. She complained to the ATO and received a written apology for the manner in which the vehicle had been removed.
13. The evidence of her son, AB, on this incident was that STDQ was out in the garden at approximately 10.30am on 3 April 2001 when he called her to remind her of the time and that she would be running late. He heard his mother take a call on her mobile phone while still in her dressing gown. He heard her say Stan and that she was running late for an appointment. She told him that Stan had seen her outside and wanted to collect the car. After they both showered, AB said that he noticed the car had gone. His mother’s personal belongings had been left outside the front door. He said that his mother was upset. He did acknowledge that the bell on the front security door had not worked for years.
14. The evidence given by Mr Stan Boukas was that he called STDQ at approximately 9.30am on 3 April 2001 to arrange a time to collect the ATO vehicle, which had previously been requested to be returned while STDQ was on leave. He said he suggested a pick-up in the next hour and was told that I could suit myself. Mr Boukas said that he arrived at the home of STDQ together with a Mr Ward at 10.45am and saw her in the front garden. He said that when she saw them she ran into the house and closed the door. He rang her on her mobile phone and reminded her that they were there to retrieve the vehicle. STDQ requested Mr Boukas to call back in five minutes. After ten minutes he called again but the mobile phone had been switched off. Mr Boukas and Mr Ward then proceeded to ring the door bell. After waiting 10 minutes and hearing movement inside the house, Mr Boukas said that Mr Ward used the spare set of car keys to remove the vehicle from the driveway. He said that they removed all personal property from the vehicle and, after knocking on the door and ringing the bell with no answer, left these items on the doorstep. He said that they departed at approximately 11.15am.
15. From the foregoing combination of evidence, we are satisfied that STDQ had been requested to return the vehicle while on leave, she was well aware that Mr Boukas and his colleague were coming to collect the vehicle, she was aware that they had arrived and she deliberately avoided speaking to them. It is difficult to avoid the conclusion that STDQ was only prepared to return the vehicle on her own terms and when it suited her and complained bitterly when this was not accepted. While it is noted that she received an apology for the manner in which the vehicle was retrieved, this was on the basis that it would have been more satisfactory if a time had been agreed in advance.
16. It is clear that when STDQ commenced work with the ATO in November 1999 the ATO was not aware of her existing compensation claims in relation to anxiety conditions and shoulder problem. The accident on the second day of work alerted the management to the compensable conditions. The management’s reaction to this knowledge was to be ultra-cautious and protective in relation to STDQ in an attempt to limit the possibility of further aggravation of the conditions. This involved a lengthened graduated return to work, a limitation from driving and working alone and supervision of her activities. This approach had the unintended effect of making STDQ feel isolated, harassed and as if she was being treated with suspicion.
17. As indicated at the outset, there are three decisions to be reviewed. The first decision was to cease liability for the stress-related condition which arose from employment with ACA on and from 8 August 2001. The evidence at the hearing was that in November 1999 STDQ considered that she was in excellent health and anxious to make progress in her new employment. In a report dated 26 October 2000, her former treating psychiatrist, Dr Sheehan stated that she:
… has previously suffered from a major depressive illness which is now resolved
and that her
… condition which was caused by her employment in May 1993 has now ceased but she remains a high risk of relapse of this condition under further stress in the future.
Ms P Greig, a treating psychologist, at a last consultation in October 2000, concluded that there were no symptoms of depression and issues associated with the previous workplace. In July 2000 STDQ was examined by a consulting psychiatrist, Dr N Strauss. He considered that there was no active psychiatric condition and that her psychiatric problems were in remission. Nevertheless, Dr Strauss recognised that STDQ was a vulnerable individual.
18. It was submitted by STDQ that, while she may have been in remission in 2000, the circumstances of her employment in 2001 aggravated her pre-existing condition, so that her pre-existing anxiety had been reactivated. For the respondent it was said that the psychiatric condition arising from the ACA employment had resolved well prior to August 2001 and any psychiatric condition suffered at that time was the result of subsequent events. In this case it is difficult to determine which event, the 1993 psychiatric injury or the 2001 psychiatric injury, was the cause of her anxiety/depression in 2001 and afterwards. On balance, and having regard to the totality of psychiatric evidence and the acceptance by the respondent of psychiatric injury in 2001, we find that the effect of the employment with ACA had ceased by November 1999 and that the decision under review should be affirmed. It is noted that STDQ has suffered several episodes of depressive illness during her lifetime and it would be difficult to determine which of these episodes was the major one to be regarded as being reactivated, when another bout of stress was incurred.
19. The next decision for consideration is that which ceased liability for the lumbar spine condition from 13 October 2001. In the course of complaining about a prolonged graduated return to work program, STDQ stated in an email on 19 May 2001 that I consider I have fully recovered from my back injury. In a report dated 13 August 2001 from her general practitioner, Dr Van Wetering, it was stated that Maria presented on 28 May 2001 stating that she no longer had back pain. In an examination by Dr Gras of HSA on 4 April 2001 he found that STDQ had a full range of movement of the thoraco-lumbar spine. Dr Gras had some concerns about possible aggravation if STDQ was doing field work involving driving, carrying equipment and associated bending, lifting and carrying and agreed that project work involving minimal physical exertion may be more favourable. There was no evidence of any continuing back problems after May 2001. STDQ’s primary contention was that the injury to her back aggravated her psychological condition. However, it is clear that the psychological condition is the subject of a separate decision and any contribution from the back injury needs to be considered in relation to that decision. Given that there is no evidence or argument that the back injury caused any incapacity beyond 13 October 2001, the decision under review should be affirmed.
20. The final decision for consideration is the denial of liability for stress and anxiety. The claim for work related stress and anxiety was made on 3 July 2001 and stated its commencement date as 14 June 2001, when it was said that STDQ noticed inability to continue to cope. There is no doubt from reports of various psychiatrists and a psychologist that, at that time and subsequently, STDQ suffered from a psychiatric condition described as either Adjustment Disorder with depressed mood or Anxiety and Depression. There is equally no doubt that there was a clear nexus between her employment with the ATO and that psychiatric condition. It is clear from decisions of the courts in cases such as Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 and Rodriguez v Telstra Corp Ltd (1999) FCA 1400 that it is sufficient that the employment contributed in a material way to the condition and it is not necessary to establish fault on the part of the employer. A genuine perception by an employee of harassment or inappropriate treatment is sufficient to prove such contribution. It is not necessary to establish that the treatment actually happened.
21. In its submissions, the respondent did not seek to argue that STDQ did not suffer from a stress and anxiety condition or that work was not a contributing factor. The primary submission was that compensation was precluded under the Safety, Rehabilitation and Compensation Act 1988 (the Act) because it was an injury as a result of a failure by STDQ to obtain a benefit in connection with her employment. Mr Ferwerda submitted the following list of alleged benefits sought by STDQ. These included:
· the benefit of not being able to use the skills which she believed she possessed;
· the benefit of consultation and agreement before being transferred to the project;
· the benefit of not being required to perform work which she regarded as beneath her level of competence;
· the benefit of being allowed to undertake training courses notwithstanding such courses were not required for the current work being undertaken;
· the benefit of being able to undertake a field officer’s duties;
· the benefit of job-specific training without completion of a performance agreement and a learning and development program;
· the benefit of the retention of use of a vehicle, laptop computer and mobile phone when on leave or when performing duties where these were not required;
· the benefit of a graduated return to work program set by herself;
· the benefit of not reporting absences from her work station;
· the benefit of not being subject to the same constraints as other workers;
· the benefit of receiving adequate acknowledgement of her success in receiving an external award for her studies; and
· the benefit of being assigned to a work station of her own preference rather than that selected by her supervisor.
22. STDQ submitted that there was a concerted campaign waged by her superiors at the ATO to prevent her acting as a Field Officer, a role for which she considered herself to be well trained and well suited. In essence, she argued that the failure was a failure to retain the benefit of being allowed to continue to perform that role, participate in the training relevant to that role and be provided with the equipment relevant to such duties.
23. There is an inevitable difficulty in cases such as these in determining whether there was a failure to obtain a benefit or a failure to retain a prior or existing benefit. While there may be an argument that several of the benefits outlined in the respondent’s submission were such prior or existing benefits, we are satisfied on the totality of the evidence, that, on balance the overall position was that STDQ sought and failed to be provided with the benefit of being able to operate and perform a role of her own choosing and to comply with only those administrative and supervisory requirements which she believed were appropriate to her views of her ability and performance. As such, we find that the psychological injury was the result of a failure by STDQ to obtain a benefit in connection with her employment. Therefore, it is precluded by s 4(1) of the Act from being an injury to which the Act applies.
24. It follows from the foregoing that the decision of 4 September 2003 denying liability for stress and anxiety condition should be affirmed.
I certify that the twenty-four (24) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B H Pascoe, Senior Member,
Dr K J Breen, A M, Member
Signed: ...D M Eva.
ClerkDates of Hearing 12 November 2007, 5 March 2008,
23 April 2008, 28 May 2008, 2 June 2008, 11 June 2008, 8 September 2008,
Date of Decision 21 April 2009
Advocate for the Applicant Self‑represented
Counsel for the Respondent Mr J FerwerdaSolicitor for the Respondent Mr Lazarus Dobelsky, DLA Phillips Fox
0
3
1