Shakespeare and Comcare (Compensation)
[2022] AATA 2260
•8 July 2022
Shakespeare and Comcare (Compensation) [2022] AATA 2260 (8 July 2022)
Division:GENERAL DIVISION
File Number(s):2018/3396
Re:Alysia Shakespeare
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:8 July 2022
Place:Sydney
The reviewable decision made 31 May 2018, being the decision of the Respondent to affirm its earlier determination denying liability to compensate Ms Shakespeare in respect of the claimed injury, is affirmed.
.........................[SGD]....................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – anxiety – depression – post traumatic stress disorder – claim of psychological injury – whether Respondent liable to compensate the Applicant in respect of the claimed injury – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Browne v Dunn (1893) 6 R. 67, H.L.
Dean v Australian Postal Corporation [2010] FCA 680
REASONS FOR DECISION
Deputy President J W Constance
8 July 2022
Part A: Introduction……………………………………………………………………….……[3]
Part B: Background………………………………..……………………..…………………….[4]
Part C: The relevant provisions of the SRC Act…………………………………………...[5]
Part D: The Issues………………………………………………………………………………[6]
Part E: Evidence and Findings of Fact………………………………………………………[6]
Part F: Reasoning……………………….……………………………………………….……[25]
Part G: Conclusion……………………………………………………………………………[31]A: INTRODUCTION
Ms Shakespeare has been employed by the Department of Human Services since May 2006. She worked in two different Centrelink offices until September 2017. At that time, she held the position of Service Officer.
On 7 November 2017, Ms Shakespeare lodged a claim for compensation[1] in respect of an injury described as “Post Traumatic Stress Disorder, Anxiety and depression”, which she claimed to have suffered in the following circumstances:
I collapsed, I could not take any more psychological injury from my manager Amanda V Ross, PTSD was so severe that I was unable to work, she attacked me verbally and I witnessed her humiliate another staff member after that I vomited was unable to do any work and I was incapacitated and I collapsed totally. I was unable to drive home, I got into my car and my vision was so blurred and I had a Migraine from the stress that she caused. There were many more incidents but this is the last time that I was at work and she finished me off. I have not functioned since at all.[2]
In a statement attached to her claim form, Ms Shakespeare provided details of the other incidents to which she referred.
[1] Exhibit R1 at 44.
[2] Exhibit R1 at 45.
The claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Shakespeare requested this be reconsidered. On 31 May 2018, Comcare decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In 2018, Ms Shakespeare applied to the Tribunal to review the reviewable decision.
[3] Exhibit R1 at 266.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Findings of fact in these reasons have been made on the balance of probabilities.
In her statement attached to the compensation claim, Ms Shakespeare related several incidents, or series of incidents, which she says occurred while she was working in the Bega Centrelink office and later the Tuggerah Centrelink office, and which she says caused her to suffer the claimed injury. I will consider the evidence in relation to these incidents in detail later in these reasons.
The incidents in the Bega office were:
(i)most of the time staff working in the office kept open security doors which could have allowed unauthorised persons to access Ms Shakespeare’s work area causing her to fear for her safety while at work;
(ii)on two occasions a customer of Centrelink came to the centre and acted in a manner which caused the police to be called; on both occasions Ms Shakespeare felt unsafe and fearful that her life was being threatened;
(iii)a customer accessed the reception area of the centre and removed a flagpole from the wall which he used to threaten staff; reports of the incident to Ms Shakespeare caused her to experience trauma and stress;
(iv)on other occasions customers attended the centre and threatened staff with violence, again causing Ms Shakespeare to feel unsafe and that her life was in danger;
(v)alleged bullying and harassment by her manager, Mr Stapleton.
Ms Shakespeare transferred to the Tuggerah Centrelink Office in 2013. In her statement she described incidents of alleged bullying by her manager, Ms Ross.
C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(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.
“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.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
D: THE ISSUES
The following issues require determination.
(1)Did Ms Shakespeare suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Department, and therefore a “disease” within the meaning of the Act?
(3)If so, are either or both provisions of sections 7 and 53 applicable in this matter?
E: EVIDENCE AND FINDINGS OF FACT
Evidence of Ms Shakespeare
It became apparent during the proceedings that Ms Shakespeare was having difficulty giving evidence, other than for very short periods. To overcome this, the parties agreed that Ms Shakespeare’s statements be read to her by her Solicitor and that Counsel for Comcare would put general propositions to her without pursuing the detail which would normally be expected in cross-examination. On this basis Counsel for Ms Shakespeare agreed that no issue would be raised based on the principles in Browne v Dunn.[4]
I commend the parties and their representatives for their assistance in this regard.[4] (1893) 6 R. 67, H.L.
The quotations (any spelling errors are contained in the original) in the following four paragraphs are reproduced from the undated statement provided by Ms Shakespeare which accompanied her claim for compensation lodged with Comcare on 7 November 2017.[5]
[5] Exhibit R1 at 49.
In relation to the lack of security in the Bega office, Ms Shakespeare said, in part:
The Bega Centrelink had a cigarette smoking culture and the propping of doors was done by smokers popping in and out to have a cigarette for their convenience and for delivering office supplies. I am writing this down as whilst I understand that the building was considered secure from an organisation point of view, it was not because of the actions of staff there. Even though emails where sent to staff requesting them to stop propping and jamming doors open the building was not secure on a daily basis. I felt unsafe in it, prior/post to the following incidents happening and on multiple occasions I requested management for the building to be kept secure for all staff.[6]
[6] Exhibit R1 at 52.
Ms Shakespeare described the two incidents involving the same man threatening staff:
There were two incidents that were very distressing for me where a customer (the same customer), accessed the service centre and police were called in. On both occasions I felt unsafe and fearful that my life was threatened and this fear has never really left me. I have visions of shots being fired through the building and them penetrating the floor near me. I have now experienced years of flash backs because of this trauma, I am triggered when I hear a raised voice or screaming, (even kids screaming in fun loudly affects me as even though I can logically differentiate between violent screaming and fun screaming it still has the same effect on me).
I have heart palpitations and a heightened sense of awareness I am hyper vigilant.
I'm engaged in a hypervigilant mode of living that it is extreme and exhaustive. I have been traumatised from these incidents ever since because I felt I was a powerless victim due to the environment and circumstances I was working in. I have been a victim of these circumstances due to safety/security failure in the building. I have never been able to get over it and recover from it, even after engaging in medical care and self-care. I was horrified that this could happen and that a customer could come in off the street and breach all personal safety. I was horrified that no policing was available in the first instance and that no restraints where able to be applied to the perpetrator. I was fearful as the customer was not restricted in his ability to physically access the building internally wherever he wanted to. I was traumatised by the possibility of physical assault and even of my death. I thought I was going to die over and over and over again. Today I am still traumatised by the psychological impact of these incidents as I felt that my life was in grave danger; I had visions of dying at the hand of a gunman in a violent rage, someone who I didn't even know and just because I was at work.
Firstly, the customer accessed the building and he so was violent and abusive in verbal language and body language and threatening and he did not regard any area on the main ground floor as restricted, (I was told that he was coming to get us by a staff member that burst into the room where I was working) and that he was threatening to access all/other parts of the building as he wanted to do this to get all Centrelink staff. Being aware of the lax building security this threat was very real to me and I realised that he could easily have removed an access card from a staff member or made a staff member give him access. The customer could then have gained entry to anywhere in the building on the ground floor or on the top floor where I was working either by threatening a staff member or simply entering because the doors where propped/jammed open. The customer accessed the front desk and then the back desks, where staff where working at their stations, the customer used violent language to staff and other customers whilst freely jumping around furniture and running around the office in manic energy. The customer was throwing and hurling items and furniture around the building. During his first violent outbursts, the customer expressed that he had access everywhere and was going to get his gun and use it to get what he wanted and to shoot people if they didn't do what he wanted. The gunman graphically threatened people lives. The gunman threatened that if he didn't get what he wanted and staff didn't meet his needs that they would be physically assaulted by him (shot, punched, bashed, killed, stabbed with pens on desk, hit with furniture (chairs etc.), detained, immobilised, stapled, left to bleed, taken hostage, forced to do what he wanted) and that they would end up being shot and forced to do what he wanted anyway. I wanted to leave the building as I wanted to flee for my life as the gunman was advising that he was coming back to shoot everyone and that he had a gun. I did not leave the building however as I was too scared to with the knowledge that it was likely that the doors where propped/jammed open and additionally access could be gained if a threat was made to a staff member and the staff member would be forced to open the door. I wanted to hide, I did not leave the building because he was not immobilised and I did not know where he was from second to second. I did not leave the building or even move from my work station as I was so traumatised that I could not make the decision to leave or not as my terror resulted in me becoming frozen to the spot in fear and indecision. I was panicked and frozen. I was on the top floor and I thought the gunman was not going to be seized and had free run of the building and I thought the gunman was going to shoot people, I thought the gunman was going to carry out his threats. I thought the gunman was going to shoot through the ceiling of the ground floor and that bullets would be spraying up through the floor where I was and that I was going to be shot and that I was going to die or go through the a prolonged process of dying. I thought that bullets where going to ricochet around the room around all of us, and that there was nowhere safe to hide, if I laid on the floor I would be shot from underneath, If I got under my desk I would be dragged out and found out and shot directly, If I leant into a wall I would be shot in the head etc. etc . I thought bullets could be anywhere and that I was vulnerable no matter what I did or tried. Being in a small community it was not unknown to the public that access to the entire building could be made via the fire stair wells, straight in off the street. The manager from the service centre level was asking the gunman to leave and asking innocent customers to leave and the manager from the first level rushed down the stairs and male staff members rushed in and came to assist with this. The customer was asked to leave due to his violent behaviour and violent threats. The managers & other male staff members where ineffective in their efforts to remove the customer from the building. I did not believe that they were strong enough and were in a position to get rid of the gunman.
The second incident was when the customer/gunman did come back into the Bega Centrelink office and the police were called to apprehend him as it was understood that he did have a gun and that he was going to use it. The Bega police removed the gunman, I do not know if a gun was removed from his person or not, I believe so but I don't know for sure. I was told that he said it was in his car and that he had gotten it from his car. (In the initial attack the gunman was asked to leave and he did so only after his verbal and physical violence ran its course (not because he was asked to leave or because he was removed and only when he was done being violent and had secured that his violence threats were understood because people were terrified at this point as I was (this appear to provide some form of satisfaction as derived by the gunman.[7]
[7] Exhibit R1 at 53-54.
Ms Shakespeare described the incident involving the man threatening staff with a flag pole as:
In another incident a different customer accessed the reception area and then removed a flag pole from the wall behind the reception desk and wielded it at staff members' and threatened them with it. Again, a staff member told me this was happening/had happened. Again, I experienced the trauma of this as I had experienced it previously. I was exposed to the stress of this over and over again.
Later the pole component of the flags was removed from the reception area and nationally from every office after a site inspection and incident report was completed, so that the flag pole could not be used as a weapon again. To this day if a staff member approaches me I hold my breath and my vision blurs in fear and I want to flee.[8]
[8] Exhibit R1 at 54-55.
Ms Shakespeare stated further that there were more less specific incidents during which customers were violent in the Bega office. She felt unsafe during these incidents and that her life was in danger.[9] Referring to these incidents Ms Shakespeare stated:
Each time a violent incident occurred it was relayed to where I was working verbally via a staff member or other customers, this ·occurred many times. A staff member would burst into the room (either management or co-worker) and say, violent customer downstairs or gunman down stairs or don't go down stairs, or don't access the common areas, or don't speak up to loudly as voices travel through the air vents and to stay quiet (so as to not indicate where we were). From then on in there was always an element of danger for me when these messages were relayed to where ever you were in the building at the time. I was always fearful and I always felt that my life was in danger.[10]
[9] Exhibit R1 at 55.
[10] Exhibit R1 at 55.
In relation to the conduct of her manager in Bega, Mr Stapleton, Ms Shakespeare provided a detailed statement which appears at pages 56-61 inclusive of exhibit R1. She described incidents when she says Mr Stapleton bullied and harassed her at the entrance to the Bega office:
Mark Stapleton (Manager) was harassing me by following me down the main street of Bega watching my movements when I was on a formal break, i.e. morning tea.
This occurred multiple times over a period of months
He bailed me up and bullied me, where possible. I felt unfairly targeted, and in shock at his behaviour, I felt that he wanted to get rid of me. I felt that he was looking for flaws in my work ethic and my person. I felt intimidated and uncomfortable on returning to the office/being in the office. I was in so much stress/ shock continuously that I did not say anything apart from 'Yes' and agreed to his demands. I was frozen to the spot, between the public threshold of the building and entering the foyer itself. I was however curious that he should meet me in this position as there was another entrance to the building and it was obvious that he was waiting for me there and not at the other main entrance. Mark Stapleton would have needed to have been tracking my geographic location to know where to stop me. During this incident we were neither inside the building or out, it is my opinion that the location of this confrontation was planned and executed so as to effect only me as no other staff members were at this locale at this time.[11]
[11] Exhibit R1 at 56-57.
Ms Shakespeare also described another incident when she says Mr Stapleton approached her at her desk and yelled at her about how she had parked her car in the parking area outside the building. This continued on a balcony outside the office area. His conduct made her feel sick and weakened and she felt she was going to faint.[12]
[12] Exhibit R1 at 57-58.
In her statement Ms Shakespeare provided details of the effect that her experiences at the Bega office had on her.
In 2013 Ms Shakespeare transferred to the Tuggerah office. She requested the transfer for family reasons.
In her statement, Ms Shakespeare described how, after she transferred to Tuggerah, she continued to feel the effects of the trauma suffered by her in the Bega office. However, she was accepted as a valuable member of staff and she was able to continue going to work.
A new Manager, Ms Ross, was appointed to the team in which Ms Shakespeare worked. In relation to her experience of being managed by Ms Ross, Ms Shakespeare said, in part:
I understand that I have PTSD, an anxiety disorder and severe depression. I just cannot endure her cruel leadership style. I still have a desire to go to work and I still need to go to work. As I understand it at this time I have overreached my limitations in regards to surviving any further disasters, accidents, customer incidents, abuse, assault, harassment or bullying. I can no longer withstand any violence of any form for any longer. I can no longer cope with a customer yelling at me. I can no longer cope with threatening tone and language style I have experienced a direct life threatening experience and under Ms Amanda V Ross's management I feel that I am "in daily danger. I am now in permanent fear of her and of her approach to me. Ms Amada V Ross intimidates me to such an extent, that I can no longer stay out of the bathroom facilities. The management style is abrasive and demeaning. I believe her management style to be tyrannical. I have been unable to stand up for myself at all for two years and I am no longer able to stand up at all. The last two years of sustained abuse, triggers in me the most severe symptoms.
………………..
In very short sentences, Amanda, speaks to me with contempt in her tone, is rude to me in meetings and undermines any professional contribution. When approaching me or me at my desk, her tone is condescending. I am humiliated by how she addresses me in front of others. She steps into my physical personal space, looks down at me, treats me as if I were beneath herself. She has attempted to commence the process of getting rid of me out of the organisation. I have only been able to overcome this because I met the expectations of levels of productivity when she is trying to do this.[13]
[13] Exhibit R1 at 63-64.
Ms Shakespeare did not provide specific examples of the behaviour of Ms Ross which she alleges contributed to her injury. She acknowledged that she was mistaken as to the events she said occurred on 25 September 2017 but said they occurred the following day.[14] Ms Shakespeare did not provide details of what she says happened.
[14] Exhibit R1 at 241.
Evidence of Ms Slater, Centrelink Public Support Officer, Bega office
Ms Slater provided statements dated 21 August 2020[15] and 4 September 2020.[16] She gave evidence the hearing.
[15] Exhibit R2 at 40.
[16] Exhibit R3.
Ms Slater has worked in the Bega office of Centrelink since 1997. She worked on the ground floor until October 2010 when she moved to the first floor, where she worked in the same team as Ms Shakespeare.
In her statement of 21 August 2020 Ms Slater described the incident of 10 December 2008:
On 10 December 2008, I was working on the ground floor. I recall there was a threat received through a call centre that a man threatened to come to the office with a gun. The threat came from a man from Eden. I remember we were taking precautions, but we were also advised by local leadership in the Service Centre that they did not think this threat would eventuate. I thought at the time it sounded like it was a ‘heat-of-the-moment’ threat.
On the day of this gun threat, I did not go up to the first floor; I do not recall being animated when I heard news of this gun threat; and I did not hide behind a desk with Alysia at any time.
From my 26 years of experience working at Centrelink these kinds of threats happen often and it is most often through frustration and in the heat of the moment, at least most often at Bega.
Ms Slater did not recall any of the events of 11 December 2008.
Ms Slater referred to the August statement in her further statement of 4 September 2020:
At no point in time did I tell Alysia that the person who made the gun threat was in the work premises. At no point was I animated in front of Alysia in relation to the person whom made the threat. And, at no point in time did I hide behind a desk with Alysia.
Lastly, on 11 December 2018, I do not recall knowing that the person who made the gun threat had come into the workplace.
Ms Slater did not recall any incidents occurring between Mr Stapleton and Ms Shakespeare.[17]
[17] Transcript 17/03/2021 at 71.
Ms Slater impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence and make findings of fact accordingly.
Evidence of Ms Daneeli, Retired Team Leader Centrelink Bega office
Ms Daneeli provided a statement dated 6 June 2019 to which she attached a statement which appears to be have been made on 2 February 2018.[18] She gave evidence at the hearing.
[18] Exhibit R2 at 26.
Ms Daneeli was Ms Shakespeare’s Team Leader for most of the time Ms Shakespeare worked in the Bega office.
Incident involving Mr Stapleton
In her statement Ms Daneeli said, in part:
There was an incident that involved Alysia one day, instigated by Mark Stapleton. Mark spoke to Alysia in a very humiliating and loud tone in relation to where she had parked her car. Mark is popular with many staff here, having worked here a long time. Consequently the incident quickly escalated with many people backing Mark's opinion of her choice of car park. Alysia went and moved her car immediately. When she returned to the office she was visibly upset. I went to speak to her and check on her well-being. She told me she did not want me to do anything about what had just happened. I thought about that overnight and the following day I went to Alysia and told her that I had a responsibility to act when I witness bullying behaviour. Consequently I felt compelled to write a report on what I had seen and heard. I did that and escalated the incident to my leadership. I believe Mark was spoken to about it but not sure what outcome, if any, happened.[19]
[19] Exhibit R2 at 28.
Incident involving the threat of use of a firearm
In the same statement Ms Daneeli recounted her recollection of this incident:
A customer of the CSC attended their job network provider in Eden. He was upset and angry about something and told his provider he was going to travel to Bega and shoot everyone at Centrelink. He then left their office. The provider notified the police and our office of the threat. The police confirmed the man did have firearms. The threat was considered quite serious and plausible. He had not given any indication as to how he intended shooting everyone, if he planned to enter the office or simply open fire from across the street. At the time, the leadership responsible for downstairs decided to keep the office open, place a senior member of staff at the door (who I believe knew what the man looked like) and continue working as normal. I was Informed of the threat and of the direction for us to keep working as normal. Accordingly, I informed my team. I do not recall if Alysia was at work that day. I am pretty sure I reported the incident in ESSentials as a customer aggression incident and I accessed EAP services to help work through it.
The man did not attend the office that day, however he did attend the following day. He was much calmer and from memory was served by Tony Boyle who was the Snr Prac. As I recall I think Tony even said he had apologised for making the threat the day before.
To my recollection, this was the only incident that involved or referred to a firearm. Certainly, it was the only one I was informed of.[20]
[20] Exhibit R2 at 29.
Ms Daneeli never had any concerns with Ms Shakespeare’s performance in her team. She had the ability to process large amounts of work with a high degree of accuracy.[21]
[21] Transcript 17/03/2021 at 96-97.
When she became aware that the person who had threatened to shoot staff members came to the office the following day, she advised those working on the first floor of this “because, well, quite frankly it sort of put all our minds at ease because he was calm and in a very different state of mind to the one that was – had presented the day before at his employment agency.” [22]
[22] Transcript 17/03/2021 at 99-100.
On occasions Ms Shakespeare raised the security issue arising from doors being left partly open. It was of particular concern to her as she worked later than most staff.[23]
[23] Transcript 17/03/2021 at 97.
Ms Daneeli impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence and make findings of fact accordingly.
New South Wales Police records[24]
[24] Exhibit R1 at 468.
These records indicate that on 10 December 2008 a person residing in Eden NSW made a threat by telephone to shoot someone in the Bega Centrelink office and that precautions were taken in that office. There is no record of the person attending that office on that day.
It is recorded further that:
About 10:00 am on Thursday 11/12/08, the POI [person of interest] attended the Bega Centrelink office. He was calm at the time and spoke to staff about his welfare payments, etc, and also about personal problems he has at present.[25]
[25] At 468-469.
Evidence of Ms Jackson, Centrelink Team Leader, Tuggerah office
Ms Jackson provided statements dated 15 November 2017[26] and 12 June 2019.[27] She gave evidence at the hearing.
[26] Exhibit R1 at 90.
[27] Exhibit R2 at 36.
Ms Jackson is employed in the Centrelink office in Tuggerah. Ms Shakespeare began working in that office on 27 May 2013, from which time Ms Jackson was her Team Leader and Line Manager. In this role she coached Ms Shakespeare on occasions. She regarded her working relationship with Ms Shakespeare as “open and direct”.[28]
[28] Transcript 17/03/2021 at 80.
Ms Jackson was unaware that Ms Shakespeare suffered from any form of mental illness until 2017. Ms Jackson observed that Ms Shakespeare avoided interactions with other people wherever possible.
On 27 July 2017 Ms Shakespeare telephoned Ms Jackson and advised her that her (Ms Shakespeare’s) father had passed away. Ms Shakespeare was absent from work from that time until 25 September 2017.
Ms Jackson was unaware of any untoward incidents occurring between Ms Ross and Ms Shakespeare until she received advice of Ms Shakespeare’s claim for compensation. She received this advice on 8 November 2017.
Ms Jackson impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence and make findings of fact accordingly.
Evidence of Ms Duke, Centrelink Team Leader, Tuggerah office
Ms Duke provided a statement dated 11 June 2019[29] to which was annexed a statement made by her on 9 November 2017. Ms Duke gave evidence at the hearing.
[29] Exhibit R2 at 30.
Ms Duke was acting as Ms Shakespeare’s Team Leader on 25 September 2017 and had acted as such on occasions prior to this date. She was Ms Shakespeare’s Line Manager from August 2015.
Ms Duke stated in part:
I recall that Alysia Shakespeare had a period of leave and returned to work on 25 September 2017. I was informed on 9 November 2017 that Ms Shakespeare had lodged a compensation claim for events occurring on 25 September 2017. This surprised me because I do not recall any incidents having occurred that day.
I spoke to Ms Shakespeare on 25 September 2017. She was to spend the majority of the day competing various “learning and development” tasks, and settling back in after her leave. Ms Shakespeare spoke to me at one point in the day to have leave recoded (that is, reclassified). I again spoke to her at 4:00pm that afternoon as I left the office. She told me that she was about to begin processing work. I told her that a number of team leaders remained on site, and asked her to speak to those team leaders if she required any support.
I later learned that Ms Shakespeare alleged that she ‘collapsed’ following an interaction with Amanda Ross later that day.
Though I cannot be certain given the passage of time, I do not think that Amanda Ross was at work on that day. I recall that I was the acting team manager that day.[30]
[30] Exhibit R2 at 30, paras 7-10.
Ms Duke gave evidence that so far as she was aware there were no issues with Ms Shakespeare’s competency in performing her duties.[31]
[31] Transcript 17/03/2021 at 94.
Ms Duke first became aware that Ms Shakespeare alleged that she had problems with the manner in which she was treated by Ms Ross on 9 November 2017. Prior to this time, Ms Duke had acted as Ms Shakespeare’s manager for a considerable period and believed that she had “an open line of communication” with her. Ms Shakespeare had not made her aware of any problems she was having with Ms Ross or any other supervisors.[32]
[32] Transcript 17/03/2021 at 87.
Ms Duke agreed with Counsel for Ms Shakespeare that in her experience, Ms Ross was a person who got “straight to the point without any fluff” in her dealings with staff members. She had not observed any lack of courtesy in Ms Ross’ directness.[33]
[33] Transcript 17/03/2021 at 90.
Ms Duke impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence and make findings of fact accordingly.
Evidence of Ms Ross, Team Leader, Centrelink Tuggerah office
Ms Ross provided statements dated 13 November 2017[34] and 19 June 2019[35] and an undated statement in response to an additional statement by Ms Shakespeare.[36] She gave evidence at the hearing.
[34] Exhibit R1 at 84.
[35] Exhibit R2 at 37.
[36] Exhibit R1 at 199.
Ms Ross was Ms Shakespeare’s Team Leader from February 2016 until Ms Shakespeare ceased to attend the office on 27 September 2017.
On 11 July 2017 Ms Ross spoke to Ms Shakespeare concerning her return to work. She did not raise any issues or concerns. The last formal coaching session with Ms Shakespeare by Ms Ross was held on 17 July 2017. Ms Shakespeare commenced a period of recreation leave on 22 July 2017. She did not return to work until 25 September 2017.
Ms Ross was not at work on 25 September 2017, the date Ms Shakespeare alleges that there was an incident between them. She did not speak to Ms Shakespeare on that day.
Ms Shakespeare and Ms Ross spoke briefly on 26 September 2017.
Ms Ross did not become aware of Ms Shakespeare having lodged a compensation claim nor of the allegations made against her until she returned from leave on 13 November 2017. No notification of a complaint or incident was received prior to the lodgement of the compensation claim.[37] Prior to that time, Ms Ross had no indication that Ms Shakespeare had any difficulty with her management style.[38]
[37] Exhibit R1 at 85.
[38] Transcript 17/03/2021 at 109.
In the undated statement Ms Ross said, in part:
I commenced the role of Team Leader for Alyisa in February 2016. In that time Alysia has never raised any concerns she has of my Leadership style with myself or my Line Manager/s. I have worked with the assistance of two APS5 Team Leaders during this period and Alysia has never raised concerns with them either.
Our workplace has 3 Harassment Contact Officers (HCO’s) available to support staff in instances of Harassment or Bullying. These HCOs attended team meetings and sent office communiques to ensure staff are aware of their role and how to access them. In October 2016 each team developed a HOCtober poster as a way to raise awareness of the HCO role. My role as Team Leader has also been backfilled twice and to my knowledge Alysia has not utilised these staff to express concerns about my treatment of her.
I believe my relationship with Alysia has been professional at all times and that Alysia has demonstrated that she has found me approachable throughout this time.[39]
[39] Exhibit R1 at 199.
In her statement of 19 June 2019 Ms Ross said, in part:
Ms Shakespeare had asked for a number of accommodations to be made to her work station, which included its positioning and the provision of a sit/stand work station, which she said were required due to a physical injury.
By contrast, Ms Shakespeare never said that she was suffering from any form of mental illness. It is my practice to ask in coaching discussions whether a person requires anything further to assist their health and wellbeing, but I was unaware of any mental illness until she filed her claim for workers' compensation.
During cross-examination Ms Ross denied that on occasions she had been “short” and “very sharp” with Ms Shakespeare. She denied also that she indicated a level of anger towards Ms Shakespeare causing her (Ms Ross’) eyes to become “more bulged” and her neck to become “more strained”. [40]
[40] Transcript 17/03/2021 at 124.
Ms Ross impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence and make findings of fact accordingly.
In assessing Ms Ross’ evidence I took into account the statement of Ms Corfias made 29 March 2018.[41]
[41] Exhibit R1 at 254.
Ms Corfias was critical of Ms Ross’ style of management and supported Ms Shakespeare’s evidence as to how she (Ms Shakespeare) was treated by Ms Ross.
As Ms Corfias’ statement was emotive in many places and as I did not have the benefit of her giving evidence at the hearing, I prefer the evidence of Ms Ross.
EVIDENCE OF HEALTH PROFESSIONALS
General Practitioner records
Records of Ms Shakespeare’s consultation with her General Practitioner on 11 May 2006 show the reason for the visit was “Depression” and that she was prescribed medication for that condition on the same day.[42]
[42] Exhibit R2 at 50.
Consultation notes of Ms de Morsier, Registered Psychologist
Ms Shakespeare was referred to Ms de Morsier by her General Practitioner in February 2008[43]. Ms de Morsier provided a copy of Ms Shakespeare’s client file[44] under summons. She did not give evidence at the hearing.
[43] Exhibit A1 at 79.
[44] Exhibit A1 at 79.
Ms Shakespeare consulted Ms de Morsier on 32 occasions, commencing on 9 July 2008 and ending on 8 December 2010.[45]
[45] Exhibit A1 at 80.
After the first consultation, under the heading Diagnostic and Treatment Considerations, Ms de Morsier recorded, in part:
Depression, possibly pattern of co-dependent relationships (?) Unclear sense of psychological boundaries, especially with [redacted], impacting also on the space between her and other people.[46]
[46] Exhibit A1 at 83.
In relation to Ms Shakespeare’s description of her work environment, Ms de Morsier noted:
“I have always had job security. I am depressed, yet I function well. I recently realised that my work is not satisfying. At Merimbula I had a Front-desk Role. I couldn’t do it. Now I process medical information. We work in “pods” of 4 people. This is very intrusive. There is a general atmosphere of ridiculing. I had to have some stress leave. In order to cope, I am taking little breaks. I don’t like having interactions imposed on me.” [47]
[47] Exhibit A1 at 82.
It was not until the nineteenth consultation held on 29 April 2009, that Ms Shakespeare referred to her relationship with Mr Stapleton, although she did not name him:
She thought, a deeper reason for her stress and her eating was “when I don’t feel powerful”. As an example she quoted an instance from her work situation. There are a few different teams, and some people can trigger her more than others. “One man, interested in footy, has a judgmental attitude, when he is around I am eating constantly; then I get more and more uncomfortable about eating. He is quite jovial, yet macho, Aussie. I get the sense of “You’re in my space and so you behave the way I like.” “I don’t feel I’m approved of. I have a fear of judgment, not being accepted.”[48]
[48] Exhibit A1 at 95.
By reason of the personal nature of these records I do not intend to reproduce further detail. It is sufficient to note that during the consultations, Ms Shakespeare discussed many circumstances other than her employment.
Report of Dr Pond, General Practitioner
Ms Shakespeare first consulted Dr Pond on 30 September 2017. Dr Pond provided reports dated 5 April 2019[49] and 19 July 2019.[50] She did not give evidence at the hearing.
[49] Exhibit A1 at 54-58.
[50] Exhibit A1 at 66.
Dr Pond reported, in part:
[When is Alysia expected to gain a capacity for their usual duties as a customer service consultant? If you are unable to provide a date, please explain why the member is unable to perform their usual duties.]
Alysia has severe post traumatic stress disorder and her symptoms are triggered often, and by a range of triggers including adverse personal interactions.
[What is the short term prognosis?]
Alysia is likely to continue to have symptoms of PTSD including overwhelming emotion in some situations.
She has ongoing symptoms of anxiety and depression with very high scores on scales measuring these symptoms. Other symptoms of anxiety and depression include lethargy, difficulty making decisions, difficulty driving and multiple physical aches and pains.
[What is the long term prognosis?]
This is unclear. PTSD takes a long time to resolve, and may not resolve at all.[51]
Dr Pond recorded Ms Shakespeare’s impairments as:
Profound lethargy
Anxiety and depression
Decision making difficulties
Multiple physical aches + pains
Very strong physical + emotional response to triggers.[52]
[51] Exhibit A1 at 55.
[52] Exhibit A1 at 56.
On 19 July 2019 Dr Pond reported that Ms Shakespeare continued to suffer from post-traumatic stress disorder, anxiety, depression and situational stress.[53]
[53] Exhibit A1 at 66.
Report of Dr Schureck, Consultant Psychiatrist
Ms Shakespeare consulted Dr Schureck in 2018. He provided a report dated 26 October 2018.[54] He did not give evidence at the hearing.
[54] Exhibit A1 at 35.
Dr Schureck reported, in part:
In short, though at interview, corroboration of her account was scarce, she did allude to the possibility of independent further verification, should this be necessary which clearly would not be expected of a person seeking to misrepresent matters in her own interest. On the contrary, the consistency and detail of her account and her consigning of it to print, thus providing an opportunity, even an invitation, for sceptics to challenge it, is as more indicative of obsessive honesty than a desire to fabricate, exaggerate or conceal.
In summary, except for the common experience of discomfort from being placed in a new situation which her workplace made no effort to ameliorate and may even have exacerbated, this patient gives no evidence of unusual vulnerability to stress, consistent with her history having failed to demonstrate the existence of developmental precursors for this. There is, likewise, no evidence that she has fabricated, exaggerated or concealed any aspect of her account of her exposure to stress, consequent symptoms or any other relevant matters.
Responsibility for causing her Chronic Post-Traumatic Stress Disorder must therefore rest with her Centrelink workplace and with her bullying and harassing supervisors who repeatedly failed to protect its workforce from lapses of security as it should have done, relying instead on chance and the anxiety-deconditioning effect of repeated exposure to stress to protect staff from stress-related illness, a strategy clearly inappropriate and ineffective when applied to new staff. The situation was aggravated by the acute Post-Traumatic Stress Disorder induced by the original security failures now being converted (by the patient having, because of dedication to her work and economic necessity, to continue to work despite an increasing symptom burden and unsympathetic treatment by superiors), into Chronic Post-Traumatic Stress disorder, which finally forced the patient to take sick leave and then eventual leave without pay.[55]
[55] At 49-50.
Dr Schureck records Ms Shakespeare’s description of the event involving the threat of violence as follows:
During a day on which she was absent from work, a male client breached security at the ‘Job network’, creating considerable alarm by threatening violence to staff at Centrelink, during which he expressed the intention of returning with a gun and shooting people. Staff were unable to restrain him initially and anxiety levels remained high. On being told of this on her return to work the next day she became very anxious about the security station in the premises, perceiving an incapacity to protect staff from dissatisfied or mentally disturbed clients whose behaviours ranged from irritation to threats, and occasional acts of violence, including the possibility of homicide or wounding by gunshot (such weapons apparently being often carried in this mainly rural area).
Specifically, she described how only a counter, easily vaulted or walked around, separated staff from clients on the ground floor reception area, and doors between areas on both floors which, though lockable and intended to be opened by staff with security clearance, were often kept unlocked and/or open, whether inadvertently or intentionally by staff seeking quick transit e.g. ‘to enjoy a smoke’.
Her work peers were alarmed when, later in the next day, the same client returned and repeated his threatening behaviour, of which she was told when an agitated colleague ‘burst’ into her upstairs work station. She remained upstairs with colleagues and was advised not to exit or re-enter the building, until he was removed. She remained upstairs, frightened that he would discover the stairs and obtain access to her and then attack her, causing injury or death, (she was not advised of his departure, removal or of his demeanour). She remained at her work station in fear of her life until it became apparent (as others left the premises, much later in the day) in response to her own enquiries, during which time she remained extremely fearful.[56]
[56] At 38-39.
I prefer the diagnosis of Ms Shakespeare’s condition made by Dr Barrett and Associate Professor Robertson to that made by Dr Schureck as I am not satisfied that he was given an accurate history of the events on which his opinion was based.
Report of Dr Barrett, Consultant Psychiatrist
Dr Barrett assessed Ms Shakespeare on 14 December 2017 at the request of Comcare’s representative. She provided reports dated:
·29 December 2017[57];
·13 February 2018[58];
·7 May 2019[59];
·23 July 2019[60];
·5 May 2020[61].
[57] Exhibit R1 at 177.
[58] Exhibit R1 at 215.
[59] Exhibit R2 at 7.
[60] Exhibit R2 at 16.
[61] Exhibit R2 at 23.
On 29 December 2017 Dr Barrett reported, in part:
On assessment Ms Shakespeare reported number of triggers for her psychological symptoms. The first incident is what she described as a life-threatening incident in Bega in 2007 or 2009. She stated she was told there was a man downstairs with a gun and that he was threatening to shoot people. She stated that her symptoms began after this incident.
She described a worsening of her symptoms about two years ago, describing her manager as “dominant”, “intimidating”, “aggressive” and “tyrant”.
She reported psychological symptoms beginning after the incident in Bega where she perceived she and others were threatened by a man who was reported to have a gun. She reported her symptoms as being relatively constant since then. She stated she had flashbacks and “nightmares”, reliving what happened. She stated at the time she was extremely fearful for her life.[62]
[62] Exhibit R1 at 178.
Dr Barrett diagnosed Ms Shakespeare as suffering post-traumatic stress disorder with the possibility that she has avoidant personality traits. In response to a question as to the events/incidents that led to this diagnosis, Dr Barrett responded:
The most significant event is that which she alleges occurred in Bega sometime between 2007 and 2009.
Subsequent this and the development of PTSD since the event, she has become highly sensitised to interactions which she perceives a threatening or aggressive and she reported that she perceived her manager style is aggressive, which caused an exacerbation of her symptoms recently.[63]
[63] Exhibit R1 at 181.
Report of Associate Professor Robertson, Consultant Psychiatrist
Associate Professor Robertson assessed Ms Shakespeare on 17 March 2020 at the request of her Solicitors. He provided a report dated 17 March 2020[64] and gave evidence at the hearing, to which I shall refer later in these reasons.
[64] Exhibit A1 at 114.
Associate Professor Robertson took a history from Ms Shakespeare which included that she enjoyed good mental health prior to the psychological injury the subject of her claim for compensation. She described two separate issues in the evolution of her symptoms, being bullying behaviour by Mr Stapleton and the threat to staff made by a man who allegedly had access to a firearm. Ms Shakespeare also referred to her treatment by Ms Ross in the Tuggerah office.
Associate Professor Robertson reported, in part:
It is possible that Ms Shakespeare may have experienced either an acute stress disorder or brief post-traumatic stress disorder, however over time, the clinical state has evolved into panic disorder with agoraphobia. It is probable that she developed a significant depressive illness at the time of the alleged bullying behaviour at the Tuggerah office.
………………..
It is likely that Ms Shakespeare had underlying vulnerability to panic disorder or anxiety (whether this be from early environment or not), however there was no evidence of psychosocial impairment prior to this and given psychosocial functioning is the best metric of an individual’s mental health, it seems that there is little evidence to support a pre-existing condition.[65]
[65] Exhibit A1 at 120-121.
Joint report and concurrent evidence of Associate Professor Robertson and Dr Barrett
Associate Professor Robertson and Dr Barrett gave evidence concurrently at the hearing. Prior to doing so, they met and discussed the evidence which had already been given, including a transcript of the evidence of the preceding witnesses. They provided a joint report dated 24 March 2022.[66]
[66] Exhibit J1.
The joint report included the following general remarks:
By way of general remarks, both experts agreed that the applicant had demonstrated several concurrent psychopathological problems including panic disorder with agoraphobia, posttraumatic stress disorder and periods of depression. These seem to be longstanding problems, particularly noting the remarks of her treating psychologist as well as information to emerge following Mr Gollan’s cross examination of Ms Shakespeare in her evidence to the AAT.
Both experts agreed based on the information provided that Ms Shakespeare’s mental health difficulties were likely long term and complex and that there were multiple determinants, including work related and non-work-related factors relevant to her psychopathological disturbance observed at the time of her employment with the Department of Human Services at the Bega Office.[67]
[67] Exhibit J1 at 2.
Having read the Doctors’ joint report and their individual reports and having listened to them give their oral evidence, I am satisfied that their opinions were carefully considered and that each was a very experienced and well-qualified practitioner in the relevant field. In addition, by reason of their having given evidence and having been cross-examined, where their opinions vary from other health professionals, I prefer their opinions, that is of Associate Professor Robertson and Dr Barrett.
F: REASONING
ISSUE 1: DID MS SHAKESPEARE SUFFER AN “AILMENT” OR “AN AGGRAVATION OF SUCH AN AILMENT” WITHIN THE MEANING OF THE ACT?
Based on the evidence of Associate Professor Robertson and Dr Barrett, I am satisfied that at various times Ms Shakespeare suffered “several concurrent psychopathological problems including panic disorder with agoraphobia, posttraumatic stress disorder and periods of depression”.[68] I am satisfied that each of the stated conditions is a mental disorder and therefore an ailment within the meaning set out in subsection 4(1) of the Act.
[68] Exhibit J1 at 2.
At the hearing Associate Professor Robertson gave evidence that:
………. based on the information we had at the time of the conclave, that it was more likely than not that the applicant’s clinical presentation was a combination of underlying vulnerabilities unrelated to employment and interpersonal conflicts and the like in the course of her employment, bringing about an exacerbation with – it was manifesting as other panic attacks or post-traumatic stress disorder or both, depending on the changeable nature of her presentation.[69]
Dr Barrett agreed.
[69] Transcript 06/05/2022 at 7.
I have accepted the evidence of Ms Shakespeare and Ms Daneeli that there was an incident in the Bega office when Mr Stapleton spoke to Ms Shakespeare in an inappropriate manner during which he accused her of “parking in” his vehicle in the office carpark. While I am not satisfied that Ms Shakespeare’s recollection of the incident is accurate in that she felt Mr Stapleton was overly aggressive, I am satisfied that it did cause an aggravation of her depression.
This conclusion is consistent with the opinion of Associate Professor Robertson that Ms Shakespeare’s subjective experience of the incident “was likely to be the most significant factor in exacerbating whatever was going on. ………. It was really the interpersonal conflict with the manager that was likely the main driver of her psychological distress.” [70]It is consistent also with the opinion of Dr Barrett that such an incident “is a plausible stressor for exacerbation of pre-existing difficulties and that people, particularly who have had a range of childhood experiences, history of trauma, are very sensitive to those sorts of interpersonal issues.”[71]
[70] Transcript 06/05/2022 at 14.
[71] Transcript 06/05/2022 at 14.
I am satisfied also that when Ms Shakespeare became aware of the threat made by the disgruntled customer of the Bega office and the visit by him to the office on 11 December 2008, she reacted in such a way as to aggravate her pre-existing depression. Again, I am not satisfied that her perception of what happened reflects reality. However, I accept the opinion of Associate Professor Robertson that Ms Shakespeare’s hypervigilance, as part of her anxiety state, would make her perception of that experience more threatening than it might have been.[72]
[72] Transcript 06/05/2022 at 12.
Based on the evidence to which I have referred, I am satisfied that during her employment at Centrelink she suffered an aggravation of her depression.
ISSUE 2: WAS ANY AILMENT OR AGGRAVATIONS OF THE AILMENT OF DEPRESSION SUFFERED BY MS SHAKESPEARE, “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY HER EMPLOYMENT AT CENTRELINK, AND THEREFORE A “DISEASE” WITHIN THE MEANING OF THE ACT?
Counsel for Comcare referred me to the following passage from the judgement of Perram J. in Dean v Australian Postal Corporation[73] :
The problem arises where, for example, an employee develops a persecution complex as a result of an argument in the workplace. As the complex takes hold the employee becomes convinced – inaccurately – that co-workers are plotting his or her downfall and some nervous disorder from the mental anguish this perception generates then ensues. The view has generally been taken that such a condition can be an ailment which has been “contributed to in a material degree by the employee’s employment”. Because the scheme of compensation is in essence a no-fault one it has been necessary to discount any assessment of whether the employee’s perceptions are rational or reasonable. On the other hand, it has also been necessary to place some outer limits on the extent to which mental unwellness may generate a compensation claim. The particular problem the authorities exhibit a desire to avoid is the case of a person whose nervous condition predates the incident in question but whose symptomology fixes on to the workplace incident and inaccurately attributes the aggravation of the pre-existing condition to that incident. This is a difficult concept to convey. In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 41 Davies, Beaumont and Burchett JJ (at 41) upheld the approach of the Tribunal in treating the appellant’s neurotic belief that his leg pain was attributed to a work incident as “an inert focus for a neurosis determined by other factors”. A similar analysis was contemplated in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195 where Sweeney and Woodward JJ said:
There is of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity… we think it is likely that the distinction that we have referred to was not always borne in mind by the Tribunal.
[73] [2010] FCA 680 at [9].
Counsel for Ms Shakespeare argued that:
When all of the evidence is considered there is support for the proposition that the Applicant has reacted to real events and that reaction has contributed to the development of the psychiatric condition. The Applicant may have been more vulnerable however the reaction to the work events as manifest in 2017 is a significant contribution. When viewed overall it is the work events that have caused the Applicant’s vulnerability to become an incapacitating condition.[74]
[74] Applicant’s Written Submissions dated 19 June 2022 at para 33.
Based on the evidence of Associate Professor Robertson and Dr Barrett, I am not satisfied that any ailment, or aggravation of an ailment, suffered by Ms Shakespeare, was contributed to by her employment “to a significant degree.”
Dr Barrett expressed the opinion that the inconsistencies and unreliability of Ms Shakespeare’s evidence (including her statement that she had no past psychiatric history), make it difficult to understand the circumstances and extent of that history.[75] Both Dr Barrett and Associate Professor Robertson agreed that “a reliable narrative has been difficult to identify in the context of the various recordings and presentations given by the applicant in these proceedings.”[76]
[75] Transcript 06/05/2022 at 10.
[76] Transcript 06/05/2022 at 27.
When Associate Professor Robertson was questioned about the significance of the conflict with Mr Stapleton, he replied:
It a little bit – it’s like asking which cigarette cause cancer. It’s hard. It’s an accumulation of factors.[77]
[77] Transcript 06/05/2022 at 13.
Further, in Dr Barrett’s opinion, while Ms Shakespeare worked in the Bega office she experienced a range of personal issues (including family and domestic issues) that were clearly significant stressors, apart from any work-related issues. The non-work issues were “equally plausible triggers for an exacerbation of a pre-existing condition”.[78]
[78] Transcript 06/05/2022 at 15.
Associate Professor was more convinced of the significance of the interpersonal conflict with Mr Stapleton than the security issues when considering the factors contributing to an exacerbation of Ms Shakespeare’s condition.[79]
[79] Transcript 06/05/2022 at 21.
In relation to the incident involving the disgruntled customer, Associate Professor Robertson said that the florid nature of Ms Shakespeare’s description of the incident is typical of a person who is catastrophising. It is a reflection of personality and how the person perceives and interprets the surrounding world. It can happen anywhere.[80]
[80] Transcript 06/05/2022 at 32.
Both experts agreed that there were multiple non-work stressors which were also responsible for the exacerbation.[81] This is consistent with the records of Ms de Morsier.
[81] Transcript 06/05/2022 at 20.
During questioning by Counsel for Comcare, the following exchange took place:
DR ROBERTSON: The best metric of someone’s mental health is their functional capacity. So that was – I think we addressed that in the joint report by stating that we both accepted the premise that her clinical presentation fluctuated and that she would have good periods and not so good periods.
MR GOLLAN: And may still find – sorry, I withdraw that. It’s accepted by you both that she had some pre-existing problems, agreed?
DR ROBERTSON: We – I think I speak for both of us, I think we landed on the point that it was more likely than not that there was more going on than we were aware of at first glance.
MR GOLLAN: And that in circumstances where someone carries with them the problems that you’ve identified, they may find particular environments challenging?
DR ROBERTSON: Yes.
MR GOLLAN: Dr Barrett?
DR BARRETT: Yes.[82]
[82] Transcript 06/06/2022 at 34.
Both experts agreed with the proposition put by Counsel that a person with Ms Shakespeare’s condition “might report that they’re having difficulties with certain persons in particular environments, whether it be work or otherwise. But that need not necessarily represent an aggravation or an acceleration or an exacerbation of their condition, but rather that because they come to the environment with some limitation, that they find certain things challenging or certain interpersonal relationships challenging.” [83]
[83] Transcript 06/05/2022 at 35.
Further, referring to Ms Shakespeare’s relationship with Mr Stapleton, Associate Professor Robertson said:
I think again, it’s just that – there is a two to tango element to it. There is, you know, a person whose manner might be not particularly – might be quite disagreeable to people and as you say, most of them just get on with their work. Others might find because there is a salience to that behaviour from something else, that will have a much more intense or, you know, distressing response for them and if you then add in the effects of depression, anxiety and what have you, it can become quite a problem.[84]
[84] Transcript 06/05/2022 at 40.
In July 2008 Ms Shakespeare reported to Ms de Morsier, Psychologist, that she had been depressed “for a long long time” and had suffered a “breakdown” at an unspecified time prior to commencing work with Centrelink. Dr Barrett and Associate Professor Robertson agreed that these two statements were consistent with Ms Shakespeare having depression, oscillating in nature, long before she commenced employment in Centrelink. They also agreed that her statement “I’m depressed yet I function well”, indicated that Ms Shakespeare recognised her longstanding depression and that she was still able to function.[85]
[85] Transcript 06/05/2022 at 37.
In the opinion of Associate Professor Robertson, “if there was someone whose bullying – whose behaviour represented a substantive a problem, you would hear about it consistently with your therapist.” [86]Dr Barrett agreed.
[86] Transcript 06/05/2022 at 40.
Associate Professor Robertson described Ms Shakespeare’s situation:
So I think what we have is a situation of someone whose anxiety and whose function bounces around, depending on what’s happening in the workplace on the day. Some people you like, some people you don’t like. The people you don’t like might have a more hypertrophic effect on your psychological state than others.
But I would accept the premise ultimately it it’s more what’s going on inside the head of the person and the reality what’s happening around.[87]
[87] Transcript 06/05/2022 at 42.
Dr Barrett expressed the opinion that in Ms Shakespeare had suffered “a gradual reduction in functioning over time progressively” as a result of the cumulative effect of multiple stressors over a lifetime.[88]
[88] Transcript 06/05/2022 at 42.
Although I am satisfied that Ms Shakespeare’s employment made some contribution to the aggravation of her depression, taking into account all of the evidence I cannot be satisfied that any such contribution was to a degree that was significant, within the meaning of subsection 5B(3). In reaching this conclusion I am satisfied on the balance of probabilities, that before commencing employment at Centrelink, Ms Shakespeare suffered from mental conditions and vulnerabilities which manifested themselves in her working environment.
ISSUE 3: ARE EITHER OR BOTH OF THE PROVISIONS OF SECTIONS 7 AND 53 APPLICABLE IN THIS MATTER?
As a result of the conclusion I have reached above, it is unnecessary that I consider the provisions of sections 7 and 53 of the Act.
G: CONCLUSION
The reviewable decision made 31 May 2018, being the decision of the Comcare to affirm its earlier determination denying liability to compensate Ms Shakespeare in respect of the claimed injury, will be affirmed.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
...................................[SGD].................................
Associate
Dated: 8 July 2022
Date(s) of hearing: 17 September 2019, 16 March 2021, 17 March 2021, 18 March 2021, 14 May 2021, 6 May 2022
Counsel for the Applicant: Mr B McManamey Solicitors for the Applicant: Mr C Hobbs, Peninsula Law Counsel for the Respondent: Mr M Gollan Solicitors for the Respondent: Mr C Wong, Comcare
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