Sami and Telstra Corporation Limited
[2012] AATA 41
•27 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 41
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos. 2009/6004, 2010/5573
GENERAL ADMINISTRATIVE DIVISION ) and 2011/0497
Re Ahmad Sami Applicant
And
Telstra Corporation Limited
Respondent
DECISION
Tribunal Deputy President J W Constance Date27 January 2012
PlaceMelbourne
Decision Application 2009/6004
The reviewable decision made 19 November 2009 is set aside and in substitution it is decided that Telstra is liable to pay compensation in respect of an injury, being post-traumatic stress disorder, suffered by Mr Sami on 12 August 2009.
Application 2010/5573
The reviewable decision made 20 December 2010 is set aside and in substitution it is decided that Telstra is liable to pay compensation in respect of an injury, being an adjustment disorder with depressed mood, suffered by Mr Sami on 1 June 2009.
Application 2011/0497
The reviewable decision made 4 February 2011 is affirmed.
......(sgd J W Constance).......
Deputy President
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – post‑traumatic stress disorder and adjustment disorder with depressed mood found to be compensable injuries – reasonable administrative action not carried out in a reasonable manner – permanent impairment – application numbers 2009/6004 and 2010/5573 set aside – application number 2011/0497 affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 14(1) and 24
Re Salters and Telstra Corporation Limited (2002) 66 ALD 798
Wiegand v Comcare (2002) 72 ALD 795
REASONS FOR DECISION
27 January 2012 Deputy President J W Constance INTRODUCTION
1. Mr Sami was employed by Telstra for 20 years. In that time he suffered a number of injuries in the course of his employment.
2. Telstra has accepted liability to compensate Mr Sami in respect of some, but not all, of those injuries.
3. Mr Sami has made three claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Each claim has been rejected by Telstra.
4. The claims are as follows.
1)A claim for “increasing psychological stresses” caused by an incident in which Mr Sami was involved whilst at work on 27 March 2008. The claim form incorrectly referred to this incident as having occurred on 27 March 2009, but there is no dispute that the correct date is 27 March 2008. The claim was made on 2 September 2009.[1] It is the subject of application 2009/6004 before the Tribunal.
2)A claim for “psychiatric condition as a result of bullying and harassment at work, stress” alleged to have occurred in 2008-2009. The claim was made on 20 July 2010.[2] It is the subject of application 2010/5573.
3)A claim for permanent impairment described as “psychological effects of the injuries and incidents happened to me while working for Telstra specially the last few years till now (sic).” The claim was made on 20 July 2010.[3] It is the subject of application 2011/0497.
[1] Exhibit R1.
[2] Exhibit A13.
[3] Exhibit A17.
5. For the reasons which follow the decisions in applications 2009/6004 and 2010/5573 will be set aside and in substitution it will be decided in each case that Telstra is liable to compensate Mr Sami in respect of each of the injuries. The decision in application 2011/0497 will be affirmed.
BACKGROUND
6. Unless otherwise stated the findings of fact made in these Reasons are made on the basis of the evidence of Mr Sami. I am satisfied of the facts found on the balance of probabilities.
7. Mr Sami is 50 years old. He commenced employment by Telstra in 1989 and worked for the company continuously until he was made redundant on 1 October 2009. Initially he was employed as an Assistant Technician; later he was promoted to Communications Technician. His work involved the maintenance of Telstra’s main distribution frame.
8. In 1995 Mr Sami injured his right knee and in 2002 he injured his right ankle and right knee. He suffered an injury to his back in 2006 which required surgery. In 2008 he suffered a further injury to his right knee. All these injuries occurred while he was at work.
9. In February 2009 Mr Sami underwent an arthroscopy of his right knee but he continued to experience pain in the knee. The pain has worsened and his change in gait has affected his left knee. He has continued also to experience pain from his back injury.
10. On 27 March 2008 Mr Sami was driving a Telstra van in the course of his duties in suburban Melbourne. As he was driving he was approached by a man and a woman who were being chased by a man wielding a knife. The man and the woman jumped into the van and yelled at Mr Sami urging him to drive off quickly. As Mr Sami was driving around a traffic island the door came open and both passengers were thrown from the van. Mr Sami saw that the male had hit his head on a sign-post and was bleeding profusely. Mr Sami thought that the passenger was dead and that he had caused his death. As Mr Sami was talking to the police on his mobile phone he saw the man with the knife standing over the man with the head injury appearing as if he was going to stab him. Mr Sami spoke to the man with the knife to distract him. The man with the knife then approached Mr Sami causing him to fear for his own life. Mr Sami continued to talk to the man with the knife and with the help of a bystander was able to disarm the man who then began to walk away. Shortly thereafter the police arrived and Mr Sami remained with the injured man until the police were able to arrest the other male.
11. In his written statement of 17 March 2011[4] Mr Sami said:
I was extremely upset and disturbed by this incident. I was also worried that Telstra would try to blame me for what had happened and I was concerned that the people who fell from the van may try and sue me. I telephoned my temporary team leader who I had just met earlier that day and told him what happened.
…
I went into work the following day. I didn’t realise at first how traumatising the incident had been for me. I suffer nightmares and flashbacks in relation to the incident.
Until the matter went to court I felt responsible for what had happened to the man who had been on the ground. For 5-6 months I thought he had died, then I was asked to go to court as a witness. This meant having to face the aggressor. By that stage I knew that the injured man hadn’t died but was in a bad shape. This meant I was still connected to the case and was asked to attend the court again in approximately late 2009. Day by day for 5 days I waited while the court was on and everyday a police officer would tell me not today but maybe tomorrow. Finally at the end I was told that he had confessed and pleaded guilty so I didn’t have to go. I still hate thinking about my feelings during those few days let alone the day that I really went to the court and the actual day that it happened.
When the guy with the knife had started walking toward me I felt incredibly vulnerable. This was after I already had my back injury and I had recently aggravated my knee injury, I felt that I could not have properly defended myself because of my back problem.
Whenever I see red, I see blood, even when it isn’t blood. There was still actual blood on the van the day after the incident. When I went to the petrol station and tried to put petrol in the van I saw it. I was so distressed that I went blank and put the wrong fuel in the van and it had to be towed away. I had to wait for the van to be fixed because I had used the wrong fuel. I did this and then when I went to refill the tank with the correct fuel at the petrol station I put 60 litres of fuel in but didn’t realise that a part of the fuel tank hadn’t been replaced when it was repaired. This meant that the fuel I put in spilled everywhere and the petrol station (at the corner of Elgar and Whitehorse Roads in Box Hill) had to be closed down so it could be made safe again. Again I felt that my life and the lives of others were at risk.
[4] Exhibit A1.
I accept this evidence as an accurate statement of how Mr Sami felt after the incident.
12. After the production of a police record of the incident,[5] Telstra conceded that Mr Sami had been involved in an extremely traumatic incident during which he felt threatened. This was an appropriate concession.
[5] Exhibit A12.
13. Mr Sami believes that he was “treated poorly” by Telstra, and in particular by his Team Leader, Mr Ettridge, from 2008 onwards. I am satisfied that he genuinely holds this belief and has done so since early 2009. I will refer to the incidents which caused him to form this belief later in these reasons.
14. Mr Ettridge became Mr Sami’s Team Leader in March 2008.[6] At that time the team carried out maintenance and consisted of approximately 15 people.[7]
[6] Transcript 9.9.11 at p265.
[7] Exhibit R2.
15. Mr Sami says that on numerous occasions Mr Ettridge treated him unfairly and that he felt he was being “targeted”. Further details of the instances to which Mr Sami refers are set out in his statements [8] and were confirmed by him when he gave evidence. These instances included the following:
1)Mr Ettridge speaking to Mr Sami in an “aggressive and nasty tone” which he did not use towards others in the group;
2)conversations between Mr Ettridge and Mr Sami concerning Mr Sami’s requests for annual leave;
3)conversations between Mr Sami and Mr Ettridge concerning Mr Sami’s request for the issue of a new uniform;
4)the conducting of a redundancy process by Mr Ettridge in April and May 2009.
[8] Exhibits A1 and A4.
16. In his statement of 30 August 2011[9] and when he gave evidence Mr Ettridge denied having treated Mr Sami unfairly at any time. He denied also that he spoke to him inappropriately.
[9] Exhibit R2.
17. Sometime around April 2009 Telstra commenced a process to make a number of staff members redundant. Mr Ettridge was informed that there were to be two redundancies from his team. He then conducted a redundancy process which involved his rating all team members in accordance with a number of criteria. As a result of this process Mr Sami was selected for involuntary redundancy. Mr Sami was advised of this by letter of 6 May 2009.[10]
[10] Exhibit R2.
18. Mr Sami appealed the decision that he be made redundant. His appeal was successful and Mr Ettridge was directed to carry out the assessment and ranking process again. On 26 June 2009 a second process was commenced.[11] Again Mr Sami was ranked lowest and again selected for redundancy.[12] His appeal against this selection was unsuccessful. Mr Sami was retrenched from his position on 22 September 2009.
[11] Exhibit R1 pp192-196.
[12] Exhibit R2.
19. Ms Gilhooly is a Senior Human Resources Adviser who has been employed by Telstra for the past 36 years. She provided a statement dated 2 September 2011[13] and gave evidence. Ms Gilhooly reviewed both redundancy processes and provided some training of Mr Ettridge before he carried out the second process. On the basis of her evidence I am satisfied that:
a)Mr Ettridge did not conduct the first redundancy process correctly;
b)the documentation relating to each person assessed in the first process was flawed;
c)at the time he carried out the first assessment Mr Ettridge had not been trained in the manner of carrying out the process, or, if he had, he misconceived his training.
[13] Exhibit R4.
EVIDENCE OF HEALTH PROFESSIONALS
Dr Kardaras, Psychologist
20. Dr Kardaras has practised as a psychologist since 1994 and has been in full‑time private practice since 1999. During the past decade she has specialised predominately in the treatment of depression and anxiety disorders. She has provided three reports in relation to Mr Sami and she gave evidence.
21. Dr Kardaras commenced to treat Mr Sami in July 2009 on referral by his general practitioner, Dr Gorji. This was after the first retrenchment process had been conducted but before the second had commenced. At the time of the hearing of this application Dr Kardaras continued to treat Mr Sami.
22. In her report of 27 September 2009[14] Dr Kardaras expressed the following opinion:
Ahmad’s symptoms of anxiety noted by hypervigilance, avoidance, and intrusive thoughts meet criteria for posttraumatic stress disorder that is attributable to his experience as a victim of crime. This diagnosis is separate to his experience at his workplace and is specific to road traffic situations with pedestrians. Ahmad’s workplace experience of perceived bullying meets criteria for an Adjustment Disorder with Depressed Mood. His symptoms of depression are reflected by his scores on the Beck Depression Inventory and the Depression and Anxiety Stress Scales.
[14] Exhibit A5.
23. When she gave evidence Dr Kardaras was of the opinion that Mr Sami’s physical injuries, resulting chronic pain and disability all contributed to his psychological problems. She was unable to say how much any one of the three identified factors contributed to his condition.[15] In her opinion his injuries began to affect his psychological condition following his back surgery in 2006. She said that “his injuries resulted in him not being able to undertake his full range of duties, so that he would have felt a loss of confidence, and he has often reported that he doesn’t feel like himself as a result of his condition.”[16] Further Dr Kardaras was of the opinion that Mr Sami’s concerns about his employment prospects were a cause of his psychiatric condition.[17]
[15] Transcript 7.9.11 at p143.
[16] Transcript 7.9.11 at p148.
[17] Transcript 7.9.11 at p160.
24. Dr Kardaras’ diagnosis of Mr Sami’s condition at the time she gave evidence was post-traumatic stress disorder and a major depressive disorder.
Dr Gorji, General Practitioner
25. Dr Gorgi has been Mr Sami’s general practitioner since 2003. He provided two reports dated 3 January 2010 and reports dated 22 March 2011 and 7 April 2010[18] and gave evidence.
[18] Exhibits A8, A9, A10 and A11 respectively.
26. Dr Gorgi’s first record of Mr Sami having referred to difficulties with his Team Leader at work was 9 July 2009. He had noted “pressure at work due to possible reduction of staff members” [19] at a consultation on 22 April 2009.
[19] Transcript 8.9.11 at p185.
27. In the opinion of Dr Gorgi, Mr Sami suffers from post-traumatic stress disorder resulting from the incident on 27 March 2008. In his report of 3 January 2010 Dr Gorji expressed the opinion that at that time Mr Sami was suffering from post‑traumatic stress disorder and chronic anxiety/stress. In a further report of the same date[20] he referred to a diagnosis of “reactive depression with anxiety disorder.”
[20] Exhibit A9.
28. In his report of 3 January 2010 Dr Gorji stated:
On the balance of probabilities, Ahmad’s Post Traumatic Stress Disorder is a direct consequence of being a victim and witness to the violent and extreme incident while on duty with Telstra on 27th of March 2008.
I agree that employment with Telstra was not the cause of his PTSD but certainly a significant material contributing factor in precipitating or triggering Ahmad’s PTSD. On the balance of probabilities, Ahmad’s reactive depression and anxiety disorder is due to at least two factors including (a) his ongoing complicated work related accepted injuries with his lower back and right knee which require further sugeries (sic) with uncertain prognoses (b) the actual case or the perception of being targeted by his team leader because of his reduced work capacity from mid 2008 as a direct results (sic) of 3 previous accepted work cover injuries despite having worked for Telstra over 20 years.
Dr Nathar, Consultant Psychiatrist
29. Dr Nathar assessed Mr Sami in April 2010 at the request of his solicitors. He provided a report dated 7 April 2010[21] and gave evidence.
[21] Exhibit A11.
30. In his report Dr Nathar stated:
This history revolved around the development of physical problems in 2001 and 2006 in the course of his work for Telstra… . The continuing and persistent physical problems may result in the need for a spinal fusion in the future. All these problems have contributed to some anxiety and depression. He gave a history of difficulty relating to his team leader, alleging bullying and unfair targeting to be got rid of due to his physical work restrictions arising out of his physical injuries. He then developed Post Traumatic Stress Disorder after witnessing an attack on a lady and a man on the road in the course of his work.
…
In terms of diagnosis, he would be regarded as suffering from a moderate degree of Adjustment Disorder with anxious and depressed mood and a milder Post Traumatic Stress Disorder. The prognosis is guarded and quite poor. His Post Traumatic Stress Disorder has not persisted for well over two years and has reached a chronic state that there will be persistent but mild, long-term problems. However, his Adjustment Disorder is more moderate because he has significant ongoing physical stressors impinging on him and particularly with a continuing worry about the impending fusion operation to his back. Additionally, I believe that due to the long time he felt he was traumatised from to (sic) the attitude of his team leader at Telstra, his anxiety reactive to this and his loss of trust and confidence has persisted and is also of poor prognosis.
Careful history taking has led me to the conclusion that a number of significant and material factors in his employment at Telstra have contributed to the onset and perpetuation of his ongoing psychological and psychiatric problems. In the first place, there is a component of his ongoing Adjustment Disorder which is significantly and materially contributed to by his ongoing problems in this right knee, his lower back and also the development of subsequent left knee problem (sic) which have arisen as a result of his employment at Telstra, to my mind. There is also a second and material contributing factor, namely his perception of being targeted unfairly and of being bullied by his team leader. The third factor is that of the 27th March 2008 incident on the road in the course of his work for Telstra. This directly gave rise to his Post Traumatic Stress disorder with no other significant contributing factors. I really could not ascertain any significant contributing factors outside of the work environment. I have also considered whether his psychiatric illness has, in a significant and material way, arisen out of the redundancy process he was subjected to and ultimately that he was made redundant by Telstra. The available information, perusing the documents you have sent me including this family doctor’s report and the history he gave me together with the psychologist’s report would suggest that the redundancy was not at all a significant and material cause of his psychiatric problems. This was evident in the sense that he had clearly described symptoms of his emotional difficulty coping with his physical injuries well before the redundancy issue came about.
When he gave evidence Dr Nathar confirmed the opinions he had expressed.
Dr Lewis, Psychiatrist
31. Dr Lewis examined Mr Sami in September 2009 on behalf of Telstra. He provided a report dated 16 September 2009[22] and gave evidence.
[22] Exhibit R12.
32. On examination Dr Lewis “could find no abnormal clinical psychiatric condition in that there was no clinical anxiety, clinical depression but he did have a phobia about helping people in distress which he liked to do previously.” [23]
[23] Exhibit R6 at p12.
Associate Professor Mendelson, Consultant Psychiatrist and Consultant in Pain Medicine
33. Professor Mendelson examined Mr Sami in October 2010 at the request of Telstra’s solicitors. He provided a report dated 25 October 2010[24] and gave evidence.
[24] Exhibit R5.
34. Professor Mendelson is of the opinion that Mr Sami “does not have any diagnosable mental disorder or psychiatric ‘condition’. He has understandable concerns about his employment prospects, given his medical problems related to his right knee and his low back, but these concerns do not constitute a diagnosable mental disorder.” [25] He expressed the opinion also that Mr Sami has never had a diagnosable mental disorder. He did not agree with the diagnosis of a phobia made by Dr Lewis.
[25] Exhibit R5 at p15.
LEGISLATION
35. Under s14(1) of the Act Telstra is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
36. Injury is defined in section 5A as follows:
(1) In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
37. Disease is defined in section 5B:
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
Significant degree means a degree that is substantially more than material.
ISSUES FOR DETERMINATION
In relation to application 2009/6004 – claimed increasing psychological stresses arising from incident on 27 March 2008
38. The issues for determination are as follows.
1)Has Mr Sami suffered a disease within the meaning of the Act?
2)If so, when did Mr Sami suffer the disease?
3)Is the disease an injury within the meaning of the Act?
In relation to application 2010/5573 – claimed psychiatric condition as a result of harassment at work
39. The issues for determination are as follows.
1)Has Mr Sami suffered a disease within the meaning of the Act?
2)If so, when did Mr Sami suffer the disease?
3)Is the disease an injury within the meaning of the Act?
In relation to application 2011/0497 – the permanent impairment claim
40. The issues for determination are as follows.
1)If Mr Sami has suffered a compensable injury or injuries, has the injury or injuries resulted in permanent impairment?
2)If the answer to (1) above is “yes”, what is the degree of permanent impairment of Mr Sami?
REASONING IN RELATION TO APPLICATION 2009/6004 – claimed increasing psychological stresses arising from incident on 27 March 2008
Issue 1: has Mr Sami suffered a disease within the meaning of the Act?
41. On the basis of the evidence of Dr Kardaras, Dr Gorgi and Dr Nathar I am satisfied that Mr Sami suffers from post-traumatic stress disorder and that this condition is an ailment as defined in section 4 of the Act.
42. I am satisfied further that this ailment was contributed to in a significant degree by Mr Sami’s employment by Telstra. I accept the evidence of Dr Kardaras and Dr Nathar that the condition was caused solely by the incident in which Mr Sami was involved on 27 March 2008. Mr Sami was engaged in his duties as an employee of Telstra at the time of the incident and, but for his being engaged in those duties, he would not have been at the scene of the incident and would not have become involved in it. This was not a case of an employee voluntarily becoming involved in an incident unrelated to his employment.
43. I am satisfied therefore that Mr Sami suffers from a disease as defined by section 5B of the Act.
44. In reaching this conclusion I have preferred the opinions to which I have referred to those of Dr Lewis and Professor Mendelson. Dr Kardaras and Dr Gorgi have the advantage of having treated and observed Mr Sami on many occasions over a lengthy period of time. They are both experienced and well-qualified practitioners. I am satisfied that, in this situation, Dr Kardaras is equally well‑qualified to assess Mr Sami as are Dr Lewis and Professor Mendelson. Further, the history of the incident obtained by Professor Mendelson was inadequate. I note that Dr Lewis was able to obtain from Mr Sami a far more detailed history.
Issue 2: when did Mr Sami sustain post-traumatic stress disorder?
45. Subsection 7(4) of the Act provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
46. The above provision is mandatory. It requires that for the purposes of the Act, the date of injury shall be taken to be one of two days. Although there is evidence that Mr Sami would have developed the disorder shortly after the incident, I do not have sufficient evidence to find when the disease first resulted in incapacity for work or impairment of Mr Sami. Consequently the provisions of subsection 7(4)(a) apply and on the basis of the evidence of Dr Gorji I am satisfied that Mr Sami first sought treatment from Dr Gorji in relation to the disorder on 12 August 2009.[26] Mr Sami is to be taken to have sustained the disease on that day.
[26] Exhibit A9.
Is the post-traumatic stress disorder sustained by Mr Sami an injury within the meaning of the Act?
47. Under subsection 5A(1), a disease suffered by an employee is an injury for the purposes of the Act unless it is a disease “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
48. Further, on the basis of the evidence of Dr Kardaras, Dr Gorgi and Dr Nathar I am satisfied that the incident of 27 March 2008 was the only cause of the post‑traumatic stress disorder and as a result, no issue as to the exclusionary provisions of subsection 5A arises.
49. I am satisfied on the balance of probabilities that Mr Sami has suffered an injury within the meaning of the Act.
REASONING IN RELATION TO APPLICATION 2010/5573 – claimed psychiatric condition as a result of harassment at work
Issue 1: has Mr Sami suffered a disease within the meaning of the Act?
50. On the basis of the evidence of Dr Kardaras, Dr Gorji and Dr Nathar I am satisfied that Mr Sami suffers from an adjustment disorder with depressed mood. For the reasons already stated I prefer their evidence to that of Dr Lewis and Professor Mendelson, although my concern as to the inadequate history taken by Professor Mendelson does not apply in relation to this diagnosis.
51. On the basis of the evidence of Dr Kardaras, Dr Nathar and Mr Sami I am satisfied that two factors contributed to Mr Sami suffering the adjustment disorder. These are:
·the physical injuries, chronic pain and disability suffered by Mr Sami arising out of his employment by Telstra;
·the unfair treatment of Mr Sami whilst employed by Telstra or, alternatively, Mr Sami’s perception that he was treated unfairly.
52. No other factors were suggested as possible causes of the adjustment disorder. I am satisfied that the factors I have referred to were the only causes of the condition. It follows that the condition was contributed to, to a significant degree, by Mr Sami’s employment.
53. In reaching this conclusion I have had regard to the matters which may be taken into account under subsection 5B(2) of the Act. In view of the length of Mr Sami’s employment it is unlikely that anything in the nature of the work he was undertaking contributed to the condition. On the evidence before me there is nothing to suggest that Mr Sami had a predisposition to the disease or that there were any matters not related to his employment or affecting his health which were relevant.
54. For reasons to which I shall refer later I am satisfied that Mr Ettridge’s treatment of Mr Sami was as described by Mr Sami and that Mr Sami was treated unfairly in his employment. In the alternative, on the basis of his evidence, I am satisfied that Mr Sami genuinely perceived that he had been treated unfairly and that there was a basis for this in the events he experienced in his workplace. It is not necessary that the perception formed by Mr Sami itself be found to pass an objective test of reasonableness.[27]
[27] Re Salters and Telstra Corporation Limited (2002) 66 ALD 798 at para.90.Issue 2: when did Mr Sami sustain the adjustment disorder with depressed mood?
55. In her report of 27 September 2009 Dr Kardaras states:
Ahmad reported that since May 2009 he has been feeling stressed, anxious, and depressed. He reported experiencing migraine headaches. His injury precludes him from regular exercise but he uses a sauna. He has been experiencing difficulty with concentration, problems with sleep on occasion, and has been ruminating about his experiences at work. Ahmad reported that he has been avoiding social and recreational pursuits since his workplace experiences this year. He reported that he is worried about his future given that he is injured and will find it difficult to secure other employment. He reported a lowered self worth and feeling useless. Ahmad reported no suicidal ideation.[28]
[28] Exhibit A5 at p2.
56. On the basis of this evidence I am satisfied that by the beginning of June 2009 Mr Sami was impaired by the adjustment disorder he had sustained. In subsection 4(1) of the Act impairment is defined to mean “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.” Taking into account the symptoms recorded by Dr Kardaras I am satisfied that by the beginning of June 2009 Mr Sami’s mental processes were malfunctioning.
57. In accordance with subsection 7(4)(b) Mr Sami is taken to have sustained the disease of adjustment disorder with depressed mood no later than 1 June 2009.
Issue 3: is the adjustment disorder with depressed mood an injury within the meaning of the Act?
58. It is argued on behalf of Telstra that, in accordance with subsection 5A(1) of the Act, this disease is not an injury as it was “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
59. It is argued by Telstra that the actions of Mr Ettridge which involved Mr Sami were at all times reasonable administrative actions carried out in a reasonable manner. The conduct in question can be summarised as follows:
·Mr Ettridge’s conduct in relation to the issues of Mr Sami’s entitlement to, and applications for, leave;
·Mr Ettridge’s conduct in relation to the reward certificate given to Mr Sami;
·Mr Ettridge’s conduct in relation to Mr Sami’s request for the issue of a new uniform;
·the manner in which Mr Ettridge spoke to Mr Sami;
·the redundancy process administered by Mr Ettridge.
60. I agree with Telstra that actions in relation to the management of Mr Sami’s leave entitlements, the delivery of reward certificates, the issue of new uniforms and the determination of positions to be made redundant are all reasonable administrative actions which it, as Mr Sami’s employer, was entitled to take. However I do not agree that any of the actions identified as having resulted in the disease was taken in a reasonable manner.
61. In the course of this application the conduct of Mr Ettridge has been referred to as “bullying.” I do not find that his conduct on all occasions should be so described, but I am satisfied that the manner in which he dealt with Mr Sami in relation to the first four matters listed above was not reasonable. Mr Sami has described the conduct of Mr Ettridge towards him in considerable detail in his written statements and in his evidence at the hearing. Mr Sami impressed me as an honest witness who gave his evidence to the best of his recollection at all times. I am satisfied that his account of the manner in which Mr Ettridge spoke to him and the substance of their conversations is accurate. I found Mr Ettridge to be a less reliable witness by reason of his demeanour in the witness box and the manner in which he answered the questions put to him, particularly in cross-examination. At times he was evasive in his answers. On matters where the evidence of Mr Sami and Mr Ettridge differed I prefer the evidence of Mr Sami.
62. I am satisfied that the redundancy process which was carried out in April and May 2009 was not taken in a reasonable manner. On the basis of the evidence of Ms Gilhooly I am satisfied that Mr Ettridge did not implement the process correctly in accordance with Telstra’s guidelines and that the documentation in relation to each person assessed for redundancy was flawed. I have also taken into account her opinion that the outcome of the process was such that it appeared to her that “Mr Ettridge had not been trained in the manner of carrying out the process, or, if he had, he misconceived his training.” [29]The fact that Ms Gilhooly, who holds the position of Senior Human Resources Adviser in Telstra, reached this conclusion is indicative that the process was seriously defective.
[29] Transcript 30.11.11.
63. A comparison of the results of the second redundancy assessment with the first [30] shows that of the twelve employees assessed by Mr Ettridge on both occasions:
·ten of the twelve employees were rated lower on the second occasion;
·the second ratings of these ten employees were up to 20% lower than the first;
·one employee’s rating was increased from 3.1 to 3.2, an increase of 3.2%;
·Mr Sami’s rating was increased from 1.4 to 3.0, an increase of just over 114%.
[30] Exhibit R1 at pp176, 215 and 216.
64. Although Mr Ettridge had received further training before he conducted the second assessment, this does not explain satisfactorily the variances in the second assessment, and in particular why Mr Sami was the only employee who had been significantly under-rated in the first process. Contrary to Ms Gilhooly’s opinion based on the results of the first assessment, Mr Ettridge had received training before he conducted the assessment and had previously conducted a similar process.[31] Mr Ettridge gave evidence that the improvement in Mr Sami’s assessment was a result of his improved performance. This was the only explanation given. I do not accept this evidence. Mr Sami was on leave for some of the time between the assessments. I am satisfied that, taking into account Mr Sami’s long period of employment by Telstra and his attitude to that employment, it is unlikely that his performance would have improved in all areas to the extent recorded by Mr Ettridge.
[31] Transcript 9.9.11 pp282-283.
65. It is not probable that the difference in the assessment of Mr Sami was a result of either Mr Ettridge’s lack of training or an improvement in Mr Sami’s performance. If the first process was flawed because of some misapplication of principles by Mr Ettridge I would have expected that there be some correlation between the later variation in Mr Sami’s assessment and those of his fellow employees.
66. I am satisfied that, for reasons which are not apparent, before he conducted the first redundancy process Mr Ettridge had determined that Mr Sami should be made redundant and he conducted the process to achieve this result. The redundancy process was not conducted in a reasonable manner and does not come within the description of conduct exempted in the definition of injury in subsection 5A of the Act.
67. It was argued on behalf of Telstra that the second redundancy process was reasonable administrative action taken in a reasonable manner. In view of Mr Ettridge’s conduct towards Mr Sami and the manner in which the first redundancy process was carried out, Telstra should have given more careful consideration than appears to have been given, to the question of whether it was appropriate for Mr Ettridge to have conducted the second process. However as I have decided that Mr Sami suffered the subject injury before the second process was commenced it is not necessary that I determine this issue.
68. I am satisfied that the adjustment disorder with depressed mood sustained by Mr Sami is an injury within the meaning of the Act.
REASONING IN RELATION TO APPLICATION 2011/0497 – claim for compensation for injuries resulting in permanent impairment
69. I have considered this claim as being in respect of both the conditions of post-traumatic stress disorder and adjustment disorder with depressed mood.
Issue 1: has either of the compensable injuries resulted in a permanent impairment within the meaning of subsection 24(1) of the Act?
70. Subsection 24(1) of the Act provides:
Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
71. Subsection 24(2) provides:
For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
72. On the basis of the evidence of Dr Kardaras I am not satisfied that either of the compensable injuries suffered by Mr Sami has resulted in a permanent impairment. As his treating practitioner, Dr Kardaras is best placed to assess Mr Sami’s present position and on the basis of her evidence I am satisfied that there is a reasonable likelihood of an improvement in Mr Sami’s conditions and there is further reasonable rehabilitative treatment available to him.
73. Mr Sami continues to receive treatment in monthly sessions of approximately one hour duration. When asked as to the treatment needed by Mr Sami at present, Dr Kardaras said:
Mr Sami requires regular psychological treatment. He would benefit from a few different types of therapy. One would be EMDR, eye movement desensitisation and reprocessing, which is a very effective technique for dealing with traumatic experiences, and I’m happy to talk more about that if you like. He would also benefit from exposure therapy, whether it’s in vivo, meaning in the situation, or whether it be imaginal, where coupled with relaxation, he is exposed to memories that are distressing for him and he is learning how to regulate his reaction to those memories. He would also benefit from cognitive behavioural therapy, which is an empirically validated therapeutic approach and is effective for assisting individuals with anxiety and depression.
…
It’s difficult … to give an accurate timeframe on this, given that there’s a number of factors that are contributing to Mr Sami’s psychological condition. There is the crime, there is the being targeted by his team leader and being bullied, and there are also his chronic physical disabilities that are not showing any positive prognosis. So the therapy in itself would be – with regards to his post-traumatic stress symptoms, I believe that over the course of regular appointments over perhaps six to 12 months, that he would show improvement in those symptoms. With regards to ongoing depression, that would be very difficult to have a great impact, given the chronicity of Mr Sami’s problems.[32]
[32] Transcript 7.9.11 at p157.
74. Dr Kardaras said also that Mr Sami is reluctant to take medication. Of course it is entirely a matter for Mr Sami as to whether or not he seeks such treatment, but on the evidence before me I am not satisfied that this possibility has been fully considered. I have taken into account also that the treatment available to Mr Sami may have been restricted by the cost involved.
CONCLUSION
Application 2009/6004
75. The reviewable decision made 19 November 2009 will be set aside and in substitution it will be decided that Telstra is liable to pay compensation in respect of an injury, being post-traumatic stress disorder, suffered by Mr Sami on 12 August 2009.
Application 2010/5573
76. The reviewable decision made 20 December 2010 will be set aside and in substitution it will be decided that Telstra is liable to pay compensation in respect of an injury, being an adjustment disorder with depressed mood, suffered by Mr Sami on 1 June 2009.
Application 2011/0497
77. The reviewable decision made 4 February 2011 will be affirmed.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President J W Constance
Signed: .........(sgd K Peterson)...................
Ms K Peterson, AssociateDates of Hearing 24 and 25 March 2011
5, 7, 8 and 9 September 2011
29 and 30 November 2011
1 December 2011
Date of Decision 27 January 2012
Counsel for the Applicant Ms C Serpell
Solicitor for the Applicant Ryan Carlisle Thomas
Counsel for the Respondent Mr J Wallace
Solicitor for the Respondent Sparke Helmore
Wiegand v Comcare (2002) 72 ALD 795 at para.31.
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