Tonya Moss v Comcare
[2014] AATA 309
•16 May 2014
[2014] AATA 309
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4451
Re
Tonya Moss
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Member
Date 16 May 2014 Place Canberra The decision under review is affirmed.
..............................[sgd]..........................................
Mr S. Webb, Member
COMPENSATION - claim for psychological injury – depression and anxiety – previously existing ailment – predisposition to recurrence or worsening of symptoms – personality style or tendency to focus on conflict – restructuring of work – work stress – voluntary cessation of temporary acting appointment at a higher level – action to address high level of unplanned absences from employment – allegation of bullying by supervisor at work – employment an operative factor in the process of symptoms – employment contribution not substantially more than material – claim not made out – decision affirmed
Safety, Rehabilitation and Compensation Act 1988, s 4, 5A, 5B, 7, 14, 67
REASONS FOR DECISION
Mr S. Webb, Member
16 May 2014
Tonya Moss claimed compensation for an injury she attributes to her former employment in the Department of Health and Ageing (the Department). Comcare rejected her claim by primary determination and on reconsideration. Ms Moss cavils with this decision and applied for review.
Her claim is to be decided under the Safety, Rehabilitation and Compensation Act 1988 (the Act). It is necessary to determine whether –
(a)Ms Moss suffered a ‘disease’ for the purposes of s 5B of the Act, being an ailment to which her employment contributed to a significant degree; and if so
(b)is the disease an ‘injury’ for the purposes of s 5A of the Act – if the disease was suffered as a result of reasonable administrative action undertaken in a reasonable manner in respect of her employment, it will not be an ‘injury’.
The facts
Before addressing the issues, it is desirable to set out the relevant facts.
On 15 June 2010 Ms Moss commenced temporary employment by the Department of Health and Ageing as an APS 6 Officer in the Pricing Section of the Pharmaceutical Evaluation Branch in the Pharmaceutical Benefits Division. The section was headed by David Wootton, but he was not Ms Moss’ direct supervisor.
Ms Moss has a history of suffering from depression and anxiety.
On 2 July 2010, she consulted Dr Liz Sturgiss, a treating general practitioner, complaining of mood symptoms including anxiety. The Doctor noted that Ms Moss “Wants to go back on medications – had good response to antidepressant in the past”.[1] On 9 July 2010, Dr Sturgiss prescribed Zoloft 50 mg per day, an anti-depressant medication. On 30 July 2010 she was referred by Dr Sturgiss for treatment by a psychologist, Susan Dalby. On 9 August 2010, Dr Sturgiss noted that Ms Moss’ “Mental health has greatly improved with Zoloft”.
[1] Clinical note, 2 July 2010, Exhibit 12.
Also on 9 August 2010, Ms Moss secured a non-ongoing APS 6 position in the Pharmacy Wholesale and Remuneration Section of the Community Pharmacy Branch of the Department. In this role she worked to three Executive Level 1 officers, including Josh Bowen and Leann Galloway. Soon thereafter, the Section Head, Irina Tsyganova, was replaced by Cherie Mataczyna. Subsequently, Ms Moss won appointment to an APS 6 Officer position in the Branch on an on-going basis, albeit with a probationary period.
On 7 October 2010, Ms Dalby reported that Ms Moss attended six appointments and that she had made “excellent progress”, although she recommended six further treatment appointments[2]. On that day, Dr Sturgiss increased the prescribed dosage of Zoloft to 100 mg per day and signed a further Treatment Voucher covering the period to 2 December 2010. It appears that Ms Moss continued in treatment under Ms Dalby until 19 January 2011.
[2] Exhibit 13.
Ms Moss states that “in early 2011 there was another reshuffled floor plan” – “I felt the tension for weeks and it was stressful”.[3] Ms Mataczyna approved an arrangement for Ms Moss to have remote access to the Department’s information technology system in or about January 2011. In all likelihood this arrangement was approved so that Ms Moss would be able to work from home from time to time, subject to approval by Ms Gallagher, her immediate supervisor.
[3] Exhibit 3, paragraph 14.
The protocols governing work from home arrangements for Departmental employees at the time are set out in Chapter 6 of the Department’s Agency Security Plan[4] and in a Home Based Work Guideline under the Department’s Conditions of Employment[5]. I do not propose to set out the details of these policy documents. It is sufficient to note that arrangements for ‘Informal Home Based Work’, which is defined as ‘a period of less than one month; or an ad hoc period of a non-continuous nature (e.g. episodic such as ill children); or intermittent periods of over one month, provided it does not evolve into an ongoing arrangement’, may be informally agreed between an employee and his or her team leader or manager.
[4] Exhibit 10.
[5] T13.6.
In April 2011, Mr Wootton replaced Ms Mataczyna as acting Head of the Community Service Obligation Section in which Ms Moss was employed, although he was not her direct supervisor. Ms Moss was directly supervised by Katherine Hall, an Executive Level 1 Officer. Soon thereafter, the probationary period applying to Ms Moss’ ongoing employment as an APS 6 Officer came to an end. Ms Moss says that, at or about this time –
“[Mr Wootton] called me into his office and said that they were concerned about the amount of unplanned leave I was experiencing and was there some way they could help me, e.g. working from home, I said that I was already doing this and thanked him for his concern (he was new in the position and had not been made aware of this).”[6]
[6] Ibid, paragraph 17.
On 21 April 2011, Dr Hayley Clifford, a treating general practitioner, provided Ms Moss with a further prescription for Zoloft 100 mg per day.
In May 2011, Ms Moss underwent a surgical procedure. It appears that she experienced a number of post-operative complications. She was absent from her employment, utilising various forms of approved leave, from 11 May to 13 July 2011.
On her return to work on 13 July 2011, Mr Wootton had been replaced by a new acting Section Head, Josh Bowen. Mr Bowen gave evidence that he was aware that Ms Moss “had issues involving her leave balances and in particular, that she had exhausted most, if not all of her available leave” and also that she “was a single parent and that at times she experienced difficulties in attendance”.[7] It appears that Ms Moss requested approval of “miscellaneous leave” that Mr Bowen “could not and did not approve”, whereupon Ms Moss took unpaid leave instead. Nonetheless, Mr Bowen “sought to accommodate [Ms Moss] by being as flexible as possible” and “allowing her to occasionally work from home” –
“A work from home arrangement was never formalised and [Ms Moss] only worked from home on odd occasions. I am aware that if [Ms Moss] requested to work from home, it would need to be approved by Ms Hall and that there were certain protocols associated with such approval.”[8]
[7] Exhibit 8, paragraphs 7 – 9 .
[8] Exhibit 8, paragraph 10.
On 14, 21 and 28 July 2011, Ms Moss consulted Dr Clifford in respect of post-operative symptoms and neck pain that was sufficient to require a CT scan and a cortico-steroid injection. It appears that this was successful, as on 11 August 2011, Dr Clifford noted symptomatic relief and full range of neck motion. On 9 September 2011, however, Dr Clifford noted a two week history of right scapula pain.
Ms Moss stated that in or about August 2011 there was a restructure and that this was “a cause of major anxiety for many people and I found it somewhat stressful, partly because other people were stressed”.[9]
[9] Exhibit 3, paragraph 20.
In September 2011 the restructure of the Pharmaceutical Benefits Division of the Department took effect. Ms Moss was affected – her role was subsumed into another area of the Department. She was offered an opportunity to act in an Executive Level 1 Officer position in the Indigenous Rural and Remote Section by Kim Bessell, an Assistant Secretary in the Division.[10] This commenced on 19 September 2011. At that time Robert Nicholls was Director of the Section and Ms Moss’ direct supervisor.
[10] T13 folio 64, Exhibit 6, paragraph 7, Exhibit 2, paragraph 4 and Exhibit 3, paragraphs 21 and 23.
From 13 to 16 September 2011 Ms Moss was absent from her employment on leave, part of which was unpaid personal leave.
On 20 September 2011 Ms Moss took her unwell daughter to work and spoke to Mr Nicholls about working from home that afternoon. On 21 September 2011, Mr Nicholls refused Ms Moss’ request to work from home that day, and Ms Moss took unpaid carer’s leave as her daughter was still unwell. Ms Moss experienced “consequential distress” – “I was confused by this and I was worried about having to choose between looking after my sick daughter or letting my team down by being away from work when we were flat out”.[11] It appears that Ms Moss expressed her feelings to an APS 6 Officer, Eva Hoskova, who worked directly under her.[12] Ms Moss stated that “I must have sounded distressed because she asked if I was ok” and the next day Ms Hoskova “informed me that she had gone in to see [Mr Wootton] to advise him that I was trying to contact him and that she was worried about me”. Ms Hoskova was not called to give evidence.
[11] Exhibit 3, paragraph 27.
[12] Exhibit 2, paragraph 6 and Exhibit 3, paragraph 27.
Ms Moss asserts that the following day Mr Wootton “called me into his office and he had a very severe manner. He told me it was “inappropriate to discuss my emotions with subordinate team members” and that I was “not to cause division amongst the team””.[13] By her own account this caused her to feel confused – “All I had been doing was to try to see if I could work from home, as I had always done before, under arrangements made by the Department and which [Mr Wootton] himself had suggested previously”. Mr Wootton disputes this. Whether or not this is correct, it is quite clear that Ms Moss was distressed, confused and worried by Mr Nicholls’ decision to refuse her request to work from home.
[13] Exhibit 3, paragraph 27.
On 26 September 2011, Mr Wootton commenced duties as Director of the Indigenous Rural and Remote Section. In this role he was Ms Moss’ direct supervisor. On commencing his new role, Mr Wootton was briefed about issues in the Section by Mr Nicholls and by then acting Assistant Secretary in the Branch, Steve Dunlop. By his account, the briefings were that the Section was “somewhat dysfunctional due to program, policy and staffing issues”, including “comment that [Ms Moss] was accessing unusually high amounts of unplanned personal leave”.[14] Mr Wootton obtained information about Ms Moss’ leave from the Department’s Human Resources area – it appears that Ms Moss took more than 779 hours or 21 weeks of leave of various kinds from 2 July 2010 to on or about 26 October 2011. Mr Wootton was concerned about the amount of unplanned leave Ms Moss was taking and discussed this with her.
[14] Exhibit 4, paragraph 9.
Despite his concerns, Mr Wootton approved leave for Ms Moss on 6, 7, 14, 20 and 21 October 2011. It is probable that Ms Moss exhausted her accrued entitlement to annual leave by 7 October 2011. She sought bereavement leave on Friday 14 October 2011 on the basis that her grandmother had died, which Mr Wootton approved. In her oral evidence, Ms Moss admitted that she had lied to Mr Wootton about the death of her grandmother. She explained this by asserting that the manner in which Mr Wootton dealt with her caused her to experience stress, anxiety and other mood symptoms.
At or about this time Ms Moss discussed with Mr Wootton the possibility of relinquishing her Executive Level 1 acting arrangements, in order to return to her substantive employment at the APS 6 level. On Monday 17 October 2011, Ms Moss sent an email to Mr Wootton informing him that she intended to “finish my HDA as an EL1 and return to my substantive 6 close of business 21 October 2011” and thanking him for his support in this decision.[15] This, too, Ms Moss attributes to the alleged difficulties she was experiencing with Mr Wootton. Ms Moss took unpaid leave of absence from her employment on 20 and 21 October 2011 with Mr Wootton’s approval.
[15] T13.2 folio 75.
When Ms Moss stepped down to the APS 6 level, Ingrid Struzina, an acting Executive Level 1 Officer, became her direct supervisor.
On 26 October 2011, Ms Moss attended work, but left early. There is a dispute as to why she did so – she maintains that she wore sunglasses on that day to conceal that she had been crying, whereas Ms Struzina and Mr Wootton gave evidence that Ms Moss had a hangover that day, having attended a concert the evening before. I accept Ms Struzina’s evidence on this point over that of Ms Moss. Ms Struzina gave evidence that she and Ms Moss communicated in an open way in their workplace and it was on that basis she formed the view she did on that day and agreed that Ms Moss could take the afternoon off on flex leave. Ms Struzina was a forthright and impartial witness, who gave her evidence in a careful and considered manner, clearly acknowledging when she encountered difficulty recalling details about which she could not be certain. I have no difficulty accepting her evidence.
At this point it is convenient to note that Ms Moss did not have access to flex leave as an acting Executive Level 1 Officer, whereas she was able to utilise flex leave at her substantive level as an APS 6 Officer.
It appears that Mr Wootton and Ms Struzina discussed Ms Moss’ absence and agreed that it would be appropriate for Mr Wootton to exercise responsibility for approving any further leave for Ms Moss and for any disciplinary matters.
Mr Wootton scheduled a meeting with Ms Moss and Ms Struzina on Thursday 27 October 2011 to discuss matters relating to Ms Moss’ high levels of unplanned leave. There is a dispute about when the meeting was arranged, and when Ms Moss was notified of it and of the matters that would be discussed. Mr Wooton says that it was arranged several days in advance and that he circulated an agenda to Ms Moss and gave her the option of attending with a support person of her choosing if she wanted to do so. Ms Struzina could not be sure, but she thought that the meeting was arranged one or more days in advance – Mr Wootton directed her to attend as an observer and he circulated an agenda. Ms Moss says that she was informed of the meeting on the day and she was not invited to attend with a support person – Ms Struzina did not attend in that capacity.
Once again, I prefer Ms Struzina’s account. Her evidence is that she did not want to attend, but was she was directed to do so by Mr Wootton as an observer. That notwithstanding, she saw her role as a support for Ms Moss and she provided support to Ms Moss before, during and after the meeting, assisting her with breathing exercises before the meeting, for example.
I also accept Ms Struzina’s evidence that Ms Moss was often emotionally distressed and crying on many occasions over preceding weeks.[16] She could not recall when she first observed this behaviour but stated that it was early in her contact with Ms Moss. I note that Ms Moss and Ms Struzina commenced in the Indigenous Rural and Remote Section as acting Executive level 1 Officers on or about 19 September 2011. I accept Ms Struzina’s evidence that she was aware that Ms Moss was stressed by difficult circumstances in her private life (which were not disclosed in evidence) and that she had difficulty coping with the “substantial workload and pressure” in the new Section, observing that Ms Moss “often shared her concerns about [Mr Wootton’s] management style with me”.[17] Ms Moss gave evidence that she had taken up using a mantra to assist her to cope with the stress and anxiety she was experiencing as a result of Mr Wootton’s conduct.
[16] See T22 folio 172, for example.
[17] Exhibit 7, paragraph 9.
Mr Wootton’s notes from the 27 October 2011 meeting are contained in T13.1. The accuracy of these notes was not seriously challenged in the hearing.
Ms Moss, Mr Wootton and Ms Struzina gave consistent evidence that Ms Moss cried and was distressed throughout the meeting. I accept Ms Struzina’s evidence that Mr Wootton conducted the meeting in a careful but firm manner, and that he asked Ms Moss a number of times if she wanted to end the meeting as she was upset, but she declined to do so and wanted to proceed. There is a dispute (to which I will return) about whether the meeting was reasonable administrative action undertaken in a reasonable manner.
It appears that Ms Moss attended for work on 28 October and the following week, although she attended another concert and arranged to take leave of absence the following day. This was approved by Mr Wootton. Thereafter, over subsequent weeks, Ms Moss took several days leave of absence, each of which was approved by Mr Wootton.
On 23 November 2011, Ms Moss consulted Dr Clifford complaining of stress. The Doctor recorded “ZOLOFT TABLET 100 mg dosage changed from 1 daily Oral – Swallowed to 150 mg daily Oral – Swallowed” and noted –
“Presents feeling extremely stressed
New director at work over the past 6 weeks
They have worked together in the past without problem but [Ms Moss] feeling intimidated by him recently
He has been cracking down on the amount of sick leave she has been taking
[Ms Moss] acted upto EL1 for a short time but too much pressure so has cut back
[Ms Moss] feeling unsupported
Saw HR but he is doing everything by the book
Colleagues have mentioned that she is being harassed
Vomiting, constant anxiety
Thinking about work morning and night sleeping poorly
Having thoughts re childhood sexual abuse by father over this time frame
States that if it weren’t for [her daughter] she’d not see the point in living”
On 2 December 2011, following a further consultation with Ms Moss, Dr Clifford noted –
“Mood feeling a lot better on increased dose of Zoloft
Reconfirmed no history of mania
Her EL1 told her that HR told boss to pull his head in regarding her leave and he has not been as much of a bully towards her
Sleeping better and energy levels are improved
…
Continue Zoloft at dose 150mg daily next 6 months then review
Script for Zoloft given
…”
On 14 December 2011, following a subsequent consultation with Ms Moss, Dr Clifford noted –
“Very upset today
Work not going well
Feels ongoing harassment from boss at work – mostly over her hours and absences
…
[Ms Moss] asked if I could certify her unfit to work
I feel that the problem is not so much her ability to work (although she would benefit in terms of mental health from reducing her hours) as the current work environment
For now I have written a letter to say [Ms Moss] is fit to work 3 days per week and to support a longer term reduction in working hours – this will be reviewed in one month
…”
On 10 January 2012, Ms Moss completed a compensation claim form in respect of “exacerbation of anxiety and depression caused by workplace harassment”, which she said she first noticed at 9am on 30 September 2011.[18] Ms Moss set out the following events that caused her alleged injury –
“ COMMENCEMENT IN NEW ROLE
COMMENCEMENT OF NEW DIRECTOR
When [Mr Wootton] was my director in a previous role, there were no issues. In this role it all changed and I don’t know why. He was now targeting me for unplanned leave (I am a single mum w/ children who get sick), ostracising me from the team. I felt bullied, targeted and harassed. If I disagreed w/ him, he would raise his voice and repeat what he said rather than listen to me.
ACTIONS OF THE DIRECTOR
I was a/ EL1, I thought if I returned to APS6 he would leave me alone, not so, I still had to do my PDS & timesheets w/ him. I started doubting my abilities to perform. He would misplace work I gave him & then accuse me on not doing it.”
[18] T5 folio 11.
Comcare rejected the claim,[19] concluding that Ms Moss suffered a disease as a result of reasonable administrative action undertaken in a reasonable manner in respect of her employment, and for this reason the disease was not an ‘injury’ for the purposes of the Act.
[19] T15 and T24.
Disease
The first issue is to determine whether Ms Moss suffered a ‘disease’ for the purposes of the Act. As will appear, I am satisfied that she did not.
Ms Moss asserts that she first noticed the aggravation of anxiety and depression, which she has claimed as an injury, on 30 September 2011 and that this condition caused her to step down from the Executive Level 1 acting position on 17 October 2011. This, so the argument goes, is a partial incapacity for work for which she should be paid compensation. She asserts that the meeting on 27 October 2011 exacerbated her mood symptoms. Furthermore, Ms Moss says that she attempted to obtain an appointment with Dr Clifford in October, but this was not possible for several weeks as two appointment dates were cancelled and it was difficult to find a suitable alternative.
Ms Moss relies on the evidence of Dr Clifford, Michelle Deponte, a treating psychologist, and Dr Peter Farnbach, a consultant psychiatrist, that the events she outlined in her employment significantly contributed to cause her claimed injury.
Comcare disagrees, and relies on the evidence of Dr James Hundertmark, a consultant psychiatrist, who concluded that while employment stress may have contributed in some degree to aggravation of Ms Moss’ mood disorder, the contribution was not to a significant degree.
Under s 5B, a ‘disease’ is an ailment, or an aggravation of an ailment, suffered by an employee that was contributed to, to a significant degree’ by the employee’s employment. Under s 5B(3), the term ‘significant degree’ means ‘a degree that is substantially more than material’. The word ‘ailment’ is defined in s 4(1) to include a mental ailment or disorder, and under s 4(9) the term ‘incapacity for work’ refers to an incapacity to engage in work at the same level in Commonwealth employment immediately before the claimed injury.
Dr Hundertmark and Dr Clifford agree that stressors in Ms Moss’ employment contributed causally to aggravate her previously existing anxiety and depression mood disorder. Dr Clifford reported the main contributing factors were –
“Employment factors:
- stressful working environment.
- feeling intimidated by workplace supervisor particularly in relation to the amount of personal leave taken in 2011.
Non-employment related factors:
- poor physical health in 2011 with major surgical procedure on 19/5/2011
- pressures associated with being a full time working single mother”[20]
[20] T10 folio 38.
On 11 February 2013, Dr Hundertmark diagnosed Depressive Disorder Not Otherwise Specified and reported –
“… The condition may be one of a minor depressive disorder where episodes have fewer that the five items required for a Major Depressive Disorder as listed on the DSM-IV-TR. Ms Moss has previously suffered symptoms of depression in the past and previously been treated with antidepressant medication. The current episode has occurred as a result of the interaction between her particular personality style and the workplace issues primarily related to disciplinary action.
...
It is my opinion that the predominant factors in the aetiology of the condition were firstly a pre-existing vulnerability to depressive symptoms, secondly Ms Moss’ personality style which presents as being extraverted and somewhat conflict focussed and thirdly workplace issues including disciplinary action directed to Ms Moss predominantly as a result of her absences from the workplace.”[21]
[21] Exhibit 1, page 7 – 8.
On 1 March 2012, Dr Farnbach reported to Ms Moss’ previous employer and diagnosed an Adjustment Disorder with mixed anxious and depressive mood “on the basis of the history she provides”, which he attributed to workplace issues involving Mr Wootton.[22] While Dr Farnbach noted that Ms Moss has “a background of a tendency towards anxiety”, it is probable that he was not made aware of the precise nature or treatment of Ms Moss’ previous depressive disorder. Under the heading “Significant Background History”, he reported –
“Ms Moss described developmental experiences that have predisposed her to the development of anxiety and depression. She described a background with a tendency to worry and previous exacerbations of this tendency.”[23]
[22] T14 folio 144.
[23] T14 folio 143.
Dr Farnbach was not called to give oral evidence, so this aspect of his written report could not be tested. Counsel for Ms Moss, Mr Crispin, submitted that as Comcare did not call the Doctor or require him for cross-examination the contents of the report should be accepted. That notwithstanding, there are questions about the reliability of Dr Farnbach’s report and the relative weight it may be given in view of the deficient history the Doctor was given. I prefer the evidence of Dr Clifford and Dr Hundertmark.
By referral of Dr Clifford, Ms Deponte commenced treating Ms Moss on 25 January 2012 and produced a number of reports in respect of her compensation claim.[24] Ms Deponte diagnosed Major Depressive Disorder, Generalised Anxiety Disorder and Panic Attacks as a result of “a sustained pattern of workplace bullying and harassment”[25] –
“This included the lack of support and at times humiliation she felt in front of others in meetings while she was in the new position. The difficulties continued when she reduced her position to APS 6 to attempt to remove herself from the direct contact from the Director. Miss Moss was then subject to the continued feeling of harassment and intimidation by the Director, who was later advised by the Human Resources area that he had no reason to be overseeing her and that his behaviour was not appropriate.”[26]
[24] T12, Exhibit 11 and Exhibit 13..
[25] Exhibit 13, Post Treatment Feedback Report, 28 March 2012, page 1.
[26] T12 folio 48.
Ms Deponte is not a psychiatrist or a doctor. On issues of diagnosis and causation, I prefer the evidence of Dr Hundertmark and Dr Clifford.
Ms Deponte relied on the history she was given by Ms Moss and, in her most recent report on 18 July 2013, on a recitation of ‘relevant facts’ set out in a briefing letter prepared by Ms Moss’ solicitor.[27] Some of the matters reported by Ms Deponte are not consistent with the present evidence. For example, Ms Deponte noted “a rapid change in Ms Moss’ work attendance and mental health as a result of commencing in this [Indigenous Rural and Remote] section”.[28] There is substantial evidence that Ms Moss had a history of unplanned absences from her workplace, either requiring the grant of leave or approval for her to work from home. It is not presently established that Ms Moss took more leave than previously following her commencement of duties in the Indigenous Rural and Remote Section.
[27] Exhibit 11.
[28] Exhibit 11, Report, page 4.
There is one further point about Ms Deponte’s evidence that requires comment. In her report dated 15 February 2012, Ms Deponte provided gratuitous comments that are critical of the Department.[29] She explained and expanded upon this criticism in her oral evidence with reference to several other cases in which she has provided treatment to employees who, she says, were poorly treated. Whether or not she is correct, to my mind, the prejudice Ms Deponte clearly expressed in respect of the Department is a taint that colours her evidence in these proceedings.
[29] T12 folio 52.
I do not intend to discount Ms Deponte’s evidence completely. She treated Ms Moss under the supervision of Dr Clifford and, in that regard, her evidence is illuminating. Nevertheless, as I have said, I prefer the evidence of Dr Clifford and Dr Hundertmark on points of diagnosis and causation.
In consideration of the degree to which different factors contributed to the mood symptoms Dr Clifford identified in her examination of Ms Moss on 23 November 2011, I prefer the expert evidence of Dr Hundertmark. While I accept that the employment and non-employment factors Dr Clifford identified contributed to Ms Moss’ mood symptoms in the latter part of 2011, Dr Clifford is not a psychiatrist. Her analysis of causal factors does not take account of psychiatric factors relating to the ongoing nature of the depressive disorder and Ms Moss’ related predisposition to episodic recurrence of mood symptoms, and it does not take account of Ms Moss’ personality style. Each of those factors is addressed by Dr Hundertmark.
I accept Dr Hundertmark’s evidence that Ms Moss’ depressive disorder is ongoing but characterised by episodic bouts of elevated symptoms, and that an episode may eventuate from time to time without being triggered by a particular stressor or stressors. I also accept his evidence about the onset of Ms Moss’ mood symptoms in “approximately August/September [2011]”.[30]
[30] Exhibit 1, page 6.
This is largely consistent with Dr Clifford’s evidence. I note that Ms Moss consulted Dr Clifford on 9 September 2011 with her daughter, and the Doctor did not record any mood symptoms. Dr Clifford’s evidence about this consultation is that she did not conduct a psychological examination of Ms Moss on that day and she did not make a clinical assessment of Ms Moss’ psychological condition.
Dr Hundertmark’s assessment is also consistent with Ms Struzina’s evidence that Ms Moss was often emotionally distressed and crying at work, and that she observed this early in her contact with Ms Moss when they started working together on or about 19 September 2011.
Ms Moss’ evidence is that in September 2011 she was well, but she experienced stress as a result of workplace restructuring at that time and distress on being informed that Mr Nicholls would not approve her working from home on 21 September 2011, but it was only when she commenced working for Mr Wootton on 26 September 2011 that she experienced stress that caused the aggravation of her mood symptoms. This is not consistent with the weight of the evidence.
As to when Ms Moss was affected or impaired by the onset or worsening mood symptoms, there is very scant contemporaneous evidence. Plainly enough, she was suffering symptoms of depression and anxiety on 23 November 2011 when she consulted Dr Clifford, but when these commenced or worsened is not clear. She was upset and crying on 27 October 2011, when she met with Mr Wootton. She was stressed when she voluntarily stepped down from higher duties at the Executive Level 1 on 21 October 2011. On Ms Struzina’s evidence, Ms Moss exhibited signs of distress and was crying at work soon after they commenced working together on 19 September 2011, and this continued over subsequent weeks and months. It is probable that Ms Moss was impaired by her psychiatric ailment at that time. Ms Moss referred to stress she experienced in August, as a result of the impending restructure. And Dr Clifford’s clinical notes reveal that Ms Moss experienced post-surgical complication and painful symptoms in her neck and shoulder that were sufficient to require invasive steroidal treatment. Mr Bowen noted that Ms Moss had difficulties with attendance following her return to work on 13 July 2011. When in this series of events Ms Moss suffered recurrence or worsening mood symptoms is not clearly established by reliable evidence.
That notwithstanding, and doing the best with the available evidence, it is likely that Ms Moss suffered an episodic recurrence of her previously existing Depressive Disorder NOS, as diagnosed by Dr Hundertmark, in or about August or September 2011.
It is difficult to determine whether factors in Ms Moss’ employment were operative in the recurrence or worsening of the mood symptoms she experienced from August or September 2011, or whether the symptoms of her psychiatric disorder arose from other causal factors and were expressed at work.
The fact that Ms Moss attributes recurrence or aggravation of her disorder to stressors in her workplace does not mean that those stressors significantly contributed to recurrence of her disorder or to an increase in the mood symptoms she experienced. The test to be applied is whether the stressors in her employment contributed to the recurrence or worsening of mood symptoms to a degree that is ‘substantially more than material’.
To address this point, the degree to which stresses Ms Moss experienced in her employment from August or September 2011 contributed to her psychiatric ailment and mood symptoms must be assessed is relation to other stressors and factors that were operative. These include restructuring of the Branch of the Department in which she worked, changes in her work and workload following restructure of the Branch, rejection of her request for paid leave or an arrangement to work from home by Mr Bowen, Mr Nicholls and Mr Wootton, and her perceptions of bullying and harassment by Mr Wootton and related events.
Ms Moss says that she stepped down from higher duties at the Executive Level 1 on 17 October 2011 (with effect from 21 October) as a result of difficulties she encountered with Mr Wootton and the manner in which he treated her. While I accept that there was a clash of styles between them in and about that time, Ms Moss did not experience similar difficulties when she first worked with Mr Wootton earlier in 2011. There is no contemporaneous evidence that Ms Moss raised any complaint or concerns about Mr Wootton’s behaviour and the manner in which he dealt with her, which she now describes as bullying. It is quite clear from reviewing the statements and accounts Ms Moss has given about Mr Wootton’s behaviour that her allegations against him have become more pronounced, more extensive and more pointed over time. There are serious questions about the reliability of her accounts and her uncorroborated evidence on this point.
It appears to me that Ms Moss encountered a particular difficulty following her return to work on 13 July 2011 relating to her accrued leave balances, which were close to exhausted, and constraints on her ability to work from home at short notice, or to take unplanned leave, on full pay. When her accrued leave ran out, Mr Bowen refused her request for miscellaneous leave. As an acting Executive Level 1 officer from 19 September 2011, she was not able to access flex leave, whereas if she returned to her substantive level as an APS 6 officer she would be able to do so. Mr Nicholls refused her request to work from home in the week before Mr Wootton replaced him as Director of the Indigenous Rural and Remote Section on 26 September 2011. It is probable that Ms Moss’ leave accrual ran out again by 7 October 2011. On 14 October 2011 she admitted that she lied to Mr Wootton about her grandmother dying in order to obtain leave – she says that this was because she felt stressed by Mr Wootton’s bullying behaviour. She took leave on 20 and 21 October 2011, which appears to have been unpaid. On balance, I do not accept, and it is not presently established, that Ms Moss stepped down from higher duties at the Executive Level 1 on 17 October 2011 as a result of actual or perceived bullying by Mr Wootton. It is more probable that she took this action to address difficulties she was encountering in respect of unplanned absences from her employment and low levels of accrued leave entitlements.
It is quite clear that other stressors were operative at that time, including (on Dr Clifford’s evidence) Ms Moss’ poor state of physical health following major surgery and related complications that were not resolved until July 2011, and the pressures of being a single parent in full-time employment, juggling the needs of her children (especially when sick) and her employment obligations and responsibilities.
On the balance of the medical evidence, each of these stressors probably contributed to the aggravation of Ms Moss’ mood symptoms to some degree.
Dr Hundertmark identified two psychiatric factors that are causally significant – Ms Moss’ vulnerability or predisposition to suffer from episodic mood symptoms as a function of her underlying, previously existing Depressive Disorder, and aspects of her personality style, namely an extravert tendency to focus on conflict.
The test set out in s 5B does not require a singular result. It permits a multiplicity of significant causal factors and it is not necessary to determine the most significant factor or the factor that contributed to the greatest extent.
On the evidence of Dr Clifford, Dr Farnbach and Ms Deponte, employment factors contributed to a significant degree. But on Dr Hundertmark’s evidence, employment factors may have played some part, but not to a significant degree. The factors that Dr Hundertmark says significantly contributed to an episode of Ms Moss’ Depressive Disorder, marked by elevated mood symptoms from August or September 2011, are her “vulnerability to psychological symptoms after a previous depressive episode in combination with some aspects of her personality style”.[31]
[31] Exhibit 1, page 6.
For reasons I have explained, Dr Hundertmark’s evidence is preferred and it carries more weight that the evidence of Dr Clifford (who is not a psychiatrist), Dr Farnbach (who was not provided a full psychiatric history) and Ms Deponte (who was not impartial or medically trained).
Ms Moss asserts that Dr Hundertmark was not provided with all relevant information, particularly in relation to her difficulties dealing with Mr Wootton and the anticipatory anxiety she experienced, and his opinion should be discounted. When questioned about this, Dr Hundertmark explained that he asked Ms Moss about the circumstances of her employment and he based his assessment on the account she gave and the briefing materials he was given. If Ms Moss did not raise incidents, perceptions or stressors with Dr Hundertmark that she now asserts are significant, there is a real question about the veracity of her account, then and now, and the true significance of the matters now pressed. It appears to me that Dr Hundertmark conducted a thorough psychiatric examination and assessment of Ms Moss, and her assertions about deficiencies in the information he was given do not reduce the reliability of the conclusions he reported, or the weight these should be given.
In sum on this point, I am reasonably satisfied that Ms Moss’ previous employment did not significantly contribute to the psychiatric ailment and mood symptoms she claimed as an injury. The present evidence does not establish on the balance of probabilities that the employment factors I have identified, which Ms Moss points to as causal, contributed to the onset, aggravation or progress of her psychiatric ailment to a significant degree. The factors that meet that description are her predisposition to suffer episodic recurrences of mood symptoms with or without triggering stressors, and the operation of her personality style in the workplace.
It follows that Ms Moss did not suffer a ‘disease’ for the purposes of s5B of the Act.
That being so, the determinants of an ‘injury’ for the purposes of s 5A are not satisfied. Her claim fails on this point and the decision under review must be affirmed.
Injury and exclusion
It is not necessary to proceed further to address the evidence and the submissions relating to the meaning of ‘injury’ under s 5A, and the exclusionary proviso therein, even though much of the hearing was addressed to this point. Nonetheless, in these circumstances, it is appropriate to make some observations about related points.
Had I decided the ‘disease’ issue differently, I would have found against Ms Moss’ claim as the balance of the evidence establishes that the administrative actions Mr Nicholls and Mr Wootton, and others took, in respect of Ms Moss’ unplanned absences, including unplanned leave and her requests to work from home, were reasonable administrative actions to take in the circumstances. Plainly, they were actions taken in respect of her employment.
Many of the allegations Ms Moss levelled against Mr Wootton are not supported by evidence. If there was a clash of styles, and it appears there was, it does not follow, and it is not presently established, that this amounted to bullying and harassment of Ms Moss by Mr Wootton.
Mr Wootton’s evidence is substantially supported by the evidence given by Mr Bessell, Mr Bowen, Ms Struzina and Ms Mataczyna. This is so despite minor inconsistencies on some points, such as arise in respect of Ms Struzina’s role as a witness or a support person for Ms Moss in the meeting she attended with Mr Wootton on 27 October 2011, and the manner in which she was invited to attend.
I am reasonably satisfied that it was reasonable for Mr Wootton to take action to manage Ms Moss’ unplanned absences from the workplace, and it was reasonable for him to do so by putting her on notice of the issue and then meeting with her on 27 October 2011 to discuss it. I accept Ms Struzina’s account of what occurred in the meeting and the manner in which it was conducted. On her evidence, it appears that Mr Wootton was measured and firm, explaining the difficulty of Ms Moss’ high level of unplanned absence from work and the requirement for absences to be dealt with under the terms of the Department’s Collective Agreement then in force, and that he provided Ms Moss with opportunities to express her views and to respond to points identified in the agenda circulated prior to the meeting, offering to stop the meeting when she became upset. To my mind, these factors establish that the meeting was conducted in a reasonable manner. No adverse decision was made or sanction applied against Ms Moss, and no consequent action was taken. The following week and subsequently, Mr Wootton gave approval for Ms Moss to be absent from work.
Perhaps the manner in which the meeting was arranged and conducted could have been improved upon – more notice could have been given, different support arrangements could have been implemented, and the meeting might have been adjourned to reduce any distress Ms Moss was experiencing, or for her to recompose herself when she was upset. Perhaps Mr Wootton could have been less authoritarian, firm or stern in his demeanour (I do not accept and it is not presently established that he raised his voice or behaved aggressively towards Ms Moss during this meeting). But the absence of these things does not mean that the action he took to address Ms Moss’ unplanned absences from work was unreasonable or that it was undertaken in an unreasonable manner.
Date of injury
As I have concluded that the ailment Ms Moss claimed as an injury is not a ‘disease’ or an ‘injury’ for the purposes of the Act, it is not necessary to consider the operation of s 7(4), or to determine a date of injury.
Decision
The decision under review is affirmed.
I certify that the preceding 82 (eighty -two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
.........................[sgd]...............................................
Associate
Dated 16 May 2014
Date(s) of hearing 28 to 30 April 2014 Counsel for the Applicant Timothy Crispin Advocate for the Applicant Sinclair Whitbourne Solicitors for the Applicant Lander & Co. Counsel for the Respondent Jane Godtschalk Advocate for the Respondent Loretta Tolland Solicitors for the Respondent SRC Legal
0
0
0