TONI ILIFFE and COMCARE
[2013] AATA 631
[2013] AATA 631
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/5437, 2012/5043
Re
TONI ILIFFE
APPLICANT
And
COMCARE
RESPONDENT
DECISION
Tribunal PROFESSOR RM CREYKE, SENIOR MEMBER
DR B HUGHSON, MEMBERDate 3 September 2013 Place Canberra The decisions under review are affirmed
.......................................[sgd].................................
PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
COMPENSATION – Commonwealth employees – adjustment reaction with mixed emotional factors – migraine – whether arising out of or in the course of employment – whether reasonable administrative action taken in a reasonable manner – failure to obtain a benefit
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 14
Cases
Comcare v Mooi (1996) 69 FCR 436
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Isley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Smith v Comcare [2013] FCAFC 65
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
DR B HUGHSON, MEMBER
3 September 2013
Ms Toni Iliffe has two applications before the Tribunal: the first for an ‘adjustment disorder with mixed emotional features’ (Matter No 2011/5437); the second for ‘migraine unspecified’ (Matter No 2012/5043).
Ms Iliffe’s claim for an ‘adjustment reaction with mixed emotional features’ was initially accepted on 5 August 2011. On 30 September 2011 the employer requested a reconsideration of the decision on the basis that the date of injury was 10 April 2010, that is, after Ms Iliffe’s failure to be appointed to an Australian Public Service level 5 (APS5) position within the Department of Climate Change and Energy Efficiency (agency). The consequence, so it was argued, was that Ms Iliffe’s psychological condition was due to reasonable administrative action, which meant that it was not compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
On 9 December 2011 Comcare accepted the agency’s submission and revoked the decision of 5 August 2011. Ms Iliffe sought further review by the Tribunal on 15 December 2011. The matters were heard in Canberra on 3, 4 and 5 July 2013.
Comcare initially denied Ms Iliffe’s claim for migraine on 30 August 2012, a decision upheld on review on 19 October 2012. Ms Iliffe sought review by the Tribunal on 9 November 2012.
Background
Ms Iliffe, born 1964, was employed on a non-ongoing basis from 2007 by the Department of Environment. Her section moved to the new Department of Climate Change and Energy Efficiency (agency) in March 2010. Ms Iliffe’s contract was extended regularly throughout that period but was due to expire on 30 June 2011. She ceased work with the agency on 12 May 2011 and did not find other employment until November 2011.
Ms Iliffe worked in the section administering the Solar Homes and Communities Plan (SHCP) as a state leader and then a senior program officer. She was initially employed at the APS4 level, but was promoted to an APS5 level in January 2010. In that position, at one point she said she was responsible for between 30 and 75 staff.
The SHCP program was designed to assist in the installation over a five year period of 14,000 solar systems for generating electricity. On 9 June 2009 the government announced it was removing the SHCP rebate earlier than planned. Firms seeking the rebate were given a couple of weeks to submit their applications. As a result the agency received 45,000 applications for the rebate in that period. There was insufficient staff to deal with the workload and temporary staff, many with little experience, were brought in to assist.
Ms Iliffe, who was a certified staff trainer, was asked to train the new staff, as well as complete her existing workload. In addition, Ms Iliffe said she also took on the role of handling complaints from June 2009. Ms Iliffe provided evidence of the abusive emails and phone calls she received on a regular basis because of delays in payment of the rebate. She said on occasions she would go to the kitchen to avoid the calls.
At its busiest, in March 2010, there were over 70 officers working in the program. However, by July 2010 the closure strategy was under way and Ms Iliffe’s team moved from a location in Woden to Canberra city, the program having initially been housed in a third building on the other side Lake Burley Griffin from the city. Each of the moves involved dislocation, loss of processing time, and led to the loss of some files. By July 2010, staff had reduced to 25 and Ms Iliffe’s work load had decreased. However, she was still processing applications, and receiving abuse from unhappy installers. This situation continued until Christmas 2010. In addition, around this time, she had to reapply for her non-ongoing position.
In the period February to December 2010, Ms Iliffe was absent from work on a number of occasions. The reasons varied from colds, viruses, migraine headaches, and an injury to her foot and ankle, as well as support for her husband when he was unwell and was hospitalised for a period. Ms Iliffe also had problems with her daughter who had been living with her but had been asked to leave and did so on 30 May 2010.
On 8 April 2011, Ms Iliffe was found unconscious at home by her husband. She had been at home on a day’s leave. She was taken to Calvary Hospital by ambulance and was diagnosed with a severe migraine and not released until the next day. A CT scan was taken which disclosed no abnormalities. Apart from a few days at work from 28 April 2011, Ms Iliffe did not return to employment with the agency following the events of 8 April 2011.
In October 2010, Ms Iliffe had applied for a position with the agency in a bulk recruitment round. She was unsuccessful. The Chair of the selection panel had notified unsuccessful candidates on 10 or 11 March 2011. Ms Iliffe was not at work between 7 and 11 March 2011. She recalls being rung at home by the Chair of the Panel and told of the outcome. There was some dispute as to whether this was on 10 or 11 March 2011, or 3 May 2011. Ms Iliffe was also at home on 3 May 2011.
On 9 May 2011 Ms Iliffe saw a psychologist and had discussions about her unsuccessful application. The report noted that Ms Iliffe’s self-confidence had been affected and that she ‘reported that this is creating a great deal of stress for her as she needs to work for financial reasons. She reported that she has been struggling to “face” work and feels incredibly stressed, anxious and overwhelmed when she is there’. [S 71 docs] The report noted that Ms Iliffe said following the breakup of her first marriage she was hospitalised for treatment and was currently ‘experiencing symptoms of depression and anxiety’.
Legislation
The legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Relevant provisions are section 4(1) for terms defined in the Act; section 5A, defining what is an ‘injury’ for the purposes of liability, and for exclusion of liability if the injury was caused by ‘reasonable administrative action undertaken in a reasonable manner’; section 5B, defining what is a ‘disease’ for the purposes of liability; and section 14, which describes when liability arises.
Issues
The issues in relation to both conditions are:
·Whether the injury was significantly contributed to by Ms Iliffe’s employment?
·If so, whether liability for the claim is excluded under section 5A of the Act on the basis that the condition arose as a result of ‘reasonable administrative action undertaken in a reasonable manner’, namely, by a failure to obtain a benefit?
·What is the deemed date of the injury (section 7(4) of the Act)?
·Whether Comcare is liable to pay compensation to Ms Iliffe under section 14 of the Act in respect of the injury?
Consideration
Ms Iliffe has two conditions: a psychological injury, described in the reviewable decision as an ‘adjustment reaction with mixed emotional features’; and ‘migraine, unspecified’. A third condition of sleep apnoea favoured by Dr David Bell, psychiatrist, was not supported by other medical experts and has not been taken into account by the Tribunal. The expert medical witnesses accepted she had a psychological condition, and the diagnosis was not challenged in the proceedings.
Ms Iliffe’s claim for headaches, according to the neurologists, covered the spectrum of such disorders. Professor Roy Beran and Dr Ron Brooder, the two neurologists who provided concurrent evidence, said that from 2009 onwards Ms Iliffe had been suffering regular headaches, variously described as headaches, tension headaches, vascular-tension headaches, migraines and severe migraines. In 2010 she said they were occurring at least once a week, often on a Saturday morning. Both experts agreed that Ms Iliffe’s collapse on 8 April 2011 was due to a migrainous episode, that is, a severe migraine, which was at one end of the spectrum. They also agreed that causally there was a distinction between headaches and migraine. There was a strong familial factor in relation to migraines and tension headaches, although the experts agreed that tension headaches usually develop due to stress or anxiety.
Ms Iliffe’s evidence was that she was very aware of the distinction between a headache and a migraine: if it was a migraine she would experience nausea, dizziness, shaking, and would not be able to lift her head. She often felt a throbbing pain over her right eye which extended to the back and top of her head, and she could not lie on one side of her body. She needed to be in a dark room on that day and, on the next day, she often felt sick or dizzy and lacked coordination.
Categorisation of claimed conditions
Both Ms Iliffe’s claimed conditions can be categorised for the purposes of the Act as a ‘disease’, being either an ‘ailment’ or an ‘aggravation of such an ailment’.[1] An ‘ailment’ is defined as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[2]
[1] Act s 5B – definition of ‘disease’.
[2] Act s 4(1) – definition of ‘ailment’.
Ms Iliffe’s adjustment reaction is a ‘mental…ailment, disorder, defect or morbid condition’, being a condition which has been diagnosed by those with specialist psychological or psychiatric training, a condition which falls within their expertise. It is accordingly an ‘ailment’ and in turn a ‘disease’. Whether the condition meets the test of being ‘outside the boundaries of normal mental functioning and behaviour’[3] is yet to be determined.
[3] Comcare v Mooi (1996) 69 FCR 436 at 444.
Equally, Ms Iliffe’s migraines are not a physical condition. Dr Colin Andrews, neurologist, concluded they were non-organic in nature as evidenced by the fact that no abnormalities in the brain were detected on the MRI and MRA scan of her head in April 2011. That evidence was not challenged by other medical experts. That means her migraines can be described as a ‘mental…ailment, disorder, defect, or morbid condition’. Accordingly her migraine headaches are also properly categorised as an ‘ailment’ and in turn a ‘disease’ for the purpose of attracting compensation under the Act.
Notification of information about bulk round and non-renewal of contract
Non-renewal of contract
There was dispute as to when Ms Iliffe had been notified of the non-renewal of her contract and of the outcome of the appointments round. The reviewable decisions and much of the argument during the hearing focused on a notification date of 3 May 2011.
On 3 May 2011 Ms Iliffe had attended Dr Murphy who gave her a certificate that she was not fit for work until 20 May 2011. Dr Murphy’s clinical notes for that day state: ‘contract which expires in June, some trouble coping with workplace.’ The notes indicate that Ms Iliffe did refer to her concern during that consultation about the impending end of her contract. However, the notes do not indicate that Ms Iliffe had definitely been told by that date that her contract was not to be renewed. Ms Iliffe also stated and the Tribunal accepts her evidence that she had pre-booked her appointment with Dr Murphy on 3 May 2011 as he only works part-time. So she could not have made an appointment to see him because of her distress about being told her contract was definitely not being renewed.
Further evidence of the date of notification comes from an email Ms Iliffe sent to her Director on 9 May 2011. In that email she asked whether her existing contract would be extended, to which he indicated, in an email on 10 May 2011 to another staff member, that he was about to respond to Ms Iliffe and confirm that no further contract would be forthcoming. That means Ms Iliffe was not told about the non-renewal of her contract until at least 10 May 2011 and the Tribunal is satisfied that she could not have been informed of its non-renewal on 3 May 2011.
Appointments round
The Tribunal also finds that Ms Iliffe was not told about the results of the bulk round on 3 May 2011. That finding is supported by the evidence of the Chair of the Panel that she had rung all the unsuccessful candidates on 10 – 11 March 2011 and that she remembered ringing Ms Iliffe at home. Ms Iliffe was on leave on those days. Ms Iliffe had also said in her statement dated 1 July 2011 that she had been advised in ‘late March’.
In addition, in the record of her counselling session with PPC Worldwide on 9 May 2011, Ms Iliffe is recorded as having said that, since being told about the results of the bulk round, she had ‘applied for approx 25 other jobs since finding out, many of which she has received interviews for, but has been unsuccessful’. The time involved in Ms Iliffe submitting some 25 job applications and being interviewed for some of the positions, indicates that her ‘finding out’ must have occurred some months earlier. That supports a finding that she had been informed of the outcome of the bulk round in March 2011, not 3 May 2011. In those circumstances, and in light of the other evidence from the Chair of the Panel, the Tribunal finds that Ms Iliffe was told about the results of the bulk round on 10 or 11 March 2011.
Approach
In Smith v Comcare the Full Court of the Federal Court reminded the Tribunal that it should usually address the issue of liability under section 14 of the Act prior to making findings about the date of injury.[4] That reminder is apposite in this case. Accordingly the Tribunal turns first to the issue of liability and whether the diseases suffered by Ms Iliffe were ‘contributed to, to a significant extent’, by her employment by the agency, and next whether any such contribution is excluded from liability under the terms of section 5A of the Act.
Whether the injury was significantly contributed to by Ms Iliffe’s employment
Psychological condition
[4] Smith v Comcare [2013] FCAFC 65 at [34] per Buchanan J (with whom Greenwood J agreed); at [68] per Bromberg J.
Ms Iliffe submitted a workers compensation claim on 1 June 2011 in respect of an ‘anxiety adjustment disorder stress related’, with a deemed date of injury of 1 December 2010. She attributed her injury to:
·Workload
·Overwork, lack of resources, lack of management direction/support, being assigned unrealistic levels of responsibility, and
·Work stresses – various.
Her evidence was that as a consequence she suffered from stress, headaches and anxiety/depression dating back to the first half of 2010. In the alternative she says she ‘was totally incapacitated for work between 3 May – 28 November 2011’ and that while she is now working, she is still in need of treatment for her psychiatric injury.
Comcare contends that there is no contemporaneous medical evidence of:
·‘[Ms Iliffe] seeking, obtaining, or requiring medical treatment in respect of a psychological condition prior to 3 May 2011;
·A psychological condition, or [Ms Iliffe] suffering symptoms of sufficient severity to give rise to incapacity for employment’.
Comcare also contends that as at 3 May 2011, the operative and effective cause of Ms Iliffe’s incapacity and requirement for medical treatment was her failure to obtain a permanent position with the agency. Any stress arising from the nature and conditions of Ms Iliffe’s employment in 2010 was no longer an effective or operative cause of incapacity, given that the workload of the SHCP program had been steadily decreasing as the program was coming to an end.[5]
[5] Isley v Wattyl Australia Pty Ltd (1997) 144 ALR 510.
Ms Iliffe maintained that she was under considerable stress during 2010 due to the pressure involved in responding to claims under the SHCP scheme. Ms Iliffe attended Dr Murphy, with her husband, Mr Larry Iliffe, on 12 occasions between December 2009 and 20 January 2012. The claims are supported in part by her absences from work during 2010 for some 42 days, amounting to roughly one day a week. Ms Iliffe claims her absences were mostly for headaches and nausea and trouble she was having sleeping. However, an analysis of the absences indicates some absences were to enable Ms Iliffe to provide support for her husband while he was unwell, others were due to Ms Iliffe having colds, viruses, abdominal problems, and an injury to her foot and ankle. Some of the absences simply show Ms Iliffe being ‘unwell’. Dr Murphy did not prescribe a sleeping tablet until 8 March 2011. Only a few of the absences identify migraine as the reason.
The period of the most intense pressure on Ms Iliffe, according to the evidence, followed the announcement in June 2009 of the early closure of the SCHP scheme and the influx of 45,000 or so applications in the following month. That was accompanied by Ms Iliffe having to assist with the training and supervising of temporary staff employed to handle the influx during that period, and being one of two persons handling complaints. At its busiest, in March 2010, there were over 70 officers working in the program.
However, in July 2010, the Tribunal notes that the closure strategy was under way and Ms Iliffe’s team moved from a location in Woden to the city. By then staff had reduced to 25 and her work load also decreased. That is supported by the evidence of emails from customers which were principally for the first half of 2010, although some emails are as late as December 2010.
The Tribunal also notes that Dr Murphy did not refer Ms Iliffe to a psychiatrist until 19 May 2011. Nor did he prescribe medication for a psychological condition during 2010 or 2011. He did prescribe a sleeping tablet on 8 March 2011 and again on 12 April 2011. However, his clinical notes for 8 March 2011 refer to Ms Iliffe’s viral enteritia, and on 12 April 2011 the reference is to migraine, not a psychological condition. Dr Murphy’s clinical notes for consultations during 2010 make no reference to Ms Iliffe saying she was suffering stress at work, although in evidence to the Tribunal, Ms Iliffe, Mr Iliffe, and Dr Murphy all maintain she had done so.
The Tribunal accepts that Ms Iliffe on occasion did raise the issue of stress with Dr Murphy during 2010 given the evidence that he advised her that if she wished to establish her stress was work-related she would need to put in a compensation claim. However, as Ms Iliffe feared this would jeopardise the renewal of her contract, she did not take that step. That finding is supported by the application form for renewal of a non-ongoing contract which specifically asks whether the person has made a compensation claim.
Ms Iliffe was on an anti-depressant, according to Dr Murphy in 2002, which she continued for about four years but then stopped taking. He also noted she had a predisposition to anxiety and depression. So he was aware of her vulnerability and the absence of any reports of stress in his clinical notes in 2010 is telling. The Tribunal accepts that the style of Dr Murphy’s clinical notes is brief. However, in 2011 when he referred her to specialists his notes did refer to work-related matters, and this indicates that if he had particular concerns about matters affecting her health he would briefly note the cause.
The Tribunal notes that Ms Iliffe was undoubtedly under pressure from installers and others concerning the rebate under the SHCP scheme during 2010. She had been continually managing on short term contracts, and in October/November of that year she had to complete her application for consideration for permanent appointment in the bulk round conducted by the agency. The Tribunal accepts these were stressful events. However, during the latter half of 2010 that workload pressure was diminishing, staff had been reduced, and Ms Iliffe was one of the handful of staff whose contracts were to continue until the end of the program in mid-2011. So these were ameliorating factors.
In summary, the Tribunal is not satisfied that Ms Iliffe’s employment during 2010, although undoubtedly stressful, had led to her development of a psychological condition which could be described as ‘outside the boundaries of normal mental functioning and behaviour’.[6] Given the brevity of most of her absences from work during 2010, the Tribunal is also not satisfied that the stresses she experienced were sufficient to meet the test that the disease suffered ‘was contributed to, to a significant degree’ by her employment.
[6] Comcare v Mooi (1996) 69 FCR 436 at 444.
That position did change in 2011. Ms Iliffe’s absences from work in the first half of 2011 were noticeably longer. Dr Murphy certified that Ms Iliffe was unfit for work from 7 – 11 March 2011, from 12 – 15 April 2011, and from 3 – 20 May 2011, and ongoing after then. On 8 March 2011 and 12 April 2011 Dr Murphy had prescribed a sleeping tablet, and on 19 May 2011 he referred her to a psychiatrist.
At the same time, although the need for a sleeping tablet may reflect a level of anxiety leading to insomnia, the March consultation concerned a long-standing viral condition, and only the 12 – 15 April certificate related to her migraines. However, the consultations on 3 May and 19 May do refer to difficulties at work, these being the first such references in Dr Murphy’s clinical notes, and he does refer her to a psychiatrist on 19 May 2011. Dr Thompson prescribed anti-depressants on 6 July 2011 following her consultation with Ms Iliffe on that date.
The Tribunal finds these events are evidence of heightened concern by her general practitioner and her treating psychiatrist about Ms Iliffe’s psychological health, at least from May 2011. That evidence was supported by Ms Iliffe’s email to her Director, dated 5 May 2011, indicating her ‘personal confidence had been completely shattered by the department’ due to her failure in the bulk round, her attendance at a counsellor to discuss the issue on 9 May 2011, the counsellor’s report that she was ‘shattered by this’, Dr Murphy’s uncharacteristic references on 3 and 19 May 2011 to problems at work, and his referral of Ms Iliffe to Dr Thompson on 19 May 2011 who in turn prescribed an anti-depressant following the consultation on 6 July 2011.
The Tribunal finds accordingly that in the first half of 2011 Ms Iliffe’s psychological condition had reached a point where it could be said the condition was ‘outside the boundaries of normal mental functioning and behaviour’. That means her psychological condition did worsen in 2011. This could be characterised as an aggravation of her condition[7] and hence a disease for the purposes of the Act.[8]
[7] Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537. See also Act s 4(1) – definition of ‘aggravation’.
[8] Act section 5A(1)(c).
The evidence also establishes that work was implicated in the worsening of her condition. In addition, there is evidence that other stressors in Ms Iliffe’s life, such as the presence in her house of her daughter, had been removed. So though Ms Iliffe had, in effect, not been at work since 8 April 2011, her working conditions prior to her effective cessation of employment in April 2011 may have been causal of her disease. That means the Tribunal must consider whether her employment had contributed to a significant degree to her condition.[9] The Tribunal also notes that in the alternative to her claim that conditions in the workplace in 2010 contributed to her condition, counsel submitted that her claim related to the period from 3 May 2011 to 28 November 2011, the end date being when Ms Iliffe returned to work with another agency. This alternative claim rests on Ms Iliffe’s employment prior to 3 May being causal of her heightened distress during the subsequent period.
[9] Smith v Comcare [2013] FCAFC 65.
The Tribunal finds that employment was an operative and effective cause of Ms Iliffe’s psychological condition in 2011. In particular, the evidence indicates that her failure to retain employment with the agency, either through the bulk round or through a further renewal of her non-ongoing contract were significant factors causing her psychological distress.
This finding that Ms Iliffe’s psychological condition did worsen in 2011 and that there were employment related factors which made a significant contribution to her psychological condition raise the issue of whether the claim is however not compensable because the significant events in her employment can be characterised as being as a result of ‘reasonable administrative action undertaken in a reasonable manner’.[10]
Whether liability for the claim is excluded under section 5A of the Act on the basis that the condition was as a result of, that is, significantly contributed to by ‘reasonable administrative action undertaken in a reasonable manner’, namely, by a failure to obtain a benefit?
[10] Act section 5A(1).
Comcare suggested that the failure of Ms Iliffe to be awarded a permanent position at level in the bulk round, or to have her contract renewed, were causal of the increased level of Ms Iliffe’s psychological distress in 2011. Both events could amount to administrative action being decisions taken with direct reference to Ms Iliffe as an employee of the agency.[11]
[11] Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463.
The Tribunal finds that both actions fall within the exclusionary provisions of the Act. The failure to obtain a promotion to a permanent position within the agency, or to obtain or retain a benefit, namely a renewal of a non-ongoing contract of employment fall within the terms of the exclusionary provisions in section 5A(2)(f). That provision includes ‘anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment’.
There were no contentions that the actions taken in relation to Ms Iliffe’s non-appointment following the bulk round, nor the non-renewal of her contract, involved administrative actions that were not reasonable, or that they were not taken in a reasonable manner. She failed to obtain a promotion to an APS5 position or a reclassification of her non-ongoing APS5 position to a permanent APS5 position. Similarly, the renewal of her non-ongoing contract would have been of financial benefit to Ms Iliffe and would fall within the obtaining of a benefit or the retaining of a benefit. In those circumstances, Ms Iliffe’s claim that her psychological condition was significantly aggravated by events in her workplace in 2011 is nonetheless excluded from attracting liability for compensation because it falls within the exclusionary provisions in section 5A(2)(f).
That means, the decision under review in relation to Ms Iliffe’s psychological condition is affirmed.
Migraine
Ms Iliffe made a claim for ‘headaches’ listing April 2010 as the date of injury. The claim listed ‘overwork, lack of resources, lack of management support, harassment from stakeholders and stress implementing solar programme’ as the causes. Ms Iliffe had acknowledged she had previously suffered symptoms but cited the ‘frequency, intensity and character of headaches’ as dissimilar to her previous experience. In her statement Ms Iliffe said she was ‘largely asymptomatic in respect of headaches prior to January 2010’, that her work ‘became increasingly stressful by April 2010’ including ‘having to deal with subordinates who were not performing the work they had been assigned’.
The Comcare initial decision said the claim related to ‘migraine unspecified’ and gave a date of injury of 8 April 2011. The claim was rejected on the basis that there was no significant contribution to Ms Iliffe’s condition from her employment. The finding was that Ms Iliffe had a history since adolescence of having migraine headaches, and that Professor Beran and Dr Andrews had expressed the view that that Ms Iliffe’s headaches ‘of a migrainous type’ can last all day and come on without any triggers.
Subsequent evidence is as follows. The MRI and MRA scan dated 14 April 2011, following Ms Iliffe’s hospitalisation for severe migraine on 8 April 2011, found no abnormalities and diagnosed a ‘?basilar artery aneurysm’. At consultations with Ms Iliffe on 10 April 2010 and 17 June 2010, Dr Murphy noted she was suffering stress migraines. Ms Iliffe said she had had a couple of migraines in 2009 but by 2010 she was having one a week, particularly after June 2009 and until she left work in 2011. Since then her migraines have only been every couple of months.
Dr Andrews, neurologist, in his report to Dr Murphy of 15 April 2011 in advance of the scan, had diagnosed ‘severe migraine’ and other symptoms which he said ‘can occur with a severe basilar migraine’. Dr Andrews’s report also referred to her mother and sister having migraine headaches, and that Ms Iliffe had similar headaches at school, indicating a ‘genetic’ condition. By September 2011 Dr Andrews reported that medication had resulted in Ms Iliffe being ‘virtually headache free’.
Dr Brooder, consultant neurologist, in his report of 16 November 2012 recorded a history of ‘increased intermittent and somewhat variable headaches in 2009, which occurred on 2-3 occasions each week…Prior to 2009, Mrs Iliffe had been subject to only occasional headaches. In his view these were ‘consistent with tension-vascular headaches’ which he said by definition ‘are induced by increased stress and anxiety’. He said ‘Ms Iliffe had felt that in 2009 and 2010 she had been subjected to increased stress at work,’ and that this was the stressor for her ‘tension-vascular headaches’. He noted that her condition could be familial since her mother had also suffered from such headaches. Dr Brooder diagnosed ‘a combination of tension-vascular headaches and migraine’ and noted that ‘her headaches will be adequately controlled by medication’.
Professor Beran, neurologist, in his report of 20 March 2012, deferred to Dr Andrews’s diagnosis of a migraine type headache. He noted, however, that there is a spectrum from tension to migrainous headaches. In his view Ms Iliffe’s conditions had ‘no direct relationship to her current employment’. He identified the non work-related factors as:
Pre-existing history, including migraines that date back to childhood, long-standing lack of self-worth with broken marriages, children choosing not to be with their mother, previous exposure to psychiatric treatment and reliance on anti-depressants, a need for hypnotics in the form of Temaze, stressful family history, including a mother with cardiomyopathy, and a father who required coronary artery bypass grafting and stresses related to her husband’s illness’.
In his supplementary report of 31 January 2013, Professor Beran said of Ms Iliffe’s headaches that they ‘came in bouts that were very intrusive, starting with her school years, involving the break-up of her marriage, and at times of stress, as was the case when she did not achieve the ambition of permanency’.
Dr Thompson, treating psychiatrist, first saw Ms Iliffe on 6 July 2011. Her notes refer to a history of migraine beginning at high school, due probably to menstruation. Dr Thompson notes, however, that ‘migraine is sometimes triggered by stress’ but deferred to the opinion of a neurologist. Dr Thompson’s report of 28 March 2012 recorded that Ms Iliffe was still experiencing headaches when stressed, at that time, that Ms Iliffe was vulnerable to stress, and would require ongoing treatment for an indefinite period for migraine and for depression, including counselling by a psychologist and a psychiatrist.
Dr May Matias, a consultant psychiatrist, who saw Ms Iliffe on 25 May 2012 reported Ms Iliffe as saying she ‘started having days off due to migraines and stress headaches’ in 2010, but did not report them due to her fear that her contract would not be renewed. Her report said Ms Iliffe felt she had to cope and ‘because of this … she also minimised her symptoms as she felt she needed to perform and cope until…[sic] which had likely led to her breakdown’ namely, the event of 8 April 2011.
Dr David Bell, in his report of 20 March 2012, diagnosed ‘migraine and recurrent anxiety state’. Although in his view her migraine was genetic in nature, he said ‘overt episodes of migraine due to stress and mental disorder occurred when the marriage broke up in 1991, again when Ms Iliffe worked with Mission Australia in Canberra in 2002, and then when she failed in her application for continued employment in March 2011’. As he also said this illustrated a ‘response each time to stress of an individual predisposed to those disorders’. He denied that her workplace made a significant contribution to her conditions, whether migraine or psychological in nature. As he said
The documentary evidence, part of it being her own emails, indicates that the employment contributed only insofar as it was not offered to continue after June 2011…[H]er former employment did not contribute to her disorder beginning in April 2010. The attack of basilar migraine…if related to stress…would be an acute response to something occurring shortly before it…The main causal factor is the mental constitution of Ms Iliffe, referred to as vulnerability by Dr Murphy. For both anxiety/depression and either of the two conditions genetic factors are the significant cause of each episode…not the depressing experiences of adult life, but the depressing constitutional disposition causes the mental illness.
The Tribunal notes that Ms Iliffe had increased absences from work during 2010, some at least of which were due to migraines. The Tribunal’s analysis of Dr Murphy’s clinical notes and of the emails from Ms Iliffe during 2010 indicate that of the thirty-three separate occasions when Ms Iliffe was not at work, only three appear to be for migraine, two being occasions when Dr Murphy prescribed medication. Nine occasions were either notifying that Ms Iliffe would be in late or leaving early, these being unlikely to be related to a migraine; only six listed her as ‘unwell’ with no condition specified nor visit to doctor referred to.
Even if some of those ‘unwell’ days off were due to migraine, these were an isolated day approximately every two months and the absences were not more than a day, the days are spread across the year, and there is no indication in the evidence of any workplace event which triggered the absence. Although Ms Iliffe’s evidence was that ‘I took a day off because I couldn’t handle it. I was stressed. That is why I always took days off’, that testimony does not indicate that she had migraines on those days, nor what triggered them.
Overall, the Tribunal finds that although it is clear that Ms Iliffe’s migraines are stress-related, the history is not sufficient to indicate Ms Iliffe’s employment was significantly contributing to her migraines and causing her to be absent from work during 2010. The Tribunal also notes that although the medical experts agreed that stress can be a factor in leading to migraine, there is also a view that migraines can occur without a trigger, and even if stress is a trigger, it is not known whether other psycho-social factors outside the workplace may have contributed to a significant extent. In the case of Ms Iliffe, in the absence of evidence of any correlation between stressful events in the workplace and the days she said she took off and on which she had migraines, the Tribunal is not satisfied that these occasional days off were days on which the stressors were work-related and had contributed, to a significant degree, to her migraine condition.
Nonetheless, it was contended that at least the migrainous episode on 8 April 2011 was precipitated by her employment. Moreover, that event did appear to have an incapacitating effect since, although she returned to work for a few days after 28 April 2011, Ms Iliffe ceased working at the agency either on 8 April 2011, or at the least, on 3 May 2011. Accordingly the Tribunal must consider whether there was a work-related event which was causal of her severe migraine that day.
The contention by Comcare was that the significant work-related factor was either the notification to Ms Iliffe that she had been unsuccessful in the bulk appointment round or that Ms Iliffe was notified that her contract was not going to be renewed. The evidence does indicate that these were significantly stressful events for Ms Iliffe. The Tribunal does not accept that contention. Ms Iliffe was not notified that her contract would not be renewed until 10 May 2011 which is after 8 April 2011.
In relation to the appointment round Ms Iliffe was told she had been unsuccessful on 10/11 March 2011, that is, a month prior to her severe migraine on 8 April 2011. Dr Bell indicated that stress could lead to a severe migraine a month later, but the predominant view of the medical specialists, which the Tribunal accepts, is that if stress is implicated in the development of a migraine it is more likely to result in the development of the condition immediately after or at least close in time to the event, not some weeks later.
Accordingly, on balance, the Tribunal has been unable to be satisfied that Ms Iliffe’s severe migraine on 8 April 2011 was significantly contributed to by Ms Iliffe’s employment. That means that Comcare is not liable for her migraines in either 2010 or in 2011. There is no need, accordingly to discuss any of the other issues identified in this matter.
These findings also mean that both the decisions under review are affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Dr B Hughson, Member .......................................[sgd].................................
Associate
Dated 3 September 2013
Dates of hearing 3 - 5 July 2013 Counsel for the Applicant Mr David Richards Advocate for the Applicant Mr Andy Finlay Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Ms Rhonda Henderson Advocate for the Respondent Mr Luke Woolley Solicitors for the Respondent Sparke Helmore Lawyers
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