Russell and Comcare
[2008] AATA 897
•8 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 897
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600055
GENERAL ADMINISTRATIVE DIVISION ) Re KATHRYN GRACE RUSSELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)
Mr S J Ellis AM (Member)Date8 October 2008
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in substitution for that decision determines that Comcare is liable to pay compensation to Mrs Russell for her psychological disorder. The Tribunal reserves liberty to apply within 14 days in respect of the costs of these proceedings and orders that, in the absence of any such application. Comcare pays the costs of the proceedings.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
COMPENSATION – Commonwealth employees – adjustment disorder with anxiety symptoms and panic arising out of course of employment – bus phobia arising out of employment – inability to travel to work in city because of phobia and the effects of medication prescribed for trigeminal neuralgia – relocation close to home while unable to drive to city – direction to return to city based office – decompensation and inability to return to work – exclusions to definition of injury considered – was there a failure to obtain a promotion or benefit in connection with employment? – causative factors – more than one factor giving rise to injury – material contribution – decision set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4,14
Wiegand v Comcare Australia (2002) 72 ALD 795
Hart v Comcare (2005) 145 FCR 29
Weigand v Comcare (No 2) (2007) 94 ALD 154Re Davill and Australian Postal Corporation (AAT 10629, 22 December 1995)
Comcare v Ross [1996] FCA 1669
Re Albanese and Comcare [2004] AATA 768
Comcare v Canute [2005] FCAFC 262
Comcare v Sahu-Khan (2007) 156 FCR 536REASONS FOR DECISION
8 October 2008 Senior Member L Hastwell
Dr E T Eriksen (Member)
Mr S J Ellis (Member)1. Kathryn Grace Russell was a Centrelink employee who sustained an adjustment disorder with anxiety symptoms and panic, which condition arose out of and in the course of her employment. She ceased work in November 2004 and has not worked since that time.
2. Mrs Russell is a long-term resident of Mount Barker in the Adelaide Hills. From 2002 onwards, her substantive position with Centrelink was based in the Child Care Benefits team (CCB) at Naylor House in Adelaide. Buses are the only form of public transport available between Adelaide and Mount Barker and as she suffers from a bus phobia, arising out of a work related incident in 1999, she drove herself to the city to work each day.
3. In 2003, she suffered a bout of trigeminal neuralgia which prevented her working for a number of months. The side effects of the medication required to manage this condition were sleepiness and confusion and she was advised not to drive a vehicle while taking the medication. She used up all her leave entitlements during this time.
4. In January 2004, she suffered another episode of neuralgia and negotiated a temporary placement working from the Mount Barker Centrelink office so that she could walk from home to work as her medical advice was that she must not drive while taking the medication. She hoped that this could become a permanent placement because of the difficulties that her condition, combined with her bus phobia, presented with getting to and from work in Adelaide.
5. Mrs Russell remained working in the Mount Barker office until November 2004 when she was given a written direction to return to work in the Adelaide office. She immediately provided Centrelink with a medical certificate stating that she was unable to drive a vehicle and would not catch a bus, but Centrelink maintained their position that she must report to work in Adelaide. She did not return to the Adelaide office and she ceased work on 26 November 2004.
6. Although the respondent (Comcare) accepts that her condition was caused by her employment, they do not accept liability to pay compensation to her as they assert that her condition was caused by a failure to obtain a transfer or benefit in connection with her employment.
7. For the reasons set out the Tribunal finds that Comcare is liable to pay compensation to Mrs Russell in respect of an injury, namely an adjustment disorder with mixed mood, anxiety and depression.
issues
8. The issue for determination is this case is whether Mrs Russell’s condition arose as a result of a failure to obtain a transfer or benefit in connection with her employment. This involves a consideration of:
·what event or events in the course of her employment caused Mrs Russell’s condition;
·could one of the causative factors be characterised as a failure to obtain a promotion, transfer or benefit; and
·if so, to what extent did that particular factor contribute to her condition?
legislation
9. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), as it was at the time of Mrs Russell’s claim, provides as follows:
“(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.”
10. Section 4(1) of the Act includes the following definition of “injury” and “disease”:
“(1) In this Act, unless the contrary intention appears:
…
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.”
what event or events caused mrs russell’s condition?
11. The relevant events took place some years prior to the hearing and the Centrelink witnesses did not have a full, accurate, or in some instances, any recollection of relevant events. Nevertheless, there was also a helpful paper trail of some of the events that occurred during 2004 including emails, medical notes and internal memos.
12. Mrs Russell gave oral evidence to the Tribunal. A number of other witnesses were called to give evidence, including key personnel from Centrelink and a number of medical experts. A large number of exhibits were received into evidence. The following is a summary of the key matters of relevance that emerged from all the evidence.
13. In early 1999, while working as a clerk with the Attorney-General’s Department, Mrs Russell was involved in an incident on her way home from work when she became trapped in a bus door and sustained some physical injuries for which liability had been accepted. This incident left her phobic about bus travel and she has been unable to travel by bus since shortly after this incident. Her bus phobia was accepted as a compensable condition by the Commonwealth on 5 January 2006 (T1/14). Centrelink was aware of this condition from mid 2003 onwards.
14. She gained a permanent position with Centrelink in early 2000. She initially worked in a call centre in the CBD and then out of the Mount Barker customer service centre. This suited her because of its proximity to her home. Her permanent position remained based with the CCB team in Adelaide from 2002. Before working at Mount Barker, she drove her vehicle to work because her phobia prevented her catching a bus. There is no train service between Adelaide and Mount Barker.
15. Mrs Russell’s prior medical history is documented in Health Services Australia (HSA) assessments that were carried out at the direction of her employer in 2002 and 2003 (T10/40 and T13/56). The medical notes of Dr Entwistle, her general practitioner, also provided details of her medical history in the years prior to 2004.
16. Those assessments and the medical records disclose a history of wrist, knee and ankle problems, right foot problems, persistent neck discomfort and lower back pain. She had been involved in a motor vehicle accident in 1994 and was left with residual disabilities. She then suffered a fall in 1998 and the bus incident already referred to occurred in 1999. In 2001 it was noted that she suffered migraine headaches, insomnia and depression.
17. The medical history discloses that Mrs Russell had previously experienced difficulties in the workplace, partly because of an inability to carry out certain tasks for prolonged periods because of her physical problems and, on at least one prior occasion, because of conflict with a team leader in 2001 and 2002. She had previously been counselled with respect to anxiety symptoms.
18. The 2003 HSA assessment highlights ongoing right knee and ankle problems and a recent diagnosis of trigeminal neuralgia. Her depressive symtomotology had resolved at that point in time. In that report, Dr Meegan, a consultant occupational physician, noted that she was unable to commute via public transport due to residual psychological effects of the bus incident and he remarked that she was going to consult a psychologist with respect to the same.
19. Mrs Russell made some attempts to arrange to see a psychologist after seeing Dr Meegan, but for various reasons she was not successful in arranging counselling until late 2004 and after she ceased working. This psychological condition remains unresolved.
20. She had first suffered a severe episode of trigeminal neuralgia in 2001 or 2002. She had a further serious episode in 2003. By then, her position was with the CCB team in Adelaide. She sought assistance from Dr Entwistle who referred her to a neurologist, Dr Burrows, to confirm the diagnosis. She was prescribed Neurontin for the neuralgia and she was unable to work for a number of months on that occasion. She used all her personal leave and was receiving Centrelink benefits for some of this time away from work.
21. The side effects of Neurontin, in Mrs Russell’s case, are sleepiness and a degree of confusion. She reported these side effects to Dr Entwistle and he told her in January 2004 that she should not drive a motor vehicle while taking this medication. He described the side effects of this medication to the Tribunal as being a lack of steadiness and co-ordination. She was told to take Neurontin when experiencing the pain of an episode of neuralgia.
22. In early 2004, Mrs Russell suffered another episode of neuralgia. She needed a full dose of Neurontin to manage this episode. As she had no more sick leave available to her and after discussion with her team leader, Margaret Emery, she gained approval to work temporarily from the Mount Barker office of Centrelink because of her inability to travel to work in Adelaide.
23. She commenced at the Mount Barker office on 27 January 2004. This temporary placement removed the necessity for commuting to the city for work. It was Mrs Russell’s evidence that she was able to continue to carry out most of her normal duties associated with her position on the CCB team while located at the Mount Barker office with some limitations. Dr Entwistle provided a brief letter for her employer dated 23 January 2004 (Exhibit A4) confirming that she would be unable to drive for the next few months because of the effects of medication. Her manager at the time was Rebecca Murdoch.
24. She was due to return to work at her city based location on 16 February 2004. She negotiated an extension of the placement at Mount Barker on the basis that she would continue to be taking medication for a further six weeks.
25. On 9 March 2004, she participated in, and was the minute taker for, a CCB team meeting. Her attendance was by telephone hook up. She considers that inappropriate questions were asked of her in the course of that meeting by other team members. She was asked about her medication and how long she would be on that medication. She also claims to have received phone calls from team members around this time in which they asked her what she was doing in Mount Barker and when she would be returning to the city office. She was upset by the meeting. However, these questions and comments could not be confirmed by Centrelink staff to the Tribunal.
26. In a subsequent meeting with Ms Emery on 17 March 2004, she said that Ms Emery apologised for the behaviour of the other team members at the earlier meeting and asked that she make some minor changes to the minutes to change the tone from one that suggested she had been “questioned” about her work load at the meeting, to her work load being ”discussed” at the meeting.
27. After this meeting on 17 March 2004, Ms Emery sought assistance from Human Resources/People Support to manage Mrs Russell. In an email sent to human resources (Exhibit R5/ME-2) she said that Mrs Russell was unable to perform a full range of duties at the Mount Barker office for logistical reasons. She also reported that Mrs Russell had told her that her neuralgia had been exacerbated by stress resulting from the CCB team members’ reaction to her temporary relocation and that, as a result, her doctor had increased her medication.
28. At this meeting between Ms Emery and Mrs Russell, the possibility of a permanent placement for Mrs Russell in Mount Barker was discussed. Mrs Russell had already prepared a written draft proposal for her extended temporary relocation to Mount Barker. She gave the draft to Ms Emery and her impression was that Ms Emery was positive about the idea. Ms Emery warned her that Ms Murdoch was not open to any permanent placement. It was agreed that Mrs Russell would finalise this proposal which she did over the next couple of days with some input from Ms Emery (Exhibit A6).
29. Dr Entwistle’s practice notes were received as Exhibit R13. A brief letter dated 17 March 2004 from him was provided to Centrelink after the meeting with Ms Emery and, although not directly stating that Mrs Russell was suffering from neuralgia at the time or currently taking Neurontin, this letter confirmed that she was unable to drive when taking that medication.
30. On 30 March 2004, Mrs Russell sent her proposal for a six month trial placement “with a view to further consideration of extending this time-frame” to Ms Emery (Exhibit A6). At around the same time she also applied for a temporary placement in Brisbane as a “system tester” which involved trialling new software. Her evidence was that Ms Emery had encouraged and supported her to make this application. If successful she would have relocated to Brisbane for six weeks.
31. On 30 March 2004, she was told by Ms Emery that her proposal for relocation was unsuccessful and that Ms Murdoch would not approve her nomination for the Brisbane placement until she was assessed by HSA because of conditions mentioned in a 2002 assessment. Mrs Russell queried this on the basis that the more recent 2003 assessment (T13/56) was available which had specifically mentioned her difficulty with bus transport and neuralgia. Mrs Russell asked that she be provided with formal written notice of the rejection of this proposal.
32. On 31 March 2004, she had a further discussion with Ms Emery in which Ms Emery enquired about the likely duration of the period that she would be required to take medication and about the dosage that she was taking. They again discussed the possibility of a permanent placement at Mount Barker. Ms Emery was, on Mrs Russell’s account, encouraging about the possibility of such a placement and said that she would follow up with her manager once more about the possibility of a long-term placement.
33. In an email sent by Ms Emery after that meeting to Ms Murdoch and the human resources manager, Judy Vardon, (Exhibit R5/ME-5) she commented that Mrs Russell was reluctant to undergo another HSA examination and had mentioned approaching the union about what she considered to be excessive requests for health assessments. She commented that Mrs Russell had repeated her strong preference to work from the Mount Barker location rather than return to Naylor House in Adelaide and that Mrs Russell intended to make an informal approach to the manager of the Mount Barker office, David Jones, to see if a position swap could be accommodated. Ms Emery reported that she had told Mrs Russell that she was expected to return to Naylor House once her medication ceased.
34. Mrs Russell’s evidence was that on 2 April 2004, Ms Emery told her that she had discussed with Ms Murdoch the need for Mrs Russell to work closer to home because of her health condition and that Ms Murdoch was considering a swap with a staff member in Mount Barker and other options to enable her to work permanently from that location. When questioned about this conversation, Ms Emery had no independent recollection of it.
35. Mrs Russell then took some leave. Shortly before she returned to work at the end of April, Ms Emery rang her at home and offered her a temporary position at Mount Barker working on updating managed investments (MIUS). This was a virtual position that she was told would continue at least into the next financial year. Based on her prior discussions with Ms Emery, Mrs Russell’s belief was that this was a stop gap position until a permanent position came up for her at Mount Barker and that she would not be returning to Naylor House and would be replaced in the CCB team. Mrs Russell’s evidence was that in this conversation Ms Emery told her that this project would continue until such time as they could find her a permanent position in Mount Barker.
36. Her evidence on this point is as follows:
“… when she rang me and offered me the MIUS project she advised me that I would be moved – I would not be going back to the CCB team. I was leaving the CCB team, therefore I would have no requirement to be at Naylor House because that was where the CCB team was. I was moving to another project which is the MIUS project. I would be accommodated in the Mt Barker office to do this job and in the meantime both her and Rebecca would be actively looking for something for me to remain in the Mt Barker office. So until such time as that long term position became open to me I would do the MIUS project.”
37. She went on to say that she considered this to be an overriding directive, and when she subsequently received the letter dated 13 May 2004 (Exhibit R5/ME-6), which she had requested some time earlier, rejecting her proposal for the trial extended placement, she took it that her conversation with Ms Emery overrode the comments in that letter.
38. That letter stated, inter alia:
“… we can continue to accommodate your temporary location at Mt Barker CSC during periods when your doctor considers you unable to drive long distances nor catch buses to the city for medical reasons. Whilst you are still working with the CCB team, you are required to notify me when your doctor considers you are able to drive to the city to work or catch buses, at which time you will be expected to return to Naylor House to work.
…”
This letter was signed by Ms Emery. The letter also said that Ms Murdoch was “investigating the possibility of another position for you in the long term to enable you to be located at Mt Barker”.
39. The move to the MIUS position was delayed because of the need to find a replacement for her in the CCB team. Mrs Russell attended the CCB team meeting on 4 May 2004 by telephone. The team were told that Mrs Russell would be leaving the team as soon as a replacement for her could be found as she was relocating to Mount Barker. This is confirmed in the minutes of that meeting (Exhibit A9), and is consistent with what she says was said to her by Ms Emery.
40. On 24 May 2004, Mrs Russell reported to Dr Entwistle, in a consultation with him, that she had stopped taking the Neurontin as her symptoms were much better, but had not gone completely. She reported that she had suffered a migraine when driving to Woodside and back.
41. On 26 May 2004, Mrs Russell’s personal belongings were couriered from the Adelaide office to the Mount Barker office. This was actioned by a Centrelink staff member.
42. Mrs Russell commenced work on the MIUS project on 5 July 2004. She attended a final CCB meeting on 15 June 2004 where her replacement in the CCB team was identified by name and the team was told that he would commence “some time soon in the next financial year” (Exhibit A12).
43. On 2 July 2004 Mrs Russell received an email from Ms Emery thanking her for her “valuable contribution to the CCB team” and suggesting that an official farewell lunch or dinner be held for her (Exhibit A13). On 15 July 2004 she received a further email from a team member nominating possible dates for the farewell event (Exhibit A15). Although the event never took place, on 12 August 2004 a CCB team member delivered a farewell card to Mrs Russell signed by seven members of the team (Exhibit A16). The cover of the card read “Goodbye and Good Luck”. The messages from the team members were consistent with Mrs Russell having moved out of the team to a new job.
44. From the time that she commenced duties on the MIUS project on 5 July 2004, Mrs Russell no longer had access to the Childcare Operating System on the computer.
45. Mrs Russell immediately took steps to withdraw from a course she had been doing that was necessary for her ongoing work in the CCB team (Exhibit A14).
46. At the end of July 2004, Ms Emery asked Mrs Russell if she would undertake a temporary placement with the CCB team as a member of the team was about to take some leave. She predicted this to be a 3 week placement to commence in August 2004. Mrs Russell agreed to do so but, in a subsequent discussion with Ms Emery, she discovered that it was a “directive” from Ms Murdoch, rather than a request, and that the expectation was that she would do this placement in the Adelaide CCB team office. When she protested and reminded Ms Emery that she had neuralgia and could not drive, Ms Emery’s response was that she did not have a current medical certificate and she suggested that she obtain one.
47. Mrs Russell consulted immediately with Dr Entwistle. His notes of 4 August 2004 (Exhibit R13) report that she attended upon him that day and reported that the workplace were “questioning her neuralgia”. He provided a letter on that date (Exhibit A17) stating that she continued to suffer from intermittent frequent symptoms of neuralgia and “she therefore continues to intermittently (at least weekly) be unable to drive distances eg from Mt Barker to Adelaide”. He made the comment that on the full dose of medication she was unable to drive at all.
48. Mrs Russell’s concerns about what was happening in the workplace began to escalate at this point. She rang a staff counsellor to discuss the situation. She was unable to drive at that time and her evidence to the Tribunal was that she felt that she “could not face the situation”. Her understanding at this point in time was that she no longer needed to provide medical certificates to justify being at Mount Barker because she was now working on the MIUS project and was no longer a member of the CCB team. The directive from Ms Murdoch and the insistence that she must get another medical certificate were confusing to Mrs Russell.
49. While working on the MIUS project, Mrs Russell had also carried out some family assistance office (FAO) work, on an ad hoc basis initially, and then later for one hour a day. An email was sent to her on 4 August 2004 by Ms Emery (Exhibit A19) to confirm that while working on the MIUS project she could continue to assist with ad hoc requests for assistance with Mount Barker FAO work as long as she recorded details of time spent. The email thanks her for the “valuable FAO assistance” which she had been providing.
50. On 9 August 2004, and as a result of Mrs Russell providing Dr Entwistle’s letter of 4 August 2004 to Ms Emery, Ms Emery telephoned Mrs Russell and advised her that because of her medical situation being ongoing she must have another HSA assessment and that a tentative date for an assessment had been set for 16 August 2004.
51. Mrs Russell was upset and confused by this request. She asked why she had to undergo another health assessment and Ms Emery was unable to tell her why. On the two prior occasions that Mrs Russell had been required to have an assessment she had discussed it with her manager in advance and had been fully aware of the reasons for the assessment. She asked for a meeting with Ms Emery and Ms Murdoch prior to the HSA assessment and she requested that she have a support person available at that meeting.
52. Mrs Russell then spoke to the staff counsellor and arranged to see him on the earliest date that he was available which was 23 August 2004.
53. She emailed her concerns about having to attend another HSA assessment to Ms Emery (Exhibit A20) and asked to be provided with the standard documentation in writing as to why she was being required to have the assessment.
54. The meeting with Ms Emery and Ms Murdoch was initially scheduled to take place on 13 August 2004. Mrs Russell ascertained that her support person would not be available for that date and she emailed Ms Emery requesting that the meeting be rescheduled and that the HSA assessment also be rescheduled to take place later in the month, after the meeting with her manager and team leader when her support person could be present. She was anxious to have the meeting with Ms Murdoch and Ms Emery prior to the HSA assessment.
55. On 11 August 2004, and it appears as a direct response to Mrs Russell’s request to alter the dates of the meeting and the assessment, Ms Murdoch telephoned Mrs Russell who made notes of the conversation at the time it took place and shortly after (Exhibit R3). The Tribunal has no reason to disbelieve Mrs Russell’s account of the content of that conversation.
56. Mrs Russell had previously had limited contact with Ms Murdoch. She found the conversation distressing. Her account of the conversation can be summarised as follows.
57. Ms Murdoch made it clear to Mrs Russell that Ms Murdoch was not obliged to meet with her prior to the HSA assessment. On more than one occasion in that conversation Ms Murdoch refused Mrs Russell’s request to reschedule the HSA assessment or the meeting that had been scheduled for that Friday. She declined to put in an email the reasons for referring Mrs Russell to the assessment as she said that she preferred that Mrs Russell wait to see the standard package that would be sent to her prior to the assessment. She questioned Mrs Russell as to why she was sending emails to Ms Emery. She questioned her ability to carry out customer service officer (CSO) duties and she said that Mrs Russell had not provided medical evidence of her condition.
58. Mrs Russell’s notes of that conversation report “Rebecca said that I had to attend the HSA meeting and was I aware of what it meant if I didn’t attend”. Mrs Russell took that as a threat of breach of conduct. In the course of that conversation, Ms Murdoch made disparaging comments about Dr Entwistle’s previous letters referring to his “straggly writing”. She questioned Mrs Russell about her medication, what she was taking, when, for how long and when it would stop. In the course of that conversation, Ms Murdoch referred to the various physical ailments from which Mrs Russell was suffering and Mrs Russell claimed that Ms Murdoch said to her that Centrelink did not really care how she got to work and that Centrelink could make her catch a bus. Towards the end of the conversation, Mrs Russell found Ms Murdoch’s tone hostile and she felt that Ms Murdoch was threatening and bullying her. On Mrs Russell’s account, the conversation lasted for some 40 minutes. At the end of the conversation, Ms Murdoch was still insisting on the meeting taking place on 13 August 2004 and the HSA assessment on 16 August 2004.
59. Immediately after that conversation ended, Mrs Russell rang the union for advice and it appears probable that it was after a phone call from the union that Ms Murdoch relented and agreed on the following day to reschedule the meeting and the HSA assessment.
60. Mrs Russell attended upon Dr Entwistle in a distressed state some days later. She had become very upset in this period because of her uncertainty about why she was asked to attend a further HSA assessment and her increasing uncertainty about the security of her employment status. Her perception was that Ms Murdoch did not believe that she was suffering from neuralgia.
61. Ms Murdoch’s statement (Exhibit R9) does not mention this conversation. In her oral evidence, she had limited recall of it. She said that language attributed to her by Mrs Russell was not the language she would use with an employee. When asked whether she would have made the comment about the “straggly writing” of the doctor, she did recall difficulty in getting or understanding information provided by Dr Entwistle. She did not think it likely that she would have said that Centrelink could make Mrs Russell catch a bus. She gave conflicting evidence about the extent to which she was aware of the bus phobia.
62. On 13 August 2004, Mr Jones, the manager of the Mount Barker office, told Mrs Russell that Ms Murdoch had said to him that she did not believe there was anything wrong with Mrs Russell and that Mrs Russell just wanted to work closer to home. He commented to Mrs Russell that it may be wise to sit down and try to have a conversation with Ms Murdoch. Mrs Russell was so distressed that she took a week off. She described her mood during that week in the following terms:
“Destructing, I just was crying, I wasn’t eating, I had an upset stomach, I wouldn’t get out of bed, I laid in bed, I retreated and I hid in my room. I wasn’t taking phone calls, I just couldn’t face – face the situation.”
63. Mrs Russell consulted with Dr Entwistle on 18 August 2004 and his notes record the following:
“…
Supervisor not accepting letter re disability.
Pt had applied to work at Mt Barker branch - had verbal approval to be at Mt B for 12/12.
History: early ‘ 03 – high wrist neuralgia.
Initially only at MB because of wrist and now on sickness benefits. Now wrist not the major problem, but recurring Neuralgia/Neurontin. On 2/1/4 had v bad attack. Seen on 19/1/04. Is v bad.
…”
64. In a further consultation on 23 August 2004, Dr Entwistle’s notes report:
“Pt having blue spells, tremor, crying, agitation - Adjustment disorder – anxiety and depression symptoms related to work environment.”
65. His evidence to the Tribunal was that he considered the fact that the supervisor was not accepting that she had a disability was the cause of her distress at the time.
66. The HSA assessment with Dr Milton Lewis took place on 24 August 2004. Mrs Russell finally received the written information package about her appointment on 23 August 2004, despite it having been promised to her much earlier. Dr Lewis was asked to diagnose Mrs Russell’s condition and also advise whether she was fit for normal CSO duties, either at Mount Barker or in the Metropolitan area. A job task analysis was included with the letter to him.
67. Mrs Russell challenged the accuracy of some of the comments made by Ms Emery in the documentation that was provided to Dr Lewis in an email that she sent to Ms Emery on 23 August 2004.
68. Dr Entwistle provided a typed letter dated 19 August 2004, which was delivered to Ms Emery via internal mail on 25 August 2004 (Exhibit A25). This letter confirmed the bus phobia and commented that as a result of neuralgia and the bus phobia “… Mrs Russell can maintain her work at a site that does not require driving, she will, and has missed significant work days when working at a site to which driving is required”.
69. Mrs Russell took this letter with her to the HSA assessment, along with letters from her neurologist and her orthopaedic surgeon. The assessment lasted for three hours. Her account of it is that she was distressed throughout the assessment, but at the conclusion she was re-assured by Dr Lewis that Centrelink had, in his view, misunderstood the situation. She came away feeling that Dr Lewis understood the situation and that things augured well for the future.
70. On 26 August 2004, she was surprised to receive a set of minutes of a CCB team meeting dated 24 August 2004 (Exhibit A29). She had not received any minutes since the June meeting and she understood that she was no longer a member of the CCB team.
71. These minutes referred to her rejoining the team on a temporary basis while someone took some leave. The inference in those minutes was that she would be carrying out her CCB duties at Mount Barker. She commenced that work on 31 August 2004. For the next three weeks she did CCB work, but also participated in a telephone hook-up with respect to the MIUS project as her MIUS work was to recommence once she completed filling in for the person on leave in the CCB team.
72. On 8 September 2004 she had a meeting with the human resources manager, Judy Vardon. This meeting lasted for almost three hours. Mrs Russell understood that the purpose of the meeting was for Ms Vardon to gain a better understanding of Mrs Russell’s concerns and Mrs Russell gave the whole history of the events of that year, including her distress about the way the HSA assessment had been handled to Ms Vardon. She told the Tribunal “I told Judy that it was my understanding from both Margaret and Rebecca Murdoch, my manager, that the MIUS project was an interim stop gap until they could find something permanent for me at Mount Barker”.
73. There is no evidence that Ms Vardon contradicted her belief that she was now based at Mount Barker.
74. Shortly after this meeting, Mr Jones told Mrs Russell that she was no longer permitted to do the FAO work at Mount Barker. He told her “off the record” that he believed this to be a payback because he had attempted to intercede on her behalf with Ms Emery and Ms Murdoch prior to the HSA assessment. Around this time, Mrs Russell also discovered that Ms Murdoch had not discussed with Mr Jones the possibility of a permanent position for her in the Mount Barker office, despite the assurances she had received from Ms Emery that active attempts were being made to find her a permanent position.
75. At the end of September, Mrs Russell underwent some further MIUS training.
76. By mid October, Mrs Russell was suffering symptoms of anxiety. She was not concentrating or sleeping and she was having problems with her stomach. She took some leave without pay. She described her emotional state as being “in a mess” and that everything was becoming “too overwhelming” for her. She consulted with Dr Entwistle on 13 October 2004. He recorded that her neuralgia was flaring up and that she reported to him that Centrelink were saying that her phobia was not a medical condition. Around the same time, she made contact with Comcare who were dealing with the 1999 bus claim and she asked for the name of a psychologist as she felt some counselling may help her deal with the situation. She had previously made attempts to arrange to see a psychologist about her bus phobia in 2003 but, for various reasons, she had not at that stage followed up with the counselling recommended by Dr Meegan in mid 2003.
77. While Mrs Russell was on leave, Ms Emery telephoned her at home and told her that the MIUS project was transferring to a new group, the network support group (NSG), and that she would have a new manager. She also told her that she would have a new team leader, but that otherwise nothing would really change for her and she would continue to do the MIUS work from Mount Barker. She was told by Ms Emery that she would be contacted with respect to the project by the new team leader or the new manager upon her return to work.
78. She returned to work on 1 November 2004. Ms Emery rang her to discuss the transfer of the MIUS project to the NSG and she said that she would be her interim team leader and Debbie Atze would be the manager.
79. On 15 November 2004, Mrs Russell finally received two reports from Dr Lewis (T14/63 and T17/75). She had previously enquired on a number of occasions as to their availability and had been told they had not been received. The first of these reports had been in Centrelink’s possession for two months at that point in time.
80. A meeting then occurred at the request of Ms Vardon on 17 November 2004. A Ms Turner also attended the meeting. Mrs Russell was told that the purpose of the meeting was to discuss Dr Lewis’ recommendations and to “see how they could help me in the workplace”. It appears that the real purpose of the meeting was for Ms Vardon to tell Mrs Russell that she had to return to work in Adelaide.
81. At that meeting Mrs Russell expressed her distress to Ms Vardon that the content of the reports was different to the view Dr Lewis had expressed to her on the day of the assessment. She explained to Ms Vardon that she was still on medication and not able to drive. The conversation moved to her bus phobia. She recalls Ms Vardon commenting that her phobia was not a medical issue and that it was up to Mrs Russell as to how she got herself to her place of work. Ms Vardon commented that Dr Lewis had expressed concerns about Mrs Russell’s ability to carry out her work. At some point, Ms Turner handed a letter to Mrs Russell. The letter directed that Mrs Russell “attend work in your normal position in the Childcare Benefits Team, in Naylor House, on and from Monday 29 November 2004” (T18/77). It went on to state further that she must obtain a medical clearance from her own general practitioner with respect to her capacity to carry out full-time work before she could commence at Naylor House.
82. Mrs Russell described herself as being shaken, distressed and confused by the letter and by the course of the meeting. In her mind, performance issues were being raised when she had always understood that her supervisors had no issues with respect to her performance.
83. Ms Vardon told her that she was a member of the CCB team. Mrs Russell expressed her belief that she had ceased to be a member of the CCB team some time ago and was now a member of the MIUS project. Ms Vardon then raised concerns about her ability to carry out the MIUS project. Mrs Russell re-iterated that she could not catch a bus and could not drive because of the medication.
84. The meeting ended with Mrs Russell making it clear that she wanted a review of the decision that she return to Naylor House. She was offended by the suggestion that she was not performing her duties appropriately when she had been working in the MIUS position for some months with no complaint about her performance.
85. In the days following, Mrs Russell was told her personal effects would be returned to Naylor House. On 22 November 2004, an email was sent to all CCB staff advising that Mrs Russell was returning to Naylor House on Monday 29 November 2004.
86. On 23 November 2004, Mrs Russell sent a fax to human resources advising of her bus phobia and her inability to drive and attaching a certificate of sickness. Ms Emery was also provided with a copy. That certificate (Exhibit A35) states that Mrs Russell cannot travel on a bus and that she was unfit for driving until at least 13 January 2005. Mrs Russell confirmed in writing to Ms Vardon and Ms Turner her disagreement with the HSA assessment and she attached her own comments.
87. Centrelink did not resile from their position that she must commence duties in Adelaide on 29 November 2004. On Friday 26 November 2004, she received an email telling her where she would be located back in Adelaide. She was to be located in a position that, in her mind, isolated her from the CCB team and put her in the direct line of sight of the team leader. She was tearful and distressed most of the time and was unable to control her distress at work.
88. She became so unwell on that weekend that she could not get out of bed. She was too ill to go to work on the Monday. She has not returned to work since and has had psychiatric and psychological treatment to assist her with her depressive illness and her bus phobia. Her psychiatric condition is uncontested and it is accepted by Comcare that it arises out of her employment.
89. Mrs Russell was referred by her general practitioner to a psychologist, Adrienne Martin, in late 2004 and she commenced seeing Dr Ford, a psychiatrist, in mid 2005.
90. Ms Emery gave oral evidence to the Tribunal and her written statement is Exhibit R5. She said that the requirement for the August HSA assessment was to ascertain the nature of the medical conditions that were preventing Mrs Russell from undertaking the role of a CSO, what effect those conditions would have on her undertaking that role, and what workplace modifications may be required. She could not recall any discussion with Mrs Russell prior to the HSA assessment.
91. When asked about the farewell activities in July of that year, Ms Emery said that they ceased once she realised that Mrs Russell’s medical conditions may impact on her capacity to undertake CSO duties. She was aware that the card and gift had been purchased, but said that it was without her permission or her knowledge that the card and the gift were delivered to Mrs Russell. She acknowledged that at the time Mrs Russell commenced work on the MIUS project, it was anticipated that a long-term transfer would become available for Mrs Russell. She agreed that Mrs Russell did not receive minutes of the CCB team meetings after June 2004, nor did she have access to the CCB system once she started working on the MIUS project.
92. She confirmed that the MIUS work was one of the functions identified as being suitable for the NSG later in 2004 and that Ms Atze was the temporary manager of the NSG. She doubted that she had a conversation with Mrs Russell telling her that she had moved to the NSG and that she would have a team leader change. She was adamant that Mrs Russell did not move to the NSG. When shown an email dated 19 November 2004 (Exhibit A33) from Ms Atze to Ms Emery requesting to know whether Ms Emery wanted Ms Atze to approve leave requested by Mrs Russell, Ms Emery’s response was that it was an administrative error that Mrs Russell had been placed on the NSG books.
93. When asked about the meeting in March 2004 at which Mrs Russell claimed that Ms Emery had encouraged her to put forward a proposal for an extended placement at Mount Barker, Ms Emery did not believe she would have instigated such an idea. She acknowledged that she retrieved Mrs Russell’s personnel file in March and that medical reports would have been on it, but that she did not read through the medical file.
94. She was referred to that part of her statement in which she stated that it was in August 2004 that she had first became aware of the bus phobia, and an email attached to her statement (Exhibit R5/ME-5) that indicated that she was aware of the bus phobia by, at the latest, 31 March 2004. Ms Emery acknowledged that she had largely constructed her statement by using the paper trail and also by conferring with her manager. She could not disagree with the account provided by Mrs Russell of some of the conversations that took place in 2004.
95. Ms Emery frequently had no recollection or no detailed recollection of the events of 2004.
96. Ms Murdoch gave oral evidence and provided a statement (Exhibit R9). Her statement contained no detail at all about her direct exchanges with Mrs Russell. Her position was that Mrs Russell could not undertake the duties required of a CSO because of her multiple medical conditions, and that as she could not be accommodated at Mount Barker, and was medically cleared to do so, she was directed to return to Adelaide.
97. She said that the requirement for the HSA assessment in August was because of the multiple medical issues with which Mrs Russell presented. She was trying to find a way of moving forward with Mrs Russell, and one of these options was a CSO role at Mount Barker that would involve face-to-face customer work. She had tried to give Mrs Russell some FAO work at Mount Barker, but she had physical limitations about performing the duties. She recalls that Mrs Russell also indicated she had issues with her memory and irritability and it had reached a point where Ms Murdoch wanted to establish where she belonged in the workforce.
98. She did recall that a meeting was planned in August 2004 prior to the HSA assessment. She had limited recall of the telephone conversation that she had with Mrs Russell on 11 August 2004. Her memory was that Mrs Russell appeared not to want to meet with the HSA doctor and that she assured Mrs Russell that there were legitimate reasons for the appointment being booked and that attendance at the appointment was required. She said it is likely she would have made her aware of her rights and obligations about attending the assessment and she had a vague recall that information from Dr Entwistle was not sufficient. She said that the reports at that date from Dr Entwistle were brief and gave no link between her condition and the workplace.
99. When presented with the record that Mrs Russell had taken of the conversation of 11 August 2004, Ms Murdoch did not believe that she would have spoken to an employee in such a way. She said that it would have been inappropriate for her to have said to Mrs Russell that she could be made to catch a bus. She had no immediate memory of Dr Lewis’ reports.
100. Ms Murdoch did not accept that the rescheduling of the meeting and the HSA assessment was triggered by the conversation that she had with the union representative.
101. She could not recall reading the two earlier HSA assessment reports of 2002 and 2003, nor could she recall reading the two reports of Dr Lewis. She had understood that at the time Mrs Russell was directed to return to Naylor House, Dr Lewis had medically cleared Mrs Russell to return to work in the CCB team. The decisions that she made about Mrs Russell’s future were made by her in concert with, and on the advice of, Ms Vardon. She maintained that Mrs Russell was medically cleared to return to work in the city by Dr Lewis and that Mrs Russell at all times remained a member of the CCB team and under her authority.
102. Ms Vardon gave oral evidence and provided a statement (Exhibit R11). She did not mention the meeting of 8 September 2004 in her statement. She said that she was not aware that Mrs Russell was transferred out of the CCB team and she did not think that she was transferred at any stage to the NSG. She understood that Mrs Russell’s location at Mount Barker was on a short-term basis. She had limited direct recall of the events of that year. She was not sure of when she first became aware of the prior reports of Dr Meegan and she commented that they were “possibly too old” to consider. She was aware of the bus phobia by 2004. She could remember the meeting with Mrs Russell on 17 November 2004. She agreed that Mrs Russell was upset about returning to Naylor House.
103. Mr Jones gave oral evidence. He did not have any complaint about the quality of Mrs Russell’s performance when working at the Mount Barker office. He said that he knew that she was unwell at times while working there, and that at no stage did he understand that she had been transferred to the Mount Barker office on any permanent basis. He was aware that she could not do face-to-face customer contact, which he understood was because of her neuralgia and the medication. He did not have a permanent full-time position for her as he needed a person with a full range of abilities as Mount Barker is a customer service centre and demands on resources are quite high. He could recall occasions when she came to work with headaches and drowsiness.
104. He had no reason to doubt that she was not doing the MIUS work properly. He commented that she was punctilious about advising when she was to take time off work and he said the arrangement whereby she worked at Mount Barker was open-ended and he expected that at some stage he would be advised that she would be returning to Naylor House. As at November 2004, he was still able to accommodate her at Mount Barker and, from his perspective, there was no reason why she had to move away from Mount Barker at that particular point in time.
105. He recalls that she was upset about the HSA assessment and he knew that she was uncertain and worried about why she had to have this assessment. He had discussions with Ms Murdoch to try to clarify Mrs Russell’s position because of Mrs Russell’s concerns, but he was told by Ms Murdoch not to get involved any further. He said that he was aware from the time that she came to Mount Barker that she could not travel by bus.
the medical evidence
106. The Tribunal heard evidence from a number of medical witnesses called by both parties. All medical witnesses agreed upon the condition from which Mrs Russell suffered and that her condition arose out of her employment. The only issue to be explored with the medical witnesses was whether the directive to return to Naylor House and report for work on 29 November 2004 was one of the causative factors in her illness and if so, the extent to which it contributed.
107. There was agreement between Drs Ford, George and Davis and the psychologist, Ms Martin, that the directive to return to Naylor House was “a final straw”. Nevertheless, both Drs Ford and Davis considered that depression had been building throughout 2004 because of other events that were occurring in the workforce. Ms Martin’s view was that the depression had its beginnings in the bus incident of 1999.
108. Ms Martin commenced treating Mrs Russell in late 2004 upon a referral from Dr Entwistle. Her report of 20 June 2005 (Exhibit A42) was also in evidence. In that report, she expressed the view that Mrs Russell’s current condition was related to her employment and “… is the result of a sequence of interrelated matters which has developed over time. However, the original event appears to be the incident involving the bus doors”. In her oral evidence, she confirmed Mrs Russell’s condition. She considered that the anxiety disorder had developed to a major depression over a period of time. She agreed that it was possible to speculate that if Mrs Russell had not been directed to return to Adelaide to work in November 2004, she may have been able to continue to manage in the workforce. She agreed with Dr Ford’s view that a major contributor to the development of Mrs Russell’s depression was that she was put in a situation where she was suddenly forced to confront her bus phobia.The direction to return to Adelaide was a contributing factor, but she considered that it was more the manner in which things were done that was the source of the problem. She was of the view that the decision to send Mrs Russell back to Naylor House was made in a duplicitous manner, and it was this duplicity that was so distressing to Mrs Russell.
109. Dr Lewis accepted the genuineness of Mrs Russell’s neuralgia and the bus phobia. He agreed that she would not be able to travel to work by bus or vehicle because of the phobia. He had assumed that she had chosen not to receive any treatment for the bus phobia and he had written his second report based on this belief. At the time, he saw this as an issue for Mrs Russell to resolve, rather than her employer. He agreed that he was not expressing a medical opinion in that second report.
110. Dr Lewis said that he had concerns about Mrs Russell’s emotional state when he saw her in August 2004. He had found it extraordinarily difficult to obtain a history from her and the assessment took an inordinate amount of time.
111. Mrs Russell’s treating psychiatrist, Dr Ford, provided a report (Exhibit A39). She has been his patient since early 2005. His opinion was that her depressive condition started as far back as the bus incident in 1999 and that the November 2004 directive to travel to Adelaide to attend work “… forced confrontation with the bus phobia with the expected outcome of depression”. He commented “There is clearly a series of interrelated events; the decision to withdraw modified duties, the circumstances which sound extremely humiliating and forceful. However, were the bus phobia not have been [sic] present the situation would not have arisen”. He also comments: “… Ms Russell in being forced to confront her fear, abruptly, or suffer the consequences, has decompensate into firstly a condition of anxiety, subsequently depression …”.
112. In his oral evidence, he confirmed that a person taking Neurontin should not drive if their doctor believes that they should not drive. He said that Mrs Russell had a predisposition to anxiety. He understood from the history given to him by Mrs Russell that she had believed that her problem with travel was solved and that she had been relocated to Mount Barker to work in the MIUS area and it came as a surprise to her to be told to return to Naylor House. He had no doubt about the genuineness of her presentation and he continues to treat her for her depressive illness.
113. Dr Entwistle gave oral evidence. He has been Mrs Russell’s general practitioner for many years. When he saw her on 19 November 2004, he described her as being very distressed and when he next saw her she was extremely anxious and agitated. He then referred her to the psychologist, Ms Martin. He said that she felt that Centrelink were telling her that it was a non-health issue and a performance issue and these were the things that were focussing on her mind in November 2004 when he gave her a sickness certificate.
114. Dr Tony Davis, a psychiatrist, gave oral evidence. He provided a report dated 30 August 2006 to Centrelink (Exhibit R15). He described Mrs Russell’s depressive condition as evolving over the 10 to 11 month period that she was at Mount Barker and he considered that there were numerous stressors during that year, including the inquiries from other team members about her illness, about her medication and about her inability to work in Adelaide that had been contributors to her illness. The directive to return to work in the city in November 2004 triggered a decompensation. He considered that she had anxiety and depression well before the incidents of November 2004 and that it emerged in mid 2004. Her condition emerged over a number of months with her increasing anxiety and uncertainty about the future. He saw the directive to return to Adelaide as “the end point of a sort of cascade of things”.
115. He described her as an individual with a proneness to anxiety. He considered that her developmental history “highlighted considerable vulnerability and propensity for psychological disorder, when exposed to various stressors”. He had understood when he wrote his report that she was free of neuralgia at the point when she was directed to return to Adelaide.
116. Dr George gave oral evidence. He is a psychiatrist who saw Mrs Russell at the request of Comcare. He provided a report dated 6 June 2005 (T39/139). In his report he took the view that Mrs Russell had shown no motivation to overcome her phobia of travelling on buses and this was what he terms “a specific weakness in her argument that her bus phobia is the main reason why she left work on 27 November 2004”.
117. He had only seen Mrs Russell once for 45 minutes and he diagnosed her as having a generalised anxiety disorder condition. His evidence was that she appeared to have a genuine bus phobia, but he had understood that when she was directed to return to work at Naylor House in Adelaide, she was not suffering from neuralgia and was able to drive. He considered that the symptoms that she presented with when she first saw Ms Martin would have arisen because of the direction by her employer that required her to use a bus.
118. The Tribunal’s view, after hearing all the evidence, was that Comcare’s witnesses as to the events of 2004, and in particular Ms Emery and Ms Murdoch, did not really take anything significant away from the assertions made by Mrs Russell.
119. This is a case where there was inadequate communication with Mrs Russell as to how her situation in 2004 was to be resolved.
120. Ms Emery appears on the one hand to be reassuring Mrs Russell that she was secure at Mount Barker and that she was sympathetic to her plight, while on the other hand she was communicating to management that they had a problem with Mrs Russell and that something needed to be done to resolve the problem. Ms Murdoch was not properly informed about Mrs Russell’s conditions and appears to have taken a very hard line towards Mrs Russell, based on her belief that Mrs Russell wanted to be able to work close to home and was not doing anything to help herself. She did not appreciate the complexity of her dual medical conditions and she made Mrs Russell feel that she doubted the genuineness of Mrs Russell’s claim that she could not travel to work in Adelaide.
121. The Tribunal is satisfied that Mrs Russell was assured at all times prior to November 2004 that if she had a medical certificate stating that she could not drive, she would not be required to undertake duties from the Adelaide office.
122. Where there is a conflict between the evidence of Mrs Russell, Ms Murdoch, Ms Emery and Ms Vardon, the Tribunal prefers the evidence of Mrs Russell and the paper trail is consistent with the events of that year as recounted by Mrs Russell.
findings of fact
123. The Tribunal makes the following findings on the balance of probabilities and based on all the available evidence.
124. Mrs Russell, who was a member of the CCB team, was temporarily relocated to the Mount Barker office of Centrelink in January 2004 because she was advised not to drive to her position at Naylor House in the city due to the side affects of medication that she was taking for trigeminal neuralgia.
125. Mrs Russell continued to have intermittent and frequent attacks of neuralgia of varying severity throughout 2004 and she took Neurontin whenever suffering one of these attacks. She was advised not to drive a vehicle while taking this medication.
126. She also suffers from a bus phobia, which is a compensable condition, arising out of an incident that occurred in the course of her employment with the Commonwealth in 1999.
127. Mrs Russell had made some attempts to obtain psychological treatment for her phobia in 2003. However, for various reasons, she was unable to find a suitable psychologist to assist her at that time. The urgency for such treatment diminished once she was placed at Mount Barker and so she did not pursue counselling for that condition until late 2004.
128. Centrelink were aware of her difficulty in travelling by bus in February 2004. Information about her condition was contained in a 2003 HSA assessment.
129. Ms Emery, her team leader, who arranged her relocation in early 2004, was aware of the bus phobia and this was why relocation was necessary at that point.
130. At two meetings with Ms Emery in March 2004, Mrs Russell formed the belief, on reasonable grounds, that Ms Emery understood the complexity of her medical condition and that she was supportive of her being placed on a long-term basis in Mount Barker. She was however told that her manager, Ms Murdoch, was less supportive.
131. Ms Emery assisted Mrs Russell in the preparation of her proposal for an extended placement at Mount Barker.
132. Mrs Russell was told by Ms Emery on 2 April 2004 that management were looking at possibilities for a long-term placement for her in Mount Barker, including the possibility of a swap with another employee.
133. Mrs Russell continued to carry out her duties as a member of the CCB team while located at Mount Barker between January 2004 and June 2004. She could do most, but not all, of her CCB team duties from Mount Barker. There were limitations on what she could do as she was not located with the central team. She also did some FAO work during this period.
134. In late April 2004 she was telephoned by Ms Emery and her understanding of that conversation was that she was told that she was being transferred to the MIUS project based in Mount Barker until such time as a permanent position could be found for her in Mount Barker and that she was leaving the CCB team.
135. On 13 May 2004, Mrs Russell was advised, in writing, that her proposal for a relocation at Mount Barker for an extended period had been rejected. It also stated that as long as she had a medical certificate stating that she could not drive or catch buses for medical reasons, Centrelink would continue to accommodate her location at Mount Barker.
136. She attended a CCB team meeting in May 2004 when the team were told that she would be leaving the team as soon as a replacement became available for her.
137. Various events then occurred between June and late July 2004 which confirmed Mrs Russell’s belief that she had been permanently moved to the Mount Barker office. These included having her possessions delivered to her from Adelaide, having her replacement in the CCB team named, and receiving a farewell card signed by the members of the CCB team.
138. In July 2004, because of her belief that she had been moved from the CCB team, she cancelled her enrolment in a course that she was required to do for the purposes of ongoing CCB duties.
139. There is no evidence that management made any complaint about her performance at the Mount Barker office between January and August 2004 and at one stage they thanked her for the valuable work she had been doing for the FAO.
140. In early August 2004, management required her to have another HSA assessment, but did not make it at all clear to her why this assessment was required.
141. Mrs Russell had a confrontational telephone discussion with her manager, Ms Murdoch, on 11 August 2004, which was extremely distressing to Mrs Russell and she became confused, insecure and uncertain about her position. She believed that management were questioning whether she suffered from neuralgia at all.
142. In the course of the conversation that took place on 11 August 2004, Ms Murdoch questioned Mrs Russell’s condition and said words to the effect that Centrelink did not care how she got to work.
143. The events of early August onwards triggered a decline in Mrs Russell’s mental health. She became confused as to her employer’s attitude towards her work and as to their plans for her future. She became increasingly distressed and by mid to late August 2004, she was showing the symptoms of a depressive illness and was very anxious about her future.
144. She presented at the HSA assessment on 24 August 2004 in an overly anxious state, but at the conclusion of the assessment she felt reassured that Dr Lewis understood and was sympathetic to her medical conditions.
145. In mid September, Mrs Russell was told that she was no longer permitted to do FAO work. Mr Jones confided to her that he believed this was because he had tried to intervene on her behalf with Ms Murdoch. This added to her anxiety about what was happening to her in the workplace.
146. In late October, she had some more time off work as a result of symptoms of anxiety and probably depression.
147. Centrelink received the first report from Dr Lewis on 15 September 2004. This report was not given to Mrs Russell at that time. Dr Lewis expressed concern about her mental state when he saw her in August.
148. Dr Lewis then sought further information from Dr Entwistle and provided a supplementary report which was received by Centrelink on 2 November 2004.
149. Dr Lewis at all times believed that Mrs Russell was actively resisting treatment for her bus phobia and his second report was based on this belief.
150. Mrs Russell was given copies of Dr Lewis’ two reports on 15 November 2004.
151. As a direct result of Dr Lewis’ second report, a decision was made to direct Mrs Russell to return to the Adelaide office.
152. Dr Lewis’ second report did not express a medical opinion.
153. At a meeting on 17 November 2004 with Ms Vardon and Ms Turner, Mrs Russell was handed a letter directing her to return to her position in the CCB team in Adelaide on 29 November 2004. This further exacerbated her distress and anxiety.
154. At the time that she was given this directive, she believed that she no longer had a position in the CCB team and that she had been permanently located in Mount Barker.
155. Mrs Russell obtained two medical certificates from Dr Entwistle on 19 November 2004. One referred to her bus phobia with a date of injury of 1999, and the second referred to her trigeminal neuralgia and certified her unfit to drive until January 2005 “subject to review”. She sent these documents to human resources on 23 November 2004.
156. She then sought a formal review of the decision to return her to Naylor House. Her written request for review was sent to Ms Vardon on 24 November 2004. A letter in response, sent to her on 26 November 2004, advised that it was up to her as to how she travelled to work and that she must report for duty at Naylor House on 29 November 2004.
157. Because of her ongoing neuralgia in November 2004 and her bus phobia, Mrs Russell could not travel to work in Adelaide.
158. Mrs Russell became incapacitated such that she did not return to her employment after 26 November 2004.
the parties’ positions
159. Comcare’s position is that it was the directive to return to work in Adelaide on Monday 29 November 2004 that was one of the significant events that gave rise to Mrs Russell’s illness and they argue that it is an excluded event as it represented a failure to obtain a transfer or benefit in the course of her employment. The benefits that they refer to are as follows:
·her failure to obtain a permanent position at Mount Barker;
·the rejection of her proposal that she work as a virtual team member; and
·the rejection of her request late on 24 November 2004 that she be allowed to remain at Mount Barker on a temporary basis.
160. Comcare point to the fact that Dr Ford, Dr Davis and Ms Martin agree that if she had been allowed to remain at Mount Barker, it is possible that she would have continued to cope in the work force and her health would not have deteriorated to the extent that it did.
161. Comcare contended that it was apparent that Mrs Russell had a significant misapprehension about her position at Mount Barker. They argue that there was nothing to support her having that misapprehension. They maintain the argument that her belief that she had been transferred out of the CCB team was a mistaken perception, which was inconsistent with the understanding of the team leader, manager and other employees, such as Ms Vardon.
162. Counsel for Mrs Russell argued that she had been moved out of the Adelaide team and was located in Mount Barker and had every right to believe that she was located in Mount Barker because of management’s conduct. She was subjected to a course of conduct by management that gradually gave rise to her illness over a period of time. Counsel argued that the final direction to return to Naylor House was not a material contributing factor to her illness within the meaning of the Act. It was the end point of a series of events that gave rise to her illness. Counsel for Mrs Russell also submits that the direction to return to Adelaide was not a failure to obtain a benefit within the meaning of the Act.
163. Mrs Russell’s position is that a whole series of events caused her incapacity, that she was a vulnerable person with a predisposition to depression and a sequence of events over a number of years gave rise to her illness.
consideration and application of the law
164. It is common ground that Mrs Russell suffers from a condition, namely anxiety disorder and depression, that arose out of and in the course of her employment. To determine whether the employer is liable under s 14 of the Act, the Tribunal must determine whether she suffered an “injury “as defined in the Act.
165. It is common ground that her psychological disorder is a condition that is outside the boundaries of normal mental functioning and constitutes an “ailment’ within the meaning of that word in s 4(1) of the Act. It also constitutes a disease and would be included in the definition of injury if it was contributed to in a material degree by her employment and was not excluded from the definition of injury as a result of the exclusionary provisions in the definition of “injury” in s 4 of the Act.
166. A series of events gave rise to Mrs Russell’s depression. The Tribunal has found that she was already suffering an adjustment disorder and depression by August 2004. The direction of 17 November 2004 to report to work in Adelaide on 29 November 2004 was a final contributor to an illness that had been developing over a long period of time and related back to the original development of a bus phobia arising out of the 1999 incident.
167. Can the direction of 17 November 2004 to return to Adelaide or the rejection of her review request on 26 November 2004 be seen as a failure to obtain a promotion, transfer or benefit in connection with her employment?
168. It is important to first consider Mrs Russell’s understanding of her employment situation in November 2004. She genuinely believed from May until November of 2004 that she was no longer a member of the CCB team and that she had been permanently relocated to Mount Barker, but with some uncertainty still surrounding what her final position there would be. This perception was objectively reasonable given the events that the Tribunal has outlined, the communications she had received from her supervisor and the actions taken by Centrelink to fill her position in the CCB team and farewell her from that team in July of that year.
169. In Wiegand v Comcare Australia (2002) 72 ALD 795 in the context of considering whether an event could amount to a material contributor to an injury, Justice von Doussa commented as follows:
“… there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.”
170. Similar reasoning can be applied in this case. Events occurred in 2004 that led Mrs Russell to believe that she had been permanently relocated to Mount Barker. If anything, it appears that management were uncertain about Mrs Russell’s future. However, this was not clearly communicated to her.
171. Even if the Tribunal was to find that the directive of 17 November 2004 to return to Naylor House, or the rejection of her review request on 26 November 2004, did materially contribute to her injury, can the exclusionary provision apply to these events? Did they amount to a failure to obtain a promotion, transfer or benefit in connection with her employment in that Mrs Russell could no longer maintain her work in a location that was close to home and provided her with significant benefit?
172. If the direction can be characterised in that way, then cases would indicate (Hart v Comcare (2005) 145 FCR 29 and Weigand v Comcare (No 2) (2007) 94 ALD 154) that if the failure to obtain the transfer or benefit materially contributed to the injury, then even if there were other causative factors contributing to the injury, the exclusion will operate. Those cases rejected a previous line of authority which suggested that the exclusion would not operate where the injury was attributable to several causes and not just to the failure to obtain a transfer or benefit.
failure to obtain a promotion, transfer or benefit in connection with his or her employment
173. In Re Davill and Australian Postal Corporation (AAT 10629, 22 December 1995), the Tribunal had to consider whether the applicant’s failure to obtain promotion and a potential downgrading of his position could amount to a failure to obtain a benefit. In respect to the downgrading of the applicant’s position, the Tribunal commented as follows:
“The Tribunal does not see how the word ‘obtain’ can be extended so as to include the retaining of a benefit (ie, the maintenance of his existing position) and thus the applicant’s claim cannot be defeated on the ground that he failed to obtain a benefit.”
174. In the subsequent case of Comcare v Ross [1996] FCA 1669, Justice Finn commented in the following terms when considering the exclusionary provision:
“ … the word ‘obtain’ should be given its ordinary natural meaning. There clearly is no ground for asserting that it has any special or particular meaning in this context. In consequence, the attribution of that ordinary meaning is itself a question of fact for the Tribunal: …
The majority members of the Tribunal, in ascribing an ordinary meaning to ‘obtain’, clearly considered that it was being used in its common sense of to ‘acquire’. This was the exclusion of the uncommon (but I would add nonetheless possible) sense of to ‘maintain a hold upon’ or ‘keep’. Given that the latter possible meaning would be wholly inept, in my view, when applied to the words ‘promotion’ and ‘transfer’ which precede ‘benefit’ in the proviso, the meaning given ‘obtain’ by the majority members does seem to me to be a wholly reasonable one in this statutory context”.
175. In Re Albanese and Comcare [2004] AATA 768 the argument was that the applicant’s injury arose as a result of a failure to obtain a promotion, transfer or benefit. In that case, the Tribunal found that the applicant had already been appointed to his new role one month prior to the date when he was told about a change in his job status and so therefore it was not a case where he failed to obtain a benefit, but rather a case of failing to retain a benefit he already had.
176. It was clear on the evidence in this case that it was Mrs Russell’s perception that she had already obtained the benefit of a transfer to Mount Barker and that all that was required was a decision to be made about exactly what her long-term position would be, but until that occurred she would remain working on the MIUS project based at Mount Barker. She believed that she had already obtained the transfer and the events on which she says she based that belief did occur. In the circumstances, it was a reasonable perception for her to hold.
177. The Tribunal generally accepts Mrs Russell’s recall of events. The evidence points to poor management of Mrs Russell’s placement at Mount Barker with management not clearly and precisely defining Mrs Russell’s role for her, nor fully understanding the complexity of her medical conditions.
178. The Tribunal therefore finds that the exclusionary provision cannot apply in this case as a direction to return to Adelaide was effectively, from Mrs Russell’s perception, a decision to relocate her. It was not taking away a benefit or transfer as she believed that she had already been transferred and relocated and had received the benefit. It was a failure to retain a benefit.
179. Even if the Tribunal is found to be wrong on that point, and it can be argued that the direction to return to Adelaide was a failure to obtain a transfer or benefit, the Tribunal also finds that on the evidence, neither of the directives of 17 November 2004, and then 26 November 2004, were a material causative factor in the development of her illness within the meaning that has been attributed to that phrase (Comcare v Canute [2005] FCAFC 262 and Comcare v Sahu-Khan (2007) 156 FCR 536).
180. Mrs Russell’s depression was well established by August 2004 and became worse throughout October and November. The contributors to her illness began with the bus incident in 1999 and then evolved from March 2004 until her final decompensation in November 2004.
181. Noting Mrs Russell’s pre-disposition, the way in which she was treated by the organisation that she worked for, who provided her with mixed messages about her future and about her performance, the way in which the HSA assessment was dealt with by management, and the failure by management to follow through on finding her a settled position at Mount Barker, all cascaded towards the development of a significant depressive disorder that appears to have been in place and worsening by August and September 2004.
182. Dr Ford, Dr Davis and Ms Martin all agree that the final breaking point was the confrontation with her bus phobia that the directive of 17 November 2004 caused. The prior events were the major contributors. The confrontation with the bus phobia gave rise to her final decompensation, but her depressive illness and anxiety had developed to a significant degree from the middle of 2004 onwards as is evidenced by Dr Entwistle’s and Dr Lewis’ observations.
183. In the case of Hart the Court held that the exclusion only applies where failure to obtain a transfer, benefit or promotion materially contributes to the injury. If it does not materially contribute, then the exclusion does not apply.
184. In all the circumstances, the Tribunal is satisfied that the exclusionary provisions of s 14 of the Act do not operate in this case.
185. The Tribunal sets aside the decision under review and in substitution for that decision determines that Comcare is liable to pay compensation to Mrs Russell for her psychological disorder.
186. The Tribunal reserves liberty to apply within 14 days in respect of the costs of these proceedings and orders that, in the absence of any such application, Comcare pays the costs of the proceedings.
I certify that the 186 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell, Dr E T Eriksen (Member) and Mr S J Ellis AM (Member)
Signed: ...........J Coulthard..........................................
AssociateDates of Hearing 27-30 November 2007, 29-30 April 2008 and 1-2 May 2008
Date of Decision 8 October 2008
Counsel for the Applicant Mr D Howard
Solicitor for the Applicant Peter Allen & Associates
Counsel for the Respondent Ms K Bean
Solicitor for the Respondent AGS
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