Squires and Comcare (Compensation)

Squires and Comcare (Compensation) [2018] AATA 166 (12 February 2018)
Division:GENERAL DIVISION
File Number(s): 2015/5770
2016/2389

Re:Aaron Squires
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:12 February 2018
Place:Sydney

2015/5770
The reviewable decision dated 9 October 2015 is affirmed.
2016/2389
The reviewable decision dated 22 March 2016 is affirmed.
........................[sgd............................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – workers compensation – section 14 claim – psychological condition – aggravation of an ailment – whether employment contributed to a material or significant degree –– abusive and threatening telephone calls – management issues – lack of contemporaneous evidence – pre-existing vulnerability – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 53(1)
REASONS FOR DECISION
Senior Member A Poljak
12 February 2018

Mr Aaron Squires, the applicant, commenced employment with the Department of Human Services on 21 October 2002 as an APS 4 Customer Services Operator at Centrelink. The applicant’s duties largely involved taking calls from clients of Centrelink, providing advice and recording details in a computer.
On 27 March 2015, the applicant lodged a claim for worker’s compensation in respect of ‘generalised anxiety disorder/depression’ under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (“the Act”). In the claim form, the applicant stated that he first noticed he was ill on 1 June 2005. The applicant noted the cause of his illness as “exposure to high volumes of emotionally effected customers during 12 years within Centrelink”. In regards to a question about what actually injured him or made him ill, the applicant wrote “as above with an unsupportive workplace environment” (“first claim”).
Comcare denied liability in a decision dated 5 June 2015 on the basis that the Act did not apply to the claim by operation of s 53(1) of the Act, and in any event, the applicant’s psychological condition had not been contributed to, to a significant degree, by his employment. The decision of Comcare was affirmed by a review officer on 9 October 2015. This is the first decision under review in these proceedings (“2015/5770”).
On 3 November 2015, the applicant lodged a second claim for worker’s compensation in respect of ‘generalised anxiety disorder and depression’ under section 14 of the Act, which he claimed he first noticed on 29 December 2014 (“second claim”). Comcare denied liability in a decision dated 4 January 2016 on the basis that the applicant’s condition was not significantly contributed to by his employment with the Department of Human Services. The decision of Comcare was affirmed by a review officer on 29 March 2016. This is the second decision under review in these proceedings (“2016/2389”).
ISSUES
2015/5770
The issues to be determined in this matter are whether the applicant suffered a disease or aggravation, in the form of a psychological ailment, that was contributed to, to the requisite degree, by the applicant’s employment so as to create a liability for the respondent to pay compensation under s 14 of the Act. Specifically:
(a)whether the applicant suffered an ailment, or the aggravation of an ailment; and
(b)if so, whether;
(i)if the ailment, or the aggravation of the ailment, was suffered by the applicant prior to 13 April 2007, the ailment was contributed to, to a material degree, by the applicant’s employment, or;
(ii)if the ailment or the aggravation of the ailment, was suffered by the applicant on, or after 13 April 2007, the ailment was contributed to, to a significant degree by the applicant’s employment.
(c)whether the applicant gave notice in writing of the injury to the relevant authority as soon as practicable after the applicant became aware of the injury pursuant to s 53(1) of the Act.
(d)if the applicant suffered a disease or aggravation that was contributed to, to the requisite degree by the applicant’s employment, whether the disease or aggravation is excluded from the provisions of s 5A of the Act on the basis that the disease aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.
2016/2389
The issues to be determined in this matter are whether the applicant suffered a disease or aggravation, in the form of a psychological ailment, that was contributed to, to a significant degree, by the applicant’s employment so as to create a liability for the respondent to pay compensation under s 14 of the Act, specifically:
(a)whether the applicant suffered an ailment, or the aggravation of an ailment; and
(b)if so, whether the ailment, or the aggravation of the ailment was contributed to, to a significant degree, by the applicant’s employment.
(c)if the applicant suffered a disease or aggravation that was contributed to, to a significant degree by the applicant’s employment, whether the disease or aggravation is excluded from the provisions of s 5A of the Act on the basis that it was a disease or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.
BACKGROUND AND RELEVANT FACTS
The applicant was employed by the Department of Human Services from 21 October 2002 as an APS 4 Customer Services Operator at Centrelink. The applicant’s duties largely involved taking calls from clients of Centrelink, providing advice and recording details in a computer.
In the Workers Compensation Claim Form completed on 27 March 2015 (“First Claim Form”), the applicant stated that he first noticed he was ill on 1 June 2005. The applicant noted the cause of his illness as “exposure to high volumes of emotionally effected customers during 12 years within Centrelink”.
The applicant said, in his statement attached to the First Claim Form, that he was diagnosed with a work related psychological injury during his time at Centrelink and that the injury developed over the course of his employment (12 years). He advised that he had been diagnosed with generalised anxiety disorder with the earliest related symptoms occurring in 2003. The applicant further stated that in 2003 he advised his team leader that he was consulting a doctor about depression and feeling anxious. The clinical notes of the Lake Macquarie Medical Centre show that on 11 August 2003, Dr Gupta, general practitioner, prescribed the antidepressant Praxtine.
The applicant’s Individual Leave History Report provided by Centrelink indicates the applicant took a large number of days leave from work from 2003 due to various illnesses and the need to care for his wife or children.
In a statement, attached to the First Claim Form, the applicant said that in 2005, Dr Gupta prescribed antidepressant medication for the treatment of his anxiety and referred the applicant to another doctor for treatment. On 3 February 2006, the applicant said he was referred by his General Practitioner for counselling and was referred to a psychologist.
The Patient Health summary of the Lake Macquarie Medical Centre, recorded under ‘Active Past History’ that the applicant was diagnosed with an anxiety disorder in 2006.
In the statement, attached to the First Claim Form, the applicant said that on 8 April 2008 he discussed with his supervisor the impact that his health issues were having on his ability to complete his work.
A Coaching Record dated 9 September 2008, recorded that the applicant advised “all is fine” following a discussion about the applicant’s pattern of personal leave and recent “seat move”.
Dr Tian Zhuang, the applicant’s General Practitioner, recorded in the Lake Macquarie Medical Centre clinical notes on 7 January 2010, the following:
“History of anxiety since 18 years old, sometime hard to do his job, panic attacks, uncontrollable fear, irrational, palpitations, was on Praxtine for a couple of years, did not do much for him so he stopped it.”
In the statement, attached to the First Claim Form, the applicant said that in 2011 he advised his supervisor that his anxiety had become more severe, resulting in him taking more frequent time off work.
In a Centrelink Call Coaching Record dated 8 April 2011, the applicant’s team leader, Mr Chapman, noted the following:
“This was my first coaching session with [the applicant]… [The applicant] is happy with his current range of duties.
…
[The applicant] states that he has always found call coaching difficult and the process make him quite uncomfortable. I have asked [the applicant] if there is anything I can do to assist him with this, to make it more comfortable and allow the process to be completed in an effective manner for him. [The applicant] states that there is nothing as such….”
On 2 May 2011, the applicant consulted Dr Zhuang at the Lake Macquarie Medical Centre and reported that his “depression was worse” and he experienced “more anxiety”. He requested an increase in his antidepressant medication. In the clinical notes under ‘Examination’, Dr Zhuang recorded the following:
“Mental status examination normal, but pt stated very anxious, not outgoing, work with customers, thinking of change jobs etc…”
In a Centrelink Call Coaching Record dated 7 June 2011, the applicant was recorded to have agreed with Mr Chapman that “he is not 100% happy at work at this time and is currently looking for other opportunities in work”. It is noted that the applicant spent “more time discussing his medical issues” and stated that his “issues had escalated” since Mr Chapman became his team leader. Mr Chapman recorded:
“I have asked [the applicant] if would consider providing further evidence of his condition. We could then better support him in the workplace. This would allow to the potential of providing assistance such as an Occupational Psychologist, who might work on strategies with coping with the stresses he experiences in the workplace. [The applicant] could also consider using the services of an organisation such as EAP who can assist with topics such as career counselling to assist [the applicant] in making decisions about work.”
In a Centrelink Call Coaching Record dated 29 June 2011, Mr Chapman noted the following “Action Item” under the topic of health and well-being:
“Can [the applicant] provide evidence of his current medical condition to ensure support can be correctly provided in the workplace?
Consider contact with EAP to discuss career counselling.”
In a Centrelink Call Coaching Record dated 31 August 2011, Mr Chapman recorded:
“[The applicant] discussed his family and [the applicant] has advised me that his children will be changing school in term four. [The applicant’s] eldest daughter has experienced some issues at school and [the applicant] and his wife have attempted to resolve but are unable to find a satisfactory resolution with their current school. [The applicant] and his wife have sought external professional support for his daughter. [The applicant] has found dealing with these issues difficult as a parent and I can feel empathy with him as a father.”
In a File Note, dated 18 October 2011, Mr Chapman recorded the following:
“I observed that [the applicant] had been receiving calls on his mobile and has had to leave the building to have a discussion. [The applicant] asked to speak with me in a private capacity.
[The applicant] asked if he could access rec leave today due to issues he is experiencing at home. He states he heard his wife was screaming at the kids whilst he was listening over the phone and [the applicant] was concerned for their wellbeing and safety. [The applicant] states there has been a large amount of stress at home regarding his daughter’s accident and his children’s (sic) changing schools. I advised [the applicant] that he should consider contacting EAP to seek further guidance with these issues for his family. [The applicant] also divulged that his wife is very unhappy with him at the moment but didn’t wish to provide any further information regarding these circumstances. He states that the family have been seeing a counsellor regarding these issues. I advised [the applicant] that on return to work we would need to sit and discuss these circumstances in more detail and assist him in putting in steps to provide a long-term solution to these issues.”
In a File Note, dated 19 October 2011, Mr Chapman recorded the following:
“[The applicant] and I met to discuss the circumstances surrounding his leave request yesterday. I expressed my concern with [the applicant] about the frequency of his leave and the issues he had raised with me the previous day when he requested leave.
[The applicant] advised his family is under great strain with issues regarding family relationships, his eldest daughters issues with school bullying and his youngest daughter’s accident in September…[The applicant] had previously advised me that the family had been attending counselling sessions around these events.
[The applicant] states his relationship with his wife is not good at the moment and his wife has been seeking counselling about a number of issues regarding her extended family relationships and her relationship with [the applicant]…
I again discussed with [the applicant] that work can provide ongoing support.”
On 31 October 2011, the applicant consulted Dr Zhuang for treatment of an “anxiety disorder” and it was recorded that the applicant said his “anxiety was worse”, and that he was “constantly stressed, at home still thinking about work”. He was referred by Dr Zhuang to Dr Russell Hinton for “an opinion and management” of his persistent anxiety.
In a letter of referral to Dr Hinton dated 31 October 2011, Dr Zhuang noted that the applicant suffered from “persistent anxiety” and had a past history of an “anxiety disorder” in 1991.
In the statement, attached to the compensation claim form dated 27 March 2015, the applicant said that on 7 November 2011 he took one week of leave.
On 15 November 2011, the applicant and Mr Chapman had a telephone discussion. The applicant advised Mr Chapman that he had ‘a number of psychiatric assessments by his GP over the last few days for mental health issues’. In a File Note of the same date, Mr Chapman noted:
“… I made enquiries about his family and he stated it has been hard but it is getting better.
I asked [the applicant] to consider asking his GP/psychiatrist to provide recommendations to work about assisting him back into work such as RTW programme of rehab provider. I advised [the applicant] that to do this he would need the recommendations in writing from his doctor and provide written authority for us to engage a provider and liaise with his treating Dr/s.”
On 21 November 2011, the applicant attended on Dr Hinton who recorded in his hand written notes the following:
“GP referral for anxiety.
“Always been susceptible” has been off work for 3/52. “I had serious panic attacks at work” new boss recently. Last feel well eight and half years ago. “It’s this fear of fear, of being rated, monitored at work, your statistics, they sit beside you and see how you do your job”. Reported sweating, palpitations, dizziness. “It affects every aspect of my life now but the job is a big one”
Feels anxious most days. Reports social anxiety.”
In a Centrelink Call Coaching Record dated 23 November 2011, Mr Chapman recorded:
“… [The applicant] has been diagnosed with a personal illness and been seeking treatment for this. On return to work [the applicant] provided medical evidence regarding his condition…
I asked [the applicant] to consider the importance of providing information to work that will allow adequate support be provided in the workplace…[The applicant] has acknowledged that issues with his personal life (children’s health and family relationships) have led to the more serious onset of these issues.”
In a Centrelink Call Coaching Record dated 18 January 2012, Ms Nichole Wiltshire recorded:
“This is our first coaching together…
[The applicant] advised that he was travelling along well at present…
[The applicant] advised that he is looking after himself and trying not to put too much pressure on himself. [The applicant] advised that he still feels anxious with call coaching etc….
… [The applicant] advised that he requires no further support at this stage…”
In a Centrelink Call Coaching Record dated 14 March 2012, Mr Chapman recorded:
“… I have observed that [the applicant] seems happy at work. [The applicant] agrees that addressing his health issues late last year have produced very positive effects for him and his family… [The applicant] feels more comfortable at work…”
In a Centrelink Call Coaching Record dated 5 April 2012, Mr Chapman recorded:
“… [The applicant] discussed a call today where he felt unable to action the update due to the complexity of the issues involved. We discussed providing further support for this.”
In a Centrelink Call Coaching Record dated 10 May 2012, Mr Chapman recorded:
“… [The applicant] advised has had some calls where the customer has not received his decision well and their behaviour became problematic. I discussed the importance of escalating these issues such as completing an EP63 file in ESS if the customer’s behaviour warrants this action. This can allow for appropriate support to be provided to staff and guidance provided to customers on expected standards of behaviour.”
On 7 June 2012, the applicant attended on Dr Hinton who recorded in his hand written notes, “Anxiety still there and “terrified” of returning to work.”
In a Centrelink Call Coaching Record dated 28 August 2012, Ms Lyn Edwards recorded that the applicant advised that he was well.
On 10 September 2012, the applicant presented to Dr Zhuang, who recorded in the clinical notes that the applicant had been seen by Dr Hinton and said that “his job caused his grief, not much he can do except to change his job, so he is considering to find another job, but not confident about it”. Dr Zhuang noted that Dr Hinton had put the applicant on “high dose of Pristiq”.
On 12 December 2012, Dr Zhuang referred the applicant again to Dr Hinton and recorded in the clinical notes that the applicant “has not seen Dr Hinton for the last six months, not coping well current with anxiety, no sleeping, requesting referral to see Dr Hinton”.
On 13 December 2012, the applicant attended on Dr Hinton who recorded in his hand written notes the following:
““Stressed” at work. Realises job is causing him much angst. Questions whether he has enough of a case for a DSP.
Feels anxious most of the time even outside of work.”
In a Workplace Coaching Record dated 10 April 2013, Mr Aaron Debnam recorded that the applicant was feeling well and had no OH&S issues currently. It is noted that there was a discussion about the applicant’s “anxiety suffered with relationship to call listening”. Mr Debnam recorded that he had reflected to the applicant “that this is not uncommon and something we can work on”.
In a Workplace Coaching Record dated 3 October 2013, Mr Aaron Debnam recorded that the applicant advised “he enjoys working here but finds Quality Listening can be quite stressful”. Mr Debnam recorded that strategies such as relaxation techniques and breathing exercises were discussed to help the applicant with anxiety related to Quality Listening.
In the statement, attached to the First Claim Form, the applicant advised that in 2014 ”anxiety had become a constant issue effecting behaviour and wellbeing”. He said “I advised my supervisor of the situation and no change in work structure or duties”.
In Workplace Coaching Records for 2014, no occupational health and safety issues related to his role at Centrelink have been recorded.
Included in the coaching records are a number of “Centrelink Coaching Session Preparation - Staff Personal Reflection” forms, mostly undated, appearing to have been completed by the applicant in 2014. The applicant relevantly records, “been taking calls - always happy to help my team and customers”, “have been addressing health issues”, “my work has been going well”, “most things going well”, “had some illness recently, nothing serious”, “fine, then season -type flu”.

In a Workplace Coaching Record dated 1 October 2014, Mr Neil Wilkinson recorded that the applicant was “not particularly interested in other roles available in centre”.
On 8 December 2014, the applicant was advised that he was to be transferred to a different team within Centrelink and the move took effect from 29 December 2014.
On 28 January 2015, the applicant consulted Dr Zhuang who recorded in respect of the Applicant:
“His anxiety got bad again, out of control, no specific triggors (sic) identified, waking up at midnight with panic without perticular (sic) reason, not able to get back to sleep.”
A File Note of a discussion between the applicant’s wife and his supervisor on 6 February 2015, recorded:
“[The applicant’s wife] advised [the applicant] is experiencing significant issues with anxiety and depression at the moment and he has not been this unwell for several years.”
A File Note of a discussion between the applicant and his supervisor on 9 February 2015, recorded that the applicant advised:
“… The recent change to seating arrangements and sitting in a pod with three staff who don’t take inbound calls may have been a contributing factor...Every couple of years he seems to go through a bout of severe anxiety.”
In about February 2015, the applicant requested that he be permitted to work part time. The request was approved by Centrelink and took effect from 23 February 2015.
The Patient Medical History from PHC Charlestown recorded that the applicant attended an appointment with a general practitioner on 5 March 2015; the doctor recorded that the applicant was coming off Pristiq and that “psych put him on Mirtazapine which he has stopped.” It is noted that the applicant reported that “he fears he is going to lose his job due to frequent absence”.
A File Note of a discussion between the applicant’s wife and his supervisor on 6 March 2015, noted:
“… [The applicant] would not be attending work today. [The applicant] was unable to come in due to severe anxiety… [The applicant] has been reducing his medication (Pristiq) from 200 mg a day to 50 mg and this was exacerbating the issue. [The applicant] is also transferring to another medication to see if this will assist.
… [The applicant’s wife] also asked if there were duties other than inbound call that [the applicant] could undertake. I advised his primary role was telephony but we can look at alternative duties on a short-term basis when required…”
The applicant ceased work on about 9 March 2015 and has not returned to his employment since this date.
Dr Martin Allan, consultant psychiatrist, provided a report dated 28 May 2015 at the request of Comcare in respect of the applicant. Dr Allan relevantly opined:
“[The applicant] today reported he has not worked since March 2015, at which point he felt he could no longer tolerate the significant psychological problems he was experiencing as a result of the stressful work environment he has been in for the last 13 years.
He gives a relatively vague history of a gradually increasing level of distress, anxiety and depression since commencing employment with Centrelink. I asked him specifically about the triggers to his psychological distress. He reported that in general he has felt his managers have been unsupportive in relation to his concerns about the stressful workload he has been undertaking.
He has for much of the last 13 years felt that the stressful nature of highly emotional phone calls has taken its toll on him. He reports that on most days he would receive highly abusive and threatening calls, which he would ruminate on and become quite distressed as a consequence.
I was unable to identify any specific incidents and it seems that in general the stressful events he has perceived have been the repeated abusive phone calls and the highly stressful nature of his day-to-day work and a general lack of support from his managers.
…
I believe [the applicant] presents with symptoms entirely consistent with both a major depressive disorder and a generalised anxiety disorder… As regards his anxiety, he describes being generally anxious and this is generalised to many areas of his life and is not simply limited to work-related matters.
…
The main factors apparently related to the development of psychological symptoms appear to be the distress he has experienced in relation to angry and abusive phone calls received while working at Centrelink. He describes these as occurring every day, where he would feel acutely anxious and distressed as a result of these phone calls.
Dr Allan also noted in his report that prior to working with Centrelink; the applicant denied ever having any previous experience of or treatment for any psychological condition.
On 24 June 2015, the applicant attended on Dr Zoltan Zsadanyi, consultant psychiatrist, who opined, in a report dated 9 July 2015, that the applicant’s likely diagnosis was “major depressive disorder, severe, with melancholic features and also of a generalised anxiety disorder”. It was noted that the applicant said “stress of the workplace impacted upon his mental state because he was dealing with extremely disadvantaged people from society and earlier in 2015, he was moved into a position where he was entirely answering phone calls and was no longer undertaking processing work”.
On 29 July 2015, the applicant attended on Mr Michael Romeo, clinical psychologist, who recorded the following observation notes:
“Has not worked since March 2015 following stress leave in relation to line manager. States problem began in 2007 with reports of workplace bullying and five staff members leaving the team due to treatment by management.
… States that he has attended numerous assessments with psychiatrists and psychologists - states that this exacerbates his anxiety having to talk about the workplace problems…”
On 9 September 2015, the applicant again attended on Mr Romeo who recorded the following observation notes:
“Presented in a highly anxious and agitated state… States that he struggles with assessment appointments as he often goes mentally blank in the process of recounting his experiences at Centrelink and that he feels like the appointments are a “test” or “examination” of how unwell he is and that because his issue is mental health, that his case is not being treated with its due respect compared to a physical injury…”
On 17 November 2015, Mr Romeo recorded the following observation notes:
“[the applicant] talked more about his experience of witnessing his colleagues being harassed at work by his manager to the point of having to leave Centrelink.”
On 14 June 2016, the applicant again attended on Mr Romeo who recorded the following observation notes:
“Report a number of incidents.
1.    the managers walking around berating staff - and sitting at his desk feeling increasingly afraid that he could be next
2.    watching a senior staff member (of 20 years) being failed five times by Chris
3.    an obese female staff member who due to the fact that it took her a long time to walk to the toilet, management moved her workstation next to the toilet
4.    “another guy who had one leg - they made life hell for him”
5.    a part-time mum- getting “hounded”
[The applicant] reports that he experienced “this going on around (him) and that he felt anxious seeing this and that what went on happened in the open workspace for other employees to see”. States “they tore this team apart in front of my eyes- it was them not me”. [The applicant] became distressed recalling these images - states that he felt helpless to protect himself or his colleagues.”
On 22 June 2016, Mr Romeo recorded the following observation notes:
“… mixed feelings of sadness for his work colleagues, anger about what they were subjected to, and feelings of abandonment due to one by they all left.”
In a report dated 23 June 2015, Dr Zhuang advised that the applicant “explained that he was anxious because his parents left him to a boarding school and they went overseas to live. That caused him huge sadness and loneliness with related symptoms, but never diagnosed with anxiety disorder…from my point of view, his reaction from separation to his parents was normal not anxiety disorder. He only took Paxtine in 2006”.
In a report dated 27 November 2015, Mr Romeo stated that throughout the course of cognitive behavioural therapy he came to the opinion that the applicant experienced psychological trauma sustained during his time at DHS. He advised that in addition to diagnostic impressions offered by other medical professionals and through his clinical work with the applicant, he was of the opinion that the applicant exhibited symptoms indicative of a diagnosis of post-traumatic stress disorder (PTSD).
In a report dated 7 December 2015, Dr Hinton, General Adult and Forensic Psychiatrist, recorded the following details in regards to any relevant history, pre-existing or underlying conditions suffered by the applicant:
“[The applicant] appears to have been unwell with generalised anxiety disorder since 1991, which is noted in the referral to me from his GP, Dr Tian Zhuang, dated 31 October 2011. He stated to me that he last considered himself well in 2003. He reports lifelong personality traits of a tendency to worry.”
MEDICAL EVIDENCE
Psychiatrists A/Professor Michael Robertson, Dr Alison Moffatt and Dr Christopher Cocks have provided reports in this matter; all of which I have read and considered. A/Professor Michael Robertson, Dr Alison Moffatt and Dr Christopher Cocks also provided oral evidence at hearing. Relevant aspects of the medical evidence is summarised below.
The applicant was assessed by Dr Alison Moffatt, consultant psychiatrist, on 8 December 2015. In a report dated 18 December 2015, Dr Moffatt records the date of symptom onset as January 2015, and notes that the applicant “attributes the development of his symptoms to exposure to distressed and aggressive customers over the phone and an unsupportive management team in his workplace”. She opines that the applicant’s symptoms are consistent with a diagnosis of major depressive disorder and generalised anxiety disorder. Dr Moffatt notes that the applicant denied any psychiatric difficulties prior to working with DHS, however she notes that it is unwise to simply disregard the significance of his father dying when he was only 4 or 5 years old and noted that it “appears that the applicant suffered with some anxiety symptoms at boarding school in the context of being separated from his mother and stepfather”. In regards to the main contributing factors to the applicant’s claimed condition, Dr Moffatt opines the following:
“In my opinion, by virtue of significant development traumas and disruptions, [the applicant] is likely to have acquired an increased vulnerability to experiencing mental health difficulties…
Apart from some anxiety at the age of 17 when [the applicant] was separated from his parents for the purpose of attending boarding school, it appears that [the applicant] was mentally well until sometime after 2002…
In my opinion, despite acknowledging the reality of vicarious traumatisation when individuals are repeatedly exposed to traumatic material, [the applicant] describes an inordinate and unusual reaction to his workplace situation. While there does appear to be a temporal relationship between [the applicant’s] employment with the DHS and the onset of a clinically significant mental illness, there is little evidence before me that he suffered such significant workplace stress that his employment can be regarded as the substantial contributing factor to his debilitating mental illness.
While there has been no discussion of this in the material before me, I do wonder what else was occurring in [the applicant’s] life between 2002 and 2005…
In conclusion, although [the applicant’s] clinically significant illness appears to have arisen during the years of his employment with DHS, on the balance of probabilities, his non-work life experiences are likely to have played a more significant role in the development of his illness than employment factors. His employment may have exacerbated his difficulties, but is unlikely to have been a significant contributing factor to the development of his illnesses.” [Emphasis added]
At hearing, Dr Moffatt explained that the evidence she would expect to see and which would lead her to be confident of significant workplace stress, would include records of what had occurred in the workplace; doctors notes; performance reviews; statements, etc. None of which is present here. Dr Moffatt said that even the coaching sessions (records) do not identify the issue despite the applicant telling her that he did disclose the issues to his employer.
Dr Moffatt advised that the applicant did not go into a lot of detail about calls which caused distress. He focused mostly on management styles and moving desks. Dr Moffatt advised that in regards to causation, the conditions such as that suffered by the applicant can cause distorted perceptions and that there is a need to be mindful that the applicant could perceive a threat where there isn’t one. She further opined that she did not consider the applicant’s condition an aggravation. Instead, she was of the opinion that it was an exacerbation, meaning there was a temporary increase in symptoms but that it could be expected to return to “baseline” within a reasonable time. She said that an early death of a parent, before 10 years old (as is the case here), is a strong independent risk factor for later life disorders.
During cross-examination, Dr Moffatt was asked a number of questions about “vicarious traumatisation”. She explained that the term vicarious traumatisation was used to explain “secondary traumatisation” which results from people continuingly being exposed to details of stress without actually experiencing the stress themselves. An example would be hearing details or seeing an aftermath of trauma. In regards to the circumstances of this matter, Dr Moffatt was of the opinion that exposure to abusive calls was not significant enough to warrant a diagnosis of PTSD as the trauma needs to be an event that is actually experienced or a ‘real’ threat. In order for it to be vicarious traumatisation, it needs to be repeated. She advised that one off phone calls can be distressing and anxiety provoking but would not warrant a diagnosis of vicarious traumatisation, even if they had the frequency of “every second day for a number of years”. Dr Moffatt explained that vicarious traumatisation was usually regarded when people’s work exposes them to trauma, such as police officers and emergency personnel who regularly encountered details of horrific circumstances and take it on board. She said that this was different to someone who is answering calls, even if they are abusive. In regards to call coaching, Dr Moffatt was of the opinion that the degree of anxiety expressed by the applicant in the documents, does not seem to be to a degree to say it was causative or caused aggravation. She accepted that all coaching was possibly difficult, stressful and uncomfortable for the applicant but was unlikely to be sufficient to cause aggravation. Any increase in symptoms was merely a temporary exacerbation. She said that people with anxiety disorders don’t usually have insight into their condition and as such, despite the applicant reporting stress and fear of returning to work, it may be that the anxiety disorder was such that the applicant perceived the workplace to be more difficult or threatening than it was in reality. Dr Moffatt advised that anxiety normally fluctuates regardless of external events as there are periods of time when there are heightened symptoms and there are times where there are none.
The applicant was examined by Associate Professor Michael Robertson on 29 August 2016. In a report dated 31 August 2016, A/Prof Robertson opines that the applicant presented with chronic generalised anxiety disorder. He identifies two main themes to the applicant’s anxiety symptoms emerging in the course of his employment, namely, abusive behaviour on the part of numerous claimants and also the undermining and unsettling approach of his managers. A/Prof Robertson states, in his view, that the applicant’s condition emerged as a consequence of his employment. He said that Dr Moffatt overstated the significance of the applicant’s “putative childhood vulnerability” and under-estimated the workplace stressors.
At hearing, A/Prof Robertson was questioned about the applicant’s condition in 1991 and advised that a presentation of ‘homesickness’ and ‘nervousness’ at that time would not prompt a diagnosis of (prima face) anxiety disorder. He reiterated that the significant factors relevant to the applicant’s condition were abusive phone calls received at work and management issues.
The applicant was examined by Dr Christopher Cocks, General Adult and Forensic Psychiatrist, on 1 December 2016. In a report dated 7 December 2016, Dr Cocks records the following history of the claimed injury:
“In 2003 he started to notice that the nature of the work was particularly stressful. He stated that he would be called on a daily basis by abusive customers who are unhappy with Centrelink. He acknowledged that this was the nature of the work. He stated that customers “threatened to paint the walls with my blood”. He stated that he would experience death threats via phone calls from customers. He claimed that management varied in its capacity to support him with the anxiety associated with his role as a Customer Service Operative. He stated there was limited support within the organisation.
[The applicant] stated that his problems specifically emerged in 2011. He related this to difficulty with management. He stated that there was some personality clashes with team leaders. He also stated that there were staffing difficulties at work. He stated that these changes put increasing pressure on his role as a telephone operative and cause his symptoms of anxiety to surface.
The applicant experienced a relapse of anxiety in 2015. He identified work-related factors associated with the role of speaking with challenging clients and problems with management as causative to his symptoms of anxiety and depression…”
Dr Cocks opined that the applicant suffers from a generalised anxiety disorder, is currently in remission, and that the applicant does not currently present with a depressive illness. In his report, Dr Cocks said that he is of the opinion that relevant experiences, outside of work, had contributed to the applicant’s anxiety disorder. In regards to whether the applicant suffered a condition which was significantly contributed to by his employer, Dr Cocks records the following:
“In my opinion [the applicant’s] employment was not a significantly contributing factor to the development of his generalised anxiety disorder.
In my opinion [the applicant] had a pre-existing vulnerability to the development of an anxiety disorder…
In my opinion work-related stressors contributed to the re-emergence of [the applicant’s] symptoms of anxiety and depression. I could not identify any specific factors within his workplace that significantly contributed to the development of his generalised anxiety disorder. Despite the stress within the workplace that [the applicant] describes he was still able to work between 2002 and 2015. The stressors that resulted in [the applicant] ceasing work in 2015 were, by his account, present in 2002 when he first commenced working with the DHS.
I agree with the opinion of Dr Alison Moffatt… Whilst there appears to be a temporal relationship between [the applicant’s] work with the DHS and the development of his anxiety disorder I could not find evidence that his employment was a substantial contributor to the development of his anxiety disorder.
I suspect that [the applicant] had an anxious temperament that was drawn out by work-related stressors. In my opinion [the applicant’s] anxiety disorder could have developed in another form of employment given another set of environmental circumstances.
In my opinion the development of [the applicant’s] mental illness is multi-factorial. His illness has emerged in the context of the culmination of multiple environmental stressors both within and outside of the workplace. Therefore whilst workplace stress has contributed to an exacerbation of his anxiety disorder I could not find evidence of work being a substantial contributor to the development of his anxiety disorder.” [Emphasis added]

At hearing, Dr Cocks advised that it is important to consider other things that the applicant may not be aware of. He discussed the evidence of Dr Romeo, which makes reference to management at work contributing to the applicant’s anxiety, but does not identify issues with customer calls. Dr Cocks advised that the significance of this is that the applicant had various triggers during work; which is common with anxiety disorders. He advised that he wasn’t surprised that the applicant’s focus shifted to management and suspected that the applicant was suffering/experiencing anxiety and was trying to understand that by looking at work. Dr Cocks said that the workplace stressors caused an increase of symptoms but had not changed the applicant’s underlying illness. He said that there was nothing substantial enough to say the work was the cause of his anxiety disorder and that the applicant would have suffered the condition anyway, in another setting.
OTHER EVIDENCE
Mr Jon Cave, Senior Work Health and Safety Advisor within the Department of Human Services, says in his statement dated 25 July 2017, that on 15 July 2017, he conducted a search of the Department’s electronic records. He states that he could not identify any records of reports by the applicant making complaints that he had been subjected to abuse or threats by clients of the Department during the period from 2004 to 2014.
Mr Chris Chapman, says in his statement dated 13 July 2017 that in respect of the coaching sessions with the applicant between April 2011 and January 2013, he believed that the coaching records were a true and accurate record of development coaching sessions that were conducted. He also states that during the period that he supervised the applicant, he did not recall being advised of difficulties with abusive customers or that the applicant was experiencing stress or difficulty as a result of abusive customer calls. Mr Chapman says that if the applicant had advised of such circumstances he would have recorded this in a file note and/or in the coaching records. Mr Chapman also notes in his witness statement numerous times, he did not recall the applicant advising him that his medical issues related to his employment. It is important to note that Mr Chapman relied significantly on the contemporaneous coaching records and file notes when making his statement. He advises that in late 2015, he experienced a brain haemorrhage and spent several weeks in hospital and intensive care. He says that this has affected his memory and can result in it taking longer than usual for him to recall events and process thoughts.
At hearing Mr Chapman said that abusive calls were not very regular and if they occurred they should be escalated. He said that if the applicant had advised him of a threatening call, he would have likely done something about it; it would be taken seriously. When questioned about the number of times threatening calls were reported and recorded, he advised that it would be regular, maybe one every 6 to 12 months.
CONSIDERATION
I am satisfied, having considered all of the medical evidence and on balance, that the applicant has a long standing generalised anxiety disorder.
First Claim
When submitting his First Claim, the applicant identified abusive/threatening customer telephone calls as causing/aggravating his anxiety. In the claim form, the applicant stated that he first noticed he was ill on 1 June 2005. Specifically, the applicant noted the cause of his illness as “exposure to high volumes of emotionally effected customers during 12 years within Centrelink”. In regards to a question about what actually injured him or made him ill, the applicant wrote “as above with an unsupportive workplace environment”.
At hearing, the applicant advised that abusive or threatening phone calls were almost a daily occurrence and that he took it as part of his job. In regards to reporting or logging the threats, the applicant said that he did not do this every time and “only did it a handful of times…Five or so times”. When questioned about why he did not ask to move to another work area prior to 2015, the applicant said “it was my job. I wasn’t looking for another job. I still enjoyed it”. He advised that he was seeking treatment and that he liked helping customers and that he “didn’t want to do anything else”.
I do not find the applicant a very convincing and reliable historian. His evidence is inconsistent and unsupported by the bulk of the evidence before me. Despite his recent self-reporting to numerous doctors in 2015 of his anxiety resulting from recurrent abusive and threatening phone calls, the contemporaneous notes fail to contain any substantial corroborating detail. Furthermore, it is plain that the applicant states over the years that he likes his job, and significantly does not seek to change his role to reduce or stop telephone duties.
As detailed above, Centrelink coaching records for the applicant for the period from July 2008 to March 2015 recorded details of the applicant’s performance as assessed against a number of metrics, together with commentary about the applicant’s general health and issues within the workplace. It is significant to note that at no point in these records was the applicant noted to have reported that he had been subject to abuse from clients. At its highest point, the applicant was recorded to have advised his supervisor on 10 May 2012 that he had experienced “some calls where the customer had not received his decision well and their behaviour has become problematic”.
In addition, there is no record in the Department’s electronic files of reports by the applicant making complaints that he had been subjected to abuse or threats by clients of the Department during the period from 2004 to 2014.
The applicant said at hearing that he knew he was unwell but used family issues and other concerns as a “buffer” to get away from work. In response to the alleged death threats not being lodged into the Departmental electronic system, the applicant advised that he didn’t notice the effect at the time and only realised in hindsight that they had an impact on him. Despite saying that he could not discuss the abusive calls with team leaders, he said that they should have known about it anyway because he showed symptoms and couldn’t disguise his reaction. The applicant said that he freely discussed his anxiety with call coaching sessions but not about the abusive calls because he was “terrified” and felt like he was on the “chopping block”.
I find it implausible that the applicant would not have reported his daily subjection to abusive and threatening phone calls over many years. This is even despite monthly coaching sessions with team leaders, when issues, concerns and health and safety issues were routinely discussed. It is plain from the coaching records that the applicant freely discussed a myriad of concerns, some of which was in regard to his family and private issues, yet he felt unable to discuss the direct impact his role was allegedly having on his mental health. Even if I accept, which I do not, that the applicant didn’t mention the abusive and threatening calls because he was fearful of losing his employment, I would at least expect that the applicant would disclose his issues with medical practitioners. Such discussions are not recorded in the medical records.
It is only when the applicant submitted his First Claim Form and statement in March 2015, that he suggests the stress of dealing with high volumes of emotional calls caused and/or contributed to his condition. There also appears to be an escalation in his descriptions of triggering factors in his employment to successive doctors. In his first claim, the applicant also makes assertions that poor management caused his anxiety; notably, without identifying specific triggers, he refers to the change of his team leader to Mr Chapman in 2011 as a significant cause for the aggravation of his condition. Again, this is not established on the evidence and is based on the applicant’s self-reporting, often in hindsight. Having considered the evidence as a whole, I agree with Dr Cocks and Dr Moffatt that the applicant lacked insight into his condition, perceived a threat when there wasn’t one, had an inordinate and unusual reaction to his workplace situation and was trying to understand his condition by looking to work.
Additionally, I’m satisfied on the medical evidence that the applicant has a number of potential predisposing vulnerability factors for experiencing mental health issues later in life, such as the death of his father at a young age. It is also plain that the applicant has pre-existing psychological pathology and experiences episodes of anxiety which fluctuate in severity. Based on the bulk of the medical evidence, I am satisfied that the applicant had episodes of increased anxiety during the period 2002 to 2015; and notably in 2011. However, as Dr Cocks observes, any employment is likely to have had the same effect.
For all the above reasons, to the extent that the applicant suffered an aggravation of his anxiety disorder in the period 2002 to 2015, I am not satisfied that it was materially or significantly contributed to by his employment with Centrelink.
Second Claim
After the applicant’s anxiety disorder was aggravated in 2011, it appeared to settle down in the period 2012 to 2014. As to the applicant’s second claim, the applicant claims to have suffered an aggravation of his anxiety disorder in February 2015 which he appears to attribute to a change of team/desk and customer abuse.
It is plain on the evidence; the applicant sustained an aggravation of his anxiety disorder, causing him to attend Dr Zhuang on 28 January 2015. As already detailed above, Dr Zhuang records ‘no specific triggers’ in her clinical note on 28 January 2015.
For the reasons I have set out above in regards to the first claim, I am satisfied that the customer telephone behaviour did not significantly contribute to the aggravation in 2015.
In regards to the assertion that the change of team/desk aggravated his anxiety condition, the evidence is again conflicting. There appears to be little or no mention of the team/desk change to numerous medical professionals. Neither Dr Zhuang, Dr Hinton, nor Dr Allan makes any mention in their notes or reports of the team/desk change. Similarly there appears to be no mention to Mr Romeo nor A/Prof Robertson or Dr Cocks. I find it implausible that if the team/desk change was a significant contributor to the aggravation of the applicant’s anxiety condition, the applicant wouldn’t mention this to his treating and other medical professionals. As such I give little weight to the applicant’s evidence in this regard.
Accordingly, I am not satisfied that the aggravation of February 2015 was significantly contributed to by the applicant’s employment, namely, moving the applicant to a new team in a new seating location.
DECISION
The reviewable decision dated 9 October 2015 (2015/5770) is affirmed.
The reviewable decision dated 22 March 2016 (2016/2389) is affirmed.

I certify that the preceding 94 (ninety-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..........................[sgd]..........................................
Associate
Dated: 12 February 2018

Date(s) of hearing: 1 & 2 August 2018

Counsel for the Applicant: Mr A Coombes

Solicitors for the Applicant: Slater & Gordon Lawyers

Counsel for the Respondent: Ms S Callan

Solicitors for the Respondent:
Lehmann Snell Lawyers

[2018] AATA 166

12 February 2018

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Procedural Fairness

Statutory Construction

Date(s) of hearing:	1 & 2 August 2018
Counsel for the Applicant:	Mr A Coombes
Solicitors for the Applicant:	Slater & Gordon Lawyers
Counsel for the Respondent:	Ms S Callan
Solicitors for the Respondent:	Lehmann Snell Lawyers