Richardson and Comcare
[2010] AATA 245
•8 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3759
GENERAL ADMINISTRATIVE DIVISION ) Re Michael Richardson Applicant
And
Comcare
Respondent
DECISION
Tribunal Senior Member Jill Toohey
Air Vice Marshall (Dr) Tony Austin, MemberDate8 April 2010
PlaceSydney
Decision The Tribunal affirms the decision under review.
.................[sgd].............................
Senior Member
CATCHWORDS
COMPENSATION - harassment – alleged failure of management to respond - applicant suffered stress and anxiety – period off work – liability for injury denied – whether applicant suffered an ailment – applicant’s condition not outside the boundaries of normal mental functioning - decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988
Canute v Comcare [2006] HCA 47
Comcare v Mooi [1996] FCA 1587
Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45; (2000) 200 CLR 286
REASONS FOR DECISION
8 April 2010 Senior Member Jill Toohey
Air Vice Marshall (Dr) Tony Austin, MemberBackground
1. Michael Richardson has worked for the Department of Defence since November 1997. He claims compensation for anxiety and stress as a result of harassment by a fellow employee, which he says his employer failed to respond to appropriately, and which led him to be off work from 11 July to 21 November 2008.
2. Comcare does not dispute that Mr Richardson suffered anxiety and stress as a result of what occurred in the workplace. However, it says he did not suffer a compensable injury but, rather, a normal reaction to a stressful situation which was not “outside the boundaries of normal mental functioning and behaviour”: Comcare v Mooi [1996] FCA 1587.
3. We have to determine whether Mr Richardson suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
Mr Richardson’s evidence
4. Mr Richardson has represented himself in these proceedings. As well as written submissions, he gave oral evidence.
5. At the relevant time, Mr Richardson was working as a project manager in the Logistics Management Group of Defence Materiel Organisation (Defence). On three occasions in 2007 and 2008, he made complaints about the conduct of a fellow employee, P. The first two complaints, in 2007, were apparently resolved, although not without “some drama” according to Mr Richardson. The second complaint resulted in an apology from P after which the two men met each afternoon for a week and apparently resolved matters.
6. In April 2008, Mr Richardson was one of several people who received an email from P making allegations concerning the management of two Defence contracts. Mr Richardson took the allegations seriously because they confirmed his own concerns. In the course of the investigation that followed, he reported his concerns which included the conduct of P himself.
7. The relationship between the men deteriorated and Mr Richardson says P began harassing him virtually every day for two weeks. Mr Richardson reported the harassment to his superiors but the offensive emails, comments and general harassment continued. It became apparent, from some of the emails, that P had disclosed Mr Richardson’s name, work address and work email address to the sender of SPAM emails.
8. On 8 June 2008, Mr Richardson received an anonymous email addressed to his wife which purported to come from a kindergarten. He suspected the email, which made offensive statements about their eight-year old son, came from P. Two days later, Mr Richardson reported the email to the Acting Director but felt it was not given the attention it deserved and so reported it to the police. On the same day, he asked that an email be circulated reminding staff not to disclose confidential information about colleagues to unauthorised persons. It was several weeks before an email to that effect was sent to staff.
9. By 10 June 2008, Mr Richardson’s supervisor was sufficiently concerned to write to the Commander to say that, since Mr Richardson’s complaint two and a half weeks earlier, P’s “bullying, harassment, victimisation and physical intimidation” of him had continued on a daily basis and she was concerned that P’s “propensity for emotional violence” would escalate to physical violence; further, his conduct was affecting her staff and the team’s productivity and required independent investigation.
10. Around 13 June 2008, following requests by Mr Richardson, P was moved to another floor but his supervisor worked at a station close to Mr Richardson and P would come frequently for meetings, and continued to make comments to Mr Richardson.
11. Mr Richardson remained aggrieved at what he considered the lack of response to his complaints and lack of support from management. On 11 July 2008, he saw his general practitioner, Dr Tran, on account of the anxiety and stress induced by his work environment. He was off work until 21 July 2008 when he returned for several hours but felt he could not remain there; he told his supervisor he needed to take further leave until management removed P from the building altogether. Mr Richardson returned again on 28 July 2008 but left at lunchtime and remained off work until 21 November 2008 when he returned to a position in another location.
12. In oral evidence Mr Richardson described the symptoms he experienced as:
…a high level of anxiety which meant my thoughts were running rapidly. There was a fear of further attacks of harassment, which resulted in an overwhelming preoccupation within my mind of the need to guard myself, to find a solution, to seek some sort of refuge…
13. Mr Richardson also described his physiological response in oral evidence in terms of his “blood pumping and thoughts racing, shaking…”.
14. There is evidence that Defence management took various steps to deal with P’s conduct and, in fact, around 9 December 2008, P’s employment was terminated on the ground of breaches of the APS Code of Conduct. However, Mr Richardson complains that the response was inadequate and too slow. The documents before us give some support to this view but it is not for us to determine whether industrial matters were dealt with properly unless directly relevant to the issues before us.
The medical evidence
15. Dr Tran issued periodic medical certificates certifying Mr Richardson unfit for work because of “anxiety/stress”. In September 2008 she referred him to Christopher Alexander, psychologist.
16. In a report dated 20 September 2008, Mr Alexander states that Mr Richardson reported “a range of adjustment and stress-related symptoms prior to being classified as unfit for work including: hypervigilance, cognitive impairment, rumination and worry, sleep disturbance, muscle spasms and tension, trembling and dizziness [which] occurred particularly at time of confrontation with the alleged harasser”. Since being on leave, he reported, he had little appetite and had lost weight, was easily irritated and had a “short fuse” with his wife and children.
17. Mr Alexander describes these symptoms as the result of “an ongoing and unresolved psychosocial stressor” and anticipated they would resolve with resolution of the workplace situation; further psychological intervention would be of minimal benefit at that stage.
18. Dr Tran also referred Mr Richardson to Dr Samson Roberts, a consultant psychiatrist, for assessment in September 2008. On 13 September 2008, Dr Roberts reported to Dr Tran that Mr Richardson reported feeling alienated in the workplace and shaky and sick in the stomach; he had lost three inches around his girth; and he ruminated on the circumstances. He told Dr Roberts he was “fine” outside the workplace. Dr Roberts noted that Mr Richardson was not on any prescription medication. He concluded:
The emotional response described by Mr Richardson would, based on his account, not appear to be pathological in its nature. Namely he exhibits features consistent with a normal response to an unpleasant circumstance in the workplace. It is not apparent that Mr Richardson has a diagnosable psychiatric condition”.
19. Dr Roberts reported to Comcare on 7 October 2008 in similar terms. He noted that Mr Richardson was actively participating in household responsibilities and was busy with his children; he was also considering other employment opportunities, reflecting an absence of psychiatric illness, and indicating he considered himself fit for work.
20. In response to specific questions from Comcare, Dr Roberts stated “the distress experienced by Mr Richardson which is considered of insufficient severity as to meet diagnostic criteria” was precipitated by the workplace circumstances; it was “a normal response within a normal person”; it was not expected to remit while those circumstances persisted.
21. Dr Megan Rees, consultant psychiatrist, saw Mr Richardson on 7 November 2008 at Comcare’s request. She reports Mr Richardson’s account of events at work and says he reported he was currently “quite well and is functioning normally” but he felt “somewhat stressed” when he had to deal with some of the workplace issues; his ability “to attend to activities of daily living and functioning in the household, as well as socially [had] not been impacted in any significant way during the whole incident”; he was not on any medication.
22. Dr Rees considered that, if Mr Richardson were to return to work within close proximity to P, it was likely that his anxiety would increase again and this could result in a psychiatric condition “down the track”. She thought a graduated return to work should be implemented once the workplace matters had been resolved; if Mr Richardson experienced any increase in anxiety, “a brief psychological intervention of two or three sessions” might be helpful but might not be necessary, and was not currently indicated.
23. Dr Inglis Synnott, consultant psychiatrist, saw Mr Richardson on 16 September 2008 at Comcare’s request. As well as written reports, Dr Synnott gave oral evidence. Mr Richardson reported to him that, in the three months he had been off work, he continued to have sleep difficulties and often thought about work and what would happen to him in future but there had been a dramatic reduction in his symptoms and “basically he is fine” if not thinking about work. Dr Synnott considered that Mr Richardson had not returned to work, not for any psychiatric reason, but because no constructive suggestions had been made to resolve the situation and he continued to feel alienated and unsupported.
24. Dr Synnott found Mr Richardson “pleasant, friendly, cooperative and polite”; he gave a clear, coherent and organised history with no evidence of cognitive impairment. He concluded Mr Richardson had experienced psychological distress as a result of the situation at work “but the symptoms he described are similar to those seen in the broader community in similar circumstances and are not pathological or aberrant. They do not indicate the presence of a psychiatric condition”. Dr Synnott thought it was an industrial problem and that further treatment would be of no benefit.
25. In oral evidence, Dr Synnott said that “stress/anxiety” as referred to in Dr Tran’s medical certificates is not a recognised diagnosis but, rather, a description. Dr Synnott observed that it is normal, when confronted with an environment that is perceived to be hostile, for an individual to experience a wide range of negative emotions including anxiety and even depression; these responses are appropriate and do not warrant either a psychiatric diagnosis or clinical intervention.
26. Mr Richardson saw a psychologist on two occasions through the Employee Assistance Program at work. Consultations under the Program are confidential and no reports are available to the Tribunal. These two were the only occasions when Mr Richardson saw someone for actual treatment for his condition, as opposed to for a medico-legal assessment.
The legislation
27. By s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work.
28. Section 5A provides, relevantly, that "injury" means:
(a) a disease suffered by an employee; or
(b)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;
29. Section 5B provides, relevantly, that "disease" means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
30. “Ailment” means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development): s 3.
Did Mr Richardson suffer an injury?
31. Mr Richardson maintains that he did not suffer a “disease” at work but, rather, an “injury”. His main objection appears to be to the label “mental disease” but he also considers that “injury” better describes what happened to him at work. That is not an unreasonable response but it does not find support in the legislation.
32. Whether a particular condition is a “mental injury” or an “ailment” may be difficult to determine. The terms “injury” and “disease” are not mutually exclusive: Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286. However, “injury” connotes a “sudden or identifiable” change, whether internal or external. In Kennedy, the High Court was not required to determine the meaning and scope of “mental injury” but it comments about the nature of “injury” remain relevant.
33. In Canute v Comcare (2006) 226 CLR 535, the High Court considered a claim concerning an adjustment disorder with anxious and depressed mood arising out of a back injury. The Court had no argument with the Full Federal Court’s finding that the compensable injury suffered by the applicant was an “ailment” within the meaning of “disease”.
34. Given the nature of Mr Richardson’s condition, in particular the way in which it developed over time and became progressively worse, we find that it is not a “mental injury” within the meaning of s 5A(b). It remains to consider whether it is a “disease”.
35. The fact that Mr Richardson had not been diagnosed with a psychiatric condition does not preclude a finding that he has an “injury” for the purposes of s 14. In Mooi (above), Drummond J made clear that a recognised medical condition, or diagnosis, is not necessary in order for an “ailment” to be found. However, he said, at [12]:
… it is essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
36. Drummond J made no attempt to define where those boundaries lie but added:
In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s 14(1).
…
... work-caused physical or mental fatigue that impairs an employee’s capacity to work is no more compensable than debilitating work-caused stress, unless that distress amounts to or results in a condition of disease or illness.
37. Implicit in this last comment is that there are circumstances where the work environment can generate “debilitating stress” without giving rise to a “disease”.
38. There is no doubt that Mr Richardson experienced stress and anxiety at work on account of the harassment itself and the apparent lack of support from his superiors. We accept that he experienced the symptoms he describes and that he felt genuinely unable to continue at work. However, we are not satisfied that that he was in a condition that was outside the boundaries of normal mental functioning and behaviour.
39. The weight of the medical evidence is that Mr Richardson’s response to the workplace was normal given what had been happening. Besides not diagnosing any psychiatric condition, none of the doctors considered he needed any form of treatment including medication. It is reasonable to conclude that, had any form of treatment been considered, one of the doctors would have suggested it. That no one did so supports the conclusion that Mr Richardson’s response was within the boundaries of normal mental functioning and behaviour.
40. Mr Richardson was able to function normally away from work, although he had some difficulty sleeping and he was sometimes irritable with his wife and children. He confirmed to the doctors and in oral evidence that he would have felt able to return to work sooner if the situation at work were resolved. This further supports the conclusion that Mr Richardson’s response was within the boundaries of normal mental functioning and behaviour.
41. We find that, distressing as the situation at work was, Mr Richardson’s condition was within the bounds of normal mental functioning and behaviour. It follows that he did not have an “ailment” and therefore a “disease”. It follows that he did not have an injury within the meaning of s 14 of the SRC Act.
42. We affirm the decision under review.
I certify that the 42 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: .............[sgd]..................................................................
Diana Weston AssociateDates of Hearing: 22 and 23 March 2010
Date of Decision: 8 April 2010
Applicant:Self-represented
Representative for the Respondent: Ms Naomi Tondl, AGS
Counsel for the Respondent: Ms Rhonda Henderson
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