Su v Comcare

[2011] AATA 934

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 934

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3013

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PAUL SU

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date23 December 2011

PlaceCanberra

Decision The decision under review is affirmed.

......................[sgd]........................

Mr S. Webb, Member

CATCHWORDS

WORKERS COMPENSATION – disease – significantly contributed to by reasonable administrative actions taken in a reasonable manner – claimed aggravation – continuing effects of disease – no aggravation – decision affirmed

Safety, Rehabilitation and Compensation Act ss 5A, 5B, 14

Comcare v Sahu-Kahn (2007) 156 FCR 536

REASONS FOR DECISION

23 December 2011 Mr S. Webb, Member         

1.      Paul Su was employed by the ACT Government. Initially he worked at the Canberra Institute of Technology and later in the ACT Department of Education and Community Services’ Shared Services Section. He experienced depression. Mr Su became disappointed and frustrated at work. He was certified unfit for work. He claimed compensation. Comcare rejected his claim by primary determination and on reconsideration[1]. Unhappy with Comcare’s decisions, Mr Su applied for review.

[1] T76 and T109.

2.      The issue to be decided is whether Mr Su sustained an injury in the form of a disease for which Comcare is liable. For that purpose it is necessary to answer the following questions:

(a)does Mr Su suffer from a ‘disease’; and, if so

(b)is the disease excluded as an ‘injury’?

Does Mr Su suffer from a ‘disease’?

3.      At the hearing, Mr Su informed me that the basis of his claim is narrower than that set out in his compensation claim form[2], and only concerns the effects of a meeting on 27 August 2009 with his supervisor, Michelle Demetrius, and her supervisor, Heidi Martin[3]. As I understand his submission on this point, Mr Su maintains that prior to this day he was not incapacitated for work, although he had struggled with difficulties at work for some years and had experienced periods of incapacity from time to time. In his submission, it was the meeting on 27 August 2009 that rendered him unable to cope at work anymore and tipped him over into a long period of incapacity. As he carefully explained on a number of occasions during the hearing, his case is that he recovered from the illness he suffered in June 2009 and from the obsessions he had suffered hitherto in relation to his frustrated ambitions and difficulties in his (then) employment. The assertion he presses is that he was well and performing to an excellent standard up to the meeting on 27 August 2009. That meeting, in his submission, caused the injury that is the subject of his claim.

[2] T28.

[3] Mr Su handed up an Opening Statement to clarify this point, dated 20 October 2011.

4. Under Section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), an ‘injury’ is defined to include a ‘disease’ suffered by an employee but excludes a disease suffered ‘as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’. Section 5B(1) defines ‘disease’ to mean an ‘ailment suffered by an employee’ or ‘an aggravation of such an ailment’ ‘that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth’. When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2).

5.      The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”[4].  If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.

[4] Comcare v Sahu-Kahn (2007) 156 FCR 536, 542.

6.      It is established without controversy that in September 2008 Mr Su suffered from a ‘disease’, in the form of a Major Depressive Disorder that was significantly contributed to by his employment. It appears that this condition remitted to some degree and Mr Su continued in his employment. But he continued to experience difficulties, including frustrated ambition, in his employment that significantly contributed to a serious deterioration in his mental health on or about 3 June 2009. Comcare’s concession that Mr Su’s employment significantly contributed to the ailments he suffered in September 2008 and on 3 June 2009 is consistent with my assessment of the evidence, and I accept it.

7.      On the present evidence, I am satisfied, and Mr Su readily conceded, that the disease he suffered in September 2008 and the aggravation of that disease on or about 3 June 2009 are not injuries for the purposes of the Act. He accepted that the disease was contributed to by events in his employment since 2007 that involved his failure to obtain promotions on five occasions and other matters, concerning applications for leave for example, that are within the exclusionary terms of section 5A of the Act. These issues were thoroughly ventilated with Mr Su and I am satisfied that he understands the implications of his concession on this point.

8. Mr Su’s concessions concerning the events and ailments he suffered in the context of his employment on and prior to 3 June 2009 are well made. They are entirely consistent with the weight of the present evidence and I have no difficulty accepting them. Having regard to section 5A(2), and paragraph 5A(2)(f) in particular, I am reasonably satisfied that the disease Mr Su suffered in September 2008 and the aggravation of that disease on 3 June 2009 were significantly contributed to by reasonable administrative action taken in a reasonable manner and are, therefore, excluded by operation of section 5A(1).

9.      Mr Su’s case rises on two limbs. Firstly, he asserts that he suffered a fresh injury or an aggravation of Major Depressive Disorder on 27 August 2009 as a result of the meeting with Ms Demetrius and Ms Martin on that day. Secondly, Mr Su says that this injury is not excluded for the purposes of the Act because it was not reasonable administrative action taken in a reasonable manner. In particular, he says that he was not given notice and he was not invited to have a support person attend with him; the meeting was conducted by his immediate supervisor, Ms Demetrius, and her immediate supervisor, Ms Martin, and this breached his privacy; the meeting was for the purposes of a performance assessment, but it traversed issues concerning his flex records, and that was not appropriate or lawful; in the course of the meeting, Ms Demetrius and Ms Martin made allegations of fraud against him in an overbearing manner and without affording him procedural fairness and natural justice; aspects of the meeting were not conducted strictly in accordance with the requirements of the Department of Territory and Municipal Services Union Collective Agreement 2007-2010; and the meeting continued even though he became upset and agitated.

10.     I note the extensive written submissions Mr Su has made in these proceedings and the statement he has made in evidence.

11.     Having carefully considered the medical evidence, I am reasonably satisfied that Mr Su was not well in the weeks immediately preceding 27 August 2009. I do not accept his submissions to the contrary.

12.     At the time, Mr Su was obtaining treatment from Bridget Hehir, his treating clinical psychologist, on referral by Dr Amelia Herath, his treating general practitioner. On 18 August 2009 Ms Hehir reported that Mr Su had initially presented (on 22 June 2009) with “severe anxiety and depressive symptoms” and that after six consultations and anti-depressant medication he had made “significant improvements”, and “he would benefit from a further six sessions”[5]. Ms Hehir’s clinical notes reveal that she consulted Mr Su before and after 27 August 2009 – six sessions before and six sessions after that date. Her notes in respect of the consultation on 7 September 2009[6] do not suggest that anything of great significance occurred on 27 August 2009 – “thurs before [27 August 2009] – workplace meeting. Perf mgmt. plan – excellent. Flex sheet discrepancies – 9.01 (Paul) 9.08 (supervisor) – want him to change - ?put back on std hours says shd be working 7.21 per day – not approving leave for Mon”. Nevertheless, Ms Hehir noted that Mr Su appeared “anx++. Last thurs [3 September 2009] – highly stressed” and that he was depressed. On 21 September 2009 Ms Hehir reported that even though there had been some improvement “his working environment is a significant contributor to his current difficulties with depression and inability to manage stress”[7].

[5] T17 folio 45.

[6] T61 folio 181.

[7] T24 folio 54.

13.     Ms Hehir’s notes are not consistent with a fresh or aggravation injury occurring on 27 August 2009. On Ms Hehir’s notes it appears that Mr Su’s symptoms may have fluctuated somewhat in response to environmental stresses, including financial stresses, domestic tensions, health issues, issues concerning vehicle registration and an infringement notice, as well as ongoing frustrations and conflicts at work.

14.     I note the reports of Dr Graham George[8], Dr Anthony Sheehan[9], Dr Zoltan Zsadanyi[10] and Dr Jeffrey Bertucen[11], consultant psychiatrists. On this evidence, it is clear that Mr Su was not well prior to 27 August 2009 and he had not fully recovered from his previous illness in June 2009. I am reasonably satisfied that the psychiatric illness that caused Mr Su to obtain medical treatment as of 3 June 2009 continued during the period in which Ms Hehir treated him (before and after 27 August 2009).

[8] T35.

[9] Exhibit R4.

[10] Exhibit A2.

[11] Exhibit R5.

15.     With regard to Mr Su’s contention that the excellent performance rating he was provided by Ms Demetrius on 27 August 2009[12] proves that he had recovered, I do not agree. The excellent rating he obtained was in respect of work contribution criteria, but it was not in respect of other criteria concerning attendance, punctuality, enthusiasm and motivation. Mr Su’s performance assessment against those criteria was less than satisfactory. To my mind, these assessments may well be consistent with, or indicators of, Mr Su’s continuing depressive disease. Mr Su says that his performance rating changed – before June 2009 he failed to obtain appointment to positions for which he applied, whereas on 27 August 2009 he was rated as performing excellently. There are three things to say about this. Firstly, the selection criteria for positions Mr Su applied for are not in evidence. Secondly, the performance assessment criteria and the selection criteria attaching to the particular positions Mr Su applied for may well be different than the performance assessment criteria attaching to the position in which he was working. Thirdly, in any event, the less than satisfactory assessment ratings may be consistent with his failure to obtain the appointments he desired.

[12] T13 folio 38.

16.     The proposition that Mr Su suffered a fresh injury or an aggravation of his existing disease on 27 August 2009 is not made out. As I have said, Ms Hehir’s contemporaneous clinical notes are not consistent with an injury occurring at or about that time.

17.     The Canberra Hospital Crisis Assessment and Treatment Team (CATT) records reveal that Mr Su obtained crisis interventions and follow-up support in June and July 2009 and from 1 September to 10 September 2009[13]. That is consistent with the continuing effect of the disease he suffered in June 2009. The specific notes on 1 September 2009 reveal that he was anxious and upset, and that Mr Su “Says that he was going well for a while bu[t] now things have gone downhill. Says that ‘everything’ is wrong at the moment, although could not be specific”. Later that day, Martin O’Brien noted that Mr Su “presents as quite distressed with a high expressed emotion. States still under pressure from work. Finances and relationship with wife states not able to cope… Last week end had a confrontation at work and his wife accused him of having an affair. These appear to be the precipitant for Paul’s distress”[14]. The CATT records on 4 and 8 September 2009 do not refer to any incident at work on 27 August 2009, although on 8 September 2009 Mr Su is noted to have “reported current concerns linked to financial difficulty”. It appears to me, when this notation concerning Mr Su’s distress is considered in the context of other contemporaneous medical evidence, that it is more probable than not that it was consistent with ongoing illness rather than a fresh injury.

[13] Exhibit R7.

[14] Exhibit R7, clinical notes 1 September 2009.

18.     Dr Herath’s clinical notes on 1 September 2009, although difficult to read, appear to refer to meetings at work on 28 July 2009 and 27 August 2009; the doctor noted “advised to see conflict resolution”[15]. This is consistent with a medical certificate issued on 7 September 2009, in which those two dates are included as dates of injury[16]. It is curious that Dr Herath did not refer to these meetings or these dates in her report to Comcare on 19 January 2010 when setting out the relevant history[17]. The history she set out clearly demonstrates the continuing nature of Mr Su’s illness from June 2009. This is consistent with the contemporaneous psychiatric evidence.

[15] Exhibit R9, clinical notes 1 September 2009.

[16] T20 folio 48.

[17] T74 folio 223.

19.     On 29 September 2009 Dr Graham George, a consultant psychiatrist, reported a detailed history to the reasons why Mr Su left work on 1 September 2009; this history makes no reference to any incident, fresh injury or worsening of symptoms on or about 27 August 2009[18]. That history was taken from Mr Su one month after the event that he now maintains caused a fresh injury. On 10 November 2009, Ms Hehir reported no fresh injury or worsening of Mr Su’s condition on or about 27 August 2009[19]. On 7 December 2009 Dr Bree Wyeth, a psychiatry registrar, made no reference to a fresh injury or an aggravation of Mr Su’s psychiatric condition on or about 27 August 2009[20]. This evidence, properly considered, does not support Mr Su’s contention that he was injured on 27 August 2009.

[18] T35 folios 98-100.

[19] T61 folio 174.

[20] T70 folio 218.

20.     In his claim for compensation on 23 September 2009, Mr Su recorded that he was injured on “08/2005” and that he first sought medical treatment for this injury from Dr Herath on “28/7/2009”[21]. During the hearing Mr Su informed me that the date of injury was not correct and he made an error – it should have been 2007. I have carefully examined all of the documents before me and I can find no evidence that Mr Su consulted Dr Herath, or anyone else for that matter, on 28 July 2009. I note that, on that day, Mr Su met with Ms Demetrius to discuss his flex leave arrangements, and that meeting was certified by Dr Herath as one of the dates of injury to which I have referred.

[21] T28 folio 62.

21.     Mr Su relies on the report of Dr Anthony Sheehan, a consultant psychiatrist[22]. Dr Sheehan examined Mr Su on 19 November 2010, more than 14 months after the claimed injury. The Doctor reported a history provided by Mr Su in which the meeting on 27 August 2009 assumed a different place and greater significance in the progress of his disease than the contemporaneous materials support[23]. Dr Sheehan’s assessment proceeded on the basis that the history was correct[24]. I am reasonably satisfied that the history Mr Su gave Dr Sheehan was not correct – he was not referred to CATT for crisis intervention on 28 August 2009, after the meeting on 27 August 2009; he became involved with CATT early in June 2009, well before that meeting. Unfortunately, Dr Sheehan’s report is only as reliable as the history he was provided by Mr Su, and for this reason it carries little weight.

[22] Exhibit R4.

[23] Exhibit R4, pp 2-3.

[24] Exhibit R4, pp 9-10.

22.     Further to this point, to my mind Mr Su’s evidence is not reliable. Many were the occasions, under cross-examination, that he changed his evidence in the face of compelling contradictory materials. It is not necessary to identify each of these inconsistencies for present purposes as the substantive issue does not turn on credit issues alone. Whether Mr Su is simply a poor historian, perhaps suffering from the effects of disease or a faulty memory as he contends, or whether there are other reasons that explain these inconsistencies, I cannot determine; nor is it necessary to do so. I am satisfied that little weight can be given to Mr Su’s uncorroborated evidence.

23.     In sum, I am reasonably satisfied that Mr Su did not suffer a fresh injury or an aggravation of his existing disease on or about 27 August 2009. He was already unwell and under the on-going treatment of Ms Hehir and Dr Herath at this time. If there was an increase in his symptoms at or about this time, and there is some evidence that his symptoms increased on or about 1 September 2009, to my mind those increased symptoms are properly attributable to the continuing progress of his already existing and symptomatic depressive disease. I note that Dr George diagnosed Major Depression with psychotic features on 29 September 2009.

24.     It follows that Mr Su’s application cannot succeed and the decision under review will be affirmed.

25.     It is not strictly necessary to proceed further to consider whether the events on 27 August 2009 constituted ‘reasonable administrative action taken in a reasonable manner’.

26.     On that issue, I simply observe that the meetings on 28 July 2009 and 27 August 2009 were reasonable administrative actions. It was reasonable for Ms Demetrius to meet with Mr Su on those days to discuss his flex leave arrangements and his performance assessment. The inclusion of Ms Martin in the meeting on 27 August 2009 was also reasonable – Ms Demetrius asked for assistance and guidance as she had little experience undertaking a performance assessment. Mr Su asserts that this was an invasion of his privacy, as performance assessments are confidential documents. It appears to me that within the hierarchical structure of the public sector agency in which he worked, it was reasonable for Mr Su’s immediate supervisor and her supervisor to participate in the performance assessment without intruding upon Mr Su’s privacy to the extent that the meeting should be considered unlawful. I prevented Mr Su from persisting with cross-examination of Ms Martin on this point as it is not determinative. I explained the reasons for this during the hearing and provided Mr Su with a reasonable opportunity to continue with his cross-examination on any other relevant matters. Later, Mr Su submitted that he was prevented from cross-examining Ms Martin. This is not correct. Mr Su represented himself and significant efforts were made, with the assistance of Mr Dillon, counsel for Comcare, to ensure that he was provided with procedural fairness throughout the hearing. I am satisfied that he was and that there was no utility in recalling Ms Martin.

27.     There is a dispute about whether or not Mr Su was offered the opportunity for a support person to attend the meeting with him. I prefer Ms Martin’s evidence on this point. I found Ms Martin to be a reliable and frank witness.

28.     Mr Su says that raising issues in respect of his flex leave arrangements and record-keeping in the context of the meeting on 27 August 2009 was not done lawfully – procedures were not followed, he was not provided with proper notice, and he was not provided with time to prepare or to arrange a support person. I have carefully considered the terms of the Collective Agreement and related policies concerning flex leave, and note that provision is made for a supervisor to monitor, discuss and, if necessary, to impose sanctions in respect of flex leave. As can be seen, attendance and punctuality were areas in which Mr Su’s performance was less than satisfactory. He had been placed on notice of concerns about his flex leave arrangements on 28 July 2009, and previously. By his own account he had taken concerns about this to his Union. It appears that no action was taken against Mr Su on account of his flex leave in the meeting on 27 August 2009; he was simply placed on notice that there were continuing issues for him to address. This, to my mind, was reasonable in the circumstances.

29.     Mr Su says that cultural factors were not taken into account. I have seen no evidence of anything culturally inappropriate in the manner in which that meeting was conducted. This submission is not made out.

30.     As I have said, Mr Su was not well on 27 August 2009 and he became agitated in the meeting. But the meeting continued. To my mind it may have been preferable to stop the meeting when Mr Su became agitated, but it is not clear, and it is not established, that continuing with the meeting in the circumstances was not reasonable.

31.     Thus, it appears to me that the meeting on 27 August 2009 was reasonable administrative action and it was undertaken in a reasonable manner.

Conclusion

32.     The decision under review is affirmed. Mr Su suffered from a psychiatric disease prior to 27 August 2009. That disease is excluded as an injury for the purposes of the Act as it resulted from, and was significantly contributed to, by reasonable administrative actions that were taken in a reasonable manner. Mr Su did not suffer a fresh injury or an aggravation of his previously existing disease on 27 August 2009. Even if I am wrong on that point, if he did suffer an aggravation of his existing disease on that day, the aggravation is excluded as an injury because it, too, resulted from reasonable administrative action taken in a reasonable manner.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.  

Signed:         ............................[sgd]...................................................
  H. Choi, Associate

Dates of Hearing        20, 21 October and 24, 25 November 2011

Date of Decision        23 December 2011
Representative for the Applicant               Self-represented
Counsel for the Respondent                      Mr A. Dillon
Solicitor for the Respondent                       Mr B. Dean, Australian Government Solicitor