Spaul and Comcare
[2006] AATA 915
•27 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 915
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2004/389
GENERAL ADMINISTRATIVE DIVISION ) A2006/73 Re FRANK SPAUL Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member Date 27 October 2006
Place Canberra
Decision 1. In matter A2004/389 the decision of Comcare made 13 December 2004 is set aside and in substitution it is decided that:
a) Comcare is liable to pay compensation to Mr Spaul in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being an Adjustment Disorder with mixed anxiety and depressed mood suffered on 20 November 2003;
b) the injury has resulted in a 10% whole person permanent impairment of Mr Spaul, and Comcare is liable to pay compensation to Mr Spaul in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
2. In matter A2006/73 the decision of Comcare made 31 March 2006 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Mr Spaul in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury being an aggravation of an adjustment disorder with mixed anxiety and depressed mood suffered in the period July 2004 to September 2004 inclusive.
3. Each party has liberty to apply for a direction in relation to the costs of these proceedings but if no such application is made within 14 days of the date of this decision the costs of these proceedings incurred by Mr Spaul shall be paid by Comcare.
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Adjustment disorder with mixed anxiety and depressed mood – Material contribution of employment – Reasonable disciplinary action – Failure to obtain a benefit – Permanent impairment – Degree of impairment.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 16, 24
Hart v Comcare (2005) 145 FCR 358
Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Trewin v Comcare (1998) 84 FCR 171
Re Patrick and Comcare (1997) AATA 11609
REASONS FOR DECISION
27 October 2006
J.W. Constance, Senior Member
INTRODUCTION
1. In the past Mr Spaul enjoyed a highly successful career in the Australian Public Service. Amongst his many achievements he saved the Health Insurance Commission millions of dollars in workers compensation premiums during the time he worked in the compensation area of the Personnel Management Division. Unfortunately, it appears that some in the Commission decided that Mr Spaul had ceased to be a valued employee. His employment was terminated in September 2004.
2. As a result of the treatment he received whilst employed by the Commission and in part as a result of the termination of his employment, Mr Spaul developed a chronic condition of Adjustment Disorder with mixed anxiety and depressed mood. Comcare has refused three claims for compensation and Mr Spaul has sought a review of these decisions.
3. The first and second claims were for incapacity payments /medical expenses and permanent impairment respectively. The first was made on 16 July 2004 and the second on 16 September 2004. The decision to refuse these claims is subject to review in matter A2004/389.
4. The third claim (A2006/73) was made on 30 August 2005 and was for compensation for an injury arising from the Commission’s action in terminating Mr Spaul’s employment and its actions leading up to that termination. The decision to refuse this claim is subject to review in matter A2006/73.
5. For the reasons that follow I have decided the decisions of Comcare should be set aside and that in substitution, decisions be made that Mr Spaul is entitled to the compensation he seeks.
EVIDENCE AND FINDINGS OF FACT
6. Unless otherwise stated, the following findings of fact are made on the basis of the evidence of Mr Spaul. I am satisfied of these facts on the balance of probabilities.
7. As I have already stated, Mr Spaul enjoyed a long and successful career in the Australian Public Service. During his career he gained the degrees of Bachelor of Commerce and Bachelor of Legal Studies. Between 1983 and 1988 he was employed by the Office of the Commissioner for Employees Compensation and rose to the position of Assistant Commissioner, Claims and Policy. In 1988 he commenced employment with the Health Insurance Commission.
8. Between 1992 and 1996 Mr Spaul worked in the compensation area of the Personnel Management Division. In this position he dealt with compensation claims by employees of the Commission and his main responsibility was to reduce the Commission’s compensation liability. Mr Spaul achieved considerable success in this position so it came as a shock to him when, in 1996, his position was abolished and he was told that he had been declared potentially excess. He was then made a project officer with his sole responsibility being to investigate the possibility of self-insurance for the Commission. During 1996 he was asked several times by his superiors whether he would take a redundancy. He advised his superiors that he was not interested in such a proposition.
9. By 1998/1999 the Commission’s premiums had again risen to such an extent that Mr Spaul was asked to assist in their reduction. Mr Spaul took on this responsibility and introduced a new premium reduction strategy. In the first year of this strategy, the rate of increase in premiums was halved and in the second year premiums began to reduce, with the Commission saving in the vicinity of $3 million. Mr Spaul received an Excellence in Service Award from the Commission. His achievements were mentioned in the Commission's annual reports and by Comcare and other organisations.
10. In mid 2000 Mr Dominic Downie, a former employee of Comcare, was appointed as the Commission’s General Manager of Human Resources. Within a month of his appointment and at their first meeting, Mr Downie asked Mr Spaul whether he wished to take a redundancy. Mr Spaul said that he did not. This was after Mr Spaul explained the new premium reduction policy to Mr Downie and Mr Downie expressed his view that decisions of Comcare in relation to liability should not be contested. Mr Spaul was "horrified" at this suggestion.
11. In mid 2001 Mr Downie again raised with Mr Spaul the possibility of redundancy and again Mr Spaul said he was not interested. Mr Downie requested that Mr Spaul investigate the possibility. In November of the same year Mr Downie asked Mr Spaul if he had proceeded further with investigating a redundancy. Mr Spaul told him that he had not and that he had not had the opportunity to do so. Mr Downie became angry and was abusive to Mr Spaul because he had not done as he had been asked.
12. Mr Downie’s conduct made Mr Spaul feel that he was of no value to the organisation. He began to find it difficult to go to work. When Mr Spaul attended divisional meetings with Mr Downie, Mr Downie would ask other section heads for comments but would not ask Mr Spaul.
13. In April 2002 there was another reorganisation of Mr Spaul's area and he was restricted in the type of work he was performing. He no longer supervised staff. By 2003 Mr Spaul described his existence at work as follows:
"I virtually disappeared into my office..... In the office, I was left to effectively, my own devices and even though I would say I was achieving a result, it wasn't a real result at all, because nobody cared….. I might as well not have been there. I felt marginalised ". [1]
[1] Transcript of Proceedings, 8 May 2006, pp 22-23.
14. In April 2003 Ms Julia Burns, who was acting in Mr Downie's position, told Mr Spaul that by reason of budgetary constraints, his position was to be abolished and there would be a number of options for him to consider. Ms Burns offered Mr Spaul three options. The first was for Mr Spaul to take a new position of Manager Physical Security at the same level in which he was then employed. The second was a redundancy and the third was to take a three to six month secondment with a legal firm arranged by the Commission followed by a redundancy and then re-engagement within the Commission. In relation to the third option Ms Burns put to Mr Spaul that he would be re-engaged on terms to be agreed. Mr Spaul had previously suggested that he be sent on secondment with a firm of solicitors for training with a view to acting as an in-house solicitor for the Commission. Mr Spaul confirmed his understanding of Ms Burn’s proposal by e-mail to her on 11 April 2003.[2] Ms Burns responded by e-mail on 13 April 2003.[3] This e-mail did not dispute Mr Spaul's understanding of their discussions and indicated that the offer of the security position would remain open until 30 April 2003.
[2] Exhibit A3.
[3] Exhibit R23, T9.
15. Having received the e-mail of 13 April 2003, Mr Spaul accepted the position of Manager Physical Security[4] although he had no experience in this field. When he accepted the position he reiterated that his first preference was the secondment option or some variation of it. He decided to take the security position even though there was still the chance of secondment because he enjoyed working and would not reach retirement age for another three years. Mr Spaul was not interested in a simple redundancy. He enjoyed the work that he was doing for the Commission and his performance reports were excellent.
[4] By email of 9 May 2003, Exhibit R23, T9.
16. Mr Spaul was cross-examined at length as to the preferred option he was seeking from his employer. He was clear in his evidence that he had never sought to go through the process of redundancy, secondment and re-engagement. I accept this evidence and I am satisfied on the balance of probabilities that Mr Spaul never sought this process, rather it was something that arose from suggestions by his employer that he should consider a redundancy.
17. Despite his having accepted the security position, Mr Spaul and Ms Burns continued to negotiate by e-mail in relation to the possibility of Mr Spaul being seconded to a legal firm. On 10 June 2003 Ms Burns e-mailed Mr Spaul[5] saying that, subject to the arrangements outlined in her e-mail of 29 May 2003, she thought they had reached an agreement. The latter e-mail included the following:
[5] Exhibit R23, T9.
“Any work which HIC seeks to engage you to undertake will be at our discretion to offer and yours to accept or decline (ie neither party is guaranteeing that contract work will be undertaken)."
18. Mr Spaul then instructed solicitors to act for him in further negotiations with the Commission. On 17 June 2003 the solicitors wrote to the Commission and set out Mr Spaul's understanding of the agreement which had been reached. One of the terms the solicitors said had been incorporated in the agreement was:
"He will be re-engaged by HIC on contract (details yet to be agreed)." [6]
[6] Exhibit A5.
19. Upon receiving this letter Ms Burns spoke to Mr Spaul. She told Mr Spaul that she was “gob-smacked and furious” and that "the deal is on the table, take it or leave it". At the end of that conversation Mr Spaul understood that the proposal that he be re-engaged as a consultant was no longer open for negotiation and having reached this conclusion he reaffirmed his acceptance of the position of Manager Physical Security.
20. At this stage Mr Spaul felt that he could no longer cope with the position at work and decided to take long service leave. By this time Mr Spaul believed the Commission had not negotiated honestly. He also believed that he should have continued with the implementation of his acceptance of the security position of which he notified the Commission on 9 May 2003. He described his feelings at the time as follows:
“I just couldn't cope with it any more. Just could not cope with the dealings that had happened with HIC over the last three months...... [I]n terms of me going to work and sitting in the office, I'd virtually go to a meltdown situation. I’d go to the office, start working and basically, physically and mentally, I'd just stop. I would just physically and mentally stop and I just couldn't perform any more. And - no, I'd reached that - that stage that I just had to come to the end of my tether." [7]
[7] Transcript of Proceedings, 8 May 2006, p. 39.
21. Mr Spaul commenced a period of long service leave on 3 July 2003. Prior to his going on leave it was agreed that he would return to work on 13 November 2003 although this was subsequently extended by agreement to 20 November 2003. Mr Spaul described how he felt whilst on leave:
“I tried to get over what had happened, and I must admit I didn't get over what had happened...... My anxieties increased. I had panic attacks. I hated going anywhere near HIC. Sometimes I was forced to and I had no option to do so. So, I just tried to get over what had happened..... I think when I dealt with people I - I started to fail in terms of my voice and how I dealt with people. I became very insecure in dealing with people." [8]
[8] Transcript of Proceedings, 8 May 2006, p. 40.
22. Whilst on leave Mr Spaul consulted his general practitioner, Dr Wright. Mr Spaul said that he was "panicking about having to go back to the office" but that Dr Wright encouraged him to return to work.
23. At 8:30 a.m. on 20 November 2003 Mr Spaul reported to the office of his new position and asked to meet his new supervisor, Ms Williams. Ms Williams was not present at the office and attempts by staff to contact her to inform her of Mr Spaul's presence were unsuccessful. Mr Spaul waited until 2:30 p.m. and then left the office as nothing further could be achieved. Mr Spaul felt "absolutely disgusted" and felt he had been treated "as if [he] didn't exist".[9] When he attended the office at 8:30 a.m. the next day he met Ms Williams who told him that she had not been informed he was coming back. Before taking his long service leave Mr Spaul had spoken to Ms Williams concerning his new position and I am satisfied that Ms Williams was aware Mr Spaul was to take up a position under her supervision on 20 November 2003.
[9] Transcript of Proceedings, 8 May 2006, p. 42.
24. During their conversation on 21 November 2003 Ms Williams also informed Mr Spaul that another person was acting in his position until the end of November 2003. She asked Mr Spaul not to speak to that person until she had done so as she did not want the person acting in the position to be upset. She also told Mr Spaul that she had not arranged any accommodation for him or any place for him to sit but that he could use the desk of a person who was away that day whilst she made other arrangements. She then proceeded to advise Mr Spaul that unfortunately she had arranged redundancies for some people whilst he was away. Mr Spaul was left with the impression that he was not expected back at work and nobody wanted him back. He felt he could not cope with the way in which he was being treated. He gave the following evidence, which I accept:
“..... I live to go to work and I actually enjoyed the work that I was doing and whilst I was achieving the results that the organisation wanted me to achieve, then that satisfied me. And in fact I got a great big buzz out of it. But when I was treated like nothing, I just couldn't cope with that. …… to be quite candid, it was still a senior position within the organisation and it should have been worth at least something. And maybe I should have at least been worth something." [10]
[10] Transcript of Proceedings, 8 May 2006, pp 45-46.
25. Mr Spaul did not attend work on the next working day (24 November 2003). He consulted Dr Wright who certified him to be unfit for work. Mr Spaul did not return to work at the Commission from that time.
26. Sometime prior to 23 January 2004, Mr Spaul was contacted by Ms Monica Madden from the Commission who told him that as his was now a compensation matter, it was necessary that rehabilitation be commenced. She told Mr Spaul that she had arranged for him to see Dr Anna Crichton. Ms Crichton is a consultant psychologist, not a medical practitioner. Mr Spaul was assessed by Ms Crichton on 23 January 2004 and 5 February 2004.
27. Mr Spaul received a letter dated 8 January 2004[11] advising him that the assessment carried out by Ms Crichton was an assessment of his fitness for duty under the Commission’s Fitness for Duty Policy and Guidelines.[12] Mr Reece Parry, the Commission’s Human Resources adviser, only conceded that this was the reason for this assessment after lengthy cross-examination. The Guidelines provide for assessment by a Suitable Health Assessor, being a medical officer of Health Services Australia, a registered medical practitioner, and/or a medical specialist. At no time did Ms Crichton qualify as a Suitable Health Assessor.
[11] Exhibit R23, T7.
[12] Exhibit R23, T7.
28. In May 2004 there was a mediation between the Commission and Mr Spaul in an attempt to determine future action acceptable to both parties. The mediation did not resolve the issues between them. Preparation notes for Ms Howson, who represented the Commission at the mediation, included the following entry:
“No goes:
…………………………………………….
·Continuing the relationship with HIC.” [13]
[13] Exhibit A27.
29. On 16 July 2004 Mr Spaul lodged his first claim for compensation.
30. On 22 July 2004 the Commission issued Mr Spaul with a direction that he re-attend Ms Crichton on 3 and 10 August 2004 for a review assessment. On 25 July 2004 Mr Spaul travelled to Melbourne to assist his daughter, who had suddenly fallen seriously ill. Mr Spaul advised Ms Madden by telephone of his daughter's illness and that he would deal with the matter of his reassessment upon his return to Canberra. On 9 August 2004 Mr Spaul received a letter from the Commission, delivered by courier to his Canberra address the previous day, directing him to attend the assessment of Ms Crichton on 10 August 2004.
31. At this time, Mr Spaul was on leave from the Commission. He felt in a state of panic and wrote to the Commission asking for his doctors to be contacted if he was required to attend the appointments with Ms Crichton. A few days later he received another letter from the Commission confirming the direction that he attend an appointment with Ms Crichton on 25 August 2004. Mr Spaul again wrote to the Commission requesting that permission for his attendance be obtained from his doctors. On 18 August 2000 the Commission wrote to Mr Spaul confirming the direction that he attend the assessment on 25 August 2004. Mr Spaul again requested contact be made with his doctors. By this stage Mr Spaul had been certified unfit for work for a period of six months by Dr Wright. Mr Spaul did not receive a response to his several requests that the Commission contact his doctors in relation to the proposed reassessment by Ms Crichton. Mr Spaul saw his psychiatrist, Dr Veness, on 24 August 2004. Dr Veness wrote to the Commission stating that in his opinion there was no value in Mr Spaul attending a clinical psychologist.
32. Apart from some correspondence relating to solicitor's costs incurred in relation to an earlier mediation, the next communication Mr Spaul received from the Commission was a letter of 7 September 2004.[14] This letter informed Mr Spaul:
[14] Exhibit A6.
· his employment with the Commission was terminated with immediate effect;
· the first ground for the termination was “your inability to perform the inherent requirements of your position because of your physical and/or mental incapacity on the basis of medical evidence that your adjustment disorder prevents you working for HIC”;
· the second ground for the termination was “your serious misconduct in failing to comply with the lawful and reasonable directions of HIC on four occasions to attend upon HIC’s medical service provider, Ms Anna E Crichton, Clinical Psychologist, for a medical review assessment";
· the notice of termination was given under subsections 170CK(3) and CM(7) of the Workplace Relations Act 1996 in conjunction with clause 20 of the HIC Certified Agreement 2003 - 2005 and Condition No. 18 of the Commission’s Terms and Conditions of Employment.
A formal notice of termination accompanied the letter.
33.In giving evidence Mr Spaul said:
“HIC’s summary dismissal of [me] -- because of my physical and mental incapacity, as well as my serious misconduct, it brought me to my knees. I just -- I just couldn't emotionally cope. But I don't think I've ever stopped that." [15]
[15] Transcript of Proceedings, 8 May 2006, p. 55.
34. Mr Spaul now takes medication for an adjustment disorder. He has lost much of his confidence in dealing with people and feels that he has difficulties in expressing himself. He experiences difficulties in sleeping. He is assisting his daughter by caring for her children in Melbourne and dislikes travelling to Canberra as he does not want to meet people with whom he previously worked. He feels that he has been “brought to [his] knees” and he still has not recovered.[16]
[16] Transcript of Proceedings, 8 May 2006, p. 58.
Evidence of Ms Williams
35. Ms Williams gave evidence she was unprepared for Mr Spaul's return on 20 November 2004. In cross-examination she was reluctant to give a reason for this lack of preparedness, other than she was of the view that Mr Spaul should have telephoned her to confirm that he would be coming to work. When pressed by counsel Ms Williams admitted that she did not believe Mr Spaul was ever going to return to work after his long service leave. She did not give a satisfactory explanation for this belief. She denied that she was aware of any preference of Ms Burns or Mr Downie that Mr Spaul leave the organisation.
36. Ms Williams was argumentative and at times non-responsive when giving evidence. In instances of conflict between her evidence and that of Mr Spaul, I prefer the evidence of Mr Spaul.
Evidence of Ms Madden
37. Ms Madden also gave evidence. On 28 July 2004 she spoke to Ms Crichton concerning the appointments made for the reassessment of Mr Spaul on 3 August 2004 and 10 August 2004. Ms Madden's file note of that conversation reads:
“Called Anna Crichton to advise Frank does not want to attend the appointments on 3 and 10 August, would rather see his own psychiatrist. In light of this would Anna consider reducing the number of appointments from 2 to 1? Anna at advised she would not be willing to as if she does need to give evidence, not only would it impact on her professional integrity, it would weaken HIC’s case. Non-attendance by Frank would incur a $331 fee which is a small price to pay for strengthening our case." [17]
[17] Exhibit R11.
Although she was questioned at length, Ms Madden did not give a credible explanation for what she meant by her note that incurring the $331 fee would be "a small price to pay for strengthening our case". She suggested that it arose from something that Ms Crichton had said.
Ms Madden also gave evidence that on 29 July 2004 Mr Spaul informed her that his daughter was ill and that he was in Melbourne.
Evidence of Ms Crichton
38. Ms Crichton gave evidence as to the contents of the file note of the conversation of 28 July 2004 between herself and Ms Madden. She denied that the reference to "strengthening our case" followed from anything she had said. Ms Crichton said that she would not have given advice as to the strengthening or weakening of a case and certainly did not see her independent report as part of anybody's case. She regards herself as an independent assessor. Ms Crichton gave evidence in a forthright manner and I am satisfied that she is an honest witness. I accept her evidence in preference to that of Ms Madden.
39. Ms Crichton also stated that on 23 January 2004 she received a letter from the Commission signed by Ms Madden. A copy of this letter is in evidence.[18] It confirms that the Commission's instructions to Ms Crichton were to conduct a fitness for duty assessment of Mr Spaul. The letter contained information as to Mr Spaul's history with the Commission and a number of supervisors’ statements. Prior to receiving this letter Ms Crichton had a telephone conversation with either Mr Reece Parry from the Commission or a Ms Pacor from Corporate Medical Options on behalf of the Commission. Ms Crichton was not sure which. On the basis of the evidence of Mr Parry, I am satisfied on the balance of probabilities that the conversation was between Ms Crichton and Mr Parry. The conversation concerned Mr Spaul and Ms Crichton's file note [19] includes the following record of what she was told:
·“Organisation changed directions";
·"He couldn't change";
·"Fighting rather than negotiating";
·"Not a long-term role".
[18] Exhibit A15.
[19] Exhibit A14.
Ms Crichton understood that the people who referred Mr Spaul needed advice regarding the options available to them.
Evidence of Mr Parry
40. During 2003 and 2004 Mr Parry was a Human Resources adviser employed by the Commission. He was the person in the Commission who was most familiar with Mr Spaul's compensation claim.
41. Mr Parry agreed that after the failed mediation attempt the Commission was in possession of two certificates from Dr Wright and an opinion from Ms Crichton indicating that Mr Spaul was unfit for work at the Commission.
42. Mr Parry gave evidence as to his recollection of the conversation with Ms Crichton. He did not give a satisfactory explanation as to why he considered it necessary to provide the additional information by telephone rather than include it in the letter of instructions. Mr Parry did not keep a file note of this conversation.
43. Mr Parry said that "absolutely in every case” [20] of a disciplinary process the Commission establishes a discipline file. He also said that the Commission's terms and conditions of employment allowed for the summary dismissal of an employee believed to have been guilty of serious and wilful misconduct and that such a process does not require a disciplinary process. There was no discipline file established in relation to Mr Spaul. Mr Parry said that it was not until the "very end" when, in his view, Mr Spaul was not following the directions that it became a matter of serious and wilful misconduct.
As of 30 June 2004 it was Mr Parry’s view that unless the Commission received medical advice that Mr Spaul could return to work, it would be necessary to terminate his employment.[21] His opinion was that "everybody" agreed that rehabilitating Mr Spaul back into the organisation was not an option.[22]
[20] Transcript of Proceedings, 11 May 2006, p. 381.
[21] Transcript of Proceedings, 18 July 2006, p. 452.
[22] Transcript of Proceedings, 18 July 2006, p. 454.
CORRESPONDENCE
44. On 5 July 2004 Clayton Utz, the Commission’s solicitors, wrote to the Commission referring to its request for advice in relation to the possible termination of an employee for unsatisfactory performance or incapacity. The request for this advice was not in writing. As well as providing the advice Clayton Utz also provided advice on terminating an employee on the ground of serious misconduct. One example of such misconduct referred to in the advice was refusing to carry out a lawful and reasonable instruction. Two examples of such a refusal were given, one of which was refusal to attend a medical examination to determine if the employee was medically fit to resume duty. Unlike the other examples, the solicitors quoted a Federal Court authority for this proposition. I am satisfied on the balance of probabilities that on or before 5 July 2004 someone on behalf of the Commission requested advice from Clayton Utz in relation to the possibility of terminating an employee’s employment if he or she failed to attend appointed medical examinations. Mr Spaul was first notified of a proposed reassessment by Ms Crichton on 22 July 2004.
45. On 9 July 2004 Clayton Utz forwarded to Mr Parry a draft letter of advice in relation to Mr Spaul. The draft letter stated that Mr Spaul's employment could only be terminated for incapacity on and from 24 November 2004, being the date of expiry of his sick leave. The letter did not refer to the possibility of termination on the basis of misconduct. A draft letter to Mr Spaul "in relation to the possible termination of [his] employment because of [his] medical condition" was attached.[23]
[23] Exhibit A23.
46. On Friday 16 July 2004 there was a discussion between Mr Parry and Dr Sernack of Clayton Utz concerning the contents of the draft advice. Mr Parry was very vague as to what was discussed and the instructions he gave. Again, he was unable to produce a file note of that discussion or his instructions. On the same day Mr Parry became aware that Mr Spaul had filed an application for compensation for an injury arising out of his employment.
47. On 19 July 2004 Dr Sernack emailed Mr Parry as follows:
“We undertook to provide advice on Mr Spaul’s situation and attach a draft along the lines we discussed on Friday. The attached has been considerably refined from that provided on 9 July, with the aim of addressing all of the possible options and issues for HIC.
Please let me know if the attached meets your requirements." [24]
[24] Exhibit A24.
48. On 20 July 2004 Mr Parry advised that the draft seemed to address everything the Commission needed at that time. He advised Dr Sernack that Mr Spaul had lodged a compensation claim and that the Commission would probably proceed with the termination option after it had obtained updated advice from Ms Crichton. Mr Parry then asked that providing the lodging of the compensation claim did not change that advice, the advice be issued in final form.
49. The letter of advice was issued in final form on 20 July 2004.[25] It did not contain the draft advice that the earliest time at which Mr Spaul's employment could be terminated for incapacity was 24 November 2004. Mr Parry was questioned at length as to his knowledge of the reason for the omission of this part of the draft advice. His answers were vague. He denied he had instructed Dr Sernack that the Commission wished to terminate Mr Spaul’s employment prior to 24 November 2004. His evidence was that he presumed his instructions would have been "can you just give us the advice".[26] He did not provide an explanation as to why a legally qualified person in his position would not follow the normal practice of keeping a file note of such instructions. Dr Sernack was not called to give evidence. I am satisfied on the balance of probabilities that Mr Parry gave instructions to Dr Sernack on 16 July 2004 which led Clayton Utz to delete the advice relating to the termination of Mr Spaul's employment on the grounds of incapacity. I make no finding as to the precise nature of those instructions.
[25] Exhibit R18.
[26] Transcript of Proceedings, 18 July 2006, p. 448.
50. On 29 June 2004 Clayton Utz emailed Mr Parry attaching a draft letter to Pamela Coward and Associates, Mr Spaul’s solicitors, for Mr Parry’s comments. By email of 30 June 2004 Mr Parry gave Clayton Utz the following instructions:
“I thought it was worthwhile pointing out to Frank that we will pursue rehab options if he lodges a compensation claim. In reality we wouldn't be to [sic] keen to go down this path, however, I think it serves us for him to know that we will make him remain in Canberra for rehab activities. If you think this is not a good way to go please feel free to remove." [27]
[27] Exhibit A26.
51. By letter dated the same day, Clayton Utz wrote to Pamela Coward and Associates advising of the following:
“Should your client lodge a workers compensation claim, HIC will of course undertake reasonable rehabilitation activities for your client and expect that Mr Spaul will remain in Canberra to participate in such a rehabilitation process as required under the SRC Act”. [28]
[28] Exhibit A26.
52. Mr Parry was questioned as to why he believed that making Mr Spaul remain in Canberra for rehabilitation was in the interests of the Commission. He said that the reason for this was that it was easier for the Commission to arrange rehabilitation and to supervise Mr Spaul in Canberra. He said that at that time Mr Spaul was spending time in Melbourne. He agreed the Commission had offices in Melbourne and rehabilitation services were available there. I do not accept Mr Parry's explanation. I am satisfied Mr Parry believed that it was in the interests of the Commission to inform Mr Spaul of the Commission's intentions as a disincentive to his making a claim.
53. On 6 September 2004 Mr Lapsley, Manager Strategic & Corporate Planning and Property Services forwarded a memorandum to Mr Burgess, General Manager, Governance and Financial Management Division, providing a recommendation that Mr Spaul's employment be terminated.[29] The memorandum was accompanied by a draft letter of termination and notice of termination. The attachments did not include any of the correspondence from Mr Spaul in relation to his failure to attend the assessments by Ms Crichton. Mr Parry gave evidence that he drafted this memorandum for signature by Mr Lapsley. He was of the view that if Mr Burgess required any further information before reaching his decision to terminate the employment of Mr Spaul, it was up to Mr Burgess to ask for it. Mr Parry said that he and Mr Lapsley orally briefed Mr Burgess as to the reasons given by Mr Spaul but again Mr Parry could not produce any record of this briefing. Mr Parry also gave evidence that Mr Spaul was not given the opportunity to respond to Mr Burgess directly because "with summary dismissal, that opportunity was not required".[30]
[29] Exhibit R22.
[30] Transcript of Proceedings, 18 July 2006, p. 483.
54. On 7 September 2004, Mr Burgess decided to terminate Mr Spaul's employment on the grounds of inability to perform the inherent requirements of his position and serious misconduct.[31] On the basis of the evidence of Mr Parry and the provisions of the Certified Agreement [32] I am satisfied that Mr Burgess did not have the necessary delegation to make the decision to terminate Mr Spaul's employment on the ground of serious misconduct.
[31] Exhibit R22.
[32] Exhibit R25.
Medical evidence
Dr Wright
55. Dr Wright has been Mr Spaul's general practitioner since 1979. Prior to giving evidence, he last saw Mr Spaul on 24 April 2006.
56. When Dr Wright saw Mr Spaul on 24 November 2003 (after Mr Spaul's attempt to return to work at the end of his long service leave) Dr Wright diagnosed him as suffering from “an acute adjustment disorder". In his opinion the cause of this condition was Mr Spaul’s employment.[33] At that time Dr Wright did not envisage that Mr Spaul would ever return to work. When Dr Wright saw Mr Spaul 25 February 2004 he formed the view that Mr Spaul was not psychologically able to cope with returning to work at the Commission. When Mr Spaul attended Dr Wright on 16 September 2004 after his employment had been terminated, Dr Wright's diagnosis was of continuing Adjustment Disorder with mixed anxiety and depression.
[33]Exhibit R24, T25.
57. In his report of 25 January 2005 Dr Wright expressed the opinion that the anxiety component of Mr Spaul's condition should fully resolve on cessation of the stressors and/or their consequences.
58. In his report of 13 December 2005 Dr Wright stated that:
"Mr Spaul's anxiety symptoms antedated any question of failed redundancy offers and any perceived loss of benefit...... Mr Spaul himself saw several good years of work ahead of him, and had not planned to retire before sixty-five years of age. He had a high regard of the work, effort and hours he had already put in and felt he had achieved many useful things for the H.I.C., including saving them millions of dollars." [34]
[34] Exhibit R24, T38.
59. In that report he changed the opinion he expressed in his earlier report by stating that “with the benefit of the passage of time” he had come to the conclusion that Mr Spaul had suffered a permanent impairment as a result of the illness. He agreed with Dr Veness’s estimation of 10% impairment in accordance with Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment. In his view Mr Spaul was incapable of his pre-injury employment as a result of his condition.
Dr Veness
60. Dr Wright referred Mr Spaul to Dr Veness, Consultant Psychiatrist, who first saw Mr Spaul in June 2004. Mr Spaul has consulted Dr Veness on a number of occasions since. Dr Veness has diagnosed Mr Spaul as suffering from Adjustment Disorder with mixed anxiety and depressed mood which is now chronic. In his view, Mr Spaul's condition has remained about the same although he varies from presentation to presentation, at times appearing a little more confident and in charge of things and at other times quite anxious and self-doubting. He is also of the opinion that Mr Spaul underestimates the extent of some of his symptoms and some of his cognitive difficulties. Dr Veness assessed the degree of impairment in accordance with the Comcare Guidelines at 10% whole person impairment which he said has been confirmed by neuropsychological tests. Mr Spaul reacts to the stressors of daily living with minor loss of personal and social efficiency and he does have minor distortions of thinking. It is Dr Veness’ expectation that if there is any improvement it will be only marginal or minor. [35]
[35] Transcript of Proceedings, 9 May 2006, p. 159.
61. In his report of 1 December 2005 Dr Veness commented on the neuropsychological tests carried out by Dr Lioulios to which I will refer later. Dr Veness reported that:
“I am not optimistic that his cognitive impairment will show more than mild improvement in the future. This will not prevent him from working in his chosen field but will certainly slow him down. This needs to be measured again in about a year's time. However, I am satisfied on the basis of the test results that he has a permanent impairment according to Comcare Table 5.1, of 10%." [36]
[36] Exhibit R24, T36.
62. On the question of the causation of Mr Spaul's psychiatric disorder Dr Veness said:
“The perception that he was being discarded and rejected by his employer, after such dedicated service, was a potent cause of the development of his Adjustment Disorder. When he arrived back at work after leave, in 2003, this perception was confirmed. The failure to obtain voluntary redundancy was part of a process of alienation and embitterment but it was not the cause of his adjustment disorder, for voluntary redundancy had been a possible solution to his problems, rather than the cause of them." [37]
In his report of 3 May 2005 [38] Dr Veness referred to the effect of the termination of Mr Spaul’s employment on him:
“The impact on him was great and he described "waves of revulsion and anxiety" overwhelming him. Anxiety continued throughout October. When I saw him in November he was a little better but still suffering from short bursts of acute anxiety. Bad headaches had returned to trouble him during September and October. He was also suffering from low mood. He had been staying at home, not caring, with loss of interest in life. He was finding it hard to deal with people, tripping over his own words. He was avoiding people except for a few close friends whom he saw only once a month or so."
[37] Exhibit R24, T42.
[38] Exhibit R24, T27.
63. Dr Veness last reviewed Mr Spaul on 30 March 2006. He remained of the opinions set out in the preceding paragraphs and he was not optimistic that Mr Spaul's cognitive impairment will show more than mild improvement in the future. He confirmed his view that Mr Spaul has a permanent impairment of 10% in accordance with Table 5.1.[39]
Dr Lioulios
[39] Exhibit A11, Report of Dr Veness of 2 May 2006.
64. Dr Lioulios, Clinical Psychologist and Clinical Neuropsychologist, assessed Mr Spaul, at the request of Dr Veness, to determine whether his symptoms of stress and anxiety were impacting on his capacity to function and adjust, and to determine his future employment options. In her report of 29 November 2005 [40] Dr Lioulios stated that Mr Spaul's neuropsychological profile revealed the following specific cognitive deficits:
·“reduced attention span capacity (sustained attention);
·reduced learning slope;
·reduced language production and fluency;
·slower than normal problem-solving;
·reduced category switching (slow flexibility of thought)”.
[40] Exhibit R24, T35.
She also stated that Mr Spaul's psychological profile demonstrated symptoms consistent with an Adjustment Disorder. These were the symptoms of depression marked by insomnia and sense of worthlessness, features of traumatic stress and low motivation and defensiveness. Dr Lioulios concluded that “given his reported pre-injury history of high functioning, no reported pre-existing psychological difficulties, it is reasonable to conclude that the development of the above neuropsychological deficits and psychological symptoms are directly related to the impact of the workplace stress on him."
Dr Lioulios gave evidence and confirmed these opinions.
Ms Crichton
65. Ms Crichton carried out her assessments of Mr Spaul on 3 January 2004 and 5 February 2004. These assessments were at the request of the Commission to determine Mr Spaul's fitness to return to work. In a detailed report of 16 February 2004 [41] Ms Crichton stated:
“The behavioural, observational, historical and psychometric data indicate that Mr Spaul is suffering from Adjustment Disorder With Anxiety And Depression, currently in remission, mostly due to the fact that he has had a respite from, and no contact with, his place of employment. He remains vulnerable and, should he be forced to return to HIC, he is likely to suffer a relapse......
His present condition stems from work-related causes. No family or personal contributing courses have been detected in this assessment......
I would not recommend a return to his present employment, as it would invariably lead to deterioration in his condition and a high possibility of the Adjustment Disorder becoming a chronic disability."
[41] Exhibit R24, T11.
Dr Skinner
66. In April 2005 Mr Spaul was assessed by Dr Skinner, Consultant Psychiatrist, at the request of the solicitors for Comcare. Dr Skinner provided a report dated 30 May 2005.[42] Dr Skinner reported that in her opinion Mr Spaul did not suffer from any psychiatric disorder or psychological condition at the time of the examination but that he did suffer from a recurrent condition, namely anxiety, at times with panic attacks, in the context of his perception of stress. In Dr Skinner's opinion, Mr Spaul's failure to obtain a redundancy contributed to his condition, but the effects of any work-related aggravation of Mr Spaul's anxiety have ceased. She continued:
"Mr Spaul is capable of doing full-time work in normal duties in his pre-injury position. However, he does not wish to return to the same position and if he were to do so, he would probably suffer a recurrence of anxiety symptoms because he would be reminded of the problems experienced in that position...... I believe that treatment could be ceased if an appropriate position could be found by him to return to work."
[42] Exhibit R24, T28.
67. Dr Skinner gave evidence. She confirmed the views expressed in her report. However, in cross examination, Dr Skinner agreed that there were a number of aspects of Mr Spaul's history of which she was unaware and which may have been of assistance to her in making her assessment. These included information as to the views of Dr Champion, a psychiatrist who saw Mr Spaul in 1978, the impact of Mr Spaul having been dismissed on the ground of serious misconduct and the process of negotiation that took place between Mr Spaul and the Commission from April to July 2003. Dr Skinner also said that when she assessed Mr Spaul he was still on antidepressant medication, he had not been subject to work related stressors for a period of time and he was being treated by Dr Veness. Dr Skinner agreed that it was not appropriate for Mr Spaul to return to the work which he had done previously at the Commission. She believed that if he did so he would be likely to suffer a recurrence of symptoms. She accepted that at the time Dr Veness made his diagnosis of Mr Spaul's condition, the diagnosis may have been correct.
THE STATUTORY FRAMEWORK
68. By reason of section 14 of the Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work. The relevant part of the definition of “injury” in section 4 is:
“(a) a disease suffered by an employee….
but does not include any such disease, injury or aggravation
suffered by an employee as a result of reasonable disciplinary
action taken against the employee or failure by the employee to
obtain a promotion, transfer or benefit in connection with his or her
employment.”
The definition of “disease” is “any ailment suffered by an employee…… being an ailment…… that was contributed to in a material degree by the employee’s employment ……”.
ISSUES FOR DETERMINATION
69.The following issues arise for determination:
1)does Mr Spaul suffer an ailment, or an aggravation of an ailment, that was contributed to in a material degree by his employment by the Commission;
2)if so, was the ailment or the aggravation suffered by Mr Spaul as a result of reasonable disciplinary action taken against him;
3)alternatively to the second issue, was the ailment or the aggravation a result of Mr Spaul's failure to obtain a benefit in connection with his employment;
4)has Mr Spaul suffered a permanent impairment;
5)if so, what is the degree of that impairment?
DETERMINATION OF THE ISSUES
Does Mr Spaul suffer an ailment, or an aggravation of an ailment, that was contributed to in a material degree in by his employment by the Commission?
70. Comcare conceded that there was sufficient evidence for me to make a finding that Mr Spaul was suffering from an adjustment disorder with mixed anxiety and depressed mood in July 2003 when he commenced his long service leave. It was appropriate that this concession be made. Comcare also conceded that Mr Spaul may have been continuing to suffer the adjustment disorder in September 2004 (when his employment was terminated) and thereafter, but argued that there was no medical evidence that that determination led to a fresh injury or any discrete aggravation of the disorder. Comcare also argued that by April 2005, when Mr Spaul was assessed by Dr Skinner, he no longer suffered from the disorder.
71. On the basis of the evidence of Dr Wright and Dr Veness I am satisfied on the balance of probabilities that from November 2003 Mr Spaul has suffered from an adjustment disorder with mixed anxiety and depressed mood and that this condition is now chronic. In reaching this conclusion I have also taken into account the evidence of Dr Lioulios that the results of the tests which she conducted demonstrated symptoms consistent with this diagnosis and the evidence of Ms Crichton who made the same diagnosis in February 2004.
72. I prefer the evidence of the practitioners referred to in the previous paragraph to that of Dr Skinner. Dr Wright, Dr Veness and Ms Crichton had the benefit of assessing Mr Spaul whilst he was still employed by the Commission and being directly affected by the stressors of that employment. Their opinions were supported by the tests carried out by Dr Lioulios. As Mr Spaul’s general practitioner Dr Wright had the benefit of many consultations with Mr Spaul and as his treating psychiatrist Dr Veness saw him on several occasions. On the other hand Dr Skinner assessed Mr Spaul on one occasion in April 2005. I have taken into account also that Dr Skinner failed to take a full history from Mr Spaul and that had she done so she would have obtained additional information which may have caused her to form a different opinion to that which she expressed to me. Dr Skinner acknowledged that such information would have been of assistance to her. Further, Dr Skinner assessed Mr Spaul at a time when he was on antidepressants. He had also been removed from the stressful work situation and was under treatment by Dr Veness.
73. I found Doctor Skinner's report of limited assistance as she did not satisfactorily explain the inconsistencies in her views expressed in that report. On the one hand she expressed the opinion that Mr Spaul does not suffer from any psychiatric disorder or psychological condition and on the other hand that “he has a recurrent condition, anxiety, at times with panic attacks in the context of his perception of stress." [43] In her report Dr Skinner said that Mr Spaul is not suffering from an incapacity and is capable of doing full-time work, yet she also stated that treatment could be ceased "if [emphasis added] an appropriate position could be found for him to return to work". In the same report she also said that she did not consider that Mr Spaul requires ongoing medical treatment.
[43] Exhibit R15, p. 9.
74. I also accept the evidence of Dr Wright, Dr Veness, Dr Lioulios and Ms Crichton that it was Mr Spaul's employment by the Commission which caused his illness and on the basis of this evidence I am satisfied that there was a contribution in a material degree. For the reasons I have stated above, I prefer this evidence to that of Dr Skinner. Having considered all the evidence I am not satisfied that there were any factors outside Mr Spaul's employment which contributed to his condition.
75. On the basis of the evidence of Dr Wright and Dr Veness I am also satisfied that the condition of Adjustment Disorder with mixed anxiety and depressed mood was aggravated by the conduct of the Commission in terminating Mr Spaul’s employment and that this aggravation is ongoing.
Was the aggravation of the Adjustment Disorder with mixed anxiety and depressed mood suffered by Mr Spaul as a result of reasonable disciplinary action taken against him?
76. The determination of this issue requires the consideration of three subsidiary questions:
·was the action taken against Mr Spaul “disciplinary action” ?
·if so, was it “reasonable” ?
·if it was reasonable disciplinary action, was the adjustment disorder suffered by Mr Spaul as a result of that action?
77. It is clear that if the adjustment disorder was a result of reasonable disciplinary action, even if there were other contributing causes, the condition is not an injury within the meaning of the Act as it does not come within the definition of "injury" in section 4: Hart v Comcare (2005) 145 FCR 358. The same is true in relation to a failure to obtain a benefit to which I refer later in these reasons.
78. Counsel for Comcare has argued that as the Act requires that the disciplinary action be "reasonable" this allows for "some failings, deficiencies and flaws". It was also argued that, "at the end of the day, the relevant question is whether or not the disciplinary action produced an unfair result." [44] I do not agree with that proposition. The relevant questions which the Act requires to be answered are those set out above.
[44] Counsel’s written submission, 4 August 2006.
79. The Federal Court considered the term “disciplinary action” in Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75:
“In the context of the definition of “injury” in s 4(1) of the Act, the phrase “disciplinary action” means no more than reasonable action lawfully taken against an employee in the nature of or to promote discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to and enforceable against the employee by virtue of his or her employment by the Commonwealth. The disciplinary action referred to in the definition is action which has been taken against the employee prior to the injury being suffered by the employee as a result of such action. What is clear to my mind is that it is the disciplinary action itself and not the steps anterior to the decision to take such action which is covered by the definition…. Thus, action taken to determine whether or not disciplinary action will be taken against an employee, although it may be characterised as part of a system or process to maintain discipline, is not action within the meaning of the definition of “disciplinary action” in the Act." [45]
[45] At p. 83.
80. This is not the usual case of a disciplinary process within the Public Service. One normally expects to see a process involving the notification of a charge or charges, an enquiry and submissions by the employee. Even on Comcare’s own evidence the only disciplinary process against Mr Spaul was the notification to Mr Spaul that his employment was terminated. As previously stated, Mr Parry gave evidence that the practice of establishing a disciplinary file "absolutely in every case" was not followed in Mr Spaul's case and it was only at "the very end" that Mr Spaul's actions became serious misconduct. This supports the view that the only possible disciplinary action involved, if it can be properly classified as such, was the actual notification to Mr Spaul that his employment was terminated.
81. I am satisfied that Mr O'Brien's decision to terminate Mr Spaul’s employment on the grounds of serious misconduct was not disciplinary action within the meaning of the Act. I am satisfied that that the process was a sham and that its real purpose was to achieve a severance of the employment relationship between the Commission and Mr Spaul for reasons unrelated to a breach of discipline (assuming that there was one). In reaching this conclusion I have taken into account the following:
a) Mr Spaul was not given the opportunity to address Mr O’Brien as to why his employment should not be terminated;
b) the absence of briefing notes of the discussions between Mr Lapsley, Mr Parry and Mr Burgess prior to Mr Burgess making the decision;
c) Mr Spaul was asked several times, as far back as 1996, to take a redundancy and he consistently refused to do so;
d) Mr Parry found it necessary to telephone Ms Crichton to give her further information (including advice that Mr Spaul's role was not long term) which could have been included in the letter of instructions but was not;
e)the notes for the Commission’s representative at the mediation in May 2004 included a reference to Mr Spaul continuing a relationship with the Commission as a “no go”;
f) by the end of June 2004 Mr Parry had formed the view that “everybody" had agreed that the rehabilitation of Mr Spaul back into the organisation was not an option;
g) the antipathy of Mr Parry to Mr Spaul as evidenced by Mr Parry's intention to discourage Mr Spaul from making a compensation claim by advising him of the Commission’s intention to make Mr Spaul remain in Canberra for rehabilitation should such a claim be made;
h) the unexplained deletion (very shortly after Mr Spaul made his claim for compensation) of the draft advice as to termination for incapacity proposed to be tendered by Clayton Utz;
i) the absence of file notes by Mr Parry of verbal instructions to the Commission’s solicitors and the absence of file notes of his verbal instructions to Ms Crichton;
j) the inclusion in the letter of advice dated 30 June 2004 from Clayton Utz of specific advice as to the termination of employment based on failure to attend a medical appointment and a lack of satisfactory explanation as to why this particular advice was included;
k) Ms Madden's note of 28 July 2004 that the fee for non-attendance by Mr Spaul at the proposed reassessment by Ms Crichton would be "a small price to pay for strengthening our case" and the lack of a satisfactory explanation as to what was meant by it.
82. Even if the process undertaken was not a sham, the fact that Mr Burgess did not hold the necessary delegation to make the decision to terminate Mr Spaul's employment on the ground of misconduct of itself makes the purported decision a nullity and therefore not "disciplinary action".
83. If I am incorrect in holding that there was no disciplinary action against Mr Spaul I am satisfied on the balance of probabilities that the disciplinary action was not reasonable. Mr Spaul was a senior member of staff who had given many years of exemplary service to the Commission. The direction to attend the reassessment by Ms Crichton was given at a time when Mr Spaul was on leave. The reassessment was requested despite the Commission having already received advice from Ms Crichton that she would not recommend Mr Spaul return to his present employment as it would lead to a deterioration of his condition and a high possibility of the Adjustment Disorder becoming a chronic disability. In addition, those managing Mr Spaul’s situation ignored his requests that advice be sought from his psychiatrist as to whether it was appropriate for him to attend the appointments. They also ignored his advice that he was in Melbourne at the time assisting in the care of his daughter. Finally it is necessary to take into account that Mr Spaul was entitled to refuse to attend further appointments with Ms Crichton as she was not qualified to carry out the assessment of his fitness for work.
In view of these matters I am satisfied that the summary dismissal of Mr Spaul was not reasonable.
Was the Adjustment Disorder with anxiety and depressed mood suffered by Mr Spaul as a result of his failure to obtain a benefit in connection with his employment?
84. The ordinary meaning of the words "failure by the employee to obtain a…. benefit in connection with his or her employment" is that the benefit was something sought by the employee. In Trewin v Comcare (1998) 84 FCR 171 Heerey J said:
“ Moreover the concept of "failure ... to obtain a promotion, transfer or benefit in connection with... employment" has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be adduced from the exception to the definition of "injury" in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injury so arising were, for policy reasons, not to be compensable." [46]
[46] At p. 177.
His Honour's reference to "disappointment" suggests that the benefit is something desired by the employee.
85. In Re Patrick and Comcare (1997) AATA 11609 the Tribunal held that a failure to obtain one of three available positions in a restructure of an organisation was a failure to obtain a benefit. The Tribunal found that the employee "certainly saw the obtaining of one of the appointments as beneficial.” Again, the benefit was something sought by the employee.
86. The above references indicate an acceptance of the first definition of "failure" in the Macquarie Dictionary:
"an act of failing or proving unsuccessful in; lack of success".
"Fail" is defined to include "disappointment or proved lacking in what is attempted, expected, desired, or approved."
87. I have accepted the evidence of Mr Spaul and have found that he did not seek a redundancy and/or secondment with a private legal firm. I am satisfied that Mr Spaul's negotiations with the Commission in regard to these possibilities was a result of the pressure brought to bear on him by his employer. Mr Spaul has stated that he enjoyed his work and he wished to continue to work for the Commission. I have accepted this evidence. On this basis I am satisfied that the illness suffered by Mr Spaul was not suffered as a result of a failure by him to obtain a benefit or benefits in connection with his employment.
Has the injury suffered by Mr Spaul resulted in permanent impairment within the meaning of section 24 of the Act?
88. Subsection 24(2) requires that in determining this question I shall have regard to the following:
·the duration of the impairment;
·the likelihood of improvement in Mr Spaul’s condition;
·whether Mr Spaul has taken all reasonable rehabilitative treatment for the impairment; and
·any other relevant matters.
89. On the basis of the evidence of Dr Veness and Dr Wright I am satisfied that Mr Spaul has suffered from an Anxiety Disorder since late 2003 and that this disorder has continued and is now chronic. I am also satisfied on their evidence that the likelihood of improvement in Mr Spaul's condition is small. Mr Spaul continues to be treated by Dr Wright and Dr Veness and on this basis I am satisfied that he has undertaken all reasonable rehabilitative treatment for his illness. Comcare has not argued otherwise. I am satisfied on the balance of probabilities that Mr Spaul has suffered a permanent impairment as a result of his employment by the Commission.
What is the degree of Mr Spaul's permanent impairment?
90. Both Dr Veness and Dr Wright have expressed the opinion that Mr Spaul has suffered a 10% permanent impairment in accordance with the Comcare Guide. I am required to make my own finding in this regard and I am satisfied on the evidence before me that 10% is the correct degree of impairment.
91. Table 5.1 of the Guide provides for a ten percent Whole Person Impairment in the following circumstances:
"Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.
·reactions to stressors of daily living with minor loss of personal or social efficiency
·lack of conscience directed behaviour without harm to community or self
·minor distortions of thinking".
Mr Spaul has given evidence that he is capable of performing activities of daily living without supervision or assistance. I accept the evidence of Dr Veness, confirmed by the testing carried out by Dr Lioulios, that Mr Spaul does have a minor loss of personal and social efficiency and does have minor distortions of thinking. I refer to the specific cognitive deficits noted by Dr Lioulios and set out in paragraph 64 of these reasons.
92. Dr Skinner gave evidence that Mr Spaul does not suffer a permanent impairment. This opinion, however, was predicated upon her view that Mr Spaul does not suffer from a psychiatric or psychological condition. For the reasons already stated, I do not accept Dr Skinner's view and I prefer the views of Dr Veness and Dr Wright.
93. I am satisfied that Mr Spaul has suffered a 10% permanent impairment as a result of the compensable injury suffered by him.
MEDICAL EXPENSES
94. Section 16 of the Act provides that Comcare is liable to pay compensation for medical treatment that it was reasonable for the employee to obtain in the circumstances. The parties have not put before me evidence as to all of the medical expenses claimed and undoubtedly these can be determined by agreement. However, I am satisfied on the evidence of Dr Veness, Dr Wright and Mr Spaul that the treatment provided by Dr Veness and Dr Wright was treatment that was reasonable for Mr Spaul to obtain in the circumstances.
DECISION
95.In matter A2004/389 the decision of Comcare made 13 December 2004 is set aside and in substitution it is decided that:
(a)Comcare is liable to pay compensation to Mr Spaul in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury, being an Adjustment Disorder with mixed anxiety and depressed mood suffered on 20 November 2003;
(b)the injury has resulted in a 10% whole person permanent impairment of Mr Spaul, and Comcare is liable to pay compensation to Mr Spaul in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
96.In matter A2006/73 the decision of Comcare made 31 March 2006 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Mr Spaul in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury being an aggravation of an Adjustment Disorder with mixed anxiety and depressed mood suffered in the period July 2004 to September 2004 inclusive.
97.Each party has liberty to apply for a direction in relation to the costs of these proceedings but if no such application is made within 14 days of the date of this decision the costs of these proceedings incurred by Mr Spaul shall be paid by Comcare.
I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Joe Meagher, AssociateDate/s of Hearing 8 - 11 May 2006 & 18 July 2006
Date of Final Submissions 11 August 2006
Date of Decision 27 October 2006
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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