SUSAN HEY and COMCARE

Case [2013] AATA 131

[2013] AATA 131 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2011/2664

Re

SUSAN HEY

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER
Date 13 March 2013
Place

Canberra

The decision under review is affirmed.

..................................................................................

PROFESSOR RM CREYKE, SENIOR MEMBER

Catchwords

COMPENSATION – Commonwealth employees – anxiety and depression – adjustment disorder – bullying and harassment in the workplace – date of injury – whether there was contribution to a significant degree by employment – impact of non-employment factors on injury – predisposition to development or aggravation of injury – whether reasonable administrative action taken in a reasonable manner

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4, 5A, 5B, 7, 14

Cases

Comcare v Canute (2005) 148 FCR 232

Comcare v Mooi (1996) 69 FCR 439

Commonwealth Bank of Australia v Reeve [2012] 199 FCR 463

Dunstan v Comcare (2011) 125 ALD 362

Re Georges and Telstra [2009] AATA 731

Re Havnen and Comcare [2010] AATA 535

Secondary Materials

American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision) Item 309.28, 680

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER

13 March 2013

Introduction

  1. Ms Susan Hey, born 1958, sought compensation on 5 August 2010 for ‘anxiety disorder with phobia arising from prolonged period of bullying and harassment, features consistent with post-traumatic stress syndrome’.

  2. The application under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) was rejected by Comcare on 24 November 2010, a decision affirmed on review on 11 May 2011. Ms Hey sought further review by the Tribunal on 8 July 2011.

  3. The further review by the Tribunal was heard in Canberra between 13 December 2012 and 18 December 2012, and on 18 January 2013.

    Background

  4. Ms Hey was employed at the relevant time by InTACT, the ACT’s Department of Territory and Municipal Services (the agency). Ms Hey’s employment with the ACT Public Service commenced in November 1999 when she worked at a TAFE.  Initially she was classified as an officer at the Grade ASO3 (Australian Service Officer 3) level. From 18 April 2005 until 15 July 2005 she was temporarily transferred to an ASO4 position in the ACT Department of Education and Training and for a period from 18 April 2005, she also temporarily filled a SOG C (Senior Officer Grade C) position and was paid on a partial performance basis. This temporary position continued until 10 November 2005 when she reverted to her non-ongoing ASO4 position. On 3 November 2005 Ms Hey was promoted to an ongoing Grade ASO4 Web position. In late 2006, the Information Management Branch of which the Web team in which Ms Hey was employed was transferred to InTACT and moved location to the Woden town centre. Ms Hey and three other members of the team moved to Woden in October 2006.

  5. In May 2006, Ms Hey applied unsuccessfully for a permanent promotion to an ASO5 position. Ms Hey was then temporarily transferred to an ASO4 position in…

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AGLC
SUSAN HEY and COMCARE [2013] AATA 131
Case
[2013] AATA 131
Decision Date

CaseChat Overview and Summary

In the case of Susan Hey and Comcare, the parties involved were Ms. Hey, an employee of the ACT’s Department of Territory and Municipal Services, and Comcare, which is the Australian Government entity responsible for managing workers' compensation claims for federal public sector employees. The dispute arose when Ms. Hey claimed she suffered an anxiety disorder with phobia, consistent with post-traumatic stress syndrome, due to alleged bullying and harassment in her workplace between October 2005 and April 2007. The case was heard by the Administrative Appeals Tribunal (AAT) and further reviewed by the AAT between 13 December 2012 and 18 December 2012, with a final decision rendered on 18 January 2013.

The primary legal issues before the court were whether Ms. Hey's condition qualified as an injury under the Commonwealth’s workers' compensation legislation and whether the alleged bullying and harassment constituted reasonable administrative action taken in a reasonable manner, which would exclude her claim under the relevant collective agreement. The court needed to determine if Ms. Hey's psychological condition was a result of her employment and if it could be categorised as a disease, as defined by the legislation. Furthermore, the court had to interpret the terms of the Department of Territory and Municipal Services Union Collective Agreement 2007-2010 to ascertain if the actions of the employer fell within the exclusion clause.

The court reviewed the evidence provided by Ms. Hey and the medical professionals involved. Ms. Hey’s treating general practitioner, Dr. Clare McGuiness, did not provide a definitive diagnosis but noted a significant interrelationship between previous abuse, fear of authority, and disabling anxiety. Dr. McGuiness suggested that the thought of returning to work caused Ms. Hey acute anxiety, nausea, dread, insomnia, palpitations, and restlessness. Multiple medical professionals diagnosed Ms. Hey with an adjustment disorder, some also noting anxiety and depression. The court also considered the actions of the employer and whether they constituted reasonable administrative action. Ultimately, the court concluded that Ms. Hey's psychological condition was work-related and qualified as an injury under the workers' compensation legislation. However, it found that the actions of the employer were reasonable administrative actions taken in a reasonable manner, leading to the exclusion of her claim under the collective agreement.

The court's decision resulted in Ms. Hey's claim being dismissed. The Tribunal found that while Ms. Hey suffered a compensable injury, the exclusion clause in the collective agreement applied, and thus her claim was not eligible for compensation. The orders of the court were that Ms. Hey's claim be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The further review by the Tribunal was heard in Canberra between 13 December 2012 and 18 December 2012, and on 18 January 2013.Background Ms Hey was employed at the relevant time by InTACT, the ACT’s Department of Territory and Municipal Services (the agency). Ms Hey’s employment with the ACT Public Service commenced in November 1999 when she worked at a TAFE. Initially she was classified as an officer at the Grade ASO3 (Australian Service Officer 3) level. From 18 April 2005 until 15 July 2005 she was temporarily transferred to an ASO4 position in the ACT Department of Education and Training and for a period from 18 April 2005, she also temporarily filled a SOG C (Senior Officer Grade C) position and was paid on a partial performance basis. This temporary position continued until 10 November 2005 when she reverted to her non-ongoing ASO4 position. On 3 November 2005 Ms Hey was promoted to an ongoing Grade ASO4 Web position. In late 2006, the Information Management Branch of which the Web team in which Ms Hey was employed was transferred to InTACT and moved location to the Woden town centre. Ms Hey and three other members of the team moved to Woden in October 2006. In May 2006, Ms Hey applied unsuccessfully for a permanent promotion to an ASO5 position. Ms Hey was then temporarily transferred to an ASO4 position in the ACT Department of Treasury on 19 October 2006. Ms Hey returned to InTACT in April 2007 on a graduated return to work program in the packaging team. When no training as she claimed was promised was forthcoming, Ms Hey moved to the assets section but claimed she was given demeaning work. In May 2007 Ms Hey commenced work with the ACT Chief Minister’s Department at the Grade ASO5 level as an online communications project officer where she remained until 12 October 2007. On 21 December 2007, Ms Hey applied for and was granted 12 months leave without pay. On 21 January 2008, Ms Hey agreed to become unattached to enable her to take leave without pay and undertake a second job. Both approvals were subsequently extended to 26 October 2009. Ms Hey was on personal (sick) leave between 9 November 2009 and 6 August 2010. Ms Hey obtained a position outside the public sector with Hepatitis Australia, where she worked as a Publications and Resources Officer from 21 January 2008 until 31 August 2011. Subsequently she obtained a position as an APS6 (Australian Public Service level 6) officer in the Australian Department of Broadband, Communications and Digital Economy, on a three month contract due to conclude in January 2012. She continues to be employed in the position. She has not resigned from the ACT public service. As a consequence of these developments, Ms Hey did not return to the agency as expected in October 2009. On 15 April 2009, she had been certified by her general practitioner, Dr Clare McGuiness, as fit for duty. However, on 6 November 2009, Dr McGuiness certified her unfit for work from 6 November 2009 until 7 December 2009. Dr McGuiness again certified her unfit to work between 9 November 2009 and 8 November 2010. On 20 June 2011, Ms Hey was formally directed to return to work with the agency. However, on 24 June 2011, Dr McGuiness certified her unfit for work from 8 June 2011 to 7 June 2012.

Evidence

Evidence Before The Court

Ms Hey had been trained as a nurse and she acknowledged that on occasions she worked on a casual basis on weekends as a registered nurse in hospitals and aged care facilities. That work took place between 11 May 2004 and 27 January 2007. In addition, she agreed in evidence that she also sold jewellery on occasions from a stall at a Sunday market.Medical evidenceDr Paul Jones Dr Jones clinical notes for 27 February 2007 state: …claimed to have been bullied and harassed at work for the past 2 years, had numerous days off but did not attend for certificates, asked if I could do retrospective case for leave. I declined. Feeling anxious/stressed back at work today even though person responsible has been moved to another workplace in another suburb. On that occasion he provided an off work certificate for 27 February 2007 to 2 March 2007. Other medical certificates granted from the practice were:· 30 April 2007: for 27-30 April 2007;· 16 August 2007: for 16-17 August;· 20 August 2007: for 20-22 August 2007;· 22 August 2007: for 22-24 August 2007; · 30 August 2007: for 30-31 August 2007; and· 17 December 2007: 17-18 December 2007. Dr McGuiness Dr Clare McGuiness was Ms Hey’s treating general practitioner from 6 November 2009. She said in a report dated 4 October 2010 she could not make a diagnosis but that Ms Hey’s issues involved ‘an interrelationship between previous abuse, fear of authority and disabling anxiety’. She also said that ‘The requests by her department to return to work have clearly been an aggravation of a pre-existing situation’, but she said she did not know if Ms Hey was ‘more disabled than before’. Her opinion was that ‘her current state may be a new manifestation of her psychological (ill)health rather than an aggravation of previous dysfunction’. Dr McGuiness also said: ‘Her history suggests she has never decompensated to this degree before’. She also noted ‘The employment factors appear to be Ms Hey’s fear of future management behaviour and to the degree any of her concerns are justified I have no information on which to comment’. She indicated ‘her condition has eased a little’ and a further 12 months of leave without pay would enable her to undergo psychiatric treatment which may allow her to ‘resume duties within the public service’. The report noted that Ms Hey was ‘functioning well in all aspects of life until the thought of returning to work [with the ACT Government] was in front of her’. She then experiences ‘acute anxiety with nausea, dread, insomnia, palpitations and restlessness’. Dr McGuiness also noted that on those occasions Ms Hey ‘was clearly unable to articulate her thoughts or make a cogent decision of any sort’. Dr McGuiness said Ms Hey is intolerant of anti-depressant medication, will not take sedatives, but does not present as irrational or psychotic. She said Ms Hey was ‘fearful that she would be given menial tasks in any new job as had happened to her in the past, for example, prolonged stapling of papers, which was far below her skill set and which she perceived as bullying’. Dr McGuiness’s view was that Ms Hey’s reluctance to submit a workers’ compensation claim was ‘clearly part of the symptomatology of her condition’.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

An issue is whether the claim is excluded because the actions which led to Ms Hey’s claims of bullying and harassment can be categorised as ‘reasonable administrative action taken in a reasonable manner’ pursuant to section 5A. This element of the claim requires consideration of the terms of the Department of Territory and Municipal Services Union Collective Agreement 2007-2010.ConsiderationDid Ms Hey suffer an injury being a ‘disease’, namely, an ailment or an aggravation of such an ailment due to her employment by the agency? Ms Hey claimed that she suffered an anxiety disorder with phobia arising from a prolonged period of bullying and harassment, features consistent with post-traumatic stress syndrome. The claimed period during which the bullying and harassment occurred was between October 2005 and April 2007. For the purposes of her claim Ms Hey nominated November 2005 as the time at which the injury was sustained. In its decision of 24 November 2010, Comcare described her condition as an adjustment reaction with mixed emotional features. Dr Clare McGuiness, Ms Hey’s treating general practitioner, described her symptoms in the 4 October 2010 report as ‘acute anxiety with nausea, dread, insomnia, palpitations and restlessness’ but did not diagnose a medical condition. In a Comcare medical certificate dated 6 August 2010, Dr McGuiness’ diagnosis was listed as ‘anxiety disorder with phobia arising from prolonged period of bullying and harassment, features consistent with post-traumatic stress syndrome, but final diagnosis unclear’. Dr Jeffrey Swift, consultant psychiatrist, in an assessment for duty report to ACT Treasury of 21 December 2009, deferred a diagnosis due to the complexity of Ms Hey’s conditions and his limited contact with her. At the same time, he reported ‘Ms Hey describes symptoms of chronic adjustment disorder with mixed anxiety and depression’. Mr Leigh Nomchong, Ms Hey’s treating psychologist, diagnosed anxiety and depression. Ms Hey had six consultations with him. Dr Zoltan Zsadanyi, consultant psychiatrist, in a report to Comcare dated 1 November 2010 diagnosed an adjustment disorder with mixed anxiety and depressive symptoms. Dr John Saboisky, consultant psychiatrist, in a report for Ms Hey dated 8 December 2011, diagnosed anxiety and depression. According to him Ms Hey had ‘a vulnerability to psychological symptoms as a result of [her] traumatic past and…personality style’. He said the prospect of return to work in November 2009 ‘led to the development of significant psychological symptoms…diagnosed as an adjustment disorder with features of anxiety and depression’. In summary, all three psychiatrists diagnosed Ms Hey as having an adjustment disorder, two also included a reference to anxiety and depression. Ms Hey’s treating psychologist, Mr Nonchong, noted anxiety and depression, as did her treating general practitioner, Dr McGuiness. Comcare’s diagnosis was adjustment disorder with mixed emotional features. Ms Hey claimed anxiety disorder with phobia consistent with a post-traumatic stress disorder syndrome.