TAJ and Comcare
[2011] AATA 154
•9 March 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 154
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2319
GENERAL ADMINISTRATIVE DIVISION ) Re TAJ Applicant
And
Comcare
Respondent
DECISION
Tribunal The Hon R J Groom AO (Deputy President) Date9 March 2011
PlaceHobart
Decision The decision under review is affirmed.
[Sgd: Hon R J Groom]
Deputy President
CATCHWORDS
COMPENSATION - pre-existing systemic lupus erythematosus and depressive disorder - whether pre-existing conditions aggravated by applicant's employment - meaning of "material degree" and "aggravation" - perception of lack of support by management - various incidents at work - negotiations for new AWA - contents of AWA - whether aggravation resulted from failure to obtain a benefit - failure to gain a salary increase one of several causes of aggravation - aggravation did result from failure to obtain a benefit - not an "injury" within meaning of Act - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988, ss 4(1), 4(9), 7(4), 14(1)
Administrative Appeals Tribunal Act 1975, s 61
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Canute (2005) 148 FCR 232
Suters v Australian Postal Corporation (1992) 28 ALD 320
Comcare v Sahu-Khan [2007] FCA 15
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Wiegand v Comcare (2002) 72 ALD 795
Jones v Dunkell (1959) 101 CLR 298
Perring and Australian Postal Corp (1993) 31 ALD 693
Trewin v Comcare [1998] FCA 713 (19 June 1998)
Re Davill and Australian Postal Corporation (1995) AATA 10629 (22 December 1995)
Comcare v Ross (1996) FCA 680 (2 August 1996)
Comcare v Mooi (1996) FCA 580 (2 July 1996)
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
9 March 2011 The Hon R J Groom AO (Deputy President)
INTRODUCTION
1. The applicant was at all relevant times an employee of the organisation now known as Medicare Australia ("Medicare"). On 7 June 2007 she made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 ("the Act") for "... workplace related stress, anxiety and depression".
2. In a determination dated 24 December 2007 Comcare denied liability, because, in its view, the applicant's medical condition had resulted from a failure to obtain a benefit and therefore the exclusionary provisions in the definition of "injury" in section 4 of the Act applied.
3. By letter dated 21 February 2008 the applicant's solicitor requested a reconsideration of the determination of 24 December 2007. In a reconsideration decision of 16 April 2008, which is the decision now being reviewed by this Tribunal, a claims service officer of Comcare affirmed the earlier determination stating as follows:
"Accordingly, I am satisfied that a substantial element of the employee's claim relates to her failure to obtain multiple benefits in relation to her employment".
4. On 28 May 2008 the applicant applied to the Tribunal for a review of the reconsideration decision of 16 April 2008.
BACKGROUND
5. The applicant was born on 29 January 1974 and is therefore now 37 years of age. She worked for the Health Insurance Commission from 13 January 2004 as a part-time Indigenous Liaison Officer. The Commission later became known as Medicare Australia. The position was advertised as an APS 4 position but because of the applicant's previous skills and experience she was paid from the outset at the APS 5 level.
6. Later in these reasons the Tribunal makes a finding that prior to the applicant commencing her employment with Medicare she was already suffering from a disease known as systemic lupus erythematosus ("SLE") and had also suffered periods of depression.
7. SLE is a chronic autoimmune connective tissue disease that can affect many parts of the body. There can be episodes of pain in joints and muscles as well as dizziness, loss of energy and sometimes vomiting. The applicant had been diagnosed with SLE when she was approximately 17 years of age. Since that age she has experienced those symptoms from time to time when her condition has "flared".
8. The applicant initially enjoyed her work at Medicare and found that she could perform her work duties and also effectively manage her pre-existing SLE condition including her predisposition to suffering depression and anxiety. She contends that this was because of the then supportive attitude taken by her line manager Kevin Anderson.
9. The relationship with Mr Anderson however began to deteriorate in the course of 2006. The applicant alleges from this time she "wasn't being listened to ...". She perceived a serious breakdown in support and communication leaving her feeling "worthless" and "betrayed". A series of incidents occurred which the applicant says also caused her deep concern, stress and anxiety. Those incidents will be considered later in these reasons.
The Hon R J Groom AO (Deputy President)
10. The applicant's initial Australian Workplace Agreement ("AWA") had expired at the beginning of 2006. The applicant approached Mr Anderson asking to negotiate a new AWA. According to the applicant at first Mr Anderson appeared to be in charge of the negotiations on behalf of the employer and was very supportive of some improved conditions in a new AWA. However at a meeting held on 7 January 2007 it became clear to the applicant that Dr Peter Sexton, the State Manager of Medicare, had become directly involved and was really the person in charge of the negotiations. In the applicant's mind there then appeared to be a very different attitude being taken in relation to flexible working arrangements including opportunities to work from home and the prospects of any increase in entitlements.
11. Mr Anderson made it clear at the meeting held on 7 January 2007 that there would be no increase in salary entitlements in the new AWA. According to the applicant Mr Anderson mentioned the applicant's absences from work. The applicant was very upset by the attitude of Mr Anderson and also about the offer that he was making. She expressed her concern in an email sent to Mr Anderson on 8 January. She said in the email:
"I am shocked, concerned and confused after my meeting with you yesterday.
...
I came to the meeting expecting to negotiate my AWA but you opened the meeting yesterday by telling me that Dr Sexton had predetermined decisions outside negotiations with me".
The applicant expressed concern that Dr Sexton had directed that:
"... there would be no rise in salary".
She said:
"Additionally I am not able to negotiate regarding the Certified Agreement 'healthy lifestyle subsidy' ".
She added:
"... what was the meeting really about?"
Mr Anderson replied in an email dated 10 January 2007. Mr Anderson confirmed that he did:
"... indicate to you that we could not agree to an AWA that included a salary outside the APS5 range after taking relevant factors into account".
12. On 25 January 2007 the applicant arrived at her office to find an envelope which contained a completed AWA with a sticky note attached asking her to sign the document. She read the AWA and was dissatisfied with its contents. The applicant has described this event as the "straw that broke the camel's back". She immediately tried to locate Mr Anderson but was unsuccessful. The applicant then left work and went home. She says that when she went home she felt ill and vomited. She then had some "Guinness's" with her sister. The applicant has not returned to work since that date. After taking leave from work, initially on paid leave and subsequently on leave without pay, the applicant resigned her position with Medicare on 27 August 2009.
13. The applicant contends that as a result of her perception of the poor management practices at Medicare, the general lack of support provided to her and the various incidents at work she had suffered an ailment or an aggravation of a pre-existing ailment that has caused her to be incapacitated for work since 13 March 2007. The applicant denies that her medical condition resulted from any failure to obtain a benefit.
14. The respondent disputes the applicant's account of Medicare's management practices, the alleged lack of support and poor communication and also of the various incidents which the applicant caused her concern, stress and anxiety. The respondent also disputes the applicant's account of events related to the preparation of the AWA. It contends that the applicant has not suffered any compensable ailment or aggravation. It submits that if the Tribunal finds that the applicant has suffered an ailment or aggravation then it resulted from a failure to obtain a benefit and comes within the exclusionary provisions of the Act. The respondent argues that the medical condition is not an "injury" within the meaning of that term in section 4(1) of the Act and the applicant therefore has no entitlement to compensation.
LEGISLATION
15. Counsel for each party expressed the view that the date when the applicant sustained the disease or aggravation of a disease (if she in fact did) was 13 March 2007 being the date when the applicant first sought medical treatment for the disease or aggravation. (See section 7(4) of the Act).
16. Significant amendments were made to the Act in April 2007. However those amendments have no application in this case. The relevant provisions of the Act are those applying as at 13 March 2007.
17. The applicable provisions of the Act are therefore as follows:
Section 14(1) of the 1988 Act provides:
"14(1) 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."
The word "injury" was at the relevant time defined in section 4(1) of the 1988 Act as follows:
"Injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment".
In section 4(1) of the 1988 Act, at the relevant time, "ailment" and "disease" were defined as follows:
"Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
Disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation".
Section 4(9) of the 1988 Act provides:
"A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened".
18. It is not in dispute that at all relevant times the applicant was an employee of Medicare which is a Commonwealth Authority and therefore an "employee" within the meaning of the relevant provisions of the Act.
THE ISSUES
19. The principal issues to be determined by the Tribunal are as follows:
(a) Whether the applicant's employment with Medicare contributed "... in a material degree" to any ailment or any aggravation of an ailment the applicant has suffered.
(b) If yes to (a) whether that ailment or aggravation of an ailment is not an "injury" within the meaning of the term in section 4(1) of the Act because it results from a failure by the applicant to obtain a benefit in connection with her employment.
(c) If no to (b) whether the applicant has suffered an incapacity for work as a result of any such ailment or the aggravation of an ailment.
MEANING OF "MATERIAL DEGREE"
20. The meaning of "material degree" has been considered in a number of cases including the Full Federal Court decisions in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 and Comcare v Canute (2005) 148 FCR 232 as well as by Ryan J in Suters v Australian Postal Corporation (1992) 28 ALD 320 and more recently by Finn J in Comcare v Sahu-Khan [2007] FCA 15.
21. It should be noted that the opinions of the Full Federal Court in both Treloar and Canute were obiter although clearly most helpful in gaining an understanding of the true meaning of the word "material" as it appears in the Act.
22. In Suters Ryan J said, when pointing out that Treloar was actually considering legislation in which the word "material" did not appear, that:
"The case nonetheless contains a valuable exposition of the meaning of that word to which Courts and Tribunals are entitled to have regard when considering legislation containing it"
23. Finn J in Sahu-Khan after considering the earlier decisions suggests that the meaning of the word "material" as intended by the legislature is probably more accurately captured by the following definition in the Shorter Oxford Dictionary:
"4. In a material degree; substantially, considerably".
His Honour. however, concluded that statutory construction is not usually assisted by attempting to substitute one word for another and said that the best that "can ultimately be said" is that the definition of "material":
"(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will also be so in a given case will be a matter of fact and degree".
24. The word "aggravation" in the circumstances of this application means making a pre-existing disease worse (see Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593). The applicant's employment must contribute in a material degree to that worsening.
THE APPLICANT'S "PERCEPTION" OF OCCURRENCES AT WORK
25. Mr Cox for the applicant placed considerable reliance on the applicant's perception of a general lack of managerial support and also of the various specific occurrences which it is said caused her stress and anxiety and resulted in the applicant's ill health and incapacity, rather than some objective judgment of what actually occurred.
26. In Wiegand v Comcare (2002) 72 ALD 795, von Doussa J stated (at 31) as follows:
"In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled".
It is important to note His Honour's words:
"If the incident or state of affairs actually occurred ..."
27. Although Finn J in Sahu-Khan had a somewhat different view on the true meaning of "in a material degree" to that expressed by von Doussa J in Wiegand, he appears to essentially agree with the opinion von Doussa J expressed in Wiegand about the applicant's perception of an event or circumstance. As Finn J said the claimant's employment cannot merely be an "inert" factor. The events or circumstance must actually occur. It may however be perceived by the employee in a very different way to the way another person may perceive it.
28. The applicant's perception of occurrences at work is relevant in determining causation but the circumstances must have some basis in reality.
THE FACTS
29. The Tribunal will now consider the various work-place occurrences which the applicant says caused her stress and anxiety and which eventually led to her illness and incapacity for work.
lack of support from management
30. In her workers' compensation claim form (T12) the applicant described her diagnosed condition as:
"... workplace related stress, anxiety and depression".
31. In answering the question in the claim form:
"What part(s) of your body has been most affected by your injury or illness?"
The applicant stated:
"My state of mind. I feel hopeless in resolving a progressively worsening work environment, and am unsupported by a Manager who has stated uncertainty about being able to work with me into the future".
32. When answering in question 21 of the claim form:
"What started the chain of events that led to your injury or illness?"
The applicant stated:
"I don't definitely know. The reduced communication with my managers seems to have started around May 2006 when I re-asked for a pay rise, and then got progressively worse".
33. In her proof of evidence dated 18 June 2010, which the applicant affirmed in evidence to be true and correct, she details her views of the gradually worsening relationship with her immediate supervisor, Kevin Anderson, and also a series of occurrences at work which she says caused her stress and anxiety and led to her illness and eventual incapacity.
34. The applicant has explained that she had no difficulties with Mr Anderson or with the State Manager of the organisation, Dr Sexton, during the early years of her employment. She said she found management to be understanding of her medical conditions and very supportive of her. As a result she was able to manage her SLE and cope well in carrying out her duties. The applicant said she had undergone performance appraisals and the results of those appraisals were very good. She received positive feedback from management on her performance.
35. From about May 2006 the applicant believes that her relationship with Mr Anderson became strained. There was, according to the applicant, a gradual worsening in communication between Mr Anderson and her. She said in evidence:
"... it was the fact that previously Kevin and I had a pretty - pretty open, positive working relationship, and it seemed to become more and more difficult in actually having discussions with him ‑ not just about the AWA, but just about everything in general, and specifically to the job". (Transcript page 15)
36. The applicant sought support from Mr Anderson for assistance in answering the 1800 telephone line. She was concerned that calls were sometimes going through to message bank. The applicant says she was "shocked" when Mr Anderson "... suggested that I cut my hours back and that they actually put somebody else on". (Transcript page 26).
37. The applicant gave evidence of an occurrence in 2006 which she obviously felt was particularly concerning to her. Since starting work at Medicare the applicant had worked from home on occasions. This helped her in managing her SLE condition. However in May 2006 Dr Sexton informed Kevin Anderson that this should not continue. Dr Sexton, who was a general practitioner but not the applicant's doctor, had expressed the view that if the applicant continued to take the medications she said she was then taking she would be unable to work from home. Mr Anderson's version of this incident appears at Appendix C of T9. He said:
"I have on occasions, discussed your medical condition with Peter Sexton but not recently. I have done this as a responsible manager in order to make him aware of the difficulties you encountered from time to time as the result of your illness. My only motivation in doing so was to assist us in helping you where possible with your situation as it related to your work and to justify to Peter my compassion based decisions with regard to yourself. On one occasion (mid 2006 as I recall) Peter, at my request, gave an opinion to me that he doubted that a person in your position could carry out work effectively while taking medication for an illness such as yours. As a result of this opinion I had to decline your request to work from home rather than take leave on a particular occasion and I did convey the reason to you".
38. The applicant said in oral evidence:
"I didn't feel that Peter had the right to look at my - and make judgment on my illness and the fact of whether or not I was taking medications. I've - I've taken medications for a long time throughout my life and I am known by my specialists to - and it's one of the difficulties in dealing with my SLE ‑ is that I have a high threshold for medication; that what would probably knock somebody out, I am still okay with, which obviously has its advantages and disadvantages, but the issue with Peter was that all of a sudden he - he was changing my work practices based on information which he never got from me, because he never - he never spoke to me about it ..." (Transcript page 27)
39. During her evidence the applicant explained that she believed the decision by Dr Sexton not to permit her to work from home did not assist her in managing her SLE condition. In speaking of her illness she said:
"... one of the issues at the time was I was - I had a lot of stiffness in the joints and - so I was, I suppose, moving slower and whatnot and I was very low on energy, and so the time that it would take me to - and it sounds like such a small thing, but the time that it would actually take me to get up and shower and get dressed, have some breakfast and get into work, I would be exhausted, whereas if I could just get up and get straight on the phone and the laptop, I was - I was there at work". (Transcript page 28)
She added:
"I started to think ... there's no support here, so just deal with it the best way you can and move on." (Transcript page 28)
40. The applicant was also most concerned at a different attitude being taken by management about her flexible working arrangements. She had been working four days a week but there had been flexibility about which days she worked. She sometimes swapped the days around. Mr Anderson was happy with this. After discussions between Mr Anderson and Dr Sexton there appeared to be a different, and less generous, attitude taken to these arrangements.
41. During 2006 the applicant continued to have serious health problems. She told the Tribunal:
"I wasn't being listened to and I knew in myself, health wise, that - because I did actually ask for a couple of weeks leave and I can't recall the reason, but it was refused at the time, but I can't remember why I'm sorry. Yes, so I knew that I had to look after me, and the only option was leave without pay". (Transcript page 29)
42. The applicant then took three months leave without pay. She obviously did not then claim that the need for her leave was work caused. No compensation was sought for that long period of leave. There is however some evidence before the Tribunal suggesting that that period of leave was in fact work related.
43. Her symptoms at the time were described in the following terms:
"... stiff and aching joints, chronic headaches, the blurriness and ‑ and spots between the eyes, the chest pain. I imagined at the time I would have had some swelling because I had a lot of abdominal pain, so the ‑ the swelling of the outer lining of the abdomen, which is one of my particular symptoms that I get, and I was also starting to feel low and really flat".
She said:
"I would go home from work and have a cry... I was off my food ... generally wasn't seeing much sunshine in my life". (Transcript page 29).
44. The applicant described the deterioration in her relationship with Mr Anderson and the reduction in support from management as follows:
"Whereas before I could just pop upstairs, knock on Kevin's door and say, "Have you got a minute?", that was no longer possible, he was always busy, so I always had to make a time and actually tell him what I - it was that I wanted to talk to him about, and that was a really huge big change in our relationship at the time". (Transcript page 29)
45. After returning from leave on 2 October 2006, there was a further cause of significant stress to the applicant. A variety of items including her laptop computer were missing. Also there was no proper handover of duties by the person who had acted in the position. In addition the person had visited island communities and appeared to the applicant to have established some ownership of the position. Community members were surprised when the applicant returned after leave. The applicant said as a result she felt quite insecure in her employment. She believed Kevin Anderson had "betrayed" her. (Transcript page 31)
46. A number of other occurrences at work caused distress to the applicant. These included a wasp sting suffered in about March 2006. The applicant felt the sting was trivialised by management and she was put under pressure to continue to work and to attend a work related function.
47. The applicant also felt stress and anxiety because she believed that Kevin Anderson had informed other work associates of her medical condition. She said at paragraph 33 of her proof of evidence:
"I was shocked, embarrassed, angry and dumbfounded that my health information had been passed on (again), and this time not just to a work colleague, but instead to an employee of a state government department. I still get upset when thinking of this".
48. Several other occurrences at work caused distress to the applicant including being left out of the "Kris Kringle" gift giving in 2006.
49. Kevin Anderson has disputed these allegations. He also disputes that there was a change in the relationship with the applicant or that he became less accessible. But he said in oral evidence:
"... was clearly unhappy with the events that occurred, that in – in relation to, in particular, the withdrawal of the arrangement for her to work at home, and when she came back off her three months leave without pay, she was obviously unhappy with the fact that we had had somebody else in the position while she was away, and that, in fact, on the day that she returned the person that was acting in the position was either on or had already embarked on the trip to Flinders Island to work there for a few days, a trip that had been planned for quite some time. Also she complained to me about the person or the community, the Aboriginal community that is, being given the impression that the person that was acting in her position had taken over her job and that sort of thing. So no, she wasn’t happy". (Transcript page 257)
50. At paragraph 25 of his witness statement of 4 August 2010 Mr Anderson said:
"... had a lot of freedom in her role and I trusted her to not abuse the freedom she had been given. My trust in her started to become shaky in 2006 when her output and results became a concern and I was often not informed of her whereabouts on a given day. Her negative attitude towards Medicare Australia, the Indigenous Access Program and Medicare staff was also becoming increasingly apparent. She took a substantial amount of leave during 2006, however, these issues did not affect the level of my support for her in the role that she was filling".
51. Earlier at paragraph 24 he said:
"However, during 2006 her work output dropped off, I sensed an increasing lack of motivation on her part".
52. It should be mentioned that despite the applicant's understandable perceptions of a marked lack of support which, whilst having some basis in reality were greatly magnified by her ongoing ill health and state of mind, the Tribunal does conclude that Kevin Anderson was in fact a responsible and sensitive manager who was generally well regarded by employees at Medicare. It is satisfied that Mr Anderson encouraged and supported the applicant in her role.
periods of leave from work
53. The applicant was working part-time. The usual working week was from Monday to Thursday inclusive. As previously mentioned there had been some flexibility in this arrangement. She has provided details in an attachment to her proof of evidence of 18 June 2010 of the total days worked in the course of her employment with Medicare, including the number of days worked "in office", "at home" and "in field". The Tribunal notes that the total number of days worked gradually decreased from 174 in 2004, to 156 in 2005, then to 144 in 2006 and a much reduced number in 2007. The applicant, of course, worked for Medicare for the last time on January 25, 2007. The days worked at home also markedly reduced over the period of employment from 29 in 2004, to 13 in 2005 and only three in 2006.
54. The evidence establishes that the applicant had a number of periods of leave from work during her employment with Medicare. She suffered a wrist injury in 2004 which required 66.94 days of workers' compensation leave and the expenditure of $10,458.75 on medical and rehabilitation treatment (T9).
55. Significant other periods of leave, some with a certificate and other periods without a certificate, also occurred. Apart from the compensation leave for the wrist injury there were 69.65 days of leave with a certificate and 6.05 days without a certificate. Mr Anderson said that "... her ongoing medical condition has been by far the major reason" for her leave. (T9)
56. There was also the extended three month period of leave without pay taken from 11 July 2006 until 2 October 2006 (according to the applicant's records). The official leave records indicate that the leave period was from 11 July until 9 October 2006.
57. These leave periods do highlight the serious health problems suffered by the applicant during much of her employment with Medicare.
58. It is noted that in a response by Kevin Anderson to the applicant's current workers' compensation claim he said of the three month period of leave without pay:
"This episode of leave without pay was preceded by 8 days of certificated personal leave (26/6/06 to 6/706) and as I recall the LWOP was requested at short notice by Angela in order to stabilise her health and rest over few months so that she could better discharge her duties when she returned to work.
I recall that Angela had been unhappy for some weeks leading up to this period because I had to refuse a request by her to work at home on one occasion rather than take sick leave. This was after a discussion with my State manager (Dr Peter Sexton) around her capability to do meaningful work given the medication she was taking for her ongoing health issues". (T9 page 39)
circumstances leading to departure from work on 25 January 2007
59. The applicant left work at approximately 1.27pm on 25 January 2007. She did not return to work at Medicare at any time after that date. The circumstances surrounding her sudden permanent departure from work are obviously of particular relevance to this workers' compensation claim.
60. The departure of the applicant from work on that day was clearly related to the applicant's reaction to finding a completed AWA on her desk. As mentioned it had a sticky note attached asking her to sign it. It is essential therefore to have an understanding of the background to this event.
61. That background is to some extent explained at paragraphs 59 to 65 of the applicant's proof of evidence as follows:
"59. I didn't particularly want to be employed subject to an AWA, but because Medicare was paying me at APS 5 level for what was apparently advertised as an APS 4 position, I understand that I was put on an AWA instead of the certified agreement that most staff were engaged pursuant to.
60. In or about January 2005, which was 12 months after my commencement, I broached the subject of a pay review with Kevin as had been agreed and as provided by the terms of my AWA. Kevin advised me he would research the options and get back me. He eventually advised that he couldn't conduct a pay review at that time but I do not specifically recall the reason that he gave for putting it off. I then enquired about whether I could access the Healthy Lifestyle Subsidy, as access to that service might enable me to access medical or other services beneficial to managing my wrist symptoms. Once again he advised he would get back to me after researching the options. When he did, he advised that the terms of my AWA did not allow access to the Healthy Lifestyle Subsidy.
61. I cannot recall whether I broached the subject of AWA negotiation with Kevin again in 2005. The next time I remember raising the subject was in early 2006, around the nominal expiry date of the AWA. At this time, Kevin also forwarded to me an email from Human Resources, which discussed renegotiation of AWA's and salary reviews and the appropriate chain of command for signing off on various pay increases.
62. After this, we had the odd informal discussion but nothing formal. I tried to initiate proper discussion several times during the course of 2006 to get the process rolling, to no avail. Kevin would indicate that formal negotiations would get underway but then nothing would happen. Informal discussions with Kevin were always positive, but then Kevin would later say he had to take information to Dr Sexton. I do not know why Dr Sexton had to be consulted as according to Medicare's policy, the General Manager only came into play if a salary outside a particular range was sought to be approved, and no salary discussions had actually taken place.
63. During the course of that year, 3 months of which was taken as leave without pay, I noticed that the relationship between Kevin and myself altered. I was unable to have any formal discussions with him regarding renegotiating my terms of employment, but he also started to not be available for regular work meetings on occasion. Our verbal communications became quite superficial and I felt like I was being avoided. Whenever I broached the subject of my AWA, Kevin's response was usually positive or that he would have to research the options, but a formal meeting was never organised and a straight answer never received.
64. A formal discussion about the AWA was eventually organised between Kevin and I on 7 January 2007. My memory of the meeting is that Kevin advised me of the parameters within which he could negotiate the new Agreement, however, the effect was an AWA exactly the same as before - i.e. there was to be no negotiation. I had attended the meeting in good faith to discuss and negotiate terms.
65. Matters were also raised in that meeting that had never been raised to me before (such as absences from work for illness or otherwise) and they were raised as a factor relevant to the AWA negotiations. I was caught by surprise at the matters raised. The results of my Performance Reviews had always been positive. I was also shocked and confused as to the parameters supposedly set out within which we could "negotiate:" given the previously positive informal responses I had received from Kevin. I did not indicate a particular salary that I sought at that meeting or afterwards".
62. Following the meeting on 7 January 2007 the applicant sent an email to Mr Anderson. He responded by email on 10 January 2007.
63. These two emails are valuable contemporaneous records of the issues which had been discussed at the meeting on 7 January and of the applicant's principal concerns about them.
64. The applicant's email of 8 January 2007 (T9 Appendix B) quite forcefully expresses her serious concerns about the nature of the meeting and also the AWA conditions proposed. She was particularly concerned that there were no real negotiations. The applicant said:
"There was no spirit of negotiation or determination to reach agreement".
65. The applicant was concerned that her absenteeism and health problems appeared to be influencing the outcome.
66. On specific matters the applicant tellingly stated:
"In the meeting you informed me you had been directed by Dr Sexton that there would be no rise in salary, promotion to level APS 5 would mean losing 3 years seniority across the Commonwealth Government (previously an APS Exec Level 2); and that my current working arrangement of a 4 day week, which allows me some sense of work/health balance, would not be available to me.
Additionally, I am not able to negotiate regarding the Certified Agreement 'healthy lifestyle subsidy'. Instead I am informed that I am only eligible for the same amount as agreed within the Medicare Australia certified agreement".
67. In Mr Anderson's response he said:
"The purpose of the meeting from my perspective was to have a preparatory or initial discussion with you on your AWA in order to smooth they way for the processes which would follow. My main intention was to clarify between us the parameters within which we could work to arrive at an agreed position on your new AWA.
As I had previously advised you and confirmed at the beginning of our meeting, I met with Peter Sexton (State Manager and AWA Delegate) in order to discuss your AWA and to confirm the basis on which I could have discussions with you. My meeting with Peter was most helpful and clarified for me a number of issues in preparation for my discussions with you, in particular that it was appropriate that, following Medicare Australia's AWA policies, the remuneration component in your AWA be related to the APS 5 Salary Band.
My view leading up to our meeting was that it was preferable that I advised you at the outset of the remuneration parameters within which we would have to work. I used my discussions with Peter, the AWA Delegate, to support my view on this and made an effort to illustrate to you that all AWA participants in the organisation are subject to the same policies. My hope was that you would consider the information I provided, either during our meeting or afterwards and we would then proceed to drafting your AWA containing a salary component within the appropriate range. We concluded the meeting with the agreement that we would continue our discussions in another week or so. Of course I was aware that you did not mention any salary amount that you may have had in your mind and I assumed that you would further consider that situation in the light of the information I provided". (T9 Appendix C)
68. In the Tribunal's view it is of significance that when referring to specific AWA conditions the first item mentioned was "... that there would be no rise in salary".
69. Mr Anderson in his response also emphasised the matter of the level of salary. He variously referred to "remuneration component", "remuneration parameters", "salary amount" and "pay increases". He also referred to other financial conditions including "bonus amounts" and the "healthy lifestyle subsidy".
70. In her oral evidence the applicant sought to emphasise that her concern was not so much about the salary level proposed. She said:
"... because it wasn't just about the money, it wasn't just about the pay rise; and so, yes, I mean, I didn't expect a huge salary increase". (Transcript page 35)
71. On 25 January 2007 the applicant returned to her office and found the AWA in an envelope on her desk. The applicant told the Tribunal:
"I was really shocked that it was there. I hadn't expected it".
She added:
"... I looked at the document. I was disappointed in the content". (Transcript page 37)
The applicant said her concern was:
"... it was more the fact that I didn't realise that a decision had been made that the whole process had been completed..." (Transcript page 37)
72. The applicant said she then went to try and find Mr Anderson but he wasn't in his office. She left a brief note for him (T9 Appendix A) and then left the office and went home.
73. At paragraphs 68 to 70 of her proof of evidence the applicant said the following:
"For me, the leaving of the AWA for me to sign in the absence of any further discussion or negotiation was the straw that broke the camel's back. I couldn't cope with the passive resistance to negotiation and discussion any more or the confused messages I was being given by management. I tried to find Kevin but couldn't locate him so I sent an email to him and then left work.
I had not at any time indicated a particular salary amount that I sought and there were other items that I had desired to negotiate about, such as flex time and the Healthy Lifestyle Subsidy, which Kevin had indicated I should follow up with HR after our initial meeting. These had not been resolved when the AWA was provided to me on 25 January 2007.
Subsequently, I appointed my Aunt ... as my Bargaining Agent for the purposes of the AWA, and later I involved the CPSU to continue negotiations whilst I was on personal and recreation leave and later leave subject to workers compensation certificates. I appointed the CPSU as my AWA Bargaining Agent subject to section 334 of the Workplace Relations Act 1996 on 28 March 2007 to continue negotiations on my behalf"
74. Between 25 January 2007 and 13 March 2007 the applicant experienced continuing ill health. She said she felt:
"... nauseous and dizzy and tight in the chest
...
I felt so very, very, low and really worthless
...
I was very, very teary
...
not sleeping well". (Transcript page 38).
75. She saw Dr Liew on 13 March 2007. A Workers' Compensation Medical Certificate was issued by Dr Liew on that date. It noted that the "worker stated the condition to be caused by:
"poor support at work place over a prolonged period time when she had severe medical problems plus chronic pain".
Dr Liew recorded the symptoms as "stress/anxiety/insomnia".
76. Initially after 25 January 2007 the applicant went on recreation leave but later she took extended leave without pay. There was contact from time to time from Medicare staff particularly to arrange medical appointments in relation to her workers' compensation claim. The applicant eventually formally resigned from her position on 27 August 2009.
77. The Tribunal notes that the applicant made a number of applications for other positions. The first such application being made as early as January 2007. (Paragraph 77 of A1).
THE MEDICAL EVIDENCE
78. Ms Taglieri referred to the failure by the applicant to call two medical witnesses, Dr Liew, a general practitioner, and Dr Reid a psychiatrist. Both of these medical practitioners had provided written reports. It is noted that the report from Dr Liew was provided at the request of the respondent (T46). Dr Reid's report was provided to the applicant's solicitor. Both those reports are generally supportive of the applicant's compensation claim.
79. The rule in Jones v Dunkell (1959) 101 CLR 298 that an adverse inference can be drawn against a party who fails to call a witness when the witness might be expected to favour that party is applicable to proceedings before the AAT (See Perring and Australian Postal Corp (1993) 31 ALD 693).
80. It is noted that Drs Farnbach and Ruttenberg also provided written reports to the respondent but neither was called as a witness. Aspects of Dr Farnbach's report were favourable to a degree to the applicant.
81. There are practical issues which must be considered before drawing adverse inferences from a failure, particularly by an applicant before the Tribunal, to call a witness. There can, for example, be considerable expense involved in calling a series of medical witnesses. The applicant did call a psychiatrist, Dr Burgess to give evidence. The medical report and certificates issued by Dr Liew became part of the evidence. In fact Dr Liew's report formed part of the T Documents prepared by the respondent and lodged with the Tribunal.
82. Parties, of course, do not own witnesses. They can be summonsed by the other party. If a person fails without a proper reason to attend pursuant to a summons issued by the Tribunal then that person is liable to be prosecuted and penalties can be imposed. (See section 61 of the Administrative Appeals Tribunal Act 1975)
83. When the respondent's counsel first indicated during the hearing that she would be submitting that adverse inferences be drawn because of the failure of the applicant to call Dr Reid it was suggested by the Tribunal that the respondent could itself take appropriate steps to ensure the attendance of Dr Reid. That particular suggestion was not taken up.
84. The Tribunal is of the view that in the particular circumstances of this application no adverse inferences should be drawn from the failure to call the two witnesses referred to or indeed the several other witnesses who may have been called by either the applicant or the respondent.
the applicant's pre-existing condition
85. The applicant said in evidence that she was diagnosed with SLE when she was approximately 17 years of age. The medical practitioner who diagnosed her as suffering from this disease was consultant rheumatologist Dr Stewart Graham. In a medical report forwarded to Dr Zain and dated 1 December 2005, Dr Graham describes the applicant's "clinical problem" as "SLE". He also described "a background of depressive disorder ..."
86. Another consultant rheumatologist, Dr Hilton Francis, in a report also to Dr Zain and dated 16 March 2006 said:
"I'm still at a loss to come to a firm diagnosis with .... She does not have markers to suggest lupus.
She has chest pain which may represent pericarditis.
She gets central phenomenon now with partial ptosis on the right eye in association with headaches. She has also developed an intermittent tremor in her right hand" (Exhibit R28)
87. Dr Liew, in her report of 3 September 2007 said as follows:
"As you know ... problems have been longstanding and complicated. She has Systemic Lupus Erythematosus (SLE) which has been associated with chronic joint pains and chronic neck and headache and she has been under ongoing review by the pain clinic at the Royal Hobart Hospital".
She added:
Specific diagnosis is (SLE) Systemic Lupus Erythematosus with long term chronic pain leading to depression and requiring multiple medications and regular specialist review.
Work stress causing further anxiety/insomnia and depression". (T46)
88. Dr Reid, said in a report of 8 July 2010:
"... diagnostically, my formulation was that Ms ... suffered a major depressive disorder secondary to her chronic painful condition"
89. Dr Burgess, prepared a report for the applicant's solicitor dated 8 March 2010 and also gave evidence. In his written report he expressed the following opinion:
"She told me that she had suffered from Systemic Lupus Erythematosus from about age 17, diagnosed by Dr Stewart Graham at age 19. Symptoms included episodes of peritonitis, joint symptoms, aches and pain in multiple sites, profound lethargy at times and scarring round the heart and some kidney involvement. I understand that Dr Hilton Francis is uncertain of the diagnosis and opts for a non-specific connective tissue disorder. Whatever the diagnosis, it is clear that she suffers from a relapsing/remitting severe autoimmune connective tissue disorder with multiple symptoms and a multi-system organ involvement, with issues with chronic pain at times and an ability to severely affect her energy".
90. Psychiatrist Dr Sale was asked by the respondent to make an assessment of the applicant's health problems. He prepared a detailed report dated 10 February 2009 and also gave oral evidence at the hearing. When speaking about the SLE diagnosis Dr Sale said:
"There may be uncertainties about other aspects of ... health situation. She reports being subject to SLE since adolescence, and reports this has caused a range of symptoms and has been associated with kidney damage and scarring around her heart. However, you have made reference to Dr Hilton Francis' uncertainty as to whether she suffers from SLE, and also pointed out that he found no evidence of end organ damage".
Dr Sale indicated in his report that someone, presumably the solicitor who requested the medical report, "made reference to Dr Hilton Francis' uncertainty". It is not clear however whether Dr Sale at that point in time had seen Dr Graham's written report of 1 December 2005 confirming SLE. It is noted that the list at the beginning of Dr Sale's report does not include any reference to Dr Graham's report, nor indeed to the report from Dr Hilton Francis.
91. A medical specialist in the field Dr Graham appears definite in his report that the condition is SLE. Dr Francis has some doubts but has not ruled it out. Dr Liew, is also satisfied that the correct diagnosis is SLE. Dr Sale has doubts principally because of Dr Francis' opinion. It appears that he did not see Dr Graham's report before expressing his doubts in his report of 10 February 2009.
92. Although there is clearly some conjecture among the medical practitioners about the most appropriate diagnostic label to attach to the applicant's pre-existing condition, after considering all the material before it the Tribunal is satisfied to the standard required that the applicant has indeed suffered SLE since she was a teenager and that she continues to suffer from that medical condition.
93. The Tribunal also notes the following statement by counsel for the respondent Ms Taglieri in her closing address:
"... I think it's common ground between the parties that the applicant did have a pre-existing medical condition of SLE, and a pre-existing depressive condition, and a pre-existing chronic pain condition". (Transcript page 352)
94. The Tribunal finds that the applicant was suffering SLE before and during her employment by Medicare. It finds that chronic pain and also depression are associated with this medical condition.
were the applicant's pre-existing medical conditions aggravated by her employment with medicare?
95. As previously mentioned for a section 4(1) aggravation to be established the Tribunal must be satisfied on the balance of probabilities that the applicant's employment contributed in a material degree to a worsening of her pre-existing ailment.
96. The Tribunal has already considered the various occurrences which the applicant says caused her stress, anxiety and depression leading to ill health and incapacity for work. They included her perception of lack of support from management, the various individual incidents previously referred to, the events surrounding negotiations for a new AWA, finding a completed AWA on her desk on 25 January 2007 and the contents of that AWA.
97. The Tribunal is satisfied that there is some degree of basis in reality to all of these claims of the applicant. Mr Anderson's attitude towards the applicant did indeed change during the course of 2006. He acknowledges that his trust in her did start to become "shaky". The applicant did begin to feel that lack of trust. She perceived a loss of support and a deteriorating relationship. She was most concerned about Dr Sexton's involvement particularly when he expressed the view that because she was taking certain medications she should not continue to work from home. That view may have been soundly based and possibly was an appropriate decision. The applicant, however, being ill and vulnerable, perceived it as an unwarranted medical opinion and a decision which undermined the proper management of her illness.
98. The applicant was particularly upset and anxious about not being able to work from home and also over occurrences surrounding her return from her three month leave in 2006.
99. But as well the applicant was deeply concerned at the way the AWA negotiation was handled and by the offer set out in the completed AWA left on her desk on 25 January 2007. This is self evident because after seeing the AWA and reading its contents she left work never to return.
100. A number of medical practitioners have expressed the opinion that lack of management support, the other occurrences at work and issues surrounding the AWA negotiations and outcome have caused her pre-existing condition to worsen.
101. Dr Farnbach, who was engaged on behalf of the respondent to provide a medico-legal opinion said in his report of 4 December 2007 (page 8):
"It does appear then that her deterioration in her mental state is at least in part due to the workplace difficulties. The chief of these are the negotiations to do with her AWA, and her feeling that her physical illnesses have not been understood and allowed for - in particular, she believes that she should be able to work from home and should have an administrative assistant to help with the workload. It is her perception that her superiors (Dr Peter Sexton and Mr Kevin Anderson) have been unsupportive
In making the above comment, I express no view as to whether the actions of Dr Sexton and Mr Anderson have been reasonable, but merely that Ms ... perception is that they have not been and that this perception has exacerbated her pre-existing anxiety and depressive symptomatology".
102. Dr Burgess expressed the opinion in his report of 8 March 2010 that the applicant had suffered a depressive illness. He said
"I did not find that she was suffering from any formal psychiatric disorder, although it seems clear from the history and the reports that she was suffering from one in the recent past. Any opinion I have regarding aetiology is therefore retrospective, but the main factor seems to be a lack of support during a time when she was vulnerable and unwell. The administrative action taken seems to have not been particularly consultative, as she was unaware of why decisions were taken as they were. I believe she is incapacitated in regards to working at Medicare because her perception of the lack of support would make her more vulnerable, and I feel her health would suffer if she were to go back there".
103. In her report of 3 September 2007 Dr Liew said:
"In my opinion the work stress experienced by ... has been significant and has adversely affected her medical condition and depression". (T46)
104. In his written report Dr Sale expressed concern about the reliability of the history provided by the applicant. He said:
"Therefore, if there are concerns about the reliability and accuracy of the history provided, then it is unlikely that a confident diagnosis and formulation can be made.
...
I would refer again to the problems in the history provided by Ms ... Further, it would appear to me that there is a risk that this history is tailored so as to support her contention that problems are a consequence of workplace matters. The background information provided suggests that problems arose when Ms ... was frustrated by management in relation to matters such as being able to work at home, or the terms of the AWA".
105. Dr Reid said in his report:
"There has been a breakdown in communication between Ms ... and her managers over time. Tensions seem to have arisen through absenteeism from work. The cause of this loss of productivity in the workplace was as a result of her connective tissue disease, resulting in pain, fatigue and secondary depression. In my opinion, the breakdown of support in the workplace was a significant factor in the downturn and perpetuation of her low mood".
106. Dr Ruttenberg, a consultant occupational physician, provided a report to Medicare Australia dated 8 August 2007 (T34). He said:
"I cannot clarify any medical condition today. She may have SLE but there was no documentation in this regard".
Dr Ruttenberg had earlier said:
"Ms ... has systemic lupus erythematosus, but this does not seem to be the reason for work absence and for the current presentation
...
SLE is associated with psychiatric manifestations".
He said a psychologist/psychiatrist should provide an opinion.
107. Dr Farnbach, who as mentioned was engaged by the respondent to provide a medico-legal opinion, and Drs Reid, Burgess and Liew all recognise a link between difficulties experienced in her employment with Medicare and the applicant's SLE and related depressive illness. Dr Sale was not inclined to offer a diagnosis in retrospect and also had some concerns about the accuracy of the history provided by the applicant.
108. Dr Sale did not say that the applicant was definitely not suffering from SLE. He agreed in cross-examination that SLE is likely to produce associated depressive mood. He added:
"... if you are depressed you will perceive all sorts of things as stressful that wouldn't usually be stressful". (Transcript page 228)
109. The evidence establishes a link between the applicant's increasing stress and anxiety at work and a worsening of her SLE and depression. Her extended three month period of leave was a result, at least in part, of her perception of lack of support at work. When she returned to work after that period of leave she again became ill because of work related issues. Further stress and anxiety was caused by the AWA negotiations which came to a head in January 2007. "The straw that broke the camels back", as she described it, was finding the completed AWA on her desk and also its contents. She became upset, felt ill and went home never to return to work.
110. After considering the facts of this application and the medical evidence before it the Tribunal is satisfied on the balance of probabilities that the applicant's employment did contribute in a material degree to an aggravation of the applicant's pre-existing SLE and associated depressive condition.
DID THE AGGRAVATION RESULT FROM THE FAILURE BY THE APPLICANT TO OBTAIN A BENEFIT?
111. The Tribunal concludes on the evidence that several work related factors caused stress and anxiety to the applicant and resulted in the aggravation of her pre-existing SLE and associated depressive condition.
112. Those work related factors were:
(a) the perceived lack of support provided by management from May 2006 onwards including:
· not being allowed to continue to work from home
· a belief that other employees were being told of her health problems
· failure to provide back up to service the 1800 phone number
· poor communication from management
· not being allowed to continue flexible working arrangements
· events surrounding the applicant's return to work from extended leave in October 2006
· pressure to continue to work and delay in obtaining medical treatment after suffering a wasp sting
(There were some other specific occurrences which the Tribunal considers of minimal significance).
(b) delay in negotiating a new AWA and the manner in which the AWA negotiations were conducted; and
(c) the fact that a completed AWA was left on the applicant's desk on 25 January 2007 and in particular the contents of the AWA which provided:
· no acceptable increase in salary (There was a minor increase based on CPI which the applicant had not recognised)
· not being able to negotiate the 'healthy lifestyle subsidy'
113. The Tribunal concludes from the evidence that the fact that the applicant did not obtain an acceptable increase in her salary was a significant cause of her stress and anxiety. There is evidence showing that the salary issue was a central factor in the aggravation of her medical condition.
114. In his report of 8 March 2010 Dr Burgess, who had been engaged by her own solicitor, related in some detail comments made to him by the applicant concerning the AWA agreement and that there was to be no acceptable increase in salary. He recorded this as follows:
"Regarding the AWA agreement, she said that part of the problem was for her was that there was no increment written into it, and no extra level. She had accepted it at a lower level than she normally worked because "I wanted to stay in Tassie". She believed that "once they saw the level of my work, they would be pretty happy", and that an incremental increases would follow. She said that in her time with the department others had got incremental increases of the order of 17 to 18%. The final draft of her AWA was pretty much "the same AWA as I had signed before", with none of the variations mentioned above. In what was perhaps a final insult the AWA was simply left on her work desk to sign and be returned".
115. At T14 (Page 81) the applicant states in a handwritten note dated 6 June 2007 inter alia:
"I have not had a pay rise for 4 years and was most recently asked, no, pressured, to sign a new AWA".
116. The question of a salary increase and the 'healthy lifestyle subsidy' both feature in the applicant's email sent on 8 January 2007 after the meeting held on the previous day.
117. Mr Anderson was adamant that the main concern the applicant had about the AWA was the pay rise. He was asked by Ms Taglieri:
"Now, at paragraph 16 of your statement you address an issue about pay rise, and you also address various matters concerning review of the AWA. What is your understanding from the discussions you had with Ms ... of her main concern about the AWA that she was on from when she started employment?"
He answered:
"The pay rise".
He was then asked:
"And what, in particular, was her issue with the pay rise?"
Mr Anderson answered:
"Well, she was pursuing the need for a – a new AWA because she wanted a pay rise". (Transcript page 259)
118. During cross-examination by Mr Cox for the applicant Mr Anderson again reiterated his point about the pay rise when he said:
"I know that she was after a new AWA because of the pay rise. She was after a pay rise". (Transcript page 269)
On page 119 of the transcript counsel for the respondent asked the applicant:
"You told Mr Anderson in that discussion that you were wanting a pay rise?"
The applicant responded:
"No. No. It was about when can we actually sit down and start negotiating everything in the AWA"
She added:
"It wasn’t specifically about a pay rise".
119. Earlier in her evidence the applicant was asked whether the fact that she was to stay on the same salary was what upset her. The applicant said:
"No, I deny that's what upset me, yes". (Transcript page 117)
120. Although the Tribunal found the applicant's evidence to be generally reasonably reliable, bearing in mind that she had been suffering a serious illness and much of what she said in evidence was essentially her own perceptions and interpretations of events, it found that her evidence on the pay rise issue lacked frankness. She downplayed the significance of the pay rise issue even though in the Tribunal's view that particular issue was of very great significance to her. Where there is a conflict on this issue between the evidence of the applicant and the evidence of Mr Anderson, the Tribunal prefers the evidence of Mr Anderson. The Tribunal found Mr Anderson to be an honest and reliable witness.
CONCLUSION
121. The words in the exclusionary provisions in the definition of "injury" in section 4(1) of the Act were interpreted by Heerey J in Trewin v Comcare [1998] FCA 713 (19 June 1998). His Honour said:
"In my opinion the term "benefit " in s 4 is not restricted to something which is a matter of charity or gratuity. The Macquarie Dictionary gives two relevant meanings for the noun "benefit":
"1. an act of kindness.
2. anything that is for the good of a person or thing."
To some extent the meanings overlap, with the latter being broader.
I think that the word is used in s 4 in the latter sense, which does not necessarily exclude something obtained as a matter of right. An example of this usage is in the term "medical benefit", which means a payment to which an insured person is entitled as a matter of contractual right.
Moreover the concept of "failure ... to obtain a promotion, transfer or benefit in connection with ... employment" has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be deduced from the exception to the definition of "injury" in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable".
122. The Tribunal finds that a substantive cause of the applicant's stress and anxiety and the aggravation of her pre-existing SLE and associated depressive illness was a failure to obtain an acceptable pay rise in negotiations and in the contents of the AWA left on her desk. In the Tribunal's view the failure to gain an acceptable pay rise was a major cause of tension between the applicant and her managers. As she said in her original claim form (T12):
"The reduced communication with my managers seems to have started around May 2006 when I asked for a pay rise, and then got progressively worse".
She continued to press for a new AWA which was essentially asking for a higher level of remuneration. This was not a minimal contribution. It was sufficient to satisfy the meaning of "material degree" expounded by Finn J in Sahu-Khan.
123.
Counsel for the applicant submitted that she made no complaint about the terms of the AWA but merely about the process by which it was negotiated. The
Tribunal however concludes from an examination of all the material before it that the failure to gain an acceptable pay increase was at the heart of the applicant's frustration and resultant stress and anxiety. It was this failure to provide the extra money and also, the Tribunal reasonably infers, the associated failure to properly recognise the applicant's work and worth that caused her deep concern and affected her health and well being.
124. The applicant's failure to obtain formal approval to work from home and to continue to have the benefit of flexible working arrangements are less clear. It might be said that those two causative factors are examples of the failure to "retain" a benefit rather than to "obtain" a benefit. (See Re Davill and Australian Postal Corporation (1995) AATA 10629 (22 December 1995) and Comcare v Ross (1996) FCA 680 (2 August 1996). (The Act has since been amended to include the word "retain" in the exclusionary provisions).
125. The Tribunal is satisfied on the balance of probabilities that the failure to obtain an acceptable salary increase is a material causative factor among a number of causative factors leading to the aggravation of the applicant's pre-existing medical condition. In the multitude of concurrent causes the overall perceived lack of support by management, withdrawing the opportunity to work from home, the manner in which the AWA negotiations were conducted and the refusal of ongoing flexible working arrangement were also material factors. The other previously mentioned workplace issues were, in the Tribunal's view, of lesser import in causing the aggravation.
126. In Trewin, Heerey J made reference to the judgment of Drummond J in Comcare v Mooi (1996) FCA 580 (2 July 1996) and without necessarily adopting the view said as follows:
"It is implicit in Drummond J's reasoning that if there were four contributing and employment-related factors, of which three were exclusionary and one was not, and if the requirement of "injury" were satisfied, the claim would succeed'. (At page 176)
127. The Tribunal however is bound to follow the later Full Federal Court decision in Hart v Comcare [2005] FCAFC 16 (Branson, Conti and Allsop JJ) in which the Full Court unanimously expressed a contrary view. In their joint judgment their Honours said:
"In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction. The cases on multiple causes in tort or general law do not assist that enquiry.
It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion".
128. The Tribunal finds that the aggravation "is as a result of" a failure to obtain a salary increase. A salary increase is a "benefit" within the meaning of the definition of injury in section 4(1) of the Act. It follows that the aggravation has resulted from a failure to obtain a benefit and therefore is not an "injury" within the meaning of the Act.
129. As the applicant has not suffered an "injury" it is unnecessary to proceed to consider whether she has suffered any incapacity for work.
DECISION
130. The decision under reviewed is affirmed.
I certify that the 130 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom AO (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 23, 25, 26, 29, 30 November 2010 and 20 December 2010
Date of Decision 9 March 2011
Counsel for the Applicant Mr T Cox
Solicitor for the Applicant Ms R Spencer, Jackson Tremayne & Fay
Counsel for the Respondent Ms S Taglieri
Solicitor for the Respondent Ms N Richards, Australian Government Solicitor
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