Scott v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 116
•25 July 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Scott v Simon Blackwood (Workers' Compensation | ||||||
| Regulator) [2014] QIRC 116 | |||||||
| PARTIES: | Scott, Lisa | ||||||
| (Appellant) | |||||||
| v | |||||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||||
| (Respondent) | |||||||
| CASE NO: | WC/2012/12 | ||||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||||
| (Workers' Compensation Regulator) | |||||||
| DELIVERED ON: | 25 July 2014 | ||||||
| HEARING DATES: | 25 and 26 November 2013 | ||||||
| MEMBER: | Commissioner Black | ||||||
| ORDERS : |
| ||||||
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - injury arising out of or in the course of employment - psychiatric and psychological disorder - where a combination of work and non-work stressors were at play - where the determination required to be made was whether the work-related stressors were significant contributors to the development of the psychological injury | ||||||
| CASES: | Workers' Compensation and Rehabilitation Act | ||||||
| 2003, s 32(1), s 32(5), s 550 | |||||||
| APPEARANCES: | Ms L. Neil, Counsel instructed by Shine Lawyers for the Appellant Mr S. McLeod, Counsel directly instructed by Simon Blackwood (Worker's Compensation Regulator) for the Respondent | ||||||
| Decision |
Introduction
[1] Lisa Scott ("the appellant") appeals a decision of the Workers' Compensation Regulator ("the regulator"), to reject her application for workers' compensation.
[2] The appellant originally lodged her application for compensation with WorkCover Queensland ("the insurer") on 8 September 2011. On her claim form she described the nature of the injury as a major depressive illness, and said the injury was sustained in the workplace over an 8 month period. The appellant was issued with a workers' compensation medical certificate by her general practitioner on 30 September 2011. The appellant's employer at the time was the Department of Communities, Child Safety and Disability Services ("the department"). Ms Scott had been employed by the department since October 2006.
[3] On 7 October 2011 WorkCover accepted the appellant's application for workers' compensation. On 13 October 2011 the department sought a review of WorkCover's decision to the regulator. On 22 December 2011 the regulator rejected WorkCover's decision that the appellant's claim was one for acceptance. The appellant now appeals this decision to the Commission pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
[4] In prosecuting her appeal the appellant submitted that three workplace stressors contributed to the development of her injury. The first two stressors allege that the appellant was sexually harassed by a co-worker. The stressors are set out below:
Stressor 1 - sexual harassment in the form of text messages/emails between
September and December 2010;
Stressor 2 - sexual harassment in the form of text messages/emails between
February and March 2011;
Stressor 3 - revocation of promotion to permanent position - April 2011.
Issue for Determination
[5] The issue for determination in this appeal is whether, pursuant to s 32 of the Act, the appellant has suffered an injury arising out of, or in the course of, her employment if her employment is a significant contributing factor. Further if the injury arose out of management action a determination needs to be made about whether the action was to be considered as reasonable management action taken in a reasonable way. If such a determination were made the appellant's injury would be excluded from s 32(1) by the operation of s 32(5).
[6] Section 32 of the Act for the purposes of the determination of this matter relevantly provides as follows:
"32 Meaning of Injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a)
reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b)
the worker's expectation or perception of reasonable management action being taken against the worker;
(c)
action by the Authority or an insurer in connection with the worker's application for compensation."
Background
[7] Background documents [Exhibit 1] tendered by the Regulator were as follows:
WorkCover claim form dated 8 September 2011; WorkCover decision dated 7 October 2011; Application for review dated 13 October 2011; The Regulator's Review Unit Reasons for Decision dated
22 December 2011.
[8] The appellant said that she had suffered from post natal depression following the birth of her two children. Her second child was born in 2003. She said that anti-depressants were prescribed but she stopped taking this medication in early 2009. She said other issues emerged in her life around this time - her son was diagnosed with a disability and she found out in September 2009 that her partner of 17 years had been having two affairs. She said that she considered the relationship to be over in December 2009 in respect of which she felt "gutted". However while her ex-partner worked away from home, he continued to reside with her during periods of leave.
[9] The appellant commenced a new relationship in 2010 with an old friend who was working in Western Australia but who she would visit from time to time. However this relationship was also the cause of difficulty for the appellant. In 2010 she fell pregnant, but later terminated the pregnancy. The appellant also had to contend with complications arising from some surgical procedures with wounds becoming infected. She said that in September 2010 she had difficulty in coping with her personal issues which included the termination of her pregnancy and disharmony in her relationships. Around this time her general practitioner, Dr Pham, prescribed anti-depressants and referred the appellant to Dr Turnbull.
[10] In the later part of 2010, the appellant experienced difficulties in her relationship with a co-worker who commenced sending her unwelcomed and inappropriate email or text messages. Eventually she lodged a formal complaint with her employer who counselled the co-worker. However the problem emerged again in early March 2011 when the co-worker sent an offensive text to the appellant. She complained again to her employer, and again the employer counselled the co-worker. Subsequently the appellant experienced some anxiety arising from the fact that she and the co-worker were working in reasonably close proximity. Her demeanour at work began to deteriorate and she presented to her general practitioner in late April 2011. Around the middle of June 2011 the appellant was encouraged to take some time off work and secured a medical certificate to support this absence on 15 June 2011. She did not return to work until May the following year.
Nature of the Appeal
[11] The appeal to the Commission is by way of a hearing de novo. To succeed with her appeal, the appellant must establish on the balance of probabilities that she sustained an injury arising out of or in the course of employment during the period October 2010 to June 2011 and, if so, that the injury is not excluded from s 32(1) of the Act by virtue of s 32(5) of the Act.
Evidence
[12] During the course of the proceedings, evidence was provided by 6 witnesses. The witnesses for the Appellant were as follows:
Lisa Scott Anthony Penrith Carita Johnsson Dr Donna Turnbull Dr Garry Hartrick
The witnesses for the Regulator were as follows:
Michael Brown
Medical Evidence
[13] Evidence in the proceedings was given by Dr Turnbull (clinical psychologist) and Dr Hartrick (General Practitioner). A number of documents were also tendered into the evidence including the following:
Four reports prepared by Dr Turnbull dated 16 December 2010, 24 October 2011, 29 November 2011, and 21 March 2013 (Exhibits 23 to 26);
Consultation notes of Dr Turnbull (Exhibit 30); Consultation notes of the Abbott Medical Clinic including the notes of
Dr Hartrick and Dr Hoyal (Exhibit 31); GP Mental Health Care Plan prepared by Dr Hartrick (Exhibit 34);
Consultation notes of the Cairns Central Medical Centre (Dr Pham, Dr Duffy, Dr Warner, Dr Pickering, Dr Ramanathan, and Dr Reiseger) (Exhibit 35).
[14] Dr Turnbull's report of 21 March 2013 included reference to a diagnosis of "depression with severe psychotic features" and "generalised anxiety disorder". While Dr Turnbull acknowledged that she did not make the diagnosis it was her recollection that the diagnosis had been made by a psychiatrist but she was unsure about the date of diagnosis. Further while Dr Turnbull's earlier reports did not include a formal DSM-IV diagnosis, they included ample evidence of a depressive illness. The mental health care plan prepared by Dr Hartrick on 13 May 2011 (Exhibit 34) included a diagnosis or a statement of problem of "depression". On 30
September 2011 Dr Hartrick issued a workers' compensation medical certificate in respect to an injury diagnosed as "exacerbation of depressive illness". Despite the vagueness about the date of the diagnosis of depression and the date of decompensation, I accept that there is sufficient evidence before me to support a finding that the appellant has sustained a personal injury.
[15] Exhibit 34 requires some comment. The exhibit as tendered comprised a copy of a GP Mental Health Care Plan prepared by Dr Hartrick which was split into two parts. The first part dealt with "Patient Assessment" while the second part dealt with the "Mental Health Care Plan". While the second part is dated 13 May 2011, the first part is dated 9 January 2012 and contains information which clearly post-dated 13 May 2011 and confirms that the information would have been prepared around January 2012. This information was therefore prepared well after the time that the appellant sustained her injury and I am not prepared to attach any significant weight to it. I have already accepted that the second part of the plan dated 13 May 2011 was relevant in providing a diagnosis of injury.
[16] A review of the documentary evidence discloses that:
The appellant had a history of depression. She suffered from post natal depression following the birth of her two children. While her second child was born in 2003 she continued taking anti-depressant's until early 2009.
The appellant reported symptoms of depression to Dr Pham on
10 September 2010 and an anti-depressant was prescribed. At a subsequent consultation with Dr Pham on 17 September 2010 the appellant was referred to Dr Turnbull for counselling. Depression was also raised by the appellant in consultations with Dr Pham on 12 October 2010, 9 November 2010, 22 December 2010, 27 January 2011 and 12 October 2011. At the 27 January 2011 consultation Dr Pham increased the dosage of the appellant's anti-depressant medication because he thought the appellant had a relapse.
The appellant consulted with Dr Turnbull for two blocks of sessions. The first block comprised six sessions commencing on 13 October 2010 and concluding on 16 December 2010 and arose from a referral from Dr Pham. The second block of sessions ultimately comprised 23 sessions commencing on 28 June 2011 and concluding on 15 May 2012 and arose from the mental health care plan created by Dr Hartrick on 13 May 2011. The dates of all the sessions are included in an attachment to Exhibit 26. The contemporaneous consultation notes of all the sessions are in the evidence as Exhibit 30. The contemporaneous nature of these notes is important because the reports of Dr Turnbull were not in all respects constructed in a chronological order.
The texting problem at work was first raised in a session with Dr Turnbull on 25 November 2010 with a further reference in the next session with Dr Turnbull on 16 December 2010. After the session with Dr Turnbull on 16 December 2010, the next occasion that work related issues were raised by the appellant was on 15 June 2011 during a consultation with Dr Duffy. The texting issue and the promotions outcome were also raised with Dr Turnbull in a consultation on 28 June 2011.
Prior to the consultation with Dr Duffy, the appellant had seen Dr Hartrick on 27 April 2011 and 13 May 2011. Both these sessions dealt with depression related issues and on 13 May 2011 a mental health care plan was created by Dr Hartrick. Work related issues were not raised during these two consultations.
Depression was also the subject of consultations by the appellant with
Dr Hartrick on 5 September 2011, 27 September 2011, and 30 September 2011. In the consultation on 30 September 2011 the appellant reported in some detail on work related circumstances associated with the stressors discussed in the proceedings.
Prior to 30 September 2011, the great majority of the appellant's
consultations dealt with depression or a depressed and anxious mood arising from relationship issues involving her partner of long standing or her most recent partner who resided in Perth, other family issues, and issues arising from the termination of pregnancy in July 2010. While her relationship ended with her long standing partner in 2009, he continued to live with the appellant when he was not working away from Cairns. Work related issues were raised with Dr Turnbull on 25 November 2010, 16 December 2010, and 28 June 2011 and with Dr Duffy on 15 June 2011.
The appellant had weight reduction surgery in September 2010, January
2011 and August 2011.
[17] In her evidence about the consultation with Dr Duffy on 15 June 2011 the appellant said that she raised the texting issue with Dr Duffy because she had to show "why I needed to go on sick leave." Dr Duffy's consultation notes of the visit reveal that the "reason for contact" was a "wound infection". The appellant had also seen Dr Duffy on 8 June 2011 where the stated reason for contact was also recorded as "wound infection". The notes of the 15 June consultation disclose that in addition to treatment of the infected wound the appellant sought a medical certificate and raised a number of issues which presumably were related to her need to take sick leave. The issues included reference to the anniversary of the termination of pregnancy, problems at work and receipt of a lewd text message, counselling sessions with Dr Turnbull, a difficulty in coping, a statement that the appellant was not taking anti- depressants and did not want to go back on to medication, and a statement that the appellant wanted to take four weeks off in respect of which a medical certificate had been created.
[18] The appellant subsequently saw Dr Duffy on 22 June 2011 and his notes record the reasons for contact as "wound infection" and "Chest infection - of Airway". There was no mention of depression related matters being raised.
[19] It is not clear on the evidence when the appellant stopped taking anti-depressants. In her report dated 16 December 2010 (Exhibit 23) Dr Turnbull noted that despite the improvement in the appellant's mood and general outlook she discussed with the appellant "the importance of her remaining on" the anti-depressant as well as understanding "the early warning signs and risk factors for her depression". Earlier in the report Dr Turnbull had written that the appellant had been consistent in the taking of her medication and that since an increase in the dosage "she has reported less crying and improved sleep". The notes of the appellant's consultation with Dr Turnbull on 28 June 2011 indicated that the appellant had "self elected" to stop taking
anti-depressants because "she has been feeling better". The notes of the 27 July 2011 consultation revealed that the appellant resumed taking anti-depressants on 13 July 2011.
[20] The appellant acknowledged in her evidence that she did not raise workplace issues in her consultations with Dr Hartrick on 27 April and 13 May 2011. She said she did not raise the issues because they were not "medical, and it was embarrassing". It was not until 30 September 2011, and after she had lodged her WorkCover claim, that she discussed workplace issues with Dr Hartrick.
[21] In her report dated 16 December 2010 (Exhibit 23) Dr Turnbull stated that the appellant "was experiencing anxiety and depression in context to past relationship issues and workplace harassment". When asked to comment on the 25 November and 16 December 2010 sessions in terms of the relevance or impact of workplace issues, Dr Turnbull said at T2-7:
"Yes?---Yeah. I didn't - like I said, I don't feel as though - that the - the workplace issues played a big role at that point in time. I mean, to me, when I look at her mood state, she seemed like she was improving. She'd actually indicated that she was improving. Whilst, you know, that - that's how - well, what she was reporting. I mean, there was still some verbalisation around the idea of her not being comfortable with the texting and the workplace issues that was happening."
[22] On 24 October 2011 Dr Turnbull provided a six session report arising from the care plan created by Dr Hartrick on 13 May 2011. This report is in the evidence as Exhibit 24. In the report Dr Turnbull wrote that a significant de-compensation in the appellant's mood state was noticeable "after workplace harassment complaints came to the forefront". Dr Turnbull also included a history provided by the appellant to the effect that the phone harassment created a lot of anxiety and consequent low mood. The appellant referred to hyper-vigilance regarding anticipated encounters at work and to annoyance at the loss of her promotion. The appellant also reported that since these events her mental health deteriorated to the point that she had a brief admission to the Cairns Base Mental Health Unit. Importantly, the report did not indicate the point in time when Dr Turnbull considered that "workplace harassment complaints came to the forefront". However during her oral testimony Dr Turnbull indicated at T2-10 that the workplace issues were most prominent in later consultations:
"All right. Now, if we can then look at her overall presentation to you during this period of time, how would you describe the role that the workplace harassment issues played in her overall presentation?---I think the workplace issues did play a significant role in her overall presentation, more so more - more particularly towards the end, and this was evident through her inability to return to work and obviously her low mood states and the heightened anxiety states around returning to work."
[23] Further when giving evidence about her second block of consultations with the appellant which started on 28 June 2011, Dr Turnbull said at T2-14 that there was no reference to "any of the work stuff initially" and that the workplace issues "mustn't have been that much of an issue for her initially". She accepted that the main issues confronting the appellant at that time were non-work related matters. Subsequently at T2-15 Dr Turnbull agreed that the workplace issue arising from the inappropriate text content "became more of a focus" in the appellant's consultations with her in 2012.
[24] Dr Turnbull's consultation notes which are in the evidence as Exhibit 30 record that at the 28 June 2011 consultation the appellant did mention that she had "problems with guy at work again" and also indicated that she was upset about the promotions outcome. The notes also record details of relationship problems with the WA boyfriend and "lots of gyno problems". In the notes of the next session on 12 July 2011 it is stated that the appellant was depressed and sad in relation to the termination of pregnancy, about the state of her relationship with her Western Australian friend and difficulties that she was experiencing at home.
Text Messages and Emails
[25] A significant number of emails and text messages exchanged between the appellant and the co-worker, Mr Brown, were referred to in the proceedings. While copies of emails were tendered as proof of particular exchanges, the content of text messages was introduced through the oral evidence of the appellant or through transcripts of messages prepared by the appellant. The content of many text messages was not in dispute but on some occasions Mr Brown gave evidence to the effect that he was not aware of particular messages or had a differing recollection of the content. In other instances he challenged the meaning ascribed to the text messages by the appellant and claimed that some messages were read out of context. The emails in the evidence were sent between 16 August 2010 and 10 March 2011. The text messages which were transcribed by the appellant were exchanged between 29 October 2010 and
27 November 2010.
[26] The appellant informed her supervisor Anthony Penrith of harassment by Mr Brown and met with him on 22 November 2010 to discuss the matter. She told Mr Penrith that she did not like the messages and that they were upsetting her. Mr Penrith said that he formed the view, from what the appellant had told him, that the text messages were frequent, suggestive and unwelcome. He said that he observed the appellant's demeanour at the time to be withdrawn and that this contrasted with the appellant's normal demeanour.
[27] Mr Penrith said that he gave the appellant some options in terms of possible responses. The appellant could do nothing; she could send the other party a message telling him to stop sending messages; or she could file a complaint. If a complaint were to be filed he advised the appellant to obtain copies of the offending text messages and to attach the content of the text messages to a statement of complaint. Mr Penrith also suggested that the appellant contact the employee assistance program.
[28] The appellant emailed a formal complaint, including a chronology of events and a transcript of text messages, to Mr Penrith on 29 November 2010. This document is in the evidence as Exhibit 7. The appellant said in the email that she believed that Mr Brown had breached the department's code of conduct and workplace harassment policies. In the chronology of events included in her complaint, the appellant said that around early or mid-October 2010 the text messages she received from Mr Brown started to get "longer and progressively suggestive". She had previously written words to the effect that as at the end of August 2010 she had considered Mr Brown's texts, emails or in person conversations with her to be "professional and/or kind".
[29] Mr Penrith forwarded a copy of the complaint to his regional director, Mr Fitzpatrick, and suggested that he meet with the appellant and himself. The appellant subsequently discussed the matter with Mr Fitzpatrick who referred the matter to Mr Brown's supervisor, Ms Carita Johnsson, for attention. In the email, Mr Fitzpatrick said that he had met with the appellant and that the appellant would like "urgent action taken to stop this behaviour occurring". He also said that the appellant was "fragile and receiving support and very concerned regarding Michaels behaviour and incidental contact in the workplace".
[30] Ms Johnsson said that when she received the email from Mr Fitzpatrick on 30 November 2010 she consulted with human resources and arranged a meeting with Mr Brown and a representative from human resources in attendance. Her evidence about the meeting was to the effect that she told Mr Brown that the appellant had become uncomfortable with the frequency and nature of the text messages and that she wanted all non-work related contact to stop. She said that Mr Brown indicated that he did not intend to cause discomfort or harm and that he would discontinue any non-work contact. Mr Johnsson said that she subsequently provided the appellant with feedback on the discussion, and did not hear again from the appellant until 7 March 2011.
[31] The appellant took the initiative to try to repair the professional side of the relationship with Mr Brown by asking him to meet with her. She said that both herself and Mr Brown had to work at Yarrabah and she wanted to make sure that there was no ongoing awkwardness between them. The meeting took place on 31 January 2011. After the meeting the appellant emailed Mr Fitzpatrick and Mr Penrith and stated in effect that she had resolved her differences with Mr Brown and that the matter was now closed.
[32] However on Saturday 5 March 2011 the appellant received some further text messages from Mr Brown, at least one of which she found to be offensive. She said that in the text message Mr Brown asked her "when are you and I going to make a time for you to come and regularly masturbate in my office?". The appellant said that this text made her feel disgusting and dirty. The following day (Sunday 6 March 2011) the appellant emailed Mr Penrith and informed him that the unwelcome text messaging had resumed. Mr Penrith offered to assist the appellant and forwarded her a copy of the department's sexual harassment fact sheet.
[33] The next day (8 March 2011) the appellant emailed Ms Johnsson asking for a meeting in connection with the matter. In the email exchange (Exhibit 14) the appellant stated that Mr Brown had sent her "a disgusting message and I do not know what to do/what I want to do". The appellant said that in this meeting she showed Ms Johnsson a transcription of the offending text and asked her to read the text direct from her phone. The following day she emailed Mr Fitzpatrick and Mr Penrith and brought them up to date with developments. She said that at that stage she did not intend to pursue a formal complaint or an investigation and that she was confident that Ms Johnsson would appropriately deal with the matter.
[34] Ms Johnsson said that the appellant said that she did not want to initiate a formal complaint process. She said that she informed the appellant that she would be supportive of her whichever course she took. She said that the appellant informed her that she had not told Mr Brown to stop private communications. She said that she told the appellant that she would talk to Mr Brown and that the appellant should send an email or message to Mr Brown telling him that she did not want any private contact with him.
[35] Ms Johnsson said that she met with Mr Brown the following week and gave the following account of the meeting (T1-121/122):
"All right. And then could you tell the Commission, in as much detail as you can recall, what was said in that conversation?---I have very little specific recollection of what that conversation was about. Essentially, I made it clear to Mr Brown that Ms Scott had come to see me for help. That she was upset with - that he had sent her that message and that I pointed out that, while Ms Scott had asked me and made it clear that she didn't want to have a formal process, that that was something that, if that happened, Mr Brown would also be putting at risk his future career and other options if Ms Scott would want to escalate the situation.
...
And how did Mr Brown respond?---Mr Brown, I think he was saddened that Ms Scott didn't want to have any further communication with him, but made a Committment that he would not approach Ms Scott again."
[36] The appellant said that she was informed by Ms Johnsson on 30 March 2011 that she had spoken to Mr Brown and that Mr Brown had said that he knew the text message was inappropriate and wrong. Further Mr Brown had stated that he was not going to contact the appellant anymore.
[37] The appellant said (T1-24) that by the end of November 2010 the impact of the first round of text messages manifested themselves in avoidance behaviour in the workplace. She was upset when she came within proximity with Mr Brown in the workplace. She referred to her discomfort and anxiety when required to attend a meeting where Mr Brown was in attendance. She said that she took specific measures to avoid meeting Mr Brown in a corridor or a lift. It was the appellant's evidence that she experienced similiar symptoms after the 5 March 2011 text message. These circumstances were exacerbated towards the end of March 2011 when her offices were relocated to the building in which Mr Brown worked and she occupied a work station in close proximity to Mr Brown. She said that being able to hear Mr Brown's voice raised her anxiety levels.
[38] Mr Brown agreed that he and the appellant had exchanged a lot of messages during the latter part of 2010. It was his evidence that at no stage did he think the messages were making the appellant uncomfortable. He gave the following evidence at T2-48:
"I never got an impression that Lisa was not equally engaging in the banter between us. I never had a suggestion from Lisa that she didn't want any communication with me and she never asked me to stop communicating with
her. She didn't block my number. She didn't – she gave me her number. She
kept talking with me both via text."
[39] He acknowledged that he had been counselled twice by Ms Johnsson arising from complaints made by the appellant about text messages he had sent to the appellant. In the first counselling session he said that "Carita told me that Lisa had spoken to her and said that she did not want to receive any further text messages and I agreed to that" (T2-39). He did not dispute that notwithstanding this undertaking he recommenced text messaging the appellant in early 2011. He described the text messages as personal in nature, involved banter back and forth between him and the appellant, and said that the messages were exchanged at night. He accepted that it was part of the banter that the content of some of the messages were sexual in nature. He did not deny that on the night of 5 March 2011 he sent the text message relating to masturbation.
[40] It was Mr Brown's evidence that after the second counselling session he deleted the appellant's phone number from his phone and did not subsequently send the appellant any further messages. The appellant agreed in her evidence that she did not receive any further text messages from Mr Brown after her complaint had been addressed by Ms Johnsson in March 2011.
After March 2011
[41] The appellant said that following the workplace events in March and April 2011 her mood started to deteriorate and that she would cry a lot. Her behaviour became erratic and on one occasion she threw a pencil at Mr Penrith, while on another occasion she threw a stapler at her other direct report, Mr Norm Ferguson. She said that she was feeling very vulnerable because of the saga with Mr Brown and because of the promotions decision. She said that for at least the last month before 15 June 2011 she would cry every day. At T1-102 she explained why she was crying:
"MS NEIL: What was the real reason that you were crying in the workplace?-- -There was a number of issues. I was upset because I was fighting with David.
There was still grief from the termination. I was upset that I didn't have – I
wasn't the permanent 7, like I thought I was, and I was upset because I had to
hear Michael Brown constantly."
[42] The appellant said that while Norm Ferguson observed her crying at work, she did
not recall him asking her why she was crying. She said that eventually Norm Ferguson arranged a meeting with her, told her that she had sick leave owing, and in effect instructed her to take some time off. She said that she did not inform Mr Ferguson about the nature of her problems or what was causing her distress. The appellant accepted that she not inform her treating general practitioners or Dr Turnbull that she was crying every day for a month prior to stopping work. The appellant referred in her evidence to certain interactions with co-workers who were concerned by her crying, but these workers were not called to give evidence. Significantly, Mr Penrith was not asked to give any evidence about the appellant's demeanour or state of distress in May and June 2011.
[43] The appellant attended at the Abbot Medical Clinic on 27 April 2011 and saw Dr
Hartrick for depression. She saw Dr Hartrick again on 13 May 2011 and subsequently attended on Dr Duffy on 15 June 2011 where she obtained a medical certificate supporting her absence from work. After stopping work on 15 June 2011, the appellant said that all she did was cry and sleep. She said that she continued to receive treatment from Dr Pham, Dr Hartrick and Dr Turnbull.
Promotion
[44] The appellant applied for a promotional opportunity in December 2010. On 1 February 2011 she was advised that she was the successful applicant. On Friday 4 March 2011, the day prior to receipt of the offensive text message, the appellant was advised by Mr Fitzpatrick that an appeal had been lodged against the promotional decision.
[45] On 8 April 2011 Mr Fitzpatrick informed the appellant that her appointment to the position of principal project officer, which had been subject to appeal, had been set aside and that the selection process must be restarted. The appellant indicated that she was upset and shocked by the decision and that she cried when she got into her car. She said that she felt that "everything I had worked for was just gone". The appellant said that when she saw Dr Turnbull at the end of July 2011 she felt "shafted" that the position had been removed from her.
[46] Notwithstanding these reactions the appellant conceded that she was aware that an appeal process was available to unsuccessful candidates and that a possible outcome
of the process might be that an appeal were successful.
[47] At T1-103 the appellant said that the person who lodged the appeal against her promotion informed her that the appeal was upheld because the chair of the selection panel (Anthony Penrith) faxed the wrong set of questions to the applicant prior to his interview. This person was not called to give evidence however and the matter was not explored with Mr Penrith when he gave his evidence.
[48] The first page of the reasons for decision of the Appeals Officer was in the evidence as part of Exhibit 18. The exhibit discloses that the Appeals Officer decided that the department "did not comply with the requirements of Directive 01/10 - Recruitment and Selection, specifically s 7.9(a)(iv) of that Directive". The Appeals Officer directed that the recruitment and selection process be recommenced from the short listing stage using a different selection panel.
Change of Office
[49] The appellant said that in mid to late March the department changed premises and as a result she was located in close proximity to Mr Brown. There was some contradiction in the evidence however about how proximate the appellant was to Mr Brown. The appellant said that she was not able to hear Mr Brown's voice when he was on the phone but she did hear his voice if "he got loud". She said that the sound of his voice raised her anxiety levels. The appellant said that Mr Brown's desk was located about 8 metres from her desk but that they were separated by a floor to ceiling wall. She acknowledged that she did not complain to anyone about the proximity of her work station to that of Mr Brown. Mr Penrith said at T1-111 that the appellant and Mr Brown worked on the same floor; there was a wall separating the section in which Mr Brown and the appellant worked; and that the door enabling access between the sections was usually closed. He did say however that there was an opportunity for people to run into each other in the common areas.
[50] It was Mr Brown's evidence that the office was open plan and that employee work stations were separated by five foot high partitions. He said that his desk was about 20 metres from the appellant's desk. He said it would only be possible for voices to be heard across the office if a person yelled. He said that he rarely spoke with a loud voice. He said that there was a large number of people working in the office and everyone could be engaged in conversations and telephone calls at the same time.
[51] Notwithstanding the differences about the office configuration, Mr Brown agreed that communication between him and the appellant ceased in March 2011. He acknowledged that he knew at this point in time that the appellant did not want to see him. He denied that the appellant avoided him in the office or avoided making eye contact with him.
[52] The appellant said that on 19 April 2011 she found herself in a circumstance where she was travelling in a lift with other people including Mr Brown. She said she would have been frightened if she had have been left in the lift alone with Mr Brown. The appellant said that the anxiety she felt from this type of encounter persisted until she went on leave on 15 June 2011.
Reasoning
[53] The content of emails sent by the appellant to Mr Brown on 25 August and 31August 2010 (part of Exhibit 2) demonstrate that the use of suggestive remarks and sexual innuendo was not limited to Mr Brown. However sometime in October 2010 the dynamic between the two changed, or the content of the messages or the frequency of the messages changed, and the appellant arrived at a point where she found messages from Mr Brown to be inappropriate and unwelcome. In late November 2010 she complained to her employer about Mr Brown's behaviour. The complaint resulted in a meeting convened by Mr Brown's supervisor on 1 December 2010 in which Mr Brown was counselled about his behaviour and informed of the appellant's position. Mr Brown apologised and agreed to discontinue the offending texting. This appeared to be the end of the matter and the appellant told Dr Turnbull on 16 December 2010 that the outcome of her complaint was "good". There is no evidence about any further inappropriate
contact by Mr Brown during December 2010 and January 2011. On 31 January 2011 the appellant met with Mr Brown and any residual differences between the two were resolved.
[54] The immediate matter for consideration is whether this first round of text messaging contributed to the development of the appellant's psychological injury and if so whether the injury could be held to arise out of or in the course of employment if the employment was a significant contributing factor. This assessment is made in a context where the appellant had a prior history of depression and was experiencing on-going symptoms of depression arising from non-work related stressors.
[55] On 10 September 2010 the appellant's GP, Dr Pham, prescribed anti-depressant medication for the appellant. The consultation notes indicate that the appellant was prone to getting depressed because of previous bouts of depression. On 17 September 2010 Dr Pham created a mental health care plan for the appellant and referred her to Dr Turnbull for treatment across six sessions. The consultation notes of Dr Turnbull indicate that in sessions on 13 October, 20 October, 28 October and 11 November 2010 the appellant described a number of non-work stressors but did not connect any stress or anxiety with the text messages from Mr Brown. The text messaging however was raised during the fifth session with Dr Turnbull's on 25 November 2010 when the appellant reported that she was feeling "creeped out" and uncomfortable at the constant texting.
[56] The appellant acknowledged that she did not inform Dr Turnbull about workplace issues during the October 2010 sessions despite claiming that she was very stressed by what was happening in the workplace. She said that she did not know why she did not raise workplace issues with Dr Turnbull in the October 2010 sessions. When asked to rank the problems besetting her at or around October and November 2010 the appellant said that the grief related to the termination was the worst issue for her, followed by the issues with Mr Brown, followed by the problems associated with her ex-partner.
[57] While depression was a subject discussed at some general practitioner consultations during October, November and December 2010, no mention was made of any work related stressors. In her sixth and final session with Dr Turnbull on 16 December 2010 the appellant reporting again on the texting, stating that she had lodged a formal complaint and said that she had achieved a good outcome from the complaints process.
[58] It was the effect of Dr Turnbull's oral evidence (T2-7) about the first block of sessions that she conducted with the appellant that workplace issues did not contribute a great deal to the appellant's condition. She said that in these sessions there was "more of a focus on the relationship stuff, more of a focus on the termination of pregnancy" and that it was not until the appellant participated in later consultations that the effects from the workplace seemed more predominant. She also said that at the time of the 16 December 2010 session the appellant's mood had improved. The next block of consultations did not start until 27 June 2011.
[59] In the circumstances the available medical evidence does not support a conclusion that the first stressor, when considered in isolation, made a significant contribution to the development of the appellant's depressive illness. Also subsequent medical evidence tended to support a view that the appellant's on-going depressive condition was unrelated to work factors.
[60] Dr Turnbull's notes of the 16 December 2010 consultation recorded that the appellant's relationship issues had improved, her sleep was normal, her mood was good, the outcome of the work complaint was good, and "things are feeling much better". However soon thereafter the appellant said in a consultation with Dr Pham on
22 December 2010 that while "things were better", depression anxieties were still present and the appellant was still not liking herself. Further the notes of the appellant's consultation with Dr Pham on 27 January 2011 state that the appellant was still depressed and having a relapse. An increase in anti-depressant medication was prescribed and a view expressed that a continuation of counselling was needed. Therefore, despite the absence of workplace issues during most of December 2010 and January 2011, at the end of January 2011 the appellant's depression continued to linger and possibly worsen.
[61] The second stressor relied on by the appellant stated that the appellant was subject to sexual harassment in the form of text messages/emails between February and March 2011. Other than the oral evidence, the evidence in support of this stressor was limited to email exchanges relating to the "masturbating" text. In an email dated 6 March 2011 (Exhibit 13) the appellant informed Mr Penrith that she had received a "disgusting" text message from Mr Brown on the evening of Saturday 5 March 2011. In the same email the appellant said that since her 31 January 2011 meeting with Mr Brown she had received a few texts from Mr Brown "about nothing in particular". She said that she assumed that Mr Brown, in sending these texts, was "trying to make amends for what happened previously". She also said that she had "no concerns about any of these messages". However on 5 March 2011 Mr Brown had sent a text to her seeking to reschedule a work meeting. After this initial exchange the texting between the two continued into the evening. The appellant said that in several messages Mr Brown declared his love for her, albeit a platonic love. After a round of inoffensive texts, the masturbating text arrived.
[62] In her oral evidence the appellant agreed that she exchanged text messages with Mr Brown during February 2011 and up to when she lodged her complaint in March 2011. She accepted that the texts initially involved exchanges about Cyclone Yasi and work related issues. Over time the texting included jokes but developed to a point where she considered some of the texts to be inappropriate.
[63] Mr Brown's evidence was that following the meeting between him and the appellant on 31 January 2011 their relationship returned to a normal footing including an exchange of text messages. In his evidence at T2-39 he described these text messages as personal and said they were exchanged at night. At T2-56 he maintained that in the period between 31 January 2011 and 5 March 2011 he had many conversations and had exchanged many text messages with the appellant.
[64] While the appeal was prosecuted on the basis that the second stressor involved "sexual harassment in the form of text messages/emails between February and March 2011" it is clear that the stressor relies only on the offending text message on 5 March 2011 and possibly to an apologetic email sent by Mr Brown to the appellant on
8 March 2011 (Exhibit 16). The matter was addressed by management in a very timely manner. The day after receiving the offending text the appellant emailed Mr Penrith and informed him what had happened. The following day the appellant emailed Ms Johnsson and requested a meeting which then took place on 8 March 2011. According to the evidence Mr Brown was on leave this particular week and Ms Johnsson did not speak to him until the following week. Hence by 18 March 2011 the matter had been resolved to the extent that the counselling process had concluded and Mr Brown had undertaken never to contact the appellant again.
[65] The sufficiency of the connection between the texting and the employment was challenged by the respondent. In terms of the competing considerations, factors which tend to distance the texting and email communications from the employment relationship include:
The only significant connection with employment was that the appellant
and Mr Brown both worked for the same employer; While emails were exchanged via work email addresses, only a limited
number of emails were involved; The texts were exchanged on personal mobile phones, not work mobile
phones; The content of the texts, for the most part, was not work related; Most of the texts were exchanged outside of work hours. [66] The appellant acknowledged that most of the text messages that she received from Mr Brown were sent during non-working periods. She said that most were received in the late afternoon or early evening. She said that some of the texts involved work related matters and could not be considered as private exchanges. The appellant said that when she responded to messages, she responded on her personal, not work, mobile phone. It was Mr Brown's evidence that the text messages were unrelated to work and were "purely personal". He said the messages were never sent in work time and were not relating to work as far as he could recall.
[67] Factors suggesting that the exchanges should be found to have occurred within the course of employment included:
Some of the exchanges included work related content;
The employer intervened in the conflict and counselled Mr Brown on two occasions over inappropriate text content and the sending of the messages;
The employer intimated that Mr Brown's conduct may have breached departmental procedures and that his conduct could be subject to further investigation;
The non-work aspects of the conflict extended into the workplace when the appellant expressed feelings of discomfort and anxiety arising from the close proximity between her work station and Mr Brown's work station.
The appellant interacted with Mr Brown from time to time during the
discharge of their ordinary duties.
[68] The appellant contended that the text messages received from Mr Brown arose out of the course of her employment. The respondent however considered that most of the exchanges fell outside the work relationship and a finding that the first two stressors fell within the course of employment was not warranted. The respondent submitted however that if the Commission found against them, then an obligation arose to examine the operation of s 32(5) of the Act. The appellant on the other hand maintained that the development of the injury relating to stressors one and two did not involve any connection with management action and that there must be a sufficient causal nexus between the management action and the injury for the s 32(5) exclusion to apply.
[69] For my part I am prepared to accept that, after a review of all the circumstances associated with the text and email exchanges, there is a connection between the messaging and the employment sufficient to bring the conduct within the course of employment. It follows that the first and second stressors occurred in the course of employment. However it does not necessarily follow that the stressors have arisen out of management action.
[70] In this case the evidence supports a conclusion that while the appellant was distressed by some episodes of text messaging, she was not distressed by any action taken by management in respect to the messaging. To the contrary, it is not in dispute that the appellant was satisfied with management's handling of the matter. There is therefore a basis to conclude that s 32(5) is not brought into play in the circumstances associated with the first two stressors. That is, while management action was taken in respect to the stressors, any psychological condition suffered by the appellant did not arise out any management action taken, but arose out of the circumstances associated with the text or email messages, including the content of the messages, the frequency of the messages and the times that the messages were sent.
[71] The appellant did not visit a general practitioner until 27 April 2011 when she saw Dr Hartrick. The notes of this consultation include considerable reference to a variety of non-work related matters and conclude with words to the effect that the appellant needs to be reviewed at the next visit in connection with a mental health care plan to address the grief caused by the termination "and the social situation". Given an earlier reference in the notes, these latter words are probably referring to the ongoing relationship problems experienced between the appellant and her ex- partner and/or between the appellant and her boyfriend who was residing in Western Australia. At the next consultation with Dr Hartrick on 13 May 2011 the appellant was provided with a mental health care assessment plan. No reference is made in either of the two consultations about work related stressors. Therefore as at 13 May 2011 there was no medical evidence supporting a finding that the second stressor contributed to the appellant's depressive condition.
[72] In these circumstances the appellant relied on the content of subsequent consultations to establish that her employment was a significant contributing factor to her injury. In particular the appellant relied on the notes of a consultation with Dr
Duffy on 15 June 2011 and the notes of a consultation with Dr Hartrick on 30 September 2011. The appellant attended on Dr Duffy on 15 June to secure a medical certificate to support her absence from work and for other reasons. The consultation notes indicate that the reason for the visit was a "wound infection", but that the consultation extended to a discussion of the appellant's psychological state. In respect to the latter condition the notes refer to "problems at work" and the receipt of a lewd text from the appellant's supervisor. Dr Hartrick's notes of the consultation on 30 September 2011 refer extensively to matters pertaining to stressors one and two.
[73] I am unable to conclude that these two consultations establish that the employment was a significant contributing factor to the injury. Dr Duffy was not called to give evidence, and in a context where the appellant did not allude to work related stressors in her prior consultations with Dr Hartrick, I am not prepared to attach significant weight to the words included in Dr Duffy's notes. Additionally, on the appellant's own account she went to Dr Duffy to get a medical certificate supporting an absence from work. To secure the certificate she has provided Dr Duffy with an insight of the matters, both past and current, that have been troubling her and might support a certificate of incapacity or illness. Finally, there was no mention of depression in the appellant's subsequent visit to Dr Duffy on 22 June 2011, and nor did the work-related matters feature significantly in the notes of the appellant's
consultation with Dr Turnbull on 28 June 2011.
[74] Dr Hartrick said that initially he thought that it was strange that the appellant should raise workplace issues at the 30 September 2011 consultation. This is understandable given that the appellant had not raised work related stressors at any of the prior consultations including the consultations on 27 April and 13 May 2011 and the following consultations on 5 September, 14 September, and 27 September, 2011. In Dr Hartrick's oral testimony he attempted to explain why the appellant had not raised work related stressors prior to 30 September 2011. His evidence on the subject was given at T2-22:
"Could you tell the Commission your recollection of how Ms Scott presented and what she conveyed to you on that occasion?---I think she was very upset, and this is perhaps more difficult for her, because this is the first time she'd mentioned anything about any kind of harassment in the workplace. She'd previously spoken about issues associated with family and her children and raising her children, and weight issues and other things that may have been associated with her previous depression. But this is the first time she'd opened up about a previous sexual harassment in the workplace. I remember quite vividly, because I thought this was strange issue should - well, initially I thought it was strange that she should bring this up at this point in time given the fact that it was perhaps some time down the track since the first time I'd - I met with her. And I remember she was very upset that this had gone on and perhaps more so that nothing had been done about it in her - in her eyes. She'd reported it. She thought she'd done her best to report it to the appropriate personnel. She felt as though she couldn't report it to some personnel because of their gender, and she'd gone around that to try and report it to someone of the same gender as herself. And - and she felt as though she'd been thwarted in those attempts."
[75] There are a number of difficulties with the rationalisation of events put forward by Dr Hartrick. In the first instance the view that the appellant was upset that the texting issue had gone on and that nothing had been done about it, is not consistent with the facts. The uncontested facts are that after the texting was brought to the attention of management, on both occasions the matter was addressed, and to the appellant's satisfaction. Also inconsistent with the facts is the view that the appellant had been thwarted in her attempts to report the matter. The facts were that she raised the matter with Anthony Penrith and Roger Fitzpatrick and that they arranged for Ms Johnsson to address the matter, which she did on both occasions.
[76] The evidence of Dr Hartrick does not provide any contemporaneous support for the claim that workplace issues were a significant contributing factor in the development of the psychological injury. His evidence about the 30 September 2011 consultation is also not consistent with Dr Turnbull's evidence on two counts. Firstly, in that Dr Turnbull said that that the contribution of workplace issues to the appellant's health did not become significant until 2012 and after the WorkCover claim had been lodged, or lodged and ultimately rejected by the regulator. Secondly, a review of the notes of the appellant's eight consultations with Dr Turnbull occurring between 13 May 2011 and 30 September 2011 provide evidence of substantial non- work related stressors, but only a limited reference to work-related stressors.
[77] A review of Dr Turnbull's consultation notes reveals that stressors one and two only received a brief mention in the 28 June 2011 consultation and were not raised again until the 16 September and 29 September 2011 consultations when reference is made to discussions with WorkCover. The 28 June 2011 notes set out in the first instance what appears to be a historical summary of events occurring since the appellant's previous visit to Dr Turnbull on 16 December 2010. The summary includes the words "problems with guy at work again", but the entry does not go beyond that statement.
[78] Stressor three received more significant mention in the notes. On 28 June 2011 the appellant reported that she was upset by the promotions outcome. On 27 July 2011 the appellant reported that she was "still not happy at work. Feel shafted because my role has been revoked". At the 16 September 2011 consultation the appellant said that WorkCover representatives only appeared interested in the sexual assault issue not the promotions issue.
[79] The appellant said at T1-58 that she did not raise workplace issues with Dr Hartrick in the April and May 2011 consultations because they were not medical issues and it would have been embarrassing to discuss the matters. This response is not particularly plausible given that Dr Hartrick created a mental health care plan on 13 May 2011 as part of the treatment of the appellant's depression. The appellant must have canvassed a number of potentially embarrassing non-work issues with the Doctor. It seems incongruous that she would not mention crying every day at work, problems with a co-worker or the promotions issue, if they were significant causes of her depression.
[80] Dr Hartrick proffered an explanation for why these matters were not canvassed with him in consultations on 27 April 2011 and 13 May 2011. He surmised that the appellant may have found it difficult to discuss matters of sexual harassment with a male doctor. I am not persuaded to accept this explanation. The appellant had a continuing history of depression and she had extensively discussed very personal issues relating to the causes of her depression at a number of GP consultations, particularly those involving Dr Pham (the transcript at T1-19, line 42, indicates that Dr Pham was a male). Further it should not have been difficult for the appellant to indicate to a general practitioner that the text messages were inappropriate and offensive and were causing her distress without describing the specifics. Further the appellant had raised what was referred to as "lewd text" messages in her consultation with Dr Nicholas Duffy on 15 June 2011. Finally, given that Dr Pham had taken a central role in treating the appellant's depression in the second half of 2010, her explanation for why she did not raise workplace issues in her consultation with him on 27 May 2011 was not credible. The appellant said that she did not raise such issues because she did not consider them to be a medical problem and that she would have been embarrassed by so doing (T1-95).
[81] The appellant agreed that when she commenced seeing Dr Turnbull again in June 2011 a number of non-work matters were causing stress. She said that she was "pretty upset" at finding out that her friend from Western Australia had lied to her and had found another partner. She said that it was difficult dealing with some gynaecological problems around that time. She also agreed that she was feeling depressed and sad about the imminent anniversary of her termination. She said that when she went on leave in June 15 2011 she was depressed. Her condition was caused by a mix of factors including the fact of the workplace proximity with Mr Brown. While this was the effect of the applicant's oral evidence, the consultation
notes of Dr Turnbull on 28 June 2011 are not consistent with the assertion that the text messaging episodes or the location of Mr Brown's work station were significant events. Nor is there any evidence of these stressors arising from the consultations with Dr Hartrick on 27 April and 13 May 2011, notwithstanding that these consultations led to the creation of a mental health care plan.
[82] Having regard to all the relevant and contemporaneous medical evidence I am unable to conclude that the medical evidence supports a finding that stressors one and two were significant contributing factors to her injury. Other than the medical evidence however, the appellant provided her own testimony in support of her claim that workplace stressors contributed significantly to her depressive condition. These circumstances relate to the appellant's evidence that she experienced ongoing anxiety and discomfort arising from the proximity between her and Mr Brown in the workplace, and to her deteriorating demeanour at work which resulted in her crying every day for around a month prior to her commencing sick leave on 15 June 2011.
[83] I can appreciate that the appellant would have experienced some awkwardness, discomfort, or anxiety associated with working in close physical proximity to Mr Brown. However, apart from the appellant's retrospective reflections of this anxiety there is no other lay evidence supporting the appellant's claim that working in close proximity with Mr Brown contributed to her depressive condition. Nor was there any evidence that Mr Brown was behaving in an unreasonable or provocative manner arising from his proximity. The appellant suggested that the sound of Mr Brown's voice caused her some anxiety but admitted that his voice could only be heard if he were yelling or speaking loudly. Further the appellant did not express any concern about the location of her work station to her supervisors.
[84] While the appellant gave evidence to the effect that she was crying at work every day for about a month prior to her commencing leave on 15 June 2011 she did not say anything to her supervisors about the impact of Mr Brown's presence nor did she explain to her supervisors why she was crying. Importantly Mr Penrith was not asked to give evidence about this period of the appellant's employment. Given that he was the appellant's immediate supervisor and given that she had confided in him in respect to her previous difficulties with Mr Brown, Mr Penrith should have been asked to give evidence in support of this aspect of the appellant's case. While the appellant conceded that her depressed mood at the time was caused by a number of stressors including her proximity to Mr Brown, it is difficult to accept on all the evidence that matters relating to Mr Brown were significant contributing factors.
[85] The third stressor arises from an assertion that the revocation of the promotion of the appellant to a permanent position was a significant contributing factor in the development of her injury. In this regard the appellant submitted that if part of the injury arose out of stressor three, it did not arise out of the management action of revoking the promotion but arose out of the failure of the employer to comply with the relevant Directive. This submission relied on the content of Exhibit 18 and the appellant's evidence from an out of court witness who said that Mr Penrith had made an error in the interview process, however Mr Penrith was not asked to give evidence about this matter. It was submitted that the failure to comply with the Directive caused the recruitment process to be flawed and gave rise to unreasonable management action. Further "it was this unreasonable action which led to the ultimate outcome of the position being revoked" which led to the appellant suffering her injury.
[86] The respondent submitted that irrespective of whether it was the decision to revoke the promotion or the non-compliance with the Directive that caused or contributed to the appellant's injury, there was no medical evidence to support a contention that upon being informed of the decision on 8 April 2011, the appellant sustained any injury. In this regard I note that while the promotions issue was not mentioned in the notes of the appellant's consultations with GP's during May and June, it was alluded to in the consultations with Dr Turnbull in late June and early July in particular. Beyond the consultations, the description of injury included in the workers' compensation certificate issued by Dr Hartrick on 30 September 2011 was limited to workplace harassment. Nor was the promotions issue canvassed during Dr Hartrick's testimony in the proceedings.
[87] The appellant acknowledged in her evidence that she was familiar with the appeals process and understood that the initial decision in her favour might be appealed. I accept that the outcome of the promotions issue might have had a negative impact on the appellant's depressive condition but it is difficult to arrive at a more specific conclusion without knowing when the ultimate decision in the promotions process was taken, given that the restarting of the selection process did not necessarily mean that the appellant would not be successful in the restarted process. The appellant said that it was her understanding that the department ultimately made a decision not to make any appointment, but she did not say when this decision was made.
[88] While the department did not make the decision to uphold the appeal and to restart the selection process, it was the department who made the ultimate decision to not proceed with an appointment. Also while the appeal framework was established by the state government under legislation, the effect of the legislation was to provide an independent appeals mechanism for the benefit of both public sector employers and employees. Therefore, in practical terms, the department participated in the appeals mechanism to underpin the integrity of their appointment process and to ensure that the most meritorious applications succeed. I am reluctant to conclude, in the circumstances of this case, that the department's participation in the appeals process could give rise to unreasonable management action.
[89] I am not satisfied that a defect of the kind that was apparently present in the instance of the appellant's promotion could be said to constitute unreasonable management action. The appeal process should be regarded as a beneficial mechanism which applies checks and balances and gives unsuccessful applicants an avenue to challenge an outcome if they do not believe it is equitable or fair. The utilisation of the appeal process by an unsuccessful applicant in these circumstances should not give rise to a conclusion that management has acted unreasonably. Management may have made a mistake in how it implemented the process, but these mistakes happen from time to time and are part of the ordinary vicissitudes of day to day management activity. Such errors should be regarded as honest mistakes or blemishes, not unreasonable management action.
[90] It follows that to the extent that the appellant's injury arose out of or in the course of management action associated with the appeals process, the injury is excluded from consideration under s 32(1) of the Act. Having so concluded consideration is given to whether the first and second stressors could be found to have significantly contributed to the appellant's injury. No easy to apply formula is available to guide the determination of whether any stress or anxiety or other depressive condition associated with the appellant's reaction to the offending text or email messages were significant factors in the development of her depressive condition.
[91] The non-work stressors contributing to the appellant's depressive condition were substantial. The determination to be made about whether employment was a significant contributing factor entails not just a consideration of whether the word "significant" means "weighty" or "substantial", but also how the word is to be construed in a context where a number of non-work stressors were also in play and were contributing to the depressive state of the appellant.
[92] The determination to be made in circumstances where multiple stressors are in play necessarily involves some weighting of the stressors and an evaluation of their significance relative to each other. In some cases, a combination of similarly weighted moderate stressors may cause the injury and, if one of the stressors was work related, this may be sufficient to justify a finding that the employment was a significant contributing factor. But this is not the case here. In this matter, on the medical evidence, the dominant stressors were not work related and the medical evidence supports a balance of probabilities finding that the appellant's depression or depressive condition would have existed, and with similiar severity, if the work related stressors had not occurred. In these circumstances I am reluctant to attribute the adjective "significant" in describing the impact on the injury of the first two stressors. While the appellant said at T1-73 that she was certain that non-work stressors did not outweigh the impact of the matters relating to Mr Brown, I consider this position to be unsustainable on the evidence.
[93] The appellant had been on anti-depressant medication between 2003 and 2009 before resuming the medication in September 2010. Hence before the impact of the first stressor had materialised, the appellant's condition was being treated by anti-depressants. After the claimed impact of the first stressor had been resolved in December 2010, and in the absence of any work-related stressors in January, the appellant's medication was increased. Dr Duffy's notes of his 15 June 2011 consultation with the appellant disclose that the appellant was not taking anti-depressants at that time. Dr Turnbull's notes reveal that the appellant opted to stop taking anti-depressants some time prior to 28 June 2011 and also disclosed that the appellant resumed taking the medication on 13 July 2011. While not determinative, an inference could be drawn that the deterioration in the appellant's mood and demeanour around April, May and June 2013 may have been attributable, at least in part, to her decision to stop taking anti-depressants.
[94] Considering the second stressor in the context of what had gone on before, including the evidence around the first stressor, the facts are that the cause of the second stressor was addressed very quickly. However the appellant said that she experienced ongoing anxiety arising the proximity of Mr Brown. It is this ongoing anxiety which remains to sustain the appeal. The difficulty for the appellant in this regard is that her claim that work related factors contributed to her condition during the March, April, May and June 2011 period is not supported by other lay evidence or the contemporaneous medical evidence.
[95] In all the circumstances of this case I conclude that the non-work stressors were dominant and that any anxiety or stress that the appellant suffered arising from the first two stressors did not make a significant contribution to the development of her psychological disorder or depressive condition.
[96] The appeal is dismissed and the regulator's decision dated 22 December 2011 is confirmed.
[97] The matter of costs is reserved.
[98] I order accordingly.
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