ROSLYN TOWNSEND and COMCARE
[2009] AATA 155
•11 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 155
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1069
GENERAL ADMINISTRATIVE DIVISION ) Re ROSLYN TOWNSEND Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr Egon Fice, Member Date11 March 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) Egon Fice
Member
CATCHWORDS Compensation – work related stress – the meaning of mental ailment – outside the boundaries of normal mental functioning and behaviour – delayed medical examination – diagnosis – reasonable disciplinary action – failure to give notice of injury as soon as practicable – no reasonable cause - prejudice
Parliamentary Service Act 1999
Public Service Act 1999 s 13, s 33(3)
Safety, Rehabilitation and Compensation Act 1988 s 4, s 14, s 16, s 53(1), s 62
Safety, Rehabilitation and Compensationand Other Legislation Amendment Act 2007
Comcare v Chenhall (1992) 37 FCR 75
Comcare v Eames [2008] FCA 422
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
11 March 2009 Mr Egon Fice, Member 1. Ms Roslyn Townsend, an employee of the Department of Veterans’ Affairs (DVA), lodged a compensation claim on 20 October 2005 for what she described as work related stress. Her claim was rejected by Comcare on 11 May 2006. Upon reconsideration under s 62 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) on 29 January 2007, a delegate of Comcare affirmed the decision to refuse Ms Townsend’s compensation claim.
2. Although Ms Townsend’s claim was lodged in October 2005, she claimed that she was first injured or first noticed that she had been injured in November 2004. She claimed that her injury arose out of continuous unnecessary monitoring of her work; harassment and bullying by a superior; and that she had been victimised. She claimed that this was treatment in retaliation against her because she complained about the harassment of a co-worker and because she was the union delegate at DVA. As I understand Ms Townsend’s claim, the conduct giving rise to it continued from November 2004 until she made the claim.
3. The issues which arise for consideration in this case are:
(a)whether Ms Townsend suffered an ailment as that term is defined in the Act;
(b)if Ms Townsend suffered an ailment in the period claimed, the date on which it arose;
(c)if Ms Townsend suffered an ailment, was it contributed to in a material degree by her employment with DVA;
(d)if the answers to (a) and (c) above are affirmative, whether her ailment resulted from reasonable disciplinary action or failure by her to obtain a promotion, transfer or benefit in connection with her employment; and
(e)whether s 53 of the Act should apply to Ms Townsend’s claim on the basis that she failed to give notice in writing of her injury to DVA as soon practicable after she became aware of it.
EVENTS LEADING UP TO THE CLAIM
4. A little needs to be said about Ms Townsend’s medical history and her employment with DVA. It should assist the reader in understanding how this claim arose and Ms Townsend’s reaction to the events which led up to her lodging this claim. What follows has been taken from the s 37 documents lodged with the Tribunal. It does not appear to be controversial.
5. Ms Townsend suffers from epilepsy. In 1998, while an employee at DVA, she experienced her first grand mal epileptic seizure in 15 years. She made a compensation claim as a result of that seizure, asserting that stress caused by unfair treatment from her then managers precipitated the seizure. The grand mal seizure was followed by a series of petit mal seizures. Ms Townsend had formed the view that her medical condition was exacerbated by stress caused by proposed disciplinary action which she believed was unjust. At that time, Ms Townsend was of the view that the unfair criticism levelled at her work performance was the result of her being the union delegate at DVA. She lodged a Comcare claim for anxiety/depression/epilepsy on 23 February 1998.
6. Ms Townsend had a number of petit mal seizures, averaging two to three per week following her grand mal seizure in January 1998. She then suffered another grand mal seizure in March 1998. She was referred to a clinical psychologist, Mr Michael Crewdson, who saw her on a number of occasions.
7. In May 1998 Ms Townsend lodged a grievance with DVA against the staff member whose conduct she considered contributed to what she claimed to be anxiety and depression.
8. Later in 1998 Ms Townsend had surgery to remove scar tissue on her right temporal lobe. Since that surgery, it appears Ms Townsend has not had any seizures at all, suggesting that the surgery was successful. However, she subsequently developed a bone infection which required a second operation in September 1998 to remove the infected bone.
9. Her grievance complaint was rejected.
10. Her compensation claim was resolved by agreement in January 2000. Although it was agreed that her condition of epilepsy was not suffered in the course of her employment, and that her employment did not contribute in a material degree to that condition, the parties agreed that Ms Townsend was entitled to medical expenses in relation to her claimed condition of adjustment disorder with anxiety and depression. The parties agreed that Ms Townsend was not entitled to compensation in respect of incapacity for work.
11. Ms Townsend appears to have continued to work at DVA without any significant problems between 2000 and beginning of 2003. However, in January 2003, she appears to have been counselled by her team leader regarding her behaviour and attitude towards team leaders and other staff. Then in September 2003, Ms Townsend, believing that she was entitled to a salary increment, having been promoted from APS2 to APS3 but not having received that increment, expressed her dissatisfaction believing that she had been overlooked. She was appraised in October 2003. The appraisal comments indicated Ms Townsend needed to gain a better understanding of APS Values and the Code of Conduct. It was said that her dealings with some staff and team leaders was not in line with APS Principles in that she did not comply with directions from her team leader regarding absences from the workplace, and that she failed to treat fellow co-workers with respect and courtesy. The appraisal report noted that she should be reviewed for her increment in January 2004. As a result of that appraisal, Ms Townsend lodged a grievance claiming to have been victimised by false claims made by her current supervisor. She claimed to be entitled to her increment immediately.
12. Ms Townsend had another disagreement with her supervisor in March 2004. That had to do with an alleged Code of Conduct (failure to obey a reasonable direction) breach. On 19 March 2004 Ms Townsend was informed that her grievance claim was unfounded. She was told that the issue regarding her increment was being worked on but had not yet been resolved. The problem with Ms Townsend’s incremental increase was finally resolved on 28 June 2004 when it was agreed that the date of effect of her incremental increase would be 25 March 2004. Despite this, Ms Townsend made it clear that she nevertheless disagreed with a number of matters raised regarding her work performance.
13. After resolution of the incremental pay increase issue, Ms Townsend continued to have disputes with her supervisors, in essence, regarding directions given to her. Concern was also expressed by her supervisors about absences from her workplace without explanation. As a result of that behaviour, at a meeting on 23 August 2004 at which she was present, she appears to have been told that unless her pattern of behaviour was rectified, it would result in more formal action including formal counselling, formal warning and finally, action under the APS Code of Conduct. Ms Townsend agreed that in future she would advise her supervisor when she wished to leave her place of work and provide details of why she was leaving.
14. In September 2004 it appears that Ms Townsend’s absence from her workstation, as the result of being the union delegate involved in a dispute over meal allowances, was again subjected to some criticism. She was also the subject of criticism by her supervisor regarding her inability to accept feedback on her work performance in general. Ms Townsend raised complaints about overbearing supervisors checking on her work, describing that behaviour as harassment or bullying. On the other hand, Ms Townsend’s team leader at the time suggested that she was harassing and bullying members of the staff who were not union members. In November 2004 Ms Townsend sent a letter to the Human Rights and Equal Opportunity Commission (HREOC) claiming she had been victimised because of her position as the union delegate.
15. Arguments between Ms Townsend and her supervisors continued, particularly regarding what was said to be her refusal to advise her supervisor when she left the floor on which she worked. This eventually resulted in Ms Townsend being given a written direction that she advise her team leader of her absences from her place of work.
16. On 12 January 2005 the rehabilitation case manager wrote to Mr Crewdson and said that Ms Townsend was experiencing some difficulties in the workplace. She said that Ms Townsend had agreed to counselling to assist her in dealing with conflict. DVA had approved an initial two sessions of counselling for Ms Townsend.
17. Despite two consultations with Mr Crewdson, in early February 2005 Ms Townsend was again involved in a confrontation with her team leader which resulted in the team leader lodging a formal complaint against her, alleging that she had spoken to him in a demeaning and disrespectful manner. A complaint was also lodged by another team leader regarding statements made by Ms Townsend in a meeting where other staff members were present. She said that merit selection processes had not been based on merit but rather jobs had been awarded by favouritism. Another confrontation occurred shortly thereafter and the team leader notified the Human Resources Manager (HR Manager) that she wished to submit a formal complaint about Ms Townsend’s behaviour.
18. Ms Townsend consulted Mr Crewdson again on 24 February 2005 and he noted that there were many issues which remained unanswered. He recommended seeing Ms Townsend for the next three weeks.
19. On 9 March 2005 Ms Townsend was informed by the HR Manager that it had been decided to appoint an independent consultant in accordance with s 33 of the Public Service Act 1999 (the PS Act) to review the issues which had arisen. The Deputy Commissioner of DVA also wrote to Ms Townsend indicating that the decision to appoint an independent consultant was his decision. The consultant, Ms Kate Connors, completed a confidential fact-finding exercise of all allegations of concerns expressed by the parties. One of those findings by Ms Connors was that Ms Townsend may have breached s 13(3) of the PS Act. The Deputy Commissioner set out the sanctions which might be applied in the event that it was found that Ms Townsend had breached the Code of Conduct. The Deputy Commissioner indicated that he would be the decision maker in respect of the breach and he invited Ms Townsend to make submissions and provide any relevant evidence for his consideration. Ms Vanessa McKay, a Health Services Australia psychologist, was also asked to provide a neuropsychological assessment.
20. In late March or early May 2005 Ms Townsend lodged a formal complaint with HREOC regarding her treatment in the workplace.
21. Ms Townsend was also the subject of an investigation regarding the unauthorised opening of private and confidential mail. The investigating officer in that case found that Ms Townsend had not committed a breach of a Code of Conduct in relation to that event.
22. In July 2005 further issues arose regarding whether Ms Townsend had failed to comply with a reasonable direction given by a team leader. It resulted in a formal notice being given to Ms Townsend regarding compliance with a reasonable direction, and warning her that failure to do so would result in disciplinary action under the APS Code of Conduct. In a review of formal direction action, the manager conducting the review concluded, on 1 September 2005, that the decision to issue a written formal direction to Ms Townsend on 5 August 2005 was fair and equitable. This finding was upheld by the acting HR Manager at the time. Ms Townsend was informed that she could seek a review of that decision by the Merit Protection Commissioner. Ms Townsend asked for such a review. DVA’s HR Manager referred the matter to the Merit Protection Commissioner on 13 October 2005.
23. In a letter dated 19 October 2005, which was said to have been hand- delivered to Ms Townsend, the Deputy Commissioner of DVA informed her that, in respect of the bullying and harassment claim in the workplace, Ms Connors reported that Ms Townsend should be investigated for a potential breach of s 13(3) of the PS Act. The Deputy Commissioner indicated that an investigation into the alleged breach would take place.
24. On 20 October 2005, Ms Townsend lodged her compensation claim for work related stress.
THE LEGISLATIVE SCHEME
25. The relevant provisions of the Act are those which were in force prior to the Safety, Rehabilitation and Compensationand Other Legislation Amendment Act 2007 coming into effect on 13 April 2007. Ms Townsend’s claim must be dealt with under the Act as it existed prior to that amendment. In particular, the definitions of injury and disease which apply are those which existed prior to the amendment.
26. Section 14 of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
The terms disease and injury are defined in s 4 of the Act as follows:
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.
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
27. The term ailment is also defined in s 4 as follows:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
28. Section 53(1) of the Act provides that the Act does not apply in respect of an injury to an employee unless notice in writing of the injury is given to the relevant authority as soon practicable after the employee becomes aware of the injury. However, notice of the injury may be valid for the purposes of the Act where:
(a)a notice purporting to be a notice referred to in this section [53(1)] has been given to the relevant authority;
(b) the notice, as regards the time of giving the notice or otherwise, failed to comply with the requirements of this section -[53]; and
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
the notice shall be taken to have been given under this section[section 53(3)]
DID MS TOWNSEND SUFFER AN INJURY
29. According to Ms Townsend, she suffered stress and anxiety in about November 2004, arising from her employment with DVA. She also claimed to have suffered an aggravation of her epilepsy. Although Ms Townsend claimed to have been the subject of harassment and bullying in her workplace after October 2005 as a consequence of which she suffered further stress and anxiety, those claims cannot be the subject of this application. This claim relates specifically to her claimed work-related stress which occurred in about November 2004 and which, presumably, persisted up until the time she made the claim.
30. Ms Townsend also claimed that she was entitled to compensation under the Act for medical and like expenses for treatment by Mr Crewdson since July 2007 and for earlier payments of Mr Crewdson’s account which remain outstanding. However, I was not asked to determine whether the payment of Mr Crewdson’s account would fall within s 16 of the Act. As I understood it, I am only required to determine whether Ms Townsend has suffered an injury which resulted in her incapacity for work pursuant to s 14 of the Act. If I find in her favour, then the matter should be remitted to Comcare on the question of compensation for her medical expenses arising out of that injury.
31. Although Ms Townsend claimed that the events of late 2004 and 2005 resulted in aggravation of her epilepsy, there was no evidence before me which might establish that. In fact, since Ms Townsend had neurosurgery in 1999, she has been seizure free without anti-epileptic medication. This was recorded in the history taken by Dr Yvonne Greenberg, a consultant psychiatrist, who interviewed Ms Townsend on 13 April 2006. Furthermore, Dr Loretto Maxwell, a general practitioner who treated Ms Townsend in 2005 and 2006, said in her report dated 14 April 2006 that she did not believe Ms Townsend’s condition to be an aggravation, acceleration or recurrence of a pre-existing underlying condition. Accordingly, I find that Ms Townsend did not suffer an aggravation of epilepsy as she has claimed.
32. The remaining question is whether Ms Townsend suffered an ailment between about November 2004 and October 2005 which was contributed to in a material degree by her employment with DVA.
33. The first issue I need to determine is whether Ms Townsend suffered from an ailment as that term is defined in the Act. Drummond J in Comcare v Mooi (1996) 69 FCR 439 was required to deal with a claim for mental injury which was work related. He said at 442:
A reading of the Act, including the relevant definitions, in my opinion, shows that before an employee can have any entitlement to compensation under s 14, one of the things he must show is that he has suffered something that can be regarded as an injury or something that can be regarded as a disease.
Drummond J explained that the term disease means any physical or mental ailment, disorder, defect or morbid condition. In other words, the word ailment was used in s 4 of the Act as a synonym for the term disease. After examining the ordinary meaning of the word ailment, Drummond J said that the term was intended to cover the whole range of physical and mental illnesses from major to minor ones. His Honour was of the view that where the harm to the employee did not result in any observable pathology, but which only had some form of psychological consequence, the worker would be able to show the existence of a mental ailment, disorder, defect or morbid condition even though the condition could not be identified with a label of a recognised medical condition. However, he went on to say, at 444:
But it is, I think, 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.
34. Drummond J examined the ordinary meaning of disease and said that when used with reference to physical and mental conditions, it connoted a disturbance of the normal functions. He went on to say, at 445:
Only conditions involving a disturbance of the normal functions of body or mind are within the term "disease", as defined, and thus "injuries" for the purposes of s 14(1) of the Act.
35. A major obstacle for Ms Townsend is that she did not undergo any medical examination during the period claimed, nor was she treated by a medical practitioner for stress. Although she did see Mr Crewdson on a number of occasions in early 2005, initially at the request of DVA, the purpose of those visits did not include treating Ms Townsend for any stress related injury. Rather, as is stated in the letter of 12 January 2005 from Ms Sally Puika (a contract rehabilitation case manager) to Mr Crewdson, Ms Townsend had agreed that counselling may assist her in dealing with any conflict that may arise with colleagues or particular management issues. It appears that Mr Crewdson continued to see Ms Townsend throughout 2005 and he provided DVA with a number of reports. In a report dated 4 March 2005, Mr Crewdson said that:
Ms Townsend was experiencing some anxiety because of an action which she said had been taken and that had left her feeling under considerable stress.
36. On 17 March 2005 Mr Crewdson reported he was aware that Ms Townsend had made a complaint to HREOC. He suggested that an informal general discussion with appropriate participants might be helpful to improve team building issues relating to Ms Townsend’s section in general and to her situation in particular. On 24 March 2005 Mr Crewdson reported that Ms Townsend said her general health has been excellent and that she has had relatively little time off work. He also reported that a number of psychosocial issues arose from her perception of her treatment in DVA. Mr Crewdson suggested that Ms Townsend have her neuropsychological assessment reviewed.
37. Mr Crewdson administered a number of questionnaires which Ms Townsend completed. Administered on 27 January 2005, one of the questionnaires asked Ms Townsend to rate how much she was distressed by certain events. The majority of the 53 questions were answered by Ms Townsend marking not at all. She indicated that she was moderately distressed by some five matters raised in the questionnaire. There was nothing in the way in which Ms Townsend answered those questions to suggest that she was suffering from stress. In another questionnaire, which is also dated 27 January 2005, Ms Townsend was asked to indicate how much a number of possible problems bothered her in the past 24 hours. Again, the majority of answers resulted in Ms Townsend stating that she was not at all affected. She had marked very little in response to questions regarding whether she had suffered from headaches and heart racing too fast. She indicated she was suffering from very little tension, depression or worrying excessively. When Mr Crewdson was cross-examined about the questions put to Ms Townsend in early 2005, he mentioned that it was difficult to get Ms Townsend to speak freely about her problems because she internalised her symptoms. Mr Crewdson agreed that Ms Townsend showed signs of increasing irritability and impatience which may be part of her personality features, particularly following her surgery for epilepsy. Mr Crewdson said that Ms Townsend did display signs of stress such as inappropriate hysterical laughter at times and the muscles of her jaw around her face would tighten.
38. Ms Townsend was interviewed by Ms Vanessa McKay, a probationary psychologist, who provided a report dated 25 April 2005. Ms McKay interviewed Ms Townsend on 7 and 13 April 2005. She conducted a comprehensive neuropsychological assessment. Ms McKay noted that there was a history of conflict at work and that Ms Townsend currently had a grievance which was before HREOC. She also noted that there was a Code of Conduct violation investigation underway. Ms McKay reported that Ms Townsend’s perception of her treatment and the treatment of others within DVA was not ideal and she reported feeling isolated and victimised at work following these claims. Ms McKay noted that personality and affective behaviour changes follow the type of surgery undergone by Ms Townsend. She also said that Ms Townsend appeared to have a rather defensive personality style.
39. In a brief report dated 2 June 2005, Mr Crewdson said Ms Townsend seemed to be showing increasing signs of stress. This report was written shortly after Ms Townsend was informed about the terms of reference for the conduct of a review of action under s 33 of the PS Act. Two of the complaints against Ms Townsend were made by managers and she had made a complaint against those managers for bullying and harassment. On 16 June 2005 Mr Crewdson reported that Ms Townsend seemed more stressed and that she reported increased tension in her body. Under cross-examination, Mr Crewdson agreed that in order to establish Ms Townsend was suffering from an ailment, as that term is defined in the Act, what needed to be demonstrated were some clinically significant symptoms together with some social consequences. He agreed that were a person to claim that they were suffering from anxiety, it would not be sufficient for them simply to state that was the case. Rather, there was a need to examine how that claimed ailment had impacted on the person’s functioning, work, social and psychological being.
40. It is reasonable to expect that as a consequence of her claimed stress, Ms Townsend would have required time off work in order to recover. It is also reasonable to expect that Ms Townsend would have had increased time off work as a result of not being able to function normally. Comcare put into evidence a summary of Ms Townsend’s leave taken between 23 July 1998 and 29 October 2007. Ms Townsend’s pattern of sick leave is as follows:
2003 – 11 days
2004 – 17 days
2005 – 10 days
2006 – 15 days2007 – to 29 October – 13 days
In the period between November 2004 and October 2005, Ms Townsend had taken 15 days sick leave. There is nothing in her pattern of taking sick leave which would indicate an increase due to the claimed stress. If anything, the sick leave days Ms Townsend took in 2005 seem to be at the lower end of the average sick leave days taken in any one year. In addition, the records indicate that the sick leave days taken are, by and large, single days where she has returned to work on the following working day. That would account for the fact that Ms Townsend had no medical certificates for the leave taken on days which she claimed she was suffering from stress.
41. It was only after she had lodged her Comcare claim on 20 October 2005 that Ms Townsend sought a medical certificate. In fact, this only came about because her then solicitors, Mulcahy Mendelson Round & Darling, insisted that she provide an original medical certificate. She consulted Dr Maxwell on 3 December 2005 and was provided with a certificate of capacity stating she was unfit for normal duties until February 2006. Dr Maxwell noted the treatment/medication provided to Ms Townsend as psychologist. The clinical notes from the Cranbourne Family Medical Centre, where Dr Maxwell practices, only records one consultation relating to stress:
03-Feb 2005 Stress work related Att: Bernadette Schroeder
Ms Townsend did not take sick leave on that day and Dr Maxwell did not see Ms Townsend on that occasion. In a report dated 14 April 2006 Dr Maxwell said that Ms Townsend had told her about problems at work when she first met her in December 2005 and that she was seeing a psychologist for this; so she only needed an ongoing medical certificate for Workcover purposes. Dr Maxwell said that Ms Townsend had anxiety about going to work, was not sleeping well and was short with her family. Under cross-examination, Dr Maxwell said that she probably only saw Ms Townsend for 10 or 15 minutes per consultation. When it was suggested to her that she simply accepted what was told to her by Ms Townsend regarding being on Workcover and handed Ms Townsend a certificate, she strongly rejected that notion. However, it is quite clear that Dr Maxwell was under the impression that what was required at that time was an ongoing certificate for Workcover. In fact the clinical notes state that Ms Townsend had been under Workcover for the past 10 months and needed a certificate. Although, as Dr Maxwell pointed out in the course of cross-examination, she is a very busy general practitioner, it seems to me that what she recorded in the clinical notes was unsatisfactory. There is no indication that Dr Maxwell did anything other than what she was asked to do. In fact, her diagnosis of a work-related stress disorder appears to have been made solely as a result of what she was told by Ms Townsend. Dr Maxwell did not keep a contemporaneous record of what was said or what she observed. I also seriously doubt that it was possible to make an accurate diagnosis in a 10 to 15 minute consultation. Dr Maxwell did not prescribe any medication for Ms Townsend until 1 March 2008. Until that time, Dr Maxwell considered that the appropriate treatment for Ms Townsend was ongoing counselling.
42. Ms Townsend was examined by Dr Greenberg on 13 April 2006. She prepared a report dated 20 April 2006. The purpose of Dr Greenberg’s consultation was to conduct a psychiatric examination and impairment assessment of Ms Townsend. According to Dr Greenberg, that consultation took about one and a half hours. Dr Greenberg’s report is comprehensive. She reported that Ms Townsend was not complaining of current or ongoing psychiatric symptoms. She was merely complaining that she was displeased about her current placement at Port Melbourne with DVA. She was also complaining that she had been harassed or victimised over the past 18 months or 2 years. Dr Greenberg reported that on examination, she found Ms Townsend euthymic (cheerful of mind) and not overly anxious. She demonstrated a number of clinical signs and symptoms suggestive of some personality problems, and a rigid, defensive, blunted attitude to injustices and perceived injustices in the workplace. Dr Greenberg opined that Ms Townsend’s personality traits or characteristics are frequently found in people who have had epilepsy with or without surgical treatments. Dr Greenberg concluded that Ms Townsend did not at that time have a psychiatric condition apart from a heightened awareness of grievances or injustices and her defensiveness and concrete thinking. Under cross-examination Dr Greenberg made it clear that she did not consider Ms Townsend to be medically ill. She also said that Ms Townsend was not clinically stressed or depressed.
43. In my opinion, the evidence quite clearly points to the fact that Ms Townsend did not suffer from an ailment, as that term is used in the Act, between November 2004 and October 2005. It could not be said that her condition was outside the boundaries of normal mental functioning and behaviour. While it is true that Ms Townsend clearly believed she was the subject of harassment and bullying in the workplace, and as a consequence, she had suffered stress, that evidence, by itself, does not establish Ms Townsend suffered from an ailment for the purposes of the Act. Although Mr Crewdson described signs indicating Ms Townsend was under some stress from time to time, he agreed with the suggestion that there had to be some social consequences and clinical significance in order to establish that Ms Townsend suffered from an ailment. Although Ms Townsend did take sick leave from time to time, that leave was invariably a single day at a time. She did not obtain a medical certificate nor, except on one occasion in February 2005, did she seek the assistance of a medical practitioner to deal with the stress she said she was experiencing.
44. Ms Townsend appears to have attended the Cranbourne Family Medical Centre in February 2005 claiming to be suffering from work-related stress. However, there was no evidence indicating she was treated for stress at that time. She did consult Dr Maxwell in December 2005. That consultation appeared to be prompted by her then solicitors as a result of her having lodged a compensation claim in October 2005, rather than any medical need. Although Dr Maxwell was of the opinion that Ms Townsend was suffering from stress, her evidence was not entirely satisfactory. Dr Maxwell appeared to accept what Ms Townsend told her in the course of the consultation on 3 December 2005 without exploring in any detail the circumstances of Ms Townsend’s workplace problems or their effect on her. The clinical notes of that consultation are unhelpful. Although Dr Maxwell said she recalled the consultation which only lasted some 10 or 15 minutes, I have serious doubts about the accuracy of her evidence. Dr Maxwell was consulted in circumstances where she was told by Ms Townsend that she was on Workcover and needed a further certificate. Although Dr Maxwell saw Ms Townsend again on 31 December 2005, the clinical notes simply indicate that Ms Townsend needed a further certificate for Comcare until the end of January 2006.
45. I should also refer to the questionnaire completed by Ms Townsend for Mr Crewdson in January 2005. There is nothing in her responses to the questions regarding her levels of distress and her symptoms which would indicate she was suffering from stress. Ms Townsend completed another questionnaire on 17 November 2005 in which she recorded that for more than half of the time, she felt cheerful and in good spirits. She also recorded that most of the time she woke up feeling fresh and rested. This is of course contrary to what Dr Maxwell recorded in her report of 14 April 2006, namely that Ms Townsend was not sleeping well. Ms Townsend completed a self-rating anxiety scale for Mr Crewdson and, again, her responses to that questionnaire do not bear out Dr Maxwell’s diagnosis. On a scale of one to four, she recorded that she felt nervous and anxious more than usual at level two. Most other responses on that scale were at level one. Ms Townsend also recorded that she felt relaxed and at ease most of the time. In addition, Ms Townsend was nevertheless well enough to lodge complaints with HREOC and also under s 33 the PS Act against her managers. The constant stream of correspondence between Ms Townsend and various DVA officers is not indicative of a person that is outside the boundaries of normal mental functioning and behaviour. Ms Townsend was obviously seriously aggrieved by the conduct of her managers and forcefully made that known by her actions between November 2004 and December 2005. However, on the evidence, I cannot help but find that, on the balance of probability, Ms Townsend did not suffer an ailment between November 2004 and October 2005 as claimed.
46. My finding above determines this matter against Ms Townsend. However, in case I am wrong about that, I will consider, if Ms Townsend suffered an injury for the purposes of the Act, and whether that injury arose as a result of reasonable disciplinary action taken against her.
REASONABLE DISCIPLINARY ACTION
47. Section 4 of the Act excludes from compensation an injury suffered as a result of reasonable disciplinary action. In Comcare v Eames [2008] FCA 422, Madgwick J examined the meaning of that phrase in the context of an investigation undertaken in accordance with the Parliamentary Service Act 1999,regarding a breach of the Australian Public Service Code of Conduct. Madgwick J referred to the decision of Cooper J in Comcare v Chenhall (1992) 37 FCR 75 where he rejected the proposition that disciplinary action refers only to the actual imposition of a sanction. In Eames’ case, Madgwick J held that disciplinary action had begun when the respondent was provided with allegations made against her. I have applied that reasoning to Ms Townsend’s case.
48. The complaints made against Ms Townsend which gave rise to the claimed breach of the Code of Conduct arose out of incidents which occurred on 11 February 2005 and 17 February 2005. Formal complaints were submitted about Ms Townsend’s behaviour in relation to those incidents. Ms Townsend was advised on 9 March 2005 that initial enquiries had been conducted by the HR Manager who had sought advice from the Australian Public Service Commission. Ms Townsend was informed that it had been decided to appoint an independent consultant to review the complaints under s 33 of PS Act. It was shortly after that decision was made that Ms Townsend lodged a complaint with HREOC. As a result of those complaints made against Ms Townsend, and following the report by Ms Connors, an independent consultant appointed to investigate the claim, Ms Townsend was informed on 19 October 2005 that Ms Connor’s report indicated that she should be investigated for a potential breach of s 33(3) of the PS Act because, in the course of her employment, she did not treat everyone with respect and courtesy and without harassment.
49. Ms Townsend was subsequently found guilty of breaching s 13(3) of the PS Act in respect of one of the managers but not guilty in respect of the other. The breach was found to be relevantly insignificant and the sanction imposed on her was merely a reprimand.
50. Nevertheless, it was not merely a coincidence, in my opinion, that Ms Townsend lodged a claim for compensation with Comcare on the day after being informed that the investigation against her was to proceed. The evidence indicates that the conduct which led to the breaches being alleged against her and her counter claims of harassment and bullying all contributed substantially to the pressure Ms Townsend felt in the workplace over the course of 2005. In my view, the process of investigation of those incidents did form part of the disciplinary action against Ms Townsend and the pressure and stress she said she experienced in the workplace was due, at least in part, to those actions. I am satisfied and find that the action taken against Ms Townsend for the alleged breaches is properly described as reasonable disciplinary action. Therefore, even if I were to find that Ms Townsend suffered an injury in terms of the Act, I would nevertheless find that her injury resulted from reasonable disciplinary action taken against her. It follows that such injury does not fall within the definition of injury for the purposes of the Act and, therefore, Ms Townsend would be precluded from being compensated for her claimed stress.
SECTION 53 ISSUE
51. Again, I deal with this issue in case I am incorrect in my findings that Ms Townsend did not suffer an injury for the purposes of the Act and that her stress resulted from reasonable disciplinary action. The substance of this claim by Comcare is that Ms Townsend did not give notice of her injury as soon as practicable after becoming aware of the injury. Given that Ms Townsend claimed her injury occurred in November 2004, and she did not lodge a claim in respect of that injury until 20 October 2005, there appears to be a sound basis for Comcare’s claim. In fact, the evidence discloses Ms Townsend was aware that she was suffering from stress in late 2004 and early 2005 and I therefore find that she failed to give notice in writing of the injury as soon as it was practicable for her to do so.
52. Nevertheless, the exclusory provision in s 53 of the Act cannot apply unless Comcare can demonstrate that it was prejudiced by reason of late notice. It must also be shown that late notice was not given from ignorance, a mistake or from any other reasonable cause. There was no evidence before me that Ms Townsend had any particular reason for lodging a late claim. As the union delegate, and because she had previously made a compensation claim, I have no doubt that she was aware of the requirement to lodge a Comcare claim as soon as practicable. Therefore, the only question is whether Comcare would suffer prejudice if the late notice would be allowed under s 53 of the Act.
53. According to Comcare, if the claim had been lodged in late 2004 or early 2005, Comcare could have arranged to have Ms Townsend examined by a psychiatrist at that time. Comcare submitted that if it had the opportunity to have Ms Townsend examined in late 2004 or 2005, a far more accurate assessment of her mental state could have been made, rather than having to rely on medical examinations conducted some 12 months later.
54. Mr Colquhoun, who appeared on behalf of Ms Townsend, submitted that there was, in any event, sufficient contemporaneous evidence of Ms Townsend suffering stress. He referred to the reports prepared by Mr Crewdson and Dr Maxwell. However, the problem with this submission is that Comcare was not afforded the opportunity to obtain a psychiatric report contemporaneously with the injury claimed to have been suffered by Ms Townsend. There were no medical certificates obtained by Ms Townsend until the end of 2005, almost 12 months after the event she claimed gave rise to her injury. In fact, this becomes all the more significant where the injury claimed is in the nature of a mental injury rather than a physical one. Although Mr Crewdson made statements about Ms Townsend’s increasing stress levels, the reports which contain such references certainly do not diagnose Ms Townsend as suffering from a mental injury or illness.
55. By the time Dr Greenberg had the opportunity to examine Ms Townsend, it was more than twelve months after the events in November 2004 and early 2005 and her finding was that Ms Townsend did not suffer from any mental illness. Even if one were to take into account Mr Crewdson’s reports as indicative of Ms Townsend’s mental state at the time, there was no evidence to show that her functioning was outside the boundaries of normal mental functioning and behaviour. In any event, Comcare should have been afforded the opportunity to have an independent assessment made of Ms Townsend’s mental functioning and behaviour. Because it was not afforded that opportunity, I find that the Act would not, in any event, apply to Ms Townsend’s injury if she had suffered one, being excluded by reason of s 53 of the Act.
CONCLUSION
56. There is insufficient evidence to support Ms Townsend’s claim that she suffered an injury as that term is defined in the Act. Although I have no doubt that Ms Townsend was under considerable pressure as a consequence of confrontation in the workplace, there is no evidence to show that her condition had taken her outside of the boundaries of normal mental functioning and behaviour. Although Ms Townsend took sick leave days between November 2004 and October 2005, those days were single sick leave days for which no medical certificate was required or obtained. Her pattern of sick leave in the years preceding her compensation claim and in the years after it remained fairly constant. The counselling she was receiving from Mr Crewdson during the period in question was directed at assisting her to deal with conflict in the workplace. Although Mr Crewdson reported that Ms Townsend appeared to be showing signs of stress, that is not sufficient to satisfy the definition of injury under the Act. Dr Maxwell’s report and evidence were based on three consultations, two in December 2005 and one in April 2006. Quite clearly, these consultations took place well after the issues and confrontations which Ms Townsend claimed caused her significant stress problems.
57. Although her confrontations with managers at DVA continued after Ms Townsend lodged her compensation claim, the claim is in respect of an injury Ms Townsend said she suffered in about November 2004. Whether subsequent conflict caused Ms Townsend an injury is not the subject of this claim. Although Dr Maxwell was of the opinion that Ms Townsend was suffering from a work related stress disorder, she based that diagnosis on her first consultation in early December 2005 which, according to her, lasted no longer than 10 to 15 minutes. It appears Dr Maxwell simply accepted what Ms Townsend told her at that consultation and that formed a basis of her diagnosis. In my opinion, that is unsatisfactory evidence. Not only was it well after the events claimed to have caused Ms Townsend stress, but there was no evidence in the clinical notes that Dr Maxwell sought any objective evidence, signs or symptoms of the condition Ms Townsend claimed to suffer. Dr Maxwell said in evidence that she recalled the symptoms as reported to her by Ms Townsend. However, in the circumstances, I do not find that convincing. In fact, it seems as though Dr Maxwell was under the impression that Ms Townsend was already receiving Workcover payments and simply needed a further certificate.
58. When Ms Townsend was examined by Dr Greenberg in April 2006, although Ms Townsend demonstrated a number of clinical signs and symptoms suggestive of personality problems, Dr Greenberg was of the view that Ms Townsend was not suffering from a medical illness nor was she clinically stressed or depressed. However, once again, this examination took place almost 18 months after Ms Townsend said she suffered the injury. In that respect, Dr Greenberg’s report is also unhelpful in determining whether Ms Townsend in fact suffered an injury in November 2004, as she claimed.
59. Even if I am wrong about whether Ms Townsend suffered an injury in November 2004 as claimed, I nevertheless find that the injury resulted from reasonable disciplinary action taken against her. In the period between November 2004 and October 2005, the evidence indicates that she was pre-occupied not only with initiating her own claims under the PS Act and lodging a complaint with HREOC, but that she was the subject of written notices to comply with reasonable directions from managers and of two complaints that she breached the Australian Public Service Code of Conduct. The investigation of those breaches constitutes disciplinary action. Therefore, a finding that the pressure Ms Townsend experienced during the period in question did result from investigative action taken by her employer is unavoidable.
60. Even if I am wrong about whether Ms Townsend suffered an injury and whether it resulted from reasonable disciplinary action, this is clearly a claim which falls under s 53 of the Act. Although Ms Townsend claimed she had suffered the injury in November 2004, and she must necessarily have been aware that she suffered the claimed injury at or about that time, she did not give her employer notice in writing of the injury until almost 12 months after the event. The problem with that is that Comcare was not in a position to then determine whether she had in fact suffered the injury as claimed. I accept that it is simply not possible to determine what Ms Townsend’s mental state was some 12 months after the purported event. Therefore, even if Ms Townsend suffered an injury in November 2004 as claimed, the Act cannot apply to her because of her failure to give notice as soon as practicable after she became aware of the injury.
61. For the reasons I have stated above, Comcare’s decision made on 29 January 2007, affirming the determination made on 11 May 2006 which denied liability for Ms Townsend’s claimed acute reaction to stress, was correct and I affirm that decision.
I certify that the sixty one (61) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, MemberSigned: (sgd) Cassie Renfrew
ClerkDates of Hearing 11 and 12 February 2009
Date of Decision 11 March 2009
Counsel for the Applicant Mr Colquhoun
Solicitor for the Applicant Mr Simon, MW Law
Counsel for the Respondent Mr Dube
Solicitor for the Respondent Ms St Jack, Sparke Helmore
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