Rosalina Bettanin v Adria Village Ltd

[2012] ACTMC 9

ROSALINA BETTANIN v ADRIA VILLAGE LTD
[2012] ACTMC 9 (27 November 2012)

WORKERS’ COMPENSATION – claim against employer – work stress induced adjustment disorder with mixed anxiety and depressed mood – injury alleged to be due to workplace bullying and harassment from supervisor – entitlement to compensation and payment of medical expenses

Workers’ Compensation Act 1951 (ACT), ss 4, 27, 38, 70, 116

Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16
Hart v Comcare [2005] FCAFC 16

No. WC 336 of 2010

Special Magistrate:      G Lunney SC
Magistrates Court of the ACT

Date:  27 November 2012

IN THE MAGISTRATES COURT OF THE         )
  )          No. WC 336 of 2010
AUSTRALIAN CAPITAL TERRITORY               )

BETWEEN:ROSALINA BETTANIN

Applicant

AND:ADRIA VILLAGE LTD

Respondent

FINDINGS AND DIRECTION

Special Magistrate:  G Lunney SC
Date:  27 November 2012
Place:  Canberra

THE COURT MAKES THE FOLLOWING FINDINGS:

(a)At all material times, the applicant was a worker to whom the Workers’ Compensation Act 1951 (ACT) applies.

(b)On 10 February 2009 she sustained injury arising out of her employment with the respondent being an adjustment disorder with mixed anxiety and depressed mood.

(c)As a result of that injury she was totally incapacitated for work from the time of leaving work on 10 February 2009 to 13 February 2009, and from the time of leaving work on 17 February 2009 to 5 November 2009.

(d)The respondent is liable to pay expenses pursuant to s 70 of the Act in respect of the applicant’s injury.

DIRECTION

(e)I give leave to the parties to file a draft Award giving effect to my findings, and will hear the parties regarding costs.

1. These proceedings were commenced by Application for Arbitration dated 3 November 2010.

   2. At the hearing the issues were: payment of weekly compensation for a closed period; and payment of medical expenses.

3. The particulars of the application indicate that the nature of the injury alleged was ‘work stress induced adjustment disorder’. The injury was alleged to have occurred between 8 February 2008 and 8 April 2009. The injury was said to be due to workplace bullying and harassment. The date of injury and date of claim for compensation was 11 February 2009. The amount claimed in the Application for Arbitration for medical and like expenses was $1,792.70. The period for which compensation was claimed was from 10 February 2009 to 5 November 2009.

Procedure

4. When the matter was called on initially for hearing, it became apparent that there was significant difficulty in understanding the applicant. My impression was that she understood the English questions being put to her, but she found it difficult to adequately articulate her intended answers.

5. Proceedings were terminated for that day, and I directed that an affidavit should be filed containing the applicant’s evidence in chief. In the event, two affidavits were filed. I also asked that arrangements be made for the assistance of an interpreter for cross examination at the adjourned hearing.

6. My understanding is that it was not possible to obtain an interpreter in the Australian Capital Territory due to the applicant speaking a local dialect, and an interpreter was found in Sydney.

7. I am aware that this arrangement probably caused some difficulty for the respondent’s counsel, however, an interpreter was available in Court at appropriate times, and no further application for directions was made.

The applicant’s evidence

8. The applicant’s date of birth was 24 October 1953, having been born in the Philippines. She married there, and came to Australia in February 1980. She had two children in Australia, the second being born in 1982.

9. She was employed by the respondent on 12 April 2007 as a personal care assistant. She had previously done home based child care, worked as a house keeper in a hotel where she had made a previous workers’ compensation claim. She apparently has some minor symptoms from that injury. In her employment with the respondent she worked under a female supervisor.

10. The applicant said that her job was a busy one, she enjoyed her work, and at first she got on well with her supervisor. There were performance appraisals from time to time, and when she missed a staff meeting, she received a letter reminding her of the importance of attending these events.

11. In approximately early 2008, the applicant felt that the supervisor’s attitude towards her was changing. She felt that she was being spoken to rudely and sharply, was being criticised without justification, and was not allowed to respond to criticism. She was reduced to tears on at least one occasion.

12. There was apparently an occasion early in 2008 when another employee requested the applicant to change shifts. The applicant agreed and left it to the other employee to make the arrangements. A dispute arose and the matter was investigated by the supervisor after which the applicant was upset and again felt that she had been criticised without basis.

13. The situation was compounded in September to October 2008, when the applicant was underpaid by omission of a relatively small number of hours. Upon her taking the matter up with the pay clerk, the matter could not be resolved because the clerk was going on holidays. The matter took a considerable time to be resolved. The applicant filed a formal complaint dated 29 October 2008 - but which was apparently handed in on 11 November 2008. There is significant dispute about the circumstances surrounding this incident, however it seems likely that the applicant became upset with the pay clerk during the course of proceedings and was criticised by the supervisor for not submitting a pay query form. The applicant was left feeling that she had been blamed for causing a situation that was not her doing.

14. There was another incident about which there is conflicting evidence. It occurred at a staff meeting on 10 February 2009. The applicant said that she had been criticised by the supervisor in front of the meeting and called ‘stupid’ by her. The supervisor followed this up with a letter of 16 February 2009, the terms of which I will return to later.

15. The applicant was clearly upset by her exchange with the supervisor. She said that she felt upset, humiliated and embarrassed. She said that she had been treated unfairly in front of her workmates and a guest speaker. The applicant’s husband gave evidence of her early return home in a very distressed state, and she attended a family doctor that day. The doctor was a member of the Phillip Medical Centre located at 33 Colbee Court, Phillip, ACT.

16. She received a certificate, dated 10 February 2009, to be off work from 10 to 13 February 2009 inclusive. She received further certificates from the same practice: on 18 February 2009 from 18 to 22 February 2009; and on 24 February 2009 from 23 February to 6 March 2009 inclusive.

17. She said that she worked from 14 to 17 February 2009, when the supervisor was either not present or could be avoided. On 17 February 2009, she received the letter referred to above. She has not returned to work with the respondent since.

Issues

18. The respondent submitted that the applicant had not received an injury for the purposes of the Workers’ Compensation Act 1951 (ACT) (the Act). If she did sustain injury, payment of compensation was precluded by s 4(2) of the Act.

19. The respondent also submitted that the applicant had not made a claim for compensation within time as required by s 38 of the Act. This issue will involve consideration of s 116(3) of the Act.

Medical evidence

Phillip Medical Centre

20. The applicant attended the Phillip Medical Centre commencing on 10 February 2009 through to 4 January 2010. She received certificates for unfitness for work throughout that period. It is significant that on her third attendance on 24 February 2009, the doctor, Dr John Sanderson, gave her a Form 1 Workers’ Compensation Medical Certificate.

21. The history recorded by the doctor on10 February 2009 was as follows:

New job – Stressors-being accused of wrong things by her Supervisor stated.

22. The doctor apparently advised attempting to mediate the problem.

23. She attended again on 18 February 2009 and saw a different doctor. The history was recorded as follows:

Conflict with boss few months, all other staff happy with her (ie the pt.)

No union support

Awaits WorkCover documentation.

24. The doctor evidently advised her to leave work if she was not happy, but she did not wish to do that. She was counselled and no medication was prescribed.

25. She saw Dr Sanderson on 24 February 2009. The recorded history then was:

Work stress issue at work

Harassed by supervisor

Long long discussion re: options

Seems to be valued by all co-workers except supervisor.

26. Apart from the long discussion of problems, no treatment seems to have been offered.

27. There were then another four attendances until 24 April 2009.

28. On the visit prior to this on 14 April 2009 there is reference to:

Still receiving written warnings for frivolous and trivial matters.

29. The entry for 24 April includes the following:

Has seen lawyer

Req counselling

Needs mental health plan.

30. The word ‘req’ in the second line could be interpreted as ‘requests’ or ‘requires’. In any event, she did attend the psychologist Mr McCrae on 6 May 2009 shortly afterward who reported completion of treatment to the Phillip Medical Centre, indicating in the letter that it was Dr Sanderson who had referred the applicant to him.

31. Her attendances then became less frequent. On 16 June 2009 the following comment is recorded:

Still anxious and depressed over work issue.

32. Medical Certificates were written by doctors for the period to 4 March 2010.

Mr Jason McCrae

33. When the applicant saw Mr McCrae in May 2009, he commenced treatment. His report is dated 21 July 2009, and was addressed to the Colbee Court practice which he describes as the Phillip Medical Centre.

34. He says that her initial presentation was as anxious and with low mood. He diagnosed:

adjustment disorder with mixed anxiety and depression whereby the stressor was her workplace and particularly interactions with her supervisor.

35. He said that he had administered tests before the initial session which placed her in the severe category for Depression, severe category for Anxiety, and moderate category for Stress. He said that the results of the tests matched his clinical impression.

36. He records the history as follows:

The focus of her anxiety was her workplace where she had recently, as she reported it, had various confrontations with an unreasonable and aggressive manager.

37. Mr McCrae treated her with six sessions of therapy, the concluding session being on 5 November 2009. At that time he felt that further treatment was unnecessary but warned that due to the nature of the disorder she experienced, relapse was possible.

Dr William Knox

38. The applicant also relied on the report of Dr Knox which was dated 12 October 2011 which followed a single consultation on the same day. He was provided with information from Mr McCrae and a letter of introduction.

39. He said that he did not believe that the applicant at that time had a clinical level of mood disturbance, although she continued to be apprehensive and disappointed at the way she had been treated when employed by the respondent. He noted significant improvement resulting from Mr McCrae’s treatment, and thought that her return to work in mid 2010 had contributed to her gain in confidence.

40. Dr Knox diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood which developed in the last months of her employment with the respondent, and had lasted for the following 12 to 18 months.

Dr Klaas Akkerman

41. On 6 April 2009, the applicant was examined at the request of the insurer by Dr Klaas Akkerman, a consultant psychiatrist whose practice address is in Sydney, NSW. The examination was conducted in Canberra.

42. Dr Akkerman noted a number of symptoms which included worry, headaches, irritability, tearfulness, and disturbed sleep. At that stage she had not commenced treatment with Mr McCrae, and he noted that she had not had any treatment.

43. He noted that:

she was evasive and at times she was not truthful. She did not answer questions directly.

44. He offered the following comments:

Her symptoms are very minimal and there is no diagnosis, either now or in the past.
Her work is a substantial contributing factor to the few symptoms she had and Section 11A applies, however, her symptoms were not serious enough to warrant a diagnosis.
Currently she is fit for her pre-injury duties; she can work but she does not want to work.

Dr John Saboisky

45. The applicant was also examined by Dr Saboisky at the request of the respondent’s solicitors on 1 March 2011.

46. Dr Saboisky noted that there had been a diagnosis of an Adjustment Disorder but his view was that the symptoms described to him were not severe enough to warrant that diagnosis. He expanded on this view as follows:

She was upset at this meeting but after three days, returned to work and her departure thereafter followed her reading the warning letter. I think it is a perfectly normal human reaction to be upset, angry and disenchanted with her employer. I think her distress did not constitute a psychiatric disorder.

Discussion of medical evidence

47. The conflict in the medical evidence is based on assessment of the severity of the applicant’s symptoms. It is significant that Dr Akkerman saw the applicant while she was being treated by the Phillip Medical Centre and before she embarked on treatment with Mr McCrae.

48. Dr Akkerman offered what I regard as a non-medical opinion that the applicant was evasive, at times not truthful and did not answer questions directly. This view conflicts directly with my assessment of the evidence of the applicant. Allowing for the difficulties she had in communication, she gave her evidence in a matter of fact although at times emotional manner and did not impress me as being either untruthful or evasive. The doctor’s view of the applicant’s veracity may have been contributed to by absence of an interpreter and difficulties in communication, however his holding of that view undermines my confidence in his medical opinion.

49. The doctors of the Woden practice who saw the applicant through to 4 January 2010 thought that the applicant was unfit for work until 4 March 2010, and that this was related to conflict with her supervisor at work. I have previously noted the history they had taken.

50. Mr McCrae’s report indicates that the applicant’s symptoms did warrant treatment and he noted improvement to the point of her not requiring further treatment in his view in November 2009. He does not express a view about her fitness for work.

51. Dr Knox is reliant on the history given to him and agrees with the diagnosis of Mr McCrae. Dr Saboisky is in the same position but takes a contrary view of the severity of symptoms.

52. The doctors at the Woden practice, and Mr McCrae, were in contact with the applicant as treatment providers over a significant period of time, and were in the best position to assess the nature of her condition and severity of her symptoms. I prefer their views and diagnosis, confirmed by the opinion of Dr Knox, to the views of Dr Akkerman and Dr Saboisky.

Evidence of the applicant’s husband

53. Mr Bettanin gave evidence on 21 June 2012. He said that on 10 February 2009, his wife came home and was extremely upset. He said that she was crying and he had only previously seen her crying previously when her mother died. His concern was such that he rang the supervisor and complained.

54. Mr Bettanin took the applicant to the Woden practice the same day. He described her as being upset until she returned to work with a different employer when her condition improved.

55. He also said that this was not the first time that the applicant had come home from work upset but he had never seen her as affected as on 10 February 2009. In that context he said that at first the applicant was happy at work, but that there was increasing interpersonal friction between the supervisor and the applicant.

56. I found Mr Bettanin to be an impressive and objective witness. I accept his description of the severity of the applicant’s condition on 10 February 2009, of her prior difficulties with the supervisor, and her continuing psychological problems after she ceased work with the respondent.

The letter of 16 February 2009

57. The applicant received this warning letter from the respondent signed by her supervisor. The text of the letter is attached at Appendix A.

58. Although this letter is dated 16 February 2009, it was not received until 17 February 2009. When she read it, the applicant became very upset but apparently finished her day at work. The next day, 18 February 2009, her husband took her to the Woden practice where she saw Dr Lynette Wallace who counselled her and gave her a certificate to be off work until 22 February 2009.

59. In my view the content of the letter is in intemperate terms. I find it difficult to reconcile the penultimate paragraph with Mr Bettanin’s evidence of his telephone conversation with the author of the letter on the afternoon of 10 February 2009, and the medical certificate written on the same day.

60. If it was supposed to be part of a counselling or disciplinary process, that process was absent any input from the applicant and by the terms of the letter is unreasonable. The respondent’s counsel referred me to the case of Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 regarding use of the word ‘reasonable’ which was of assistance to me in coming to that conclusion ([78]-[79]).

61. The applicant did not return to work with the respondent after receipt of the letter.

Discussion

62. Much of the hearing time was taken by evidence relating to the applicant’s work conditions and dealings with members of the respondent’s staff, particularly her supervisor. The evidence was not always consistent, however there was significant corroboration of the applicant’s evidence of personal conflict with her supervisor.

63. Taking into account the history given by the treating doctors and psychologist, the evidence of the applicant, and of Mr Bettanin, I am satisfied that the applicant did suffer a psychological condition diagnosed as an adjustment disorder with mixed anxiety and depressed mood arising out of and in the course of her employment with the respondent.

64. In the course of her evidence, the applicant said that it was hard to recall when the supervisor’s attitude toward her changed, however it seems that the change was noticed by her not later than February 2008. I therefore find it likely that significant as the meeting of 10 February 2009 was, it came towards the end of an ongoing process, leading to her finally ceasing work on 17 February 2009.

65. It is necessary to refer to the distinction drawn in the Act between ‘injury’ and ‘disease’. ‘Disease’ is defined in the Dictionary to the Act as including any mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development.

66. Injury is defined in Section 4 as follows.

4          Meaning of injury

(1)         In this Act:

injury means a physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of a pre-existing injury.

(2)        In this section:

mental injury (including stress) does not include a mental injury (including stress) completely or mostly caused by reasonable action taken, or proposed to be taken, by or on behalf of an employer in relation to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a worker or the provision of an employment benefit to a worker.

67. Therefore the applicant’s diagnosed condition which was of gradual onset is to be regarded as a disease for the purposes of the Act, so that  s 27 of the Act applies which relevantly provides as follows.

27        Compensation for death or incapacity through disease

(1) If—

(a)a worker contracts a disease or suffers an aggravation, acceleration or recurrence of a  disease; and

(b)any employment of the worker by his or her employer was a substantial contributing factor to the contraction of the disease or the aggravation, acceleration or recurrence whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment; subsections (2) to (5) have effect.

(2) If the worker dies or is totally or partially incapacitated for work as a result of the disease, or the worker received medical treatment in relation to the disease, then, for this Act, unless the contrary intention appears—

(a) the contraction of the disease, or the aggravation, acceleration or recurrence of the disease is a personal injury to the worker arising out of the employment of the worker by the worker’s employer; and

(b) the date of the injury is the earliest of the following:

(i)the date of the death;

(ii)the date of the start of the incapacity;

(iii) the date when the medical treatment was first received.

68. Thus the date of the injury is 10 February 2009, the date that the applicant first received medical treatment in relation to the disease. It is also arguably the start of her incapacity.

69. The applicant had coped with review procedures and performance appraisals prior to her perception of deterioration of her relationship with her supervisor without apparent difficulty. The applicant’s description of the supervisor’s conduct at the meeting of 10 February 2009, and the content of the letter of 16 February are examples of her abrasive approach to the applicant.

70. In my view it is quite clear that her psychological condition was caused by interpersonal conflict between the applicant and her supervisor. I am also satisfied that it was not caused either completely or mostly by reasonable action taken by the employer in relation to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of the applicant for the purposes of s 4(2) of the Act.

71. Receipt of the letter of 16 February 2009 immediately preceded the beginning of the applicant’s final period of absence from her employment, and contributed to her disability. I have previously expressed my views about this letter.

72. The respondent’s counsel had referred me to and relied on the Full Federal Court case of Hart v Comcare [2005] FCAFC 16. It seems to me that having made the factual determinations that I have as to the cause of the applicant’s condition, it is unnecessary to examine the applicability of the principles of that case, and the differences in wording between the Commonwealth and Australian Capital Territory Act.

73. The respondent has submitted that no claim for compensation was made as required by s 38(2) of the Act. Section 38(2) is in the following terms:

(2) However, if, at the end of 7 days after the date of the injury, the worker has not made a claim for compensation—

(a)    payment of weekly compensation ends; and

(b)   the worker is not entitled to weekly compensation for the injury for the period—

(i) beginning on the day 8 days after the date of the injury; and
      (ii) ending on the day before the day the worker makes a claim for the injury.

74. Evidence in this area is rather meager. The supervisor wrote to the insurer by letter dated 27 February 2009, so that a claim had been made by that time. The letter refers to medical certificates which had previously been provided which formed the basis for payment of sick leave to 13 February 2009 when she had returned to work for four days.

75. The first medical certificate was written by Dr Joseph on 10 February 2009 for the period to 13 February 2009. The second was written by Dr Wallace on 18 February 2009 for the period to 22 February 2009. There is a reference in Dr Wallace’s notes to ‘awaiting WorkCover documents’, indicating the applicant’s intention to make a claim for workers’ compensation.

76. 22nd February 2009, the date of expiration of Dr Wallace’s certificate was a Saturday. On Monday, 24 February 2009, the applicant saw Dr Sanderson, her regular treating doctor. He then wrote the formal workers’ compensation certificate. The applicant’s supervisor wrote to the insurer on 27 February advising of the applicant’s claim. That letter referred to the medical certificate of 24 February 2009 as having been delivered by the applicant to the respondent on 26 February 2009.

77. Therefore the formal claim for compensation was made on 26 February 2009. The respondent was well aware of the applicant’s condition due to the previous delivery of medical certificates and payment of sick leave.

78. Section 116(3) is in the following terms:

(3)Failure to make a claim under this Act does not prevent the recovery of compensation if it is found that the failure was caused by ignorance, mistake or other reasonable cause.

79. I infer from my findings above that the applicant had the intention of making a claim for workers’ compensation at least at the time of her second attendance at the Phillip Medical Centre, but was not aware of the requirements of s 38. Observing that the applicant had already made one failed attempt to return to work, Dr Sanderson provided her with the necessary formal certificate so that she could make a claim for payments of workers’ compensation on 24 February 2009. On that basis s 116(3) applies, and compensation is payable for the limited period between 18 and 26 February 2009, since the failure to comply with s 38(2) was due to her ignorance of its requirements.

Findings

80. I make the following findings:

1.At all material times, the applicant was a worker to whom the Act applies.

2.On 10 February 2009 she sustained injury arising out of her employment with the respondent being an adjustment disorder with mixed anxiety and depressed mood.

3.As a result of that injury she was totally incapacitated for work from the time of leaving work on 10 February 2009 to 13 February 2009, and from the time of leaving work on 17 February 2009 to 5 November 2009.

4.The respondent is liable to pay expenses pursuant to s 70 of the Act in respect of the applicant’s injury.

81. I give leave to the parties to file a draft Award giving effect to my findings, and will hear the parties regarding costs.

I certify that the preceding 81 paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Special Magistrate Lunney.

Associate:

Date: 27 November 2012

Counsel for the applicant:  J Sainty
Solicitor for the applicant:  Blumers Lawyers
Counsel for the respondent:  D Richards
Solicitor for the respondent:  Dibbs Barker
Date of hearing:  24 May 2012, 20 - 21 June 2012, 3 July 2012
Date of judgment:  27 November 2012

Appendix A – Text of letter from Adria Village Ltd to applicant

Tab 13 Exhibit A

Dear Rosalina,

I wish to inform you that your behaviour on Tuesday 10th February 2009 at the General Staff Meeting was unacceptable.

I realise that you were having trouble understanding that I was surprised and concerned that after working as a member of the Care staff at Adria village for two years, you still did not know the simple procedure for transferring residents to hospital.

In this time you have been provided with both external and in house training covering all aspects of your position as a Carer.

Instead of just accepting that you should have known, you wanted to argue about this in front of our guest speaker. Jane asked you to be quiet. I asked you to be quiet. When you would not comply with this simple request, I ask you to leave the Room and come and see me in my office after the meeting was over. Your response was to ask me if I was setting you and when I simply replied – just go, you left. This was at 3:15 PM.

It was therefore, not acceptable either for you to then not show up for your afternoon shift at 4:30 PM with out notice. You would have put our residents at risk of neglect if your co-workers had not been prepared to cover your shift until we could get a replacement.

As this is not the first time that you have behaved in this way, I am advising you that this is your first written warning that such behaviour will not be tolerated any more.

(Manager’s Name)

Manager
16th February 2009