Steuregger and Comcare Australia
[2009] AATA 757
•2 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 757
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5319
GENERAL ADMINISTRATIVE DIVISION ) Re JANICE LOUISE STEUREGGER Applicant
And
COMCARE AUSTRALIA
Respondent
DECISION
Tribunal G.D. Friedman, Senior Member Date2 October 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
......................[signed]......................
Senior Member
COMPENSATION – aggravation of post-traumatic stress disorder – pre-existing condition – non-employment factors – whether significant contribution by employment – whether reasonable administrative action
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14(1)
REASONS FOR DECISION
2 October 2009 G.D. Friedman, Senior Member
1. Janice Steuregger was the victim of an armed robbery in 2000 while working in a privately-operated petrol outlet in Sydney, and she developed post-traumatic stress disorder (PTSD). In 2005 she joined the Department of Defence and worked in the logistics compliance area at Victoria Barracks, Melbourne. On 19 March 2008 she lodged a claim for compensation on the basis that the actions of certain personnel at her workplace had caused an aggravation of her PTSD. The respondent refused the claim on the grounds that the aggravation was not contributed to, to a significant degree, by her employment.
LEGISLATIVE BACKGROUND
2. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in section 5A of the SRC Act:
(1) In this Act:
injury means:
(a)a disease suffered by the employee; or
(b)an injury (other than a disease) suffered by the employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment,
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
ISSUES
3. There was no dispute that there was an aggravation of Ms Steuregger’s PTSD during her employment with the Department of Defence. Therefore the issues before the Tribunal are:
·In respect of s 5B of the SRC Act, was the aggravation of PTSD contributed to, to a significant degree, by Ms Steuregger’s employment?
·In respect of s 5A of the SRC Act, did the aggravation of PTSD arise out of, or in the course of, employment and, if so, was it excluded by the reasonable administrative action of the employer?
IN RESPECT OF s 5B of the SRC ACT, WAS THE AGGRAVATION OF PTSD CONTRIBUTED TO, TO A SIGNIFICANT DEGREE, BY MS STEUREGGER’S EMPLOYMENT?
4. Ms Steuregger told the Tribunal that she served in the Royal Australian Air Force from 1981 to 1987 in the area of warehousing and distribution. After spending the next few years raising her children she began work in March 1999 as a console operator with a company that operated BP petrol outlets in Sydney. She explained that on 12 September 2000 while she was working alone in one of the outlets she was the victim of an armed robbery. She attempted to continue working for the company afterwards but was traumatised by the robbery and resigned in January 2001. She received worker’s compensation and commenced counselling with a clinical psychologist. She moved to Melbourne in April 2001 and completed a business diploma at Victoria University.
5. Ms Steuregger stated that by 2005 her condition had improved, although she was taking medication and was still undergoing counselling. She said that she believed a return to work would help. On 25 November 2005 she joined the Department of Defence and worked as an administrative officer in Joint Logistics Command at Victoria Barracks, and in her pre-employment medical examination in February 2006 she declared that she had been symptom-free for 12 months. She said that she enjoyed her work in the logistics compliance team, and she felt safe and happy. However circumstances changed on 12 September 2006 when she was moved to the coordination section of the logistics area. She said that she felt uncomfortable from the start, as the configuration of the office was unsatisfactory because the desks faced the wall, as since the robbery she had developed a phobia of anyone approaching her from behind.
6. Ms Steuregger explained that she felt that there was a negative atmosphere in the section, and that she became anxious and agitated. She said that she did not feel supported by her supervisor, Wing Commander J Cook. Her health and her work performance deteriorated in the first half of 2007. She stated that her general practitioner had doubled the dosage of antidepressants, but this did not seem to help. Ms Steuregger said that she suffered dizzy spells and memory loss. She began to misplace documents, but felt that her concerns were ignored. She claimed that senior management were aware of her medical condition but had failed to protect her from violent and abusive behaviour.
7. In relation to her role which included maintaining a register of classified documents, Ms Steuregger told the Tribunal that she developed a phobia of losing classified documents, and in December 2007 she decided to remove her name and the name of her subordinate from the register of persons authorised to handle classified documents. She admitted that she did not seek prior approval from Major P Buckland, who was the security officer. Ms Steuregger described the events of 19 December 2007, when Major Buckland came into her office. She said that he approached her in an aggressive manner (both verbally and in his body language) and slammed the register onto her desk, which frightened her. She said that he towered over her in an aggressive tone and demanded an explanation for her actions. Ms Steuregger stated that she was shaking with fright and was unable to answer his questions. She had to go home. Under cross-examination she agreed that she had not followed established procedures by removing her name from the register. She also agreed that she did not report the incident to her superiors, but said that afterwards she attended Dr S Honigman, her general practitioner.
8. Major Buckland told the Tribunal that he was disappointed with Ms Steuregger‘s actions in removing the names from the register without authorisation, particularly as she had not approached him with any concerns about her ability to perform the relatively minor duties associated with maintenance of the register. He denied that he was aggressive towards her and said that at the time he spoke to her he had not established the identity of the person who had removed the names.
9. Ms Steuregger said that at a meeting held on 20 December 2007 with Wing Commander Cook and her immediate supervisor, Ms C Clark, to discuss her performance review, Wing Commander Cook raised the incident involving Major Buckland and the classified documents register. She said that he demanded to know when she would recover from her medical condition, and had informed her that unless her performance improved he would have to get rid of her. Ms Steuregger said that she could not continue and she left the meeting. She had a panic attack and consulted Dr Honigman, who authorised medical leave for one month. She said that she returned to work in January 2008, but that the situation had not improved.
10. She stated that Ms Clark had a habit of tapping her on the shoulder or slapping her on the arm. She said that this was not done in a malicious way but was an invasion of her personal space and constituted harassment, which aggravated her medical condition.
11. Under cross-examination Ms Steuregger agreed that a symptom of her PTSD is memory loss. She said that she often forgets dates. She also agreed that she had told a psychologist that a major issue for her had been that she misconstrues facts and comments by others, which had caused problems within the family and that she would benefit by not becoming so upset at her interpretation of comments made by others. She also acknowledged that she had told the psychologist that she magnifies unpleasant experiences. Ms Steuregger said that she has been unable to contact her former work colleagues who would be able to support her claim.
12. Ms Steuregger acknowledged that Dr Honigman’s clinical notes of February and March 2008 do not contain any reference to concerns raised by her about Major Buckland or the events arising from the meetings on 19 and 20 December 2007. She explained that she does not tell Dr Honigman or her husband everything significant. She agreed that in her claim for compensation dated 19 March 2008 she referred to only one incident in which she alleged that a member of staff approached her in an aggressive manner. However in a written statement lodged with the Tribunal on 4 June 2009 she widened her claim to include alleged violations of the Department of Defence Code of Conduct over a period of 2 years, plus a range of failures by management to support her, together with an allegation that Ms Clark had assaulted her by slapping her which had caused bruising. She also alleged that she was moved to a section that was under investigation due to the often violent and abusive behaviour of one of their senior staff members (a Major B O’Shaughnessy) whom she claimed became her supervisor. She denied that she had re-constructed events to suit her purposes in lodging the claim, although she conceded that some of her diary entries may be inaccurate as she had estimated particular dates. She said this was because of her memory problems. Ms Steuregger conceded that she had not mentioned work issues to Dr Honigman during consultations between August 2007 and February 2008. Under cross-examination she also admitted that Major O’Shaughnessy had not been her supervisor and had been involved in one incident not directly affecting Ms Steuregger.
13. Ms Steuregger described a meeting in July 2008 at which Ms Clark criticised her and she felt unwell and had to leave the building. Dr Honigman provided medical certificates and she has not worked since then. She said that she is continuing to consult a clinical psychologist, and hopes to return to work in the future with another employer. She agreed that she has had serious financial problems in the past, and some difficulties remain.
14. Ms Clark told the Tribunal that she and others within the logistics area had done everything possible to accommodate Ms Steuregger’s needs, including re-arranging furniture, obtaining partition screens to protect her from unnecessary contact and re-locating her to a more convenient office. She arranged training for Ms Steuregger and others in handling classified documents. Ms Clark denied touching Ms Steuregger inappropriately, and said that until the lodgement of the compensation claim there had never been a complaint by Ms Steuregger or anyone else about such allegations. Ms Clark said that at the meeting on 20 December 2007 there had been discussion of Ms Steuregger’s work performance, but that Wing Commander Cook did not use words to the effect that he wished to get rid of her. Ms Clark referred to the meeting on or about 4 July 2008, and said that she and Wing Commander Cook were trying to help by reducing Ms Steuregger’s areas of responsibility. However Ms Steuregger had become abusive and had stormed out of the meeting.
15. Wing Commander Cook told the Tribunal that at the meeting on 20 December 2007 he had sought to discuss Ms Steuregger’s unwillingness to perform a significant portion of her duties because of her medical condition. He said that he did not use the words alleged by Ms Steuregger or threaten her in any way, and had mentioned the possibility of a re-location to another section if she was unable to perform her role.
16. Dr Honigman’s clinical notes show that Ms Steuregger was treated for anxiety in December 2004, June 2005 and September 2005. In a report dated 23 April 2008 Dr Honigman stated that he has been treating Ms Steuregger since 2001. He noted the diagnosis of PTSD and said that she had been treated with antidepressant medication and counselling. Dr Honigman said that following her commencement of employment with the Department of Defence in 2005, her next consultation was on 25 May 2007 when she complained of panic attacks, poor sleep and difficulty in coping at work. He attributed her symptoms in part to her husband’s absence interstate and her responsibilities at home. He said that she consulted him on 9 February 2008 complaining of panic episodes which she stated were caused by employment-related stress. She was anxious and forgetful. He diagnosed a recurrence of PTSD and placed her on restricted duties. Dr Honigman concluded that the recurrence was partly due to her employment situation where she felt she did not have the support of her supervisor, and her anxiety arising from aspects of her work. He also referred to non-work issues such as separation from her husband, but said that the major underlying problem was that she never fully recovered from the stress caused by the armed robbery.
17. In a report dated 26 May 2008 Dr A Sheehan, consultant psychiatrist, stated that Ms Steuregger suffered from an aggravation of pre-existing PTSD. He noted that she reported residual symptoms including recurrent nightmares of the armed robbery, hypervigilance, exaggerated startle responses, irritability, sleep disturbance and impaired cognition. He said that she referred to employment factors such as excessive workload, a confrontation with a security officer, and a meeting at which her superior officer threatened her with termination. Dr Sheehan told the Tribunal that the move to Sydney by Ms Steuregger’s husband, and allegations of poor work performance, would have contributed to the aggravation of the condition.
18. In a report dated 1 April 2008 Dr L Ding, consultant psychiatrist, stated that Ms Steuregger’s PTSD was in partial remission with a significant vulnerability to relapse. He said that her husband’s posting to Sydney in 2007 would have been a significant contributing factor, accentuated by what she perceived as a lack of understanding by her supervisor about her concerns over her own work performance. In a further report dated 6 August 2008 he reported that there had been a deterioration in her condition by June or July 2008, which was aggravated by her perception of an unreasonable approach by a team leader. He also stated that her own attitude and interpersonal judgment were affected adversely by her deteriorating condition.
19. Having regard to the medical evidence the Tribunal is satisfied that Ms Steuregger’s PTSD suffered as a result of the armed robbery in 2000 was a pre-existing condition when she commenced employment with the Department of Defence in 2005. Her treating general practitioner recorded treatment for anxiety in December 2004, June 2005 and September 2005. The clinical notes show that non-work issues such as her husband’s move to Sydney, financial concerns and family issues had a significant effect on her presentation and ability to perform her duties from 2005. The Tribunal views as relevant the fact that that her original claim for compensation was based on a single allegation of aggressive behaviour by an unnamed officer on 17 January 2008 (but was presumably referring to the incident with Major Buckland on 19 December 2007) and she admitted that she did not seek treatment until 9 February 2008. Also of significance is Ms Steuregger’s statement filed with the Tribunal on 4 June 2009 which contains a litany of additional unsubstantiated and mostly generalised complaints against senior management of the Department of Defence.
20. Ms Steuregger admitted that as a consequence of PTSD she has memory problems; she chose dates for her diary entries without being sure of their accuracy; she did not tell her husband or general practitioner about certain significant events because she did not trust them; and she sometimes misconstrues comments by others and magnifies or exaggerates unpleasant experiences. The Tribunal takes into account that the contemporaneous clinical notes of Dr Honigman contain no reference to a number of work issues that Ms Steuregger claims were factors that aggravated her PTSD.
21. In respect of the specific allegation that Ms Clark harassed or assaulted Ms Steuregger the Tribunal notes that in diary entries and written statements Ms Steuregger referred to slapping and touching and tapping on the shoulder. However there is no objective evidence to support any claim of harassment or assault, and the Tribunal accepts Ms Clark’s version of the events in question. Any allegation of assault or inappropriate physical contact is very serious, yet Ms Steuregger made no complaints about Ms Clark to senior officers or to any independent authority. Similarly in relation to the incident on 19 December 2007, at the time of the meeting Major Buckland did not know the identity of the person who removed the names from the register of classified documents. The Tribunal accepts his evidence that he did not display aggressive behaviour or intimidate Ms Steuregger. In relation to Major O’Shaughnessy there is no evidence that any actions by her had any impact on Ms Steuregger.
22. In respect of the meeting on 20 December 2007 to discuss Ms Steuregger’s unwillingness to perform some of her duties, including those relating to classified documents, the Tribunal is satisfied that Wing Commander Cook and Ms Clark made efforts to ensure that Ms Steuregger was able to continue to contribute to the work of the section. Wing Commander Cook had no authority to get rid of Ms Steuregger, and the Tribunal accepts the evidence from him and from Ms Clark that those words, or words to that effect, were not used.
23. Overall, the Tribunal is satisfied that Ms Steuregger made a genuine effort to give an accurate account of events that occurred during her employment with the Department of Defence. However the evidence of memory loss, an unwillingness to trust her general practitioner, admissions of misconstruing other persons’ comments and magnifying or exaggerating unpleasant experiences, are consistent with the medical and other evidence that Ms Steuregger has a predisposition to aggravation of her PTSD. The Tribunal is also satisfied that some of the symptoms of her condition were manifested at work but were related to non-work factors such as family and financial issues.
24. For these reasons the Tribunal finds that, having regard to the matters contained in s 5B(2) of the SRC Act, the aggravation of Ms Steuregger ‘s PTSD was not contributed to, to a significant degree, by her employment with the Department of Defence.
IN RESPECT OF s 5A OF THE SRC ACT, DID THE AGGRAVATION OF PTSD ARISE OUT OF, OR IN THE COURSE OF, EMPLOYMENT AND, IF SO, WAS IT EXCLUDED BY THE REASONABLE ADMINISTRATIVE ACTION OF THE EMPLOYER?
25. For the reasons already given, the Tribunal finds that the aggravation of PTSD did not arise out of, or in the course of, employment with the Department of Defence. In any event, the Tribunal finds that the actions by officers as described in these reasons constitute reasonable administrative action, so that the aggravation would be excluded under s 5A(1) of the SRC Act.
DECISION
26. The Tribunal affirms the decision under review.
I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
[Signed] Grace Horzitski
Associate
Dates of hearing: 23 and 24 September 2009
Date of decision: 2 October 2009
Advocate for the applicant: Self-represented
Counsel for the respondent: Mr J Wallace
Solicitor for the respondent: Australian Government Solicitor
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