SUSAN HEY and COMCARE
[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
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’.
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.
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.
Ms Hey claimed that her debilitating condition was due to continued bullying and harassment from three former team members between October 2005 and April 2007 while she was working with the agency. One team member (‘male co-worker’) was particularly identified by Ms Hey. In June 2006 mediation was proposed because of the personality conflict between Ms Hey and the male co-worker. Both parties refused to attend a joint mediation but they undertook to act in a professional and civil manner towards each other.
On 23 June 2006 Ms Hey filed a number of incident reports concerning her claims of bullying and harassment by persons within the agency. The incidents were:
·9 February 2006: a response by the male co-worker to her questioning him about procedures for changing the website which Ms Hey said was aggressive;
·15 February 2006: complaints by the male co-worker about not being able to get into website statistics that left Ms Hey feeling scared and increased her feelings of inadequacy;
·15 February 2006: a comment by another officer that Ms Hey should ‘wake up to herself’ in response to Ms Hey’s complaint about him moving her filing cabinet without consulting her;
·2 March 2006: a comment by the male co-worker which Ms Hey claimed was aggressive and dismissive in response to Ms Hey’s questioning him as to why he uploaded work to his computer while Ms Hey was still working on the material;
·28 April 2006: a teasing by the male co-worker about Ms Hey’s ITIL (Information Technology Infrastructure Library) results;
·1 May 2006: a comment by the male co-worker about Ms Hey’s health about which she was confused, anxious and upset;
·30 May 2006: the male co-worker’s supposed reiteration of a request that Ms Hey not talk to him in response to Ms Hey saying ‘Hello’; and
·21 February 2007: a comment by the male co-worker to Ms Hey ‘Would you please remove your cleavage as I’m offended by it’, which according to Ms Hey was the ‘final straw’.
In an email dated 22 June 2006, Mr Gordon White, Manager IT Business Applications, InTACT, acknowledged that ‘The accompanying incident reports are symptomatic of deeper issues within this workgroup’.
Following the incident in February 2007 the male co-worker was moved to another workplace for three months while an investigation took place. There was an internal investigation of the incidents but Ms Hey was unsatisfied with the outcome. The finding following the investigation was that the behaviour of both the male co-worker and Ms Hey was in breach of the Public Sector Management Act 1994 (ACT) section 9 and of their mediation agreement. Both were issued with a First Warning for Misconduct in accordance with the Department of Territory and Municipal Services Union Collective Agreement 2007-2010 (Certified Agreement), and directed to undertake the ‘Respectful Workplace Behaviours and Emotions’ training. Ms Hey and the male co-worker were counselled.
Following the February 2007 incident, Ms Hey was transferred, at her request, to the position in the Chief Minister’s Department, and she was subsequently offered several unsuccessful graduated return to work programs. In the first of these programs, Ms Hey said she was not provided with any of the training promised and in the second, she said she was asked to staple papers and do other menial tasks beneath her skill level.
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 evidence
Dr 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’.
Dr McGuiness’s report dated 25 June 2011 said she believed Ms Hey was ‘psychologically blocked’ about return to work with the agency. She has panic attacks concerning proposed meetings to discuss work with the ACT Government, and ‘is even unable to enter ACT Government buildings’.
Mr Nomchong
Mr Leigh Nomchong, psychologist, provided a report dated 13 October 2010. Ms Hey had the first of her six consultations with him on 24 November 2009, and her last appointment on 3 February 2010. Her history about the events in her workplace was that the situation ‘got so bad that she could no longer attend work and had developed anxiety and depression’ and that ‘the anxiety became over-powering whenever she went near her work’.
Mr Nomchong said her symptoms were ‘consistent with the diagnosis of Anxiety and Depression’. He said, Ms Hey had ‘not reported any history that suggested there was a pre-existing or underlying condition’. She did report that she was ‘subjected to regular and frequent verbal comments made at her expense with a number of them being sexual in nature’, for example, that ‘her breasts were not big enough’. The comment about her cleavage she said was ‘the final blow’. In his view ‘Ms Hey was subjected to an ongoing and deliberate campaign of harassment and intimidation by a number of her work colleagues which had the effect of making her depressed and anxious’. He was not aware of factors outside her work which contributed. He said ‘Ms Hey’s anxiety has spread to a number of phobias’ such as the physical location of her former work area, former colleagues, and a fear that if she returned to work with the agency she would again be harassed and intimidated.
Dr Swift
Dr Jeffrey Swift, consultant psychiatrist, provided a Fitness for Duty report to Department of Treasury on 21 December 2009. He said on one visit he could not make a psychiatric diagnosis. At the same time his report noted that ‘Ms Hey describes symptoms of chronic Adjustment disorder with mixed anxiety and depression’. He reported that Ms Hey was ‘likely to refuse to return to work, excuse herself, or decompensate psychologically if the issue [of her return to work] is forced’. He said, following a discussion of her reluctance to seek psychiatric or psychological help, that ‘I do not see a good prognostic outcome psychologically’. He went on ‘I believe there are also a number of characterologically based issues relating to past traumas’.
Dr Swift considered that an alternative placement within the agency for Ms Hey, in a position with people she did not know, in a job commensurate with her skill set was likely to be perceived negatively by Ms Hey. As he said it ‘will probably fuel her relationship difficulties with management’. That was in part because she was psychologically disturbed and was fragile. He did not consider she was psychiatrically fit. Without psychiatric assessment and psychological counselling his opinion was that her difficulties were unlikely to be resolved.
Dr Zsadanyi
Dr Zoltan Zsadanyi, consultant psychiatrist, provided a report for Comcare dated 1 November 2010. He diagnosed ‘Adjustment disorder with mixed anxiety and depressive symptoms’. The cause was the alleged bullying and sexual harassment claims which acted as a trigger for reactivation of previous memories of abuse. He was unsure about the date of onset of the condition. However, he noted that ‘Ms Hey said that while she was still working for InTACT in 2007 she started becoming aware of several psychological effects in relation to working for InTACT’. He said ‘her past history of… trauma predisposed her to the onset of her symptoms’ and ‘the events that occurred at InTACT were enough to lead to a decompensation to her mental state and reactivating past traumas’. However, he said it was ‘work-related factors’ that ‘were causal in the development’ of her condition. He considered that the severity of her symptoms had lessened.
In his opinion, from her history, Ms Hey was ‘a vulnerable individual’ but, as a single parent she had successfully brought up two daughters who are now living independently and had worked for long periods. As he said ‘she has been a resilient woman for many years’. He considered she was ‘able to access psychological therapies’ and he disagreed with Dr Swift ‘that she would not be able to deal with her issues of trauma’.
In a subsequent report, dated 18 October 2011, Dr Zsadanyi said he considered Ms Hey was no longer ‘depressed in her mood’. However he believed she could not return to her substantive ASO4 position in InTACT and any attempt to force her to do so would impact negatively and could lead to decompensation. In this report he listed her date of injury as 21 February 2007.
Dr Saboisky
Dr John Saboisky, consultant psychiatrist, prepared a report for Ms Hey on 8 December 2011. He diagnosed an ‘Adjustment Disorder with features of anxiety and depression’ which developed following the prospect of Ms Hey being required to return to work with the agency. His opinion was that Ms Hey’s work-related anxiety and depression occurred as early as 10 February 2006, in response to criticism by a fellow worker. That led to her taking a day off work and subsequently she had frequent days off work. He noted, however, that she did not attend her then general practitioner, Dr Paul Jones, for the condition until 27 February 2007. In Dr Saboisky’s view there was ‘ample evidence’ on her medical file throughout 2007 of psychological symptoms causing Ms Hey to have time off. As he said ‘it is clear from the medical file … that [Ms Hey had] complained of psychological symptoms consistent with both anxiety and depression well prior to the more acute symptoms … experienced in 2009’. He concurred with the views of other medical experts that Ms Hey had a ‘vulnerability to psychological symptoms as a result of…past experience and…personality style’.
Issues
The issues are:
·Did 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?
·If so, what was the date of injury?
·If so, was the disease contributed to, to a significant degree, by her employment with the agency?
·If so, was the condition excluded from the definition of ‘injury’ because it was suffered as a result of ‘reasonable administrative action taken in a reasonable manner’?
Legislation
The relevant provisions are found in the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides that Comcare is liable to compensate someone for ‘an injury suffered by an employee, if the injury results in…incapacity for work, or impairment’.
An injury, according to section 4(1) of the Act, is defined as relevant in section 5A to mean a ‘disease’. In turn ‘disease’ is defined in section 5B of the Act 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’. An ‘ailment’ is defined broadly in section 4(1) to mean, as relevant ‘any mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
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.
Consideration
Did 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.
An adjustment disorder falls within the definition of a ‘disease’ provided the employee is ‘mentally ill or mentally disturbed or suffering from any psychological disorder’.[1] A psychological condition will not be a ‘disease’ unless the condition ‘is outside the boundaries of normal mental functioning and behaviour’.[2] A condition will be outside the boundaries of normal mental functioning and behaviour if it is a classifiable psychiatric disorder.
[1] Comcare v Mooi (1996) 69 FCR 439 at 447.
[2] Id at 444.
An adjustment disorder with mixed anxiety and depressed mood is classified under the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, a source which is reputable and is commonly relied on by psychiatrists.[3] The Tribunal is satisfied on the totality of the evidence from the medical experts that the diagnosis of Ms Hey’s condition is an adjustment disorder with mixed anxiety and depressed mood. Accordingly, Ms Hey has suffered a ‘disease’ or an aggravation of a disease for the purposes of the Act.
Date of injury
[3] American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision) (DSM IV - TR) Item 309.28, 680.
The date of injury was contested. The Act states that a person is taken to have sustained an injury ‘on the day when (a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation…first resulted in the incapacity for work, or impairment of the employee; whichever happens first.’[4]
[4] Act s 7(4).
Ms Hey contended that the injury occurred in 2005 or 2006, the final straw being the comment on 21 February 2007. Ms Hey also said in evidence that she regards 10 February 2006 as the date of injury, that being the day following the first of the stressful incidents about which she lodged Incident Reports. The 10 February personal leave record for that day shows ‘Vomiting’ as the reason for the absence.
The clinical notes for 2 June 2006 refer to ‘anxiety, depression’ and Ms Hey’s request for a fortnight’s leave. However, the commentary in the notes was ‘disappointed from being told she has missed out on a post she thought she was sure to get Dept of Education’. In other words, the reaction was due to a failure to obtain a promotion, not to bullying and harassment. There is evidence from the clinical notes and Ms Hey’s personnel file that Ms Hey took sick leave on a number of days throughout 2006. Ms Hey had also said that she exhausted all personal leave, recreational leave and long service leave after April 2007 and she attributed this to the incident in February 2007.
Comcare in its initial decision referred to 6 November 2009 as the date of injury. That decision was upheld on review on the basis that Ms Hey did not seek medical assistance, nor report suffering psychological symptoms, until November 2009. Comcare contended in its material for the Tribunal that, in summary:
·from 2 June 2006 to 6 November 2009, Ms Hey only consulted her GP on four occasions in relation to work-related issues;
·the consultations do not record symptoms outside the boundaries of normal mental functioning and behaviour;
·the notes indicate the Ms Hey did not take significant time off work during that period (only 15 working days, taken at sporadic intervals); and
·Ms Hey did not require counselling or medication in relation to a psychological ailment before 6 November 2009.
Dr McGuiness said the requests for Ms Hey to return to work, including one which occurred at a meeting with Ronald Shaw on 9 November 2009, ‘have clearly been an aggravation of a pre-existing situation’. She said she did not know if Ms Hey was more disabled than before as she had only treated her since 6 November 2009. Dr McGuiness described Ms Hey’s symptoms of acute anxiety with nausea, dread, insomnia, palpitations and restlessness when she contemplated returning to the workplace. She did not specify a date of injury.
Dr Saboisky in his report dated 8 December 2011 expressed the opinion that Ms Hey suffered from work-related anxiety and depression as early as 10 February 2006. He noted that Ms Hey had said she took ‘numerous days off work but did not attend [her] GP for medical certificates until…27.2.2007’. He also noted that the medical file indicated Ms Hey had ‘complained of psychological symptoms consistent with both anxiety and depression well prior to the more acute symptoms…experienced in 2009’. At the same time he said the condition he diagnosed had exhibited more acute symptoms and developed following the prospect of Ms Hey being required to return to work with the agency, that is, in November 2009.
Dr Swift, while refusing to diagnose Ms Hey’s condition, nonetheless did list the ‘Date of Symptom Onset’ as 10 November 2009. At the same time, he noted Ms Hey’s denial of any past psychiatric history of anxiety or depression prior to 2007, while stating that ‘her thinking was preoccupied and locked onto the sexual harassment issue from 2006’. He also recorded her describing symptoms she suffered since 21 February 2007 including stress and anxiety, insomnia, restlessness, intrusive thoughts, lability of mood, impaired motivation and lowered self-esteem.
Mr Nomchong did not nominate a date of injury. Instead he noted in his report to Comcare of 13 October 2010 that Ms Hey had been
… subjected to an ongoing and deliberate campaign of harassment and intimidation by a number of her work colleagues which had the effect of making her depressed and anxious. Based upon the history she accounted, it appears that her symptoms continued in intensity until it got too much for her and she reported to her doctor.
That suggests, based on her history, that her symptoms were apparent before she reported to her doctor. Mr Nomchong does not specify the doctor Ms Hey had consulted when the ‘intensity’ of her symptoms got too much for her. However, since it was Dr McGuiness who referred Ms Hey to him in November 2009, it can be inferred he was referring to Dr McGuiness. That suggests he would support November 2009 as the date of injury.
Dr Zsadanyi said in his November 2010 report that he was unable to provide a clear timeframe for the development of her psychological condition. However, in his later report of October 2011 he listed 21 February 2007.
In summary, these opinions raise as possible dates 6 November 2009, a date in 2006, or February 2007. Although a number of the medical experts and Ms Hey refer to her exhibiting symptoms in 2006, none opts for that date. Dr Zsadanyi supports 21 February 2007. He is alone among the medical experts in that suggestion. Ms Hey certainly took a few days of sick leave at that time, and short periods throughout 2007. However, the clinical records do not record the reasons for her unfitness as anxiety or depression. Ms Hey also chose that date as the one she would nominate, being the date of the incident she regarded as the ‘final straw’. Against that, however, Ms Hey continued to function in the workplace, with a number of days for sick leave, until the end of 2009, when she took an extended period off work.
That leaves 9 November 2009, being the date Ms Hey was requested to return to work. It was that action which led Dr McGuiness to conclude this was ‘an aggravation of a pre-existing situation’. All the medical experts who provided evidence concluded that the requirement that she return to work precipitated Ms Hey’s more significant symptoms and if implemented could lead to further deterioration of her condition. 6 November 2009 was also the date on which Ms Hey first consulted a medical practitioner about her condition.
On balance the Tribunal is satisfied that although Ms Hey had suffered symptoms of anxiety and depression prior to November 2009, those symptoms were either not related to bullying or harassment or not of sufficient significance to be classified as outside the boundaries of normal mental functioning and behaviour. Accordingly 6 November 2009 is the deemed date of injury.
Was the disease contributed to, to a significant degree, by her employment with the agency?
It is clear that Ms Hey contends that it was her workplace which, to a significant degree, contributed to her condition. She was sufficiently distressed by events in her workplace to lodge six incident reports which she claimed indicated harassment and bullying by persons within the agency. She believes her claims were not vindicated by the investigation report with the outcomes of which she disagrees. As a consequence, she had also lost trust in the agency and refused to return there to work. She has pursued her claim before the Tribunal undertaking the considerable effort involved in representing herself in the unfamiliar environment in an effort to achieve satisfaction of her feelings of resentment at what she perceives to be the agency’s treatment of her.
The Tribunal acknowledges that there was recognition by senior officers within her workplace that Ms Hey was in a dysfunctional workgroup while at InTACT and that, in particular, the personality clash between Ms Hey and the male co-worker impacted on others in the team. Ms Hey’s records of non-attendance and her reluctance to return to the workplace are further indications of her concerns about the effect on her of that workplace.
Comcare contends, however, that there were ‘contemporaneous non-work-related stressors that were impacting on her around 6 November 2009’. These included Ms Hey’s conflict with a supervisor and colleagues at Hepatitis Australia where she started work in 2007 and where she was still employed in November 2009; past trauma; and what Dr Swift described as Ms Hey’s ‘complex personality and numerous unresolved traumatic issues that contributed to a “characterologically based depression”’. At the hearing Dr Swift explained that ‘characterological’ meant based on a person’s own personality, character or temperament. The Tribunal takes it that he was saying that a person’s character and personality can contribute to their depression.
The Tribunal accepts that there were other stressors that were impacting on Ms Hey around 6 November 2009 and some were non-work-related. The evidence as to some of these arose from counselling notes at the Women’s Health Service, and the Tribunal believes it is necessary to protect that confidentiality to the extent it can.
As one could expect in counselling, there was exploration of the person’s history and of the person’s perception of their problems. This in turn opened up other issues, discussed as relevant in the context of the presenting issues. One of the counsellors who gave evidence at the hearing accepted that at the time Ms Hey first consulted the service, her problems were ‘harassment in her former workplace and also in her current one’ and both counsellors who gave evidence emphasised they had worked with Ms Hey on strategies to deal with persons in authority currently and in the future. Their evidence did not evince an impression that Ms Hey’s ‘oscillating’ relationship with her boss at Hepatitis Australia was of particular moment except as an example of the ‘persons in authority’ issue. Indeed, there was an acknowledgement that the strategy of Ms Hey speaking her mind in interactions with her boss at Hepatitis Australia had improved the relationship between them.
In summary, the Tribunal is satisfied that issues outside her ACT Government workplace were not so significant as to displace the significance of the matters the subject of the claim. That leaves for consideration whether the harassment and bullying Ms Hey claims she was subjected to up until 9 November at InTACT contributed, to ‘a significant degree’,[5] to her disease.
[5] Act s 5B(1).
The contribution must be ‘to a significant degree’. That does not rule out the possibility that both employment and other non-work-related factors may make a significant contribution.[6] The Act further defines ‘significant degree’ as meaning ‘a degree that is substantially more than material’. In turn, the Act states:
[6] Re Havnen and Comcare [2010] AATA 535 at [66].
(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.
In Comcare v Canute, the majority of the Full Court of the Federal Court described the causal test as ‘an evaluative threshold below which a causal connection may be disregarded’.[7] The Court in Re Havnen and Comcare noted the history of the amendment in the Explanatory Memorandum when the former ‘to a material degree’ test for causation was changed following the amendments to the Act in 2007 to ‘to a significant degree’.[8] The Explanatory Memorandum states:
The initial legislative intent was to establish a test requiring a claimant to prove that his or her employment was ‘more than a mere contributing factor in the contraction of the disease’ (see the Second Reading speech to the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 – subsequently renamed as the SRC Act). The phrase ‘contributed to in a material degree’ was intended to ensure that the Commonwealth was not liable to pay compensation for diseases which have little, if any, connection with employment.
[7] Comcare v Canute (2005) 148 FCR 232 at 249 to 250. The former ‘in a material degree’ test was changed in 2007 to ‘to a significant degree’ however the causal test remains the same.
[8] Re Havnen and Comcare [2010] AATA 535 at [29] to [32].
As the Full Court of the Federal Court also noted in Dunstan v Comcare,[9] the intention was ‘to impose a more stringent test of the causal relationship between employment and disease’.[10] The Court said that the test was intended to be broader than the ‘daily duties, or specific aspects of the workplace environment’ and was intended simply to refer to ‘employment as a factor that operated actively to bring about the condition’.[11]
[9] Dunstan v Comcare (2011) 125 ALD 362.
[10] Id at [39].
[11] Id at [40].
The Second Reading speech for the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 noted ‘The Bill therefore includes an amendment to restore the initial legislative intent by requiring that an employee’s employment must have contributed in a significant way to the contraction or aggravation of the employee’s ailment’.
Although these extracts state that the tests for causation are to be ‘more than a mere contributing factor’, the words in section 5B(3) of the Act, namely that the ‘evaluative threshold’ is required to be ‘substantially more than material’ suggest the test requires something more than ‘a mere contributing factor’, a view reinforced by the Second Reading speech to the 2007 Bill‘s statement that employment must have ‘contributed in a significant way’.
The relevant factors which are expressed to be non-exhaustive must be applied to Ms Hey’s circumstances. She had been employed by InTACT from 2005, and she attended the workplace for over three years, more than a minimal time.[12] Her tasks during that period involving information and communication technology services including web policy and publishing. Her complaints of the behaviour that led to her claim do not relate to the nature of her duties. Nor is there any indication of concern about her competence as she was promoted during her employment.[13]
[12] Act s 5B(2)(a).
[13] Act s 5B(2)(b).
Did Ms Hey have a predisposition to the development or aggravation of her condition? Medical evidence post 2006 does not indicate that Ms Hey had previously suffered from anxiety disorder. The doctors who examined Ms Hey for the purposes of the hearing took a history of her conditions and were not prepared to suggest a date of injury prior to, at the earliest, 2006. Dr McGuiness noted that ‘Her history suggests she has never decompensated to this degree’, referring to her psychological condition in November 2009. Dr Swift noted that there were a number of ‘characterologically based issues relating to past trauma’. Whether this amounts to a predisposition to causing or aggravating anxiety was not stated. Dr Zsadanyi said ‘her past history…trauma predisposed her to the onset of her symptoms’. Dr Saboisky noted she had a ‘vulnerability to psychological symptoms as a result of past experience and personality style’. The Tribunal finds on this evidence that the predominant medical evidence indicates Ms Hey did have a predisposition to development or aggravation of an anxiety condition.[14] This factor was relevant.
[14] Act s 5B(2)(c).
Ms Hey was a trained nurse and after her employment with the agency she worked on weekends in that profession. Evidence was also provided that on occasions on weekends Ms Hey sold jewellery she made at a local market. However, apart from some suggestion of tiredness as a result of these additional activities, there is no indication that these forms of employment contributed to the development of her condition.[15]
[15] Act s 5B(2)(d).
The Tribunal has no evidence of other matters which might have affected Ms Hey’s health which impacted on her on or leading up to the date of injury.[16] On balance, apart from some predisposition or vulnerability to developing an anxiety condition due to previous trauma, the Tribunal does not consider factors external to the workplace were likely to have affected Ms Hey’s health and to have contributed to her anxiety condition.
[16] Act s 5B(2)(e).
Applying the ‘to a significant degree’ test, the evidence indicates that it was the interactions in the workplace which led to the incidents which precipitated Ms Hey’s condition. Dr Saboisky said the diagnosed condition developed following the prospect of Ms Hey having to return to the workplace, a view shared by Dr McGuiness. Dr Zsadanyi said any attempt to force her to return would impact negatively and could lead to decompensation. Dr Swift recommended if she returned to work with the agency it should be with people she did not know, in a job commensurate with her skill set. Mr Nomchong noted that ‘her anxiety became over-powering whenever she went near her work’. Dr McGuiness’s view concurred with those expressed. So the medical evidence universally confirms that it was factors in her workplace which contributed to a significant degree to her condition. In these circumstances there is no need to explore the subtlety of whether the ‘evaluative threshold’ is higher than a ‘mere contributing factor’. It is clear in Ms Hey’s case that the test is met. That means Ms Hey has suffered a compensable disease, subject only to whether liability is denied because the condition was due to ‘reasonable administrative action’.
‘Reasonable administrative action’
Comcare contends that Ms Hey’s symptoms emerged ‘in the context of being asked to commence her new role with the Agency on 9 November 2009’. Ms Hey, in claiming that the date of injury predated November 2009, denied this contention. As the Tribunal has accepted that 6 November 2009 is the date of injury, the contention of Comcare must be considered.
For action to be ‘administrative’ in nature it must relate specifically to the employee.[17] The notification to Ms Hey that she was required to return to work did so relate. To be reasonable the action must objectively be ‘sound of judgment, sensible, moderate, not expecting too much, ready to listen to reason,…not greatly less [n]or more than might be expected, tolerable, fair’.[18]
[17] Commonwealth Bank of Australia v Reeve [2012] 199 FCR 463 at [33] and [69].
[18] Re Georges and Telstra [2009] AATA 731 at [22] per Dr Campbell.
Evidence was provided on this issue by Ms Karen Carlton, Ms Hey’s supervisor from January 2007, and Mr Ronald Shaw, Manager of Corporate and Business Services in InTACT/Shared Services ICT. Ms Carlton’s evidence was that in August 2009 and again at the beginning of September 2009, Ms Hey sought advice on the position to which she would return on expiry of her leave on 26 October 2009. Ms Carlton discovered there were limited positions at the ASO4 level, Ms Hey’s substantive level, within Education ICT where Ms Hey had been located. A position would need to be sought in a broader selection of areas. Ms Carlton conceded she did not respond to an inquiry by Ms Hey made on 2 September 2009 as she had no further information. On 12 October 2009, Ms Hey made a further inquiry as to her options. Ms Carlton made inquiries and got back to Ms Hey on 19 October 2009 to say inquiries were continuing.
On 21 October 2009, a suitable position was identified which would insulate Ms Hey from her previous colleagues, was at the right level, in a different building, would not require extensive retraining, and was close to where Ms Hey lives. The cost of funding any training Ms Hey would require was to be met by the agency. Ms Carlton met with Ms Hey in Woden on 23 October 2009, away from her former work building, to inform her of the position. Ms Hey said she had some residual concerns about continuing harassment which Ms Carlton offered to look into. Ms Carlton satisfied herself that one of these additional concerns was not a problem but did not notify Ms Hey of her findings. Ms Carlton also noted on that occasion Ms Hey ‘was very emotional and unsure about returning to InTACT’, saying she was ‘too emotionally raw’.
On 23 October 2009 a copy of the position description was sent to Ms Hey. On 26 October 2009, Ms Hey’s union representative notified approval of the position. Ms Carlton advised Ms Hey about whom to contact in the relevant area on her first day back. On 27 October 2009, Ms Hey did not attend work. She emailed Ms Carlton to say she did not consider she had been given sufficient time to consider the position, and that she wanted an HR contact to discuss case management regarding her ‘sexual harassment case’.
Ms Carlton contacted Ms Hey to discover that she remained at Hepatitis Australia; without permission. Ms Hey undertook to seek further leave and did apply for annual leave and personal leave, but did not advise an end date for her personal leave. Ms Carlton emailed and left two voicemail messages with Ms Hey concerning the need for specifying an end date.
A meeting between, among others, Mr Shaw and Ms Hey, to discuss undefined personal leave was arranged in November 2009. On 11 June 2010, he was advised by Ms Carlton that Ms Hey could apply for a role in her former area as the male co-worker had left. Mr Shaw responded that Ms Hey’s case manager was managing the fitness for work process with Ms Hey’s doctor.
Mr Shaw’s evidence was that prior to Ms Hey’s return date an ASO4 position had been found in the Housing and Community Services ICT team which was appropriate for Ms Hey and was in a different location to her previous position in the workplace at Woden. He reaffirmed the fact that there were limited positions within the ACT Public Service at Ms Hey’s level in the ICT area. The agency had taken steps to keep Ms Hey’s former position open for her and required that anyone who filled the position did so on a short term contract.
When Ms Hey did not return as expected on 27 October 2009, Mr Shaw asked that she meet with him and her union representative. At a meeting on 9 November 2009 Mr Shaw explained that Ms Hey no longer had permission to undertake a second job, and she needed to return to her job or forfeit the position. He offered work-funded psychological counselling for her stress about returning to InTACT. Ms Hey agreed to think about the position. At the end of the discussion she produced a medical certificate saying she was unfit to work until 7 December 2009. The case manager advised that during that time, Ms Hey had told her she did not intend to return to InTACT and she was applying for positions in the Commonwealth Government at a higher level.
On 27 November 2009 a case manager was appointed for Ms Hey who continued to act until April 2011. Another internal case manager was appointed on 4 April 2011. On 15 April 2011, the case manager attended a meeting with Dr McGuiness and Ms Hey and Dr McGuiness certified Ms Hey as fit to return to work. On 20 June 2011, Ms Hey was given a formal direction to return to work. On 24 June 2011, Ms Hey provided another medical certificate certifying her unfit for work from 8 June 2011 until 7 June 2012. The position found for her continued as at 18 November 2011.
The issue is whether these actions were ‘reasonable administrative action’. The action taken by Ms Carlton was generally reasonable. It was unfortunate that the nomination of an alternative position for Ms Hey did not occur earlier. However, the Tribunal notes the constraints she faced in finding one of a limited number of positions in the ICT area which met the other criteria which would take account of Ms Hey’s concerns. In that regard the action taken was sensitive to Ms Hey’s needs and was reasonable, being tolerable and fair. Equally Ms Carlton did not respond in writing to a couple of Ms Hey’s inquiries, but again her failure to do so was not unreasonable in the circumstances. In any event, Ms Hey does not attribute her anxiety condition to either of these events.
Ms Hey’s principal concerns appear to have been that the work place did not sanction the male co-worker, and she was not offered a position on her return above her substantive position. In the first instance, the investigation found both the male co-worker and Ms Hey to have been involved in inappropriate conduct, findings which were consistent with clause 95 of the collective agreement; in the second, Ms Hey is aware that to obtain a promotion within the public service requires a promotion or appointment process and she had not been through such a process. In those circumstances neither response was unreasonable.
Mr Shaw’s action in meeting with Ms Hey was reasonable action by a manager of a corporate area of an agency. His explanation to her of her position, that she was undertaking a second job without permission, that no further permission would be granted,and that she could forfeit the position being held for her if she did not take it up, was also reasonable being an explanation of the legal requirements relating to her position. The agency’s willingness to appoint first a private sector and then an internal case manager at Ms Hey’s request was also good management practice and no criticism can be made of it in this respect. Indeed, the agency appears to have done all that it could to provide a position which was suitable for Ms Hey. Nor is there any indication thatMs Hey’s anxiety was aggravated or contributed to as a result of any of Mr Shaw’s actions. In these circumstances the Tribunal finds that the actions taken by Ms Carlton and Mr Shaw were ‘reasonable administrative actions’. In turn, this means that Comcare is not liable under section 14 of the Act for Ms Hey’s anxiety condition.
The decision under review is affirmed.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member ........................................................................
Associate
Dated 13 March 2013
Dates of hearing 13, 14, 17 and 18 of December 2012, 18 January 2013 Applicant In person Counsel for the Respondent Mr Matthew Gollan Advocate for the Respondent Ms Carmen King Solicitors for the Respondent Dibbs Barker
6
0