TRNC and Comcare (Compensation)
[2017] AATA 1105
•14 July 2017
TRNC and Comcare (Compensation) [2017] AATA 1105 (14 July 2017)
Division:GENERAL DIVISION
File Number: 2015/6250
Re:TRNC
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Dr C Kendall
L M Gallagher, MemberDate:14 July 2017
Place:Perth
Comcare’s reviewable decision of 13 November 2015 to deny liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 in relation to the Applicant’s claim for compensation, is affirmed.
........................................................................
Deputy President Dr C Kendall
CATCHWORDS
COMPENSATION – Commonwealth employees – date of injury – nature of injury – appropriate diagnosis – whether ailment a disease – schizophrenia – brief psychotic episode – prodromal symptoms – whether pre-existing condition – whether Applicant was subject to bullying and harassment in the workplace – whether ailment was contributed to, to a significant degree, by employment – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – ss 4(1), 5A, 5B, 7(4),14
CASES
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Re Cho and Comcare [2017] AATA 175
Dean v Australian Postal Corporation (2010) 52 AAR 54; [2010] FCA 680
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Wiegand v Comcare (2002) FCA 1464
SECONDARY MATERIALS
The National Institute of Mental Health, Report on Schizophrenia (NIH Publication No. 15-3517)
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
REASONS FOR DECISION
Deputy President Dr C Kendall
Ms LM Gallagher, Member14 July 2017
BACKGROUND
1.By way of background, the Tribunal notes a number of general factual matters which are set out in the T documents and are not in dispute.
2.The Applicant is employed at the APS6 level with a Commonwealth Government Department (the ‘Department’), where he joined as a graduate in February 2008. In order to perform the role, the Applicant was required to leave his home city and reside in a new city where the Department’s office is located.
3.On 9 March 2013, the Applicant had been drinking at a nightclub and was subsequently stopped by police while travelling home in a taxi. The Applicant was searched and breathalysed. The Applicant states that he thought he might then have signed a document that he should not have. The next day, the police confirmed that there were no outstanding charges against him.
4.On 16 March 2013, the Applicant took leave to return to his home city to visit his family. The Applicant claims he was anxious about getting on the plane and believed he was being followed. The Applicant became more relaxed once he reached his destination.
5.While in his home city, the Applicant sought medical treatment in relation to a mental health condition. The Applicant was certified as unfit for work for a few weeks.
6.The Applicant returned to work on 15 April 2013 and asked to take 12 months leave without pay to allow him to return to live in his home city. On 16 April 2013, he was advised that his request for leave without pay had not been approved. The Applicant tendered his resignation that same day, which he then sought to reverse on 21 April 2013. On 22 April 2013, the Department accepted the reversal of the Applicant’s resignation.
7.Later on 22 April 2013, the Applicant was admitted to hospital where he was considered to be delusional. The Applicant was discharged from hospital on 2 May 2013.
8.The Applicant was then granted personal leave and returned to his family in his home city. Fitness for work assessments were undertaken in November 2013, March 2014, July 2014 and September 2014.
9.In July 2014, as part of the Department’s Involuntary Redundancy Process, the Applicant, along with all other Departmental employees working at the Applicant’s level, were required to re-apply for their jobs at the Department. Following this process, the Applicant was re-appointed to his job.
Claim history
10.On or about 15 May 2015, the Applicant lodged a claim for workers’ compensation, claiming that he suffers from ‘acute psychosis, anxiety disorder,’ as a result of events which occurred in his workplace at the Department between 2013 and 2015.
11.In his claim the Applicant asserted that his condition developed as a result of bullying, harassment and a lack of support as well as work pressures and prolonged stress throughout that time.
12.On 22 July 2015, a delegate of Comcare made a determination refusing liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) for the Applicant’s claim. After considering the available evidence, the delegate preferred the diagnosis of ‘Schizophrenia, paranoid type.’ The delegate found that while the Applicant suffered from an ‘ailment’ as defined in subsection 4(1) of the Act, he was not satisfied that his employment with the Department had significantly contributed to his condition of ‘Schizophrenia, paranoid type.’ Rather, the delegate considered that various non-employment factors had contributed to development of the Applicant’s condition, namely:
(a)Dependant and avoidant personality traits.
(b)The use of body building supplements with a high caffeine content prior to the Applicant’s decompensation.
(c)An incident on 9 March 2013 in which the Applicant was travelling home in a taxi while intoxicated and his reaction to being breathalysed and searched by the police. Following this incident the Applicant noted the police had him sign a document and he could not recall the purpose of that document. The Applicant also considered he was in danger from an ‘organisation’ that was following him at the time.
(d)Possible alcohol abuse or independence issues, although the Applicant denied these issues.
(e)Social isolation experienced by the Applicant while living away from his family.
13.On 14 September 2015, the Applicant, through his father as his representative, requested a reconsideration of the determination dated 22 July 2015. In that request the Applicant claimed that prolonged bullying at work was the only cause of his psychological injury and that each of the non-employment related factors identified by Comcare as being contributory were either erroneous, inconsequential or themselves a consequence or an expression of the Applicant’s psychological injury rather than a cause.
14.On 13 November 2015, a delegate of Comcare affirmed the determination dated 22 July 2015 (the ‘reviewable decision’). The delegate upon review considered that the Applicant’s condition was best described as ‘schizophrenia,’ an ailment under subsection 4(1) of the Act. However, the delegate upon review found the Applicant’s claims regarding inappropriate treatment in the workplace were unsubstantiated and was not satisfied that the events relating to his claimed workplace circumstances actually took place. Therefore, the delegate upon review found the ‘reality test’ articulated by the Federal Court in Wiegand v Comcare (2002) FCA 1464 (‘Wiegand’) had not been met and was not satisfied that the Applicant’s employment with the Department had significantly contributed to his ‘schizophrenia’ condition.
15.The Applicant has applied to this Tribunal for review of the reviewable decision.
Work and medical histories
16.Specific matters going to the Applicant’s work and medical histories were in contention between the parties at hearing. The evidence in relation to the Applicant’s work and medical histories are set out below under the heading ‘Evidence.’ The factual findings in this regard are addressed below under the heading ‘Findings about the chronology of events.’
RELEVANT LEGISLATION
17.Section 14(1) of the Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations, as follows:
14 Compensation for injuries
(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.
18.The necessary connection between a condition suffered by an employee and the employment is provided for, indirectly, by the definitions of ‘injury’ and ‘disease’ in the Act. Subsection 5A(1) of the Act defines the term ‘injury’ as follows:
5A Definition of injury
(1) In this Act:
"injury " means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
19.The term ‘disease’ is defined in section 5B of the Act as follows:
5B Definition of disease
(1) In this Act:
"disease " means:
(a) an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's
employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
20.The term ‘ailment,’ which is used in subsection 5B(1)(a) of the Act is defined in subsection 4(1) of the Act to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’ Subsection 4(1) of the Act also provides the definition of the term ‘aggravation’ to include ‘acceleration or recurrence.’
21.As to the date of injury, subsection 7(4) of the Act provides that an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) The employee first sought medical treatment for the disease, or aggravation; or
(b) The disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee,
whichever happens first.
ISSUES FOR DETERMINATION
22.The Applicant contends that his claimed condition is best described as hyper vigilance or paranoia or complex post-traumatic stress disorder coupled with extreme anxiety, caused by prolonged workplace bullying. The Applicant attributes the brief psychotic episodes he has suffered in the past to the adverse effects of medication he took at various times. The Applicant submits that those episodes are correctly characterised as ‘stress breakdowns.’ Comcare accepts that the Applicant suffers from an ailment for the purposes of subsection 5B(1) of the Act. However, Comcare considers that on the available medical evidence:
(a)The Applicant’s ailment is best described as ‘schizophrenia.’
(b)The Applicant’s ailment was not contributed to, to a significant degree, by his employment with the Department.
23.Therefore, the issues for the Tribunal to determine are as follows:
(a)Whether the Applicant suffers from an ailment. If so:
i.What is the diagnosis of that ailment?
ii.Whether that ailment is an ‘injury’ as defined in section 5A of the Act, being either:
(1) a ‘disease’ (subsection 5A(1)(a) of the Act, as defined in subsection 5B(1) of the Act, being an ailment, or an aggravation of an ailment, that was contributed to, to a significant degree, by the Applicant’s employment with the Department); or,
(2) an injury (or an aggravation of an injury) other than a disease arising out of, or in the course of, the Applicant’s employment with the Department, as defined in subsections 5A(1)(b) and 5A(1)(c) of the Act.
iii.If the Applicant’s ailment is a ‘disease’ within the meaning of subsection 5B(1) of the Act or an injury (or an aggravation of an injury) other than a disease arising out of, or in the course of, the Applicant’s employment with the Department, whether liability under section 14 of the Act should be disallowed under section 5A(1) because the ailment was the result of a ‘reasonable administrative action’ taken in a reasonable manner.
24.As the Tribunal has concluded below that the Applicant’s employment with the Department has not significantly contributed to his ailment, the Tribunal has not addressed the legislation nor considered the issues relevant to whether any liability that may otherwise arise under section 14 of the Act is excluded by the provisions in section 5A of the Act regarding ‘reasonable administrative action’. It is not required to do so. Nevertheless, the Tribunal has set out the facts as they relate to matters that could be described as ‘administrative actions’ in order to preserve the chronology and completeness of the complex factual picture.
EVIDENCE
25.The matter was heard in Perth over three days from 13 to 15 March 2017. The parties were represented as follows:
·The Applicant was represented by his father. The Applicant’s mother, who provided evidence at the hearing, also provided support to the Applicant.
·Comcare (the Respondent) was represented by counsel, Mr Schatz. Mr Schatz was instructed by Ms Ladhams, from the Australian Government Solicitor.
26.The Tribunal sincerely thanks the Applicant, the Applicant’s parents, Mr Schatz, Ms Ladhams and the lay and medical witnesses for their assistance and consideration shown throughout the hearing, which at times (and unavoidably so) raised a number of sensitive matters.
Lay evidence before the Tribunal
27.The Tribunal received the following evidence:
·Statement from the Applicant dated 20 May 2016 (A1);
·Bundle of emails from the Applicant’s colleagues/friends (A2);
·Statement from the Applicant’s mother dated 16 December 2016 (A3);
·Applicant’s amended statement of issues, facts and contentions dated 10 March 2017 (part of which is to be treated as the Applicant’s evidence) (A4);
·T documents (R1);
·Supplementary T documents (2 bundles) (R2);
·Statement from the Applicant’s colleague dated 7 March 2017 (R3);
·Statement from the Applicant’s first manager from August 2008 to June 2010 dated 13 September 2016 (‘first manager’) (R4);
·Report on Schizophrenia by the National Institute of Mental Health (NIH Publication No. 15-3517) (R5); and
·Notes by the Applicant’s second manager from October 2010 to April 2013 (‘second manager’), prepared for the Applicant’s performance appraisals in 2011, 2012 and 2013 (R6).
28.The Tribunal has before it additional statements from the following lay witnesses:
·Statement from the first manager, dated 22 June 2015 (T23, page 209 and also at T24, page 224); and
·Statement from the Department’s General Manager, dated 21 June 2015 (‘General Manager’) (T23, page 211 and also at T24, page 226).
29.All of those people who provided witness statements gave oral evidence at the hearing. The Applicant’s father also gave evidence. Although the Applicant’s father did not provide a witness statement as such, he authored the letter to Comcare dated 14 September 2015 (T33, page 361) requesting reconsideration of the original determination dated 22 July 2015, part of which is to be treated as the Applicant’s father’s evidence.
Specialist medical evidence before the Tribunal
30.At the hearing, oral evidence was given by three medical witnesses, whose reports were provided prior to the hearing and are contained wholly within the T documents and the supplementary T documents, as follows:
·Psychiatrist A, Consultant Psychiatrist, who provided the following reports:
oReport dated 16 December 2013 (T25, page 255);
oReport dated 1 April 2014 (T25, page 248); and
oReport dated 7 October 2014 (T25, page 265).
·Psychiatrist B, Consultant Psychiatrist, who provided the following reports:
oReport dated 23 September 2013 (ST14, page 450);
oReport dated 26 June 2014 (ST18, page 1048);
oReport dated 25 August 2014 (T25, page 272);
oReport dated 23 March 2015 (ST18, page 1029); and
oReport dated 15 June 2015 (T22, page 187).
·Psychiatrist C, Consultant Psychiatrist, who provided the following reports:
oReport dated 30 June 2015 (T26, page 325); and
oSupplementary report dated 9 July 2015 (T28, page 338).
31.Relevant aspects of the evidence and material before the Tribunal will be referred to below.
The Applicant
32.At the hearing, the Applicant gave oral evidence to the Tribunal in person. The Applicant had earlier provided a statement dated 20 May 2016 (A1). At hearing, the Applicant’s father submitted that the Applicant’s amended statement of issues, facts and contentions dated 10 March 2017 (A4) did, in part, contain statements that could also be regarded as the Applicant’s evidence. The parties and Tribunal agreed that those parts of that document (A4) would be treated as such. Also, Mr Schatz drew the Tribunal’s attention to the existence of the Applicant’s injured workers’ statement dated 7 June 2015 (T12, page 57) as an additional source of the Applicant’s evidence.
33.The Applicant gave evidence before the Tribunal that since the commencement of his employment at the Department, he has believed that the Department ‘wanted to get rid of him’ and that the General Manager and second manager didn’t like him. The Applicant gave the example that he didn’t remember ever receiving positive feedback from any of his managers. The Applicant said he deserved this positive feedback because he worked hard every day.
34.The Applicant said he thought that while his first manager was ‘a terrible manager,’ she was not part of the conspiracy to ‘manage him out.’ The Applicant said that even prior to the time the first manager was transferred from one division of the Department into the division in which he worked, he already knew she’d be ‘trouble.’ The Applicant said that he knew this because a good friend of his had left the Department due to the pressure the first manager had put him under. The Applicant said that this had made him apprehensive of the first manager. The Applicant said that when it came to his own circumstances, the first manager would run him down so that she could favour others. The Applicant said that he felt constantly criticised by his first manager and that he always felt he was doing his best but never got any credit.
35.The Applicant said that he believed that the first manager and the second manager both deliberately tried to stop his progress at work.
36.At the hearing, Mr Schatz directed the Applicant to a report prepared by the first manager for the Applicant’s performance appraisal in February 2009, which resulted in the Applicant’s promotion. The Applicant said the first manager had promoted him because Human Resources had said that every 2008 graduate would be promoted to APS5 following completion of their graduate year as an APS4 with the Department. When directed to a number of other performance appraisal reports prepared by the first manager during 2009 and 2010, the Applicant did not dispute that he was rated ‘developing to level’ immediately following promotion and over time as ‘performing effectively at level.’
37.When asked by Mr Schatz as to which of the first manager’s comments towards him were, as he claims, completely unjustified criticisms, the Applicant said it was more just a feeling that he had about how his first manager reviewed his work and his perception of what was going on. The Applicant said that he thought the first manager had been unreasonable because of the fact that he had had that feeling. For example, at one time the first manager had said to him that she was impressed with his work, but that she wanted to be impressed all of the time. The Applicant said it was stressful having to constantly justify his existence at the Department.
38.The Applicant said that at one point during his appraisal discussions with the first manager, he had talked about comments directed to him by the Applicant’s colleague at a time where desks were being repositioned. The Applicant said his colleague had said to him “what makes you think we care about what you think” and later “who hired you?” (T12, page 58). The Applicant said that while he couldn’t really remember the context of the comment, it wasn’t a friendly joke. When it was put to the Applicant, he did not dispute that during his hospital admission in April and May 2013, he had not mentioned the first manager or his colleague with regards to the perceived conspiracy, only the second manager.
39.The Applicant gave evidence that at one point, he had complained about his colleague to the first manager, saying that “it was like it was either [his colleague’s] way or the highway,” meaning that he never got a say regarding his work. The Applicant said his first manager’s response were the exact words “it is [the Applicant’s colleague’s] way or the highway.”
40.The Applicant said that for one particular bid for work by the Department, he was the primary contact and he was never given any credit for the work that he did on that policy, or any other policy that he worked on. The Applicant said that his first manager never thanked him when he went into work at 10.00pm one evening to send an email at her request. The Applicant said, however, that the first manager did ask for his opinion from time to time.
41.The Applicant gave evidence that one of the performance criteria at the Department is “strives for excellence” and when discussing this criterion with the first manager, she asked “what the hell are you doing here?” The Applicant gave evidence that despite this type of comment and ‘attitude’ that ‘he had to absorb’ he did not recall any formal negative assessments of his work.
42.Mr Schatz drew the Applicant’s attention to reports prepared by the second manager for the Applicant’s performance appraisals in February 2010 and August 2010 (the Department’s two appraisal periods for that year) which recorded the Applicant as performing ‘at level’ and ‘effectively at level’ respectively. The Applicant said that these appraisals were ‘probably fine.’
43.Mr Schatz also directed the Applicant to a report prepared by the second manager for the Applicant’s performance appraisal in February 2011 (one of the Department’s two appraisal periods for that year), which recorded the Applicant as performing effectively ‘at level’ at that time (ST1, page 417). The Applicant said that from that report, perhaps there wasn’t a conspiracy against him and he did not think at that particular time that his managers were colluding or that his second manager ‘had it in for him.’
44.The Applicant said it was the second manager’s performance appraisal report of August 2011 that he took issue with, and which assessed him as ‘performing effectively at level’, as it was at this time that his second manager should have promoted him and did not.
45.The Applicant said that the conspiracy within the Department to manage him out was not deliberate or immediate. Rather, the Applicant said he believed that it did not matter how hard he worked, his managers just did not like how he worked. The Applicant said that over time, he became dissatisfied with how he was treated by his managers and feeling generally aggrieved regarding his employer’s expectations and his work performance.
46.The Applicant also said that another staff member had started calling him a nickname using words that suggested the Applicant’s work was sloppy. The Applicant said when he told the second manager about this, the second manager said “just don’t do a sloppy job.” The Applicant said everyone ‘got on board’ with the nickname, although the second manager did not join in in using it.
47.The Applicant gave evidence that on the day of the Department’s Christmas party in 2011 (‘the Christmas Party’), he approached his second manager on these issues and his second manager had said to him that he wasn’t that bad and that he had seen some improvement in his work, although the Applicant’s memory of this could have been a paranoid delusion. The Applicant said that later that day, whilst at the pub for the Christmas Party, his second manager had said to him “I do not want people like you in my unit.” The Applicant said he could not recall any other aspect of this conversation and that it was possible his memory of this conversation (as well as the police incident in March 2013 for that matter) was also a delusion.
48.The Applicant also said he ‘could be delusional now’ and that his father had said he had thought the same when the Applicant saw the doctors at the hospital in April 2013.
49.The Applicant said that both he and his second manager had been drinking at the Christmas Party and also earlier that day in the office.
50.The Applicant said that at the same Christmas Party, he had had a conversation with another staff member who worked in a different division of the Department. The Applicant said that this staff member informed him that the first manager still talked to the other managers about how useless and incompetent he was (A1, page 4). The Applicant said his first manager was still undermining his place at the Department and belittling him to other managers. The Applicant said this ‘sort of’ put him in a terrible position. When asked how he came to recall this conversation with the other staff member, the Applicant said what he recalled was his perception of the conversation. The Applicant said it was possible that the words “useless” and “incompetent” were his own words and not words used by his first manager to describe him.
51.The Applicant stated that after the Christmas Party, he had left his laptop in a locker at work. The Applicant said that on his return to work in early 2012 following the Christmas 2011 break, he was suspicious that someone had been in his locker. The Applicant said that at the time, this had only been a suspicion but he now believes it was perhaps part of the Department’s conspiracy to get rid of him.
52.When it was put to the Applicant that the ‘above level’ overall rating he achieved at his performance review in February 2012 led to his promotion, the Applicant said he had been upset at the Christmas Party for not having been promoted earlier. The Applicant said that he felt the second manager had deliberately held him back from promotion, on the basis of it being “a good strategy” as when he was ultimately promoted he would then “exceed at level”.
53.The Applicant said that after his promotion to APS6 following the February 2012 performance appraisal, everything ‘levelled off’ and his appraisals ‘went backwards’ because he was now being measured at a higher standard. The Applicant said that this was his view despite the fact that his performance review following his promotion (August 2012, ST1, page 420) submitted by his second manager rated him largely as ‘meets standard’ and overall as ‘performing at level.’
54.The Applicant said his second manager noticed his change in mood in the period between February 2012 and August 2012. The Applicant said in this period he did not care about being at the Department anymore, although he continued to go to work every day. The Applicant also said that by this time the Department did not care about him anymore, an inference he drew from his second manager’s comment at the Christmas Party.
55.The Applicant said that being stopped by police in March 2013 gave the Department ‘a way to get rid of him.’
56.As to whether the Applicant believed that being stopped by police in March 2013 was a real event, the Applicant said that he definitely signed something. However, he could not remember what it was. The Applicant said the police had no record of it and police normally keep records. The Applicant said his mother had looked into it and it could have been a ‘move on notice’ that he signed.
57.The Applicant said that when he returned to his home city in March 2013 (after the police incident), he did not want to board the plane as he believed he was being followed and that the Australian Security Intelligence Organisation (ASIO) would put something in his bag. The Applicant stated that in saying this he was not also saying that his thinking at that time was rational.
58.The Applicant said he had applied for leave without pay (T25, page 319) as “things were out of control” and he wanted to be back in his home city with his family. The Applicant said the Department was unable to grant his request and he resigned shortly thereafter (T25, page 318). The Applicant said that at that time he did not tell the second manager that he needed to get away because he thought he was being followed, only that he needed to return home because his father was unwell.
59.The Applicant recalled his being interviewed by two officers within the Department on 19 April 2013 after seeking their assistance over his concerns about the taxi incident in March 2013 (T23, pages 219 to 221). The Applicant said that at the time of the interview, he thought the Departmental officers might have been from the ASIO and the ‘security interview’ was part of their vetting process. The Applicant said that he had also thought that the Department may have been part of the police and he supposed that he interpreted the taxi incident where he was stopped by the police as being part the Department’s plan to get rid of him.
60.As to the comment by the Departmental officer in paragraph 16 of the minute recorded in relation to the interview that took place on 19 April 2013, that “it had become obvious” during the interview that the Applicant “had problems and perhaps what he had told us was his imagining, and perhaps distorting, the events which had occurred to him,” (T23, page 221) the Applicant said he did not recall this having been the case. As to paragraph 18 of the same minute, which states that the Applicant “gave the initial appearance of being rational and convincing,” but later “signs of irrationality appeared and “he was in need of assistance” (T23, page 221), the Applicant said that this was a fair recollection of what had happened.
61.The Applicant did not recall initially telling the two representatives from the health department that assessed him in his home on 21 April 2013 that he had been feeling unwell for around 5 to 6 weeks prior to his hospital admission and later reporting to them that he had been feeling stressed for longer than that. However, when Mr Schatz put to the Applicant the assessment record on these points (ST15, page 831), the Applicant did concede that he had given an honest historical account at the time.
62.The Applicant was taken to the part of the assessment record that said 5 to 6 weeks prior he had been out drinking at a bar from 5.00pm to 5.00am and was heavily intoxicated (ST15, page 832). The Applicant said that on this point, he did occasionally binge drink, but it was not something he told his mother about, as it was none of her concern. The Applicant made the same comment with regard to the fact that on that day (21 April 2013) and on various other occasions during his childhood, he had thought he could hear a tap dripping but could not find a dripping tap (ST15, pages 832 to 833).
63.The Applicant said that there were a number of other ‘strange things’ that he had been worried about, including having been stopped by a man with a Russian accent, who was driving a van. The Applicant said this definitely happened and there was a time that he had thought this man was a spy, but had told himself he was being paranoid. Another strange thing he believes he experienced was receiving several phone calls from telephone numbers he ‘Googled’ and found to be Russian numbers. The Applicant said this made him fearful. The Applicant also thought his mail was being stolen and that people were looking for his ‘details.’
64.The Applicant recalled sending an email to his second manager on 21 April 2013 requesting his resignation be reversed.
65.The Applicant said that when he presented to hospital on 22 April 2013, he could not remember what he had told the doctors, because was in a psychotic state at the time. The Applicant said he could only remember that in the week prior to his hospital admission he did not want to be at work.
66.The Applicant said he disagreed with the account recorded in his patient progress notes (given by his father during his hospital admission on 22 April 2013) (ST15, page 854), that he had been quite severely bullied during his early school years (which were not in Australia) and that he had a vision problem, which was the root cause of his bullying. The Applicant said he was never bullied. He agreed that he had a vision problem but said it did not cause any major problems.
67.The Applicant said he also disagreed with his father’s account that the Applicant’s relationships were acquaintances, rather than friends (ST15, page 854). The Applicant said that while he had always been an introvert, he had friends and he was always happy. The Applicant said that while work had become hard and unbearable, socially he was ‘having the time of his life.’
68.As to his father’s comment to hospital admission staff on 22 April 2013 that he thought the Applicant may have been experiencing difficulty for many years (ST15, page 855), the Applicant said that he supposes that this was possible, but that he was ‘comfortable’ until ‘things got bizarre.’
69.The Applicant said he disagreed with the comment recorded in his patient progress notes on 23 April 2013 (ST15, page 860) that he said he was concerned that a “conspiracy was going on” in relation to him by his boss [the second manager] – but he stated that he no longer believed this.” The Applicant said that despite this record he still believes there was a conspiracy and that it related to the discussion he had had with his second manager at the Christmas Party.
70.As to the record in his patient progress notes dated 23 April 2013 (ST15, page 861) that the Applicant would not answer whether he believed that the issues of his work stress in the past year and his being pulled over by police while in a taxi were related, the Applicant said he had thought the two issues were related, but did not give that answer to hospital staff as ‘he did not want to sound unwell.’
71.The Applicant said that he interpreted the following comment from his father recorded in his patient progress notes on 26 April 2013 (ST15, page 875) as a “fair summary:”
“Upon return to [the city in which the Applicant worked] however, one week prior to hospitalisation, father recognised that [the Applicant] was deteriorating once again [following a previous deterioration of his mental state noticed by his family 7 to 8 weeks prior], with ongoing persecutory delusions in relation to his workplace, and has noticed [the Applicant] incorporating events into his delusional beliefs around his workplace – giving example of once [sic] incident when a van stopped outside of his work and asked for directions to [the Department], and [the Applicant] felt this to be part of his belief that they were monitoring him and following him.”
72.Mr Schatz directed the Applicant to the following passage taken from the report of Psychiatrist B dated 15 June 2015 (T22, page 195):
“[The Applicant] informed [Psychiatrist B] that he submitted the claim for compensation related to the psychological injury sustained at his workplace in March 2013. He stated that he was subject to bullying at the workplace. He felt that he was singled out, picked on and given [an] unreasonable amount of work by his superiors. He said that he felt that they were not recognising the value of his work and that they were pushing him out and wanting him to resign. [The Applicant] said that he was teased, called names and was the subject of negative comments and unfair treatment…”
73.When asked why he had, prior to this time (at his consultations with Psychiatrist B throughout 2013 and 2014) given a history which did not include any reference to bullying and harassment, the Applicant said he had not had a reason to and back then he felt that digging up the past was a waste of time. The Applicant also said that Psychiatrist B had never asked him about his work.
74.The Applicant said he has used words like “bullying” and “harassment” in conversations with his father and with hospital staff “in ways that might mean something completely different to others.”
The Applicant’s mother
75.At the hearing, the Applicant’s mother gave oral evidence to the Tribunal in person. The Applicant’s mother had earlier provided a statement dated 16 December 2016 (A3).
76.The Applicant’s mother gave evidence that the Applicant was always happy as a child and had no behavioural issues at home or in school.
77.When it was put to the Applicant’s mother that the Applicant’s father had given a different account of the Applicant’s childhood, namely that the Applicant was bullied early in his school career and had a vision problem, the Applicant’s mother said she understood the Applicant’s father’s concerns. The Applicant’s mother said that her own recollection was that there had been some teasing at school regarding the Applicant’s accent; however, he was not bullied.
78.Regarding the Applicant’s father’s evidence that the Applicant had had few close friends as a child, the Applicant’s mother said that the Applicant had grown up in a small village in the United Kingdom, with small school classes. The Applicant’s mother said that at that time the Applicant had three close friends with whom he attended sleepovers and the like. The Applicant’s mother said that the Applicant had a similar number of friends at the second school he attended during his childhood.
79.The Applicant’s mother said it was not the case, as the Applicant’s father had said, that the Applicant had had problems with his superiors at school not supporting his vision problems, or that the Applicant had had any problems before moving to work at the Department.
80.The Applicant’s mother gave evidence that at the time they ‘began to look for answers,’ there was no reference to any bullying and harassment at work and bullying and harassment ‘wasn’t the first thing they found.’
81.The Applicant’s mother said that even though she wasn’t present at the time of the claimed bullying and harassment, she believes what the Applicant had told her in that regard. She said that it was only at the time when it was clear the Applicant was unwell, being around the time that she and the Applicant’s father took the Applicant to his general practitioner during his visit home in March 2013, did the Applicant state to her that he thought the ASIO was following him.
82.The Applicant’s mother said that during the time that the Applicant was living away to work for the Department, she spoke to him around three times per week. The Applicant’s mother said she had had telephone conversations with the Applicant regarding the first manager around four years prior to his first hospital admission. The Applicant’s mother recalled that the first manager had been ‘quite nasty’ to him and that it was ‘constant’. The Applicant’s mother said it wasn’t clear from her telephone conversations with the Applicant as to what exactly the first manager had said to him, but she recalled the Applicant had said his first manager was ‘nasty,’ had ‘mood swings’ and that she didn’t include him in things. The Applicant’s mother said the Applicant had told her how he was feeling but not exactly what was said. The Applicant’s mother said it was clear to her that the Applicant was not coping with the first manager’s attitude or with her nature.
83.The Applicant’s mother said that at that time the Applicant had also said to her that he did not know how to deal with his first manager and she had told her son that he could make a complaint about the first manager, but the Applicant said he wouldn’t because the first manager had some personal issues.
84.The Applicant’s mother said the Applicant had had a good relationship with his second manager until the Christmas Party. The Applicant’s mother said the Applicant told her that at this party the second manager said to the Applicant that he was not the sort of person the second manager wanted in the unit. The Applicant’s mother said the Applicant also told her that on the second manager’s return to work in the second week of 2012, he called a meeting with the Applicant and said to him, “we both said things we shouldn’t have” and that the Applicant had said he had defended himself against an unwarranted attack.
85.The Applicant’s mother said she recalls that at the time of the Christmas Party, she could tell that the Applicant was accurate, to the point and ‘not delusional.’
86.The Applicant’s mother said she was aware that the Applicant would sometimes go out for a social drink with his work colleagues on weekends. The Applicant’s mother said she was also aware that the Applicant would, on these occasions, sometimes drink from 5.00pm to 5.00am. The Applicant’s mother said that the Applicant would not drink on his trips home.
87.The Applicant’s mother said that she and the Applicant’s father had looked at the caffeine content of the protein pre-training supplement the Applicant had been taking as part of his fitness regime in the months prior to his return home on extended leave because they had wanted to look at all the possibilities to better understand what had happened to the Applicant. The Applicant’s mother said she disagreed with the links between the supplement and the Applicant’s behaviour made by the doctor in their home city’s hospital.
88.The Applicant’s mother said that at the time of the taxi incident in March 2013, she did not draw any connection between the Applicant’s presentation and the difficulties he was having with his first manager a few years prior. The Applicant’s mother said the Applicant did not imagine the taxi incident or that he signed a ‘move on notice’ issued to him when he was stopped in the taxi. The Applicant’s mother said that the signing of the ‘move on notice’ was an inference drawn from her own understanding, not from any evidence obtained from the police.
89.The Applicant’s mother believes the Applicant’s diagnosis is unclear, however she suggests that the Applicant is not suffering from schizophrenia, either now, or before.
The Applicant’s father
90.At the hearing, the Applicant’s father gave oral evidence to the Tribunal. While the Applicant’s father did not provide a written statement, he authored the letter to Comcare dated 14 September 2015 (T33, page 361) requesting reconsideration of the original determination dated 22 July 2015, part of which is to be treated as the Applicant’s father’s evidence.
91.The Applicant’s father said the Applicant’s early years at school were a problem due to the Applicant’s eyesight and that the Applicant was ‘picked on’ due to his accent. When it was put to the Applicant’s father that this account was different to that given by him to the admitting doctor on 22 April 2013 (ST15, page 854, that the Applicant was ‘quite severely bullied’ when early in his school career and that the Applicant’s vision problem was the ‘root cause’ of the bullying), the Applicant’s father conceded the difference but did not elaborate further.
92.With regard to the events that took place at the Christmas Party, the Applicant’s father said he had asked the Applicant what the problem was, but he could not ‘get it out of him.’ The Applicant’s father said that by Christmas 2012, the Applicant ‘seemed fine.’
93.The Applicant’s father said that about four weeks prior to the Applicant visiting home in March 2013, the Applicant started saying things ‘that were not right.’ The Applicant’s father said he had told his son at that time (in relation to the taxi incident) that ‘it can’t be right that he was being followed’ and that it was ‘a misinterpretation’ of an incident that actually occurred. The Applicant’s father said that ‘it got worse the week before he came home,’ with the Applicant calling him more often. His concern for his son increased.
94.The Applicant’s father said the Applicant had called him just prior to boarding the plane on his trip home in March 2013. The Applicant’s father said the Applicant was afraid to board the plane, but he could not tell his father why. The Applicant’s father said he persuaded the Applicant on the phone to board the plane.
95.The Applicant’s father said that by the time the Applicant had returned home in March 2013, the Applicant still believed that he was under threat and that the Department was ‘going to kill him.’ The Applicant’s father said the Applicant had said to him, “I’d kill myself but then they’d have won.”
96.The Applicant’s father said he then took the Applicant to his GP ‘to relay the story,’ which the Applicant did ‘in five minutes.’
97.The Applicant’s father said that after the Applicant’s four weeks at home (in March/April 2013), the Applicant returned to the Department happy, or at least less anxious, as he had decided to apply for leave without pay. The Applicant’s father said that once the Applicant’s application for leave without pay was denied, he ‘went back to being bizarre’ and ‘went to the security people.’
98.The Applicant’s father said that he saw a clear connection between the Department denying the Applicant’s leave request and his ‘deterioration.’
99.The Applicant’s father said that on the weekend before he flew over to see the Applicant (the Applicant’s father arrived on the Monday morning), the Applicant had work friends staying with him and the ‘mental health people’ had been sent over to assess the Applicant. The Applicant’s father said that he had known for all of that week that ‘things were not right.’ The Applicant’s father said the Department ‘still didn’t know’ about the Applicant at this time. The Applicant’s father said that the Applicant’s friends remained outside during the assessment and one of the Applicant’s friends told him that when they had later asked one of the assessors what was ‘wrong’ with the Applicant, the assessor said that the Applicant was ‘hyper vigilant.’
100.The Applicant’s father said he arrived to see his son on the Monday morning of 22 April 2013 and went straight to the hospital, where his son was in the triage queue with the friend who had been at the Applicant’s house over the weekend and had asked the assessor what was wrong.
101.The Applicant’s father said that following the Applicant’s assessment at the hospital the Applicant took some ‘quetiapine’ that he was given, had some lunch and seemed to relax. The Applicant’s father said ‘something awful’ then happened to the Applicant and there was a ‘Code Black.’
102.The Applicant’s father said that by the Wednesday, he took the Applicant’s ‘weights supplement’ to the hospital and the nurse told him that it was ‘not the cause.’
103.The Applicant’s father said that on the Applicant’s return to his home city following his discharge from hospital the Applicant was on 10 to 15 mg of Olanzapine and was ‘ok.’
104.The Applicant’s father said upon returning to his home city, the Applicant came under the care of one of the hospitals in their region. The Applicant complained to his psychologist of the sedating effect of Olanzapine. The prescribing doctor changed the medication to Risperidone. The Applicant’s father said he believes that the Applicant’s subsequent reactions to Risperidone (and several other medications, including a number from the benzodiazepine group) were paradoxical.
105.The Applicant’s father said that during the period of these ‘paradoxical reactions,’ he was just ‘trying to make sense’ of the situation and it was much later that he came to learn the details of the Applicant’s claim for bullying and harassment.
106.The Applicant’s father also said the during the Applicant’s two further admissions to an additional hospital in their region in June/July 2013 and August/September 2013, the Applicant suffered repeated psychotic episodes and side effects. The Applicant’s father said that around the time of the June/July 2013 hospital admission, the Applicant had panicked at the idea of the graduated return to work programme the Department was planning with an external provider as well as at the idea of returning to the city in which he worked for the Department.
107.The Applicant’s father said another source of stress for the Applicant at that time was the Department’s involuntary redundancy program which, he understood, required the Applicant to apply for his own job in order to retain it. The Applicant’s father said that once on Olanzapine only, the Applicant’s condition stabilised and he was able to return home.
108.The Applicant’s father said the Applicant then applied for ‘income protection’ at that time and that is when Psychiatrist A ‘came on the scene.’ The Applicant’s father said that as seeing a psychologist was necessary to obtaining income protection insurance, the Applicant’s general practitioner referred him for psychological treatment.
109.The Applicant’s father said that in order to avoid any further ‘triggers,’ his family avoids bringing up the subjects of the Applicant’s work for the Department, his ‘stress breakdown,’ or anything else that might cause distress so that the Applicant can work on ‘rebuilding his life.’
The Applicant’s colleague
110.At the hearing, the Applicant’s colleague provided oral evidence by video link. The Applicant’s colleague had earlier provided a statement dated 7 March 2017 (R3).
111.The Applicant’s colleague gave evidence that she had worked with the Applicant on a number of projects, that she was from the same city as the Applicant and that they had ‘got on’ in the sense that they had a good working relationship.
112.The Applicant’s colleague said while she recalled a conversation regarding additional work desks being put in, she did not recall the exact issue regarding where the Applicant was going to sit and she did not say the words “what makes you think we care about what you think?” or “who hired you?” as claimed by the Applicant.
113.The Applicant’s colleague said that the conversation regarding the additional work desks had taken place prior to the desks being moved, not after and everyone in the unit had been involved in the initial discussions. The Applicant’s colleague said that she did not recall the Applicant raising any issues about the additional work desks at the time.
114.The Applicant’s colleague said she had previously observed that the Applicant was sensitive to feedback, more so than others and that he would take feedback as a personal attack. The Applicant’s colleague said that everyone in the Department receives guidance from people more senior and did not think the feedback the Applicant received was excessive. The Applicant’s colleague said the feedback was about the work output, not the Applicant personally and she had thought the Applicant was ‘doing fine’ at the APS5 level at the time.
The first manager
115.At the hearing, the first manager provided oral evidence by video link. The first manager had earlier provided a statement dated 13 September 2016 (R4).
116.The first manager gave evidence that she was the manager of the unit the Applicant worked in from August 2008 to June 2010 and she was the Applicant’s direct supervisor during this time.
117.The first manager said that during this period she saw the Applicant daily and ‘got on’ with him as she did other team members. The Applicant’s manager said that at times she worked closely with the Applicant and at other times he was managed by other team members.
118.As to performance appraisals and feedback, the first manager said the approach she took with the Applicant was her usual approach, which was to provide constructive feedback. The first manager did not recall ever having said anything critical, ever having done anything to restrict the Applicant’s progress or to deliberately undermine him. The first manager said she did not ‘go overboard’ at performance appraisals with the Applicant, nor did she criticise him more than he deserved.
119.As to the Applicant’s claims that he came into work late one evening to send an email at the first manager’s request, the first manager said she vaguely recalled him going into work late one night and it was possible that she did not thank him for doing so. The first manager said, however, that it was not her recollection that he wasn’t given credit for his work. The first manager said that during performance appraisals and in email responses she would thank the Applicant for his contribution and tell him, for example, that he had been helpful to the process.
120.As to the Applicant’s claim that she had said to him that “it was [the Applicant’s colleague’s] way or the highway,” while she recalls the Applicant raising a concern with her about the extent to which he had to take direction from the Applicant’s colleague, she does not recall using the words “it was [the Applicant’s colleague’s] way or the highway” nor did she shun or isolate the Applicant in any way.
121.With regard to the Applicant’s evidence that she had once said to him that she was impressed with his work, but that she wanted to be impressed all of the time, the first manager said she could not recall the details of that conversation and that she had encouraged the Applicant to strive for his best every day.
122.In response to the Applicant’s claim that the first manager had said to the Applicant “what the hell are you doing here?” when discussing the Department’s “strives for excellence” criterion in the performance appraisal setting, the first manager said this did not happen. The first manager said, rather, she may have asked him what part of his work demonstrated a particular aspect of the Department’s performance management system.
123.The first manager said she also had no recollection of the conversation with the Applicant during his appraisal discussions where he had talked about comments directed to him by the Applicant’s colleague at a time where desks were being repositioned.
124.When asked by Mr Schatz, the first manager said she had never bullied or harassed the Applicant, nor had she ever seen him be bullied or harassed. The first manager also said she never used the words “useless and incompetent” to describe the Applicant, nor did she ever undermine or belittle him. When asked by the Applicant’s father, she said she did not recognise herself or any of her colleagues as workplace bullies.
125.The first manager gave evidence that her observations of the Applicant caused her to believe that he was unhappy and homesick at times. The first manager said that she had formed this impression of the Applicant particularly during his first year with the Department, where she would see him looking sad from time to time and then ask him how he was. The first manager said that she did not really recall whether the conversations she had with the Applicant about his homesickness from time to time helped him at all.
126.When asked by the Applicant’s father, the first manager said that the extent of the Applicant’s distress at this time was “hunched shoulders” and “looking down.” The first manager said there were no incidents of the Applicant crying or of any ‘outbursts’ and it was hard to say if the Applicant was withdrawn or less communicative.
127.The first manager said that over time, she found that her impression of the Applicant’s homesickness peaked around the times he would return from a trip home. The first manager said that she found the Applicant to be the least homesick during the last months or so leading up to June 2010 (being the end of the period during which she was his direct supervisor).
128.As to what was done to try to alleviate the Applicant’s homesickness, the first manager said the Department’s Employee Assistance Program was available but she could not recall encouraging him to use the service. When asked, the first manager said she could not recall if at the time there was a mental health issue in relation to the Applicant. Nor did she draw a connection between the Applicant’s homesickness and his mental health. The first manager said she now understands that the Applicant’s homesickness and his mental health was problematic.
129.As to the Applicant’s evidence that a good friend of his had left the Department due to the pressure the first manager had put him under, the first manager did not accept that this person leaving the Department was a reaction to her conduct.
The second manager
130.At the hearing, the second manager provided oral evidence by telephone. The second manager had earlier provided a statement dated 22 June 2015 (T23, page 209 and also at T24, page 224). The second manager confirmed he authored an email to other Departmental officers dated 23 April 2013 in relation to the Applicant (T23, page 217) and had prepared the Applicant’s performance appraisals for February 2011, August 2011, February 2012, August 2012 and February 2013 (ST1, pages 416 to 423) along with notes for discussion at those appraisals (R6).
131.The second manager gave evidence that he was the Applicant’s direct manager from October 2010 to April 2013, when the Applicant was working at the APS5 level.
132.The second manager said he had a good personal relationship with the Applicant and that he had known him from a previous role within the Department. The second manager said he had never developed a disliking for the Applicant, their relationship never deteriorated over time and it was untrue that “he wanted [the Applicant] out” of the Department.
133.As to the Applicant’s evidence that on telling the second manager that another staff member had given him a nickname that alluded to the Applicant’s work being sloppy, the second manager said that he did not recall that occurring, nor did he recall telling the Applicant “just don’t do a sloppy job.”
134.As to the Applicant’s work performance whilst being managed by the second manager, the second manager said that in August 2011 the Applicant was overall performing effectively at level (as per ST1, page 418) but in order to go to the next level the Applicant needed to achieve five ratings of “Exceeds standard” across the various performance criteria and at this stage he had only achieved three. The second manager said that by February 2012, the Applicant had achieved the five “Exceeds standard” ratings required for promotion (as per ST1, page 419) and hence was rated overall “Performing above level and was broad banded to the APS6 level.
135.As to the Applicant’s suggestion that the second manager deliberately held him back from promotion in August 2011 for strategic purposes so when the Applicant was eventually promoted he would exceed standard, the second manager said that he did not ever do that, or anything like that. The second manager gave evidence that he recalled the Applicant having been upset about his August 2011 appraisal as he had been hoping to be broad banded to an APS6 level. The second manager said he had had a thorough conversation with the Applicant, that he had made it clear the Applicant had made some good performance over the period and that he would not have been in a position to promote the Applicant without justification. The second manager said he had never told the Applicant he was underperforming or that he needed to be performance managed.
136.In relation to the claimed events on the day of the Christmas Party, the second manager said at the Department’s office, just prior to the party, the Applicant had raised concerns about his past performance. The second manager said he responded by telling the Applicant that his view was that the Applicant was improving. The second manager said the function then moved on to a pub venue, where the Applicant raised work performance issues again and the second manager again reassured the Applicant about his performance. The second manager said he never said to the Applicant “I do not want people like you in my unit.” The second manager said he had left the function relatively early as he was not having the desired effect of being reassuring and he thought his own presence was being counterproductive.
137.As to the Applicant’s mother’s evidence that in early 2012 he had called a meeting with the Applicant and said to him, “We both said things we shouldn’t have” and the Applicant had responded “he had defended himself against an unwarranted attack,” the second manager said he did not recall any of those things having been said or at all addressing the incident at the Christmas Party with the Applicant in the new year.
138.The second manager gave evidence that in the twelve months following his promotion in February 2012, his work performance declined and he appeared less engaged. The second manager said that the Applicant had previously shown that he was capable of doing work that was of a better quality than the work he was doing in the twelve month period following his promotion.
139.The second manager gave evidence that during the 12 month period following the Applicant’s promotion he had several discussions with the Applicant to get a better understanding of what types of work were best suited to him and what would help his development. The second manager also recalled discussing with the Applicant whether there were any issues, either within the team or in his private life, that were affecting his performance. The second manager said the Applicant assured him that there were no specific issues, either at work or outside work. The second manager said he had asked about the Applicant’s private life because the Applicant’s work performance had declined and sometimes ‘things outside work’ can affect work performance.
140.The second manager said following this conversation he had no reason at that time to think that the Applicant had mental health issues. The second manager said he then found out in April 2013 that the Applicant was suffering mental health issues.
141.The second manager said the Applicant was not to his recollection ever teased or the subject of any nicknames at the Department. Nor was he isolated from others.
142.The second manager said that while, in his notes for the Applicant’s August 2012 performance appraisal (R6) he recorded “Not a good six months. Need to step up,” he would have used other words to communicate this idea to the Applicant. In response to his further written note on the same document “Make sure you’re delivering something all the time. Don’t struggle with something and fail to deliver anything,” the second manager reiterated that this was not to be taken literately as what was said to the Applicant. The second manager said the same applied to his notes for the February 2013 performance appraisal, that is, he would have communicated the messages conveyed in the words without using the precise words written in his notes.
143.The second manager said the Applicant returned his performance appraisal report to him on 8 March 2013 (ST1, page 422) and shortly after returned to his home city. The second manager said that it was at this time he started to receive sick leave ‘notices’ (T23, page 218). The second manager said he had no reason at this time to think that the Applicant was having mental health issues or to connect the Applicant’s sick leave with his February 2013 performance appraisal. The second manager said it was not his practice upon receiving sick notices to telephone a person and ask them why they were unfit for work.
144.The second manager said that in the Department, if a person receives a “Developing to standard” rating for any of the performance appraisal criteria for two performance periods in a row, that is “ok” and they can still achieve an overall assessment rating of “Performing at level.” The second manager notes this was the case for the Applicant in his August 2012 and February 2013 performance appraisals, where he was rated “Developing to standard” across two criteria on each occasion (ST1, pages 420 to 423). The second manager explained that if a person then receives a “Developing to standard” rating for any of the performance appraisal criteria in a third performance appraisal period, they are treated as not meeting standard overall and they then go on to commence the performance management process.
145.The second manager said he would have outlined this process to the Applicant during his February 2013 performance discussion, with the purpose of the Applicant being clear on it and said to him that his performance needed to improve in order for there to be no consequence. The second manager said he would have offered words of reassurance as standard practice and that he did not recall how the Applicant reacted to that conversation.
146.The second manager said that following the Applicant’s February 2013 appraisal he proposed they meet again in two months’ time to discuss his progress (ST1, page 423) and he considered it important that they work together.
147.The second manager said that he recalled that on the Applicant’s return to work at the Department on 15 April 2013, he had a coffee with him to see how he was. The second manager gave evidence that the Applicant said he was feeling better, indicating that he had just been “unwell.” The second manager said he used the word unwell in quotations in his statement (T23, page 210) as it had struck him as out of the ordinary and because when the second manager had enquired the Applicant had not wanted to give him further details about the nature of his condition. The second manager said he had been comforted by the fact that the Applicant had medical certificates to cover the period.
148.The second manager said that the Applicant said he wanted to return to his home city for a range of reasons, including being near his family and also in case he gets sick again so he has a support network. The second manager said the Applicant also said he had applied for a job in his home city and was also thinking about further study and that he wanted to request leave without pay for one year. The second manager said he advised the Applicant that he would need to discuss this with the Department’s General Manager.
149.The second manager said he was on leave the next day (Tuesday, 16 April 2013) and when he returned to work on the Wednesday he was informed that the Applicant’s leave had not been approved and that he had tendered his resignation. The second manager said he had no involvement in the decision making process regarding the Applicant’s request for leave without pay.
150.The second manager said that during the Applicant’s final days working for the Department just prior to his hospital admission, he could not recall noticing anything about the Applicant’s mental health that caused him any concern.
151.The second manager gave evidence that he was not aware of the nature of the Applicant’s illness until he was informed the following week that the Applicant was ill again and in hospital. The second manager said that when he learned the Applicant had been hospitalised and had a mental health condition, he was shocked and surprised and felt sorry for him.
The Department’s General Manager
152.At the hearing, the Department’s General Manager provided oral evidence by telephone. The Applicant’s General Manager had earlier provided a statement dated 21 June 2015 (T23, page 211 and also at T24, page 226). The General Manager confirmed he authored an email to other Departmental officers dated 23 April 2013 in relation to the Applicant (T23, page 215).
153.The General Manager gave evidence that as General Manager of one of the divisions of the Department, he was the Applicant’s supervisor (one-removed) from December 2011 to December 2013. The General Manager also gave evidence that while he had limited day to day contact with the Applicant given his other responsibilities, he always considered the Applicant to be pleasant and friendly.
154.As to his recollection of the Applicant requesting 12 months leave without pay in April 2013, the General Manager said that he recalled the Applicant had sent him an email in this regard (T23, page 214) and shortly after (within an hour or so) requested a meeting with him to discuss, during which the Applicant said he was keen to return home to address family matters and to pursue work opportunities in injury related businesses. The General Manager said that he had been happy to consider the Applicant’s application, however the environment at the Department for doing so had tightened at that time.
155.The General Manager said that he then verbally communicated to the Applicant that his application had been rejected, on the basis that in the current declining budgetary environment he was not well placed to provide leave without pay and that it was more likely to be granted in situations where the candidate was proposing to work under the Members of Parliament (Staff) Act 1984 or at an international financial institution or if the candidate possessed highly unique skills that were in short supply.
156.The General Manager said that within the next hour or so the Applicant had resigned (by email, T23, page 213). The General Manager said he wasn’t surprised by the Applicant’s resignation given the reasons he had given for wishing to return home and he did not meet with the Applicant again following their meeting on 16 April 2013.
157.The General Manager said that he was not involved, in any way whatsoever in a conspiracy to remove the Applicant from the Department and leave without pay was about ensuring that people returned to the Department, rather than ‘getting them out.’ The General Manager said that the Applicant had taken his being denied leave as being forced to resign when that had not been the General Manager’s intention at all.
158.The General Manager was directed to a further email he sent to a number of Departmental officers shortly after the Applicant’s resignation email (also at T23, page 213) which referred to the Applicant’s “personal reasons” for his resignation. When asked as to his understanding of what the Applicant’s “personal reasons” were, the General Manager said the reasons related to the Applicant’s father’s illness and that he had no reason to think the Applicant was mentally unwell at the time that he resigned.
159.With regard to the Applicant’s email sent on Sunday, 21 April 2013 to the General Manager (among others) requesting that his resignation be reversed (T23, page 213), the General Manager said he first saw that email early on Monday, 22 April 2013. The General Manager said that on that morning, shortly after reading this email, he had received an urgent call from the Applicant’s friend who had informed him that the Applicant was very unwell and in hospital. The General Manager said that he spoke to his own manager about the situation and decided to accept the request. The General Manager said that it was around this time that he first became aware that the Applicant potentially had a mental health issue.
160.The General Manager said that another manager within the Department then had the necessary conversations with the Applicant’s family regarding his leave entitlements and the reversal of his resignation.
161.When asked by the Applicant’s father, the General Manager said he did not have a conversation with the second manager regarding these events until after they occurred. The General Manager also said that he had been unaware that at the time of the Applicant’s request for leave without pay he had just returned from ‘stress leave,’ as the medical certificates ‘did not say stress leave.’ The General Manager said that applying for leave without pay was not the right application for the Applicant to make at that time and had he known more about the Applicant’s condition, he may have been able to identify a different application as appropriate.
Psychiatrist A
162.At the hearing, Psychiatrist A provided oral evidence to the Tribunal in person. Psychiatrist A had earlier provided to the Tribunal the following reports, which are contained within the T documents (R1):
oReport dated 16 December 2013 (T25, page 255)
oReport dated 1 April 2014 (T25, page 248)
oReport dated 7 October 2014 (T25, page 265)
163.Psychiatrist A’s clinical notes in relation to the Applicant were also provided and are contained within the Supplementary T documents (R2) at ST19.
164.At the hearing, Psychiatrist A said that in relation to the reports he provided in relation to the Applicant, he relied on the history given to him by the Applicant along with information provided to him by the Department.
165.When asked what he meant in his report of 16 December 2013 that the Applicant had a propensity for social isolation (T25, page 263), Psychiatrist A said that this was in the context of his school years and in relation to his lifestyle prior to his move to work in the Department.
166.Psychiatrist A said in his report of 16 December 2013 that, in his view the Applicant had encountered a brief psychotic episode during his hospitalisation earlier that year (T25, page 261). Psychiatrist A said that the Applicant was getting support from his family and he was somewhat socially isolated whilst working and living [away from home]. Psychiatrist A said that this would not have helped his predisposition to brief psychotic episodes while under stress (T25, page 262).
167.In his second report dated 7 April 2014 (T25, page 265), Psychiatrist A said that by that time, he agreed with Psychiatrist B (in her report dated 25 August 2014, a copy of which he had been provided and whom the Applicant was seeing on a monthly basis at that time) that the Applicant’s diagnosis had been ‘brief psychotic disorder’ until the recent psychotic relapse. Psychiatrist A said that the diagnosis, therefore, is ‘schizophrenia spectrum disorder’, which applies to presentations in which symptoms cause clinically significant distress or impairment in social, occupational or other important areas of functioning but do not meet the full criteria for any other psychotic disorder (T25, page 268). Psychiatrist A went on to say that he would concur with Psychiatrist B that the differential diagnosis is somewhat guarded and that it did include the possibility of schizophrenia. Psychiatrist A said that the diagnosis could also include a stress-related brief psychotic episode on a second occasion.
168.At the hearing, Psychiatrist A said that when giving a diagnosis, one needs to be mindful of the potential evolution of a condition. Psychiatrist A said that he agreed with Psychiatrist B that further brief psychotic episodes, if suffered, would lead to eventual diagnosis of schizophrenia.
169.Mr Schatz then drew Psychiatrist’s A’s attention to the following paragraphs of the Respondent’s supplementary written submissions filed with the Tribunal on 6 February 2017:
“18…the diagnostic criteria for schizophrenia in the Diagnostic and Statistical Manual of Mental Disorders (5th Edition) (DSM-5), relevantly require:
A. Two (or more) of the following, each present for a significant portion of time during a 1-month period (or less if successfully treated). At least one of these must be (1), (2) or (3):
1. Delusions
2. Hallucinations
3. Disorganized speech (eg frequent derailment or incoherence)
4. Grossly disorganised or catatonic behaviour
5. Negative symptoms (ie diminished emotional expression or avolition)
B.For a significant portion of time since the onset of the disturbance, level of functioning in one or more major areas, such as work, interpersonal relations, or self-care, is markedly below the level achieved prior to the onset (or where the onset is in childhood or adolescence, there is failure to achieve the expected level of interpersonal, academic or occupational functioning).
C.Continuous signs of disturbance persist for at least 6 months. This 6-months period must include at least 1 month of symptoms (or less is successfully treated) that meet Criterion A (ie active phase symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested only by negative symptoms or by two or more symptoms listed in Criteria A present in an attenuated form (eg odd beliefs, unusual perceptual experiences)…[at pp 99-100, emphasis added].
19. The DSM-5 also relevantly states:
…Prodromal symptoms often precede the active phase, and residual symptoms may follow it, characterised by mild or subthreshold forms of hallucinations or delusions. Individuals may express a variety of unusual or odd beliefs that are not of delusional proportions (eg ideas of reference or magical thinking); they may have unusual perceptual experiences (eg sensing the presence of an unseen person); their speech may be generally understandable but vague; and their behaviour may be unusual but not grossly disorganized (eg mumbling in public). Negative symptoms are common in the prodromal and residual phases and can be severe. Individuals who have been socially active may become withdrawn from previous routines. Such behaviours are often the first sign of a disorder…
…
Some individuals with psychosis may lack insight or awareness of their disorder (ie anosognosia). This lack of “insight” includes unawareness of symptoms of schizophrenia and may be present throughout the entire course of the illness. Unawareness of illness is typically a symptom of schizophrenia itself rather than a coping strategy…
…
Development and Course
The Psychotic features of schizophrenia typically emerge between the late teens and mid-30’s; onset prior to adolescence is rare. The peak age for the first psychotic episode is in the early to mid-20s for males and in the late-20s for females. The onset may be abrupt or insidious, but the majority of individuals manifest a slow and gradual development of a variety of clinically significant signs and symptoms.Half of these individuals complain of depressive symptoms. … Impaired cognition is common, and alterations in cognition are present during development and precede the emergence of psychosis, taking the form of stable cognitive impairment during adulthood. Cognitive impairments may persist when other symptoms are in remission and contribute to the disability of the disease.
The parties do not dispute that the Applicant currently suffers from an ‘ailment’ for the purposes of section 5B(1) of the Act. The Applicant contends that his claimed condition is best described as ‘hyper vigilance or paranoia or complex post-traumatic stress disorder coupled with extreme anxiety, caused by prolonged workplace bullying.’ However, the Respondent considers that based on the opinions expressed by the Psychiatrists at the hearing, the Applicant’s ailment is most likely ‘schizophrenia.’
Psychiatrist A gave the most guarded diagnosis of the three Psychiatrists, being mindful of the potential evolution of a condition and of the points in time during the evolution of the Applicant’s condition that he actually assessed the Applicant. Psychiatrist A did, however agree with Psychiatrist B that further schizophrenic episodes (to those which the Applicant had suffered at the points in time that Psychiatrist A assessed him) would lead to an eventual diagnosis of schizophrenia.
Psychiatrist B gave evidence that her diagnosis of the Applicant’s condition is schizophrenia, based on the progression of the Applicant’s symptoms over time and in particular on the basis that by March 2015 the Applicant’s symptoms were of more than 6 months’ duration (as per the required diagnostic criteria for schizophrenia in the DSM-5, set out in paragraph 169 above). The Tribunal notes that Psychiatrist B was the Applicant’s treating psychiatrist at the time she first expressed that opinion, an opinion she sustained throughout cross-examination at hearing.
Psychiatrist C also gave his opinion that the Applicant’s most likely diagnosis is schizophrenia. Psychiatrist C gave evidence that his diagnosis of schizophrenia was different to his initial diagnosis which included brief psychotic disorder because at the time of his later diagnosis, he had additional information available to him to indicate the Applicant’s condition was not just a single brief episode.
The Tribunal has no reason to question the credibility of any of the Psychiatrists who provided reports and gave evidence. The Tribunal also notes there is no diagnosis made by Psychiatrists A, B and C or any other psychiatrists with respect to the Applicant’s claimed condition or conditions of hyper vigilance, paranoia or complex post-traumatic stress disorder coupled with extreme anxiety.
The Applicant’s father on behalf of the Applicant has also submitted that the incident suffered at the hospital on 22 April 2013 ought to be characterised as a ‘stress breakdown’. The Applicant says that rather, had he not been given the benzodiazepine medication (to which he reacted badly and paradoxically), he would not have been given the ‘schizophrenia’ diagnosis. The Applicant’s father says that the Applicant recovered from his breakdown when the benzodiazepine medication ceased. Based on the evidence from Psychiatrists A and C that benzodiazepines can serve as a ‘disinhibitor’ to unmask an illness already present, similarly to alcohol, and that benzodiazepines cannot cause a mental illness ‘per se,’ the Tribunal finds it cannot accept the Applicant’s father’s submissions in this regard.
Based on the above, the Tribunal finds that the most likely diagnosis of the Applicant’s ailment is schizophrenia.
The Tribunal also notes that the Psychiatrists were in agreement that the fact that the Applicant’s diagnosis of schizophrenia came after his admission to hospital in April 2013 does not mean he was not suffering from schizophrenia at the time of that admission. It means only that the temporal criteria for the diagnosis had not been met at the time, in keeping with the very nature of the condition, being one that commences in the months and years prior to the diagnosis.
This point is also relevant to the significance of the temporality of the Applicant’s condition with respect to causation (see paragraphs 257 to 279 below).
As to the date of injury (subsection 7(4) of the Act), the Applicant contends that the correct date is 21 March 2013, as that was the date the Applicant first visited a doctor concerning his injury (then referred to as ‘paranoid disorder for review’). The Applicant relies on consultation notes by the Applicant’s GP dated 21 March 2013 in this regard. The Applicant prefers this date over the date nominated by the Respondent, being 13 March 2013 (also taken from the Applicant’s GP’s case summary notes as the date medical treatment was first sought for ‘alcohol abuse/amnesic syndrome’), because the Applicant did not take leave from work until 16 March 2013.
The Tribunal also notes the Applicant visited his GP on 15 March 2013 for what was referred to for the first time as ‘paranoid disorder’. The clinical notes also continue to refer to the Applicant’s issues with binge drinking and history of alcohol and drug abuse.
The Tribunal considers that the date proposed by the Respondent, namely 13 March 2013, is the most likely date of injury for the purposes of section 7(4) of the Act. The Tribunal considers that even though the entry in the GP’s consultation notes dated 13 March 2013 refers, strictly speaking, to the Applicant’s issues with alcohol and amnesia at that stage (T14, page 76), this presenting complaint led to the assessment of the Applicant’s mental health that ultimately resulted in his incapacity for work. Also, there is no evidence, including the Applicant’s leave records, to suggest the Applicant was incapacitated for work prior to this date.
Whether the Applicant was suffering from prodromal symptoms of schizophrenia prior to his hospital admission in April 2013
The factual findings made in the chronology above (at paragraph 231) demonstrate a deterioration of the Applicant’s health, particularly over the time leading up to his hospital admission in April 2013.
From the available specialist medical evidence, the Tribunal understands that a prodromal phase indicates a situation where a condition pre-dates or runs alongside a series of perceived events that take place. Those perceptions are symptomatic of the condition, but not causative of the condition.
The question of whether the Applicant was suffering from prodromal symptoms of schizophrenia is relevant to the timing of the development of the Applicant’s ailment and in turn whether the ailment was contributed to, to a significant degree, by the Applicant’s employment with the Department. This is because, if the Applicant’s perceptions of events relating to the workplace were symptoms of a psychological condition already in its early stages of development, (i.e. a prodromal factor in an illness developing in any event), rather than the cause of that condition per se, then it could not be the case that the Applicant’s perceptions were the cause of his schizophrenia condition.
The Tribunal notes Psychiatrist B’s opinion that at all times (being the time of the early symptoms and episodes, through to the time when the symptom duration had progressed such that the appropriate diagnosis was schizophrenia), the Applicant was suffering from the same condition; it was just a different label being applied. The Tribunal notes this view accords with Psychiatrist C’s opinion that identification of the prodromal phase is done retrospectively and it can be hard to tell at the time of the early symptoms whether a person’s social withdrawal or unusual thoughts (for example) identify a prodromal phase or not.
The Tribunal considers that these views are consistent with what appears from the oral evidence to be a number of views shared by all of the Psychiatrists (and highlighted by the Respondent in its submissions), namely that:
·The Applicant was suffering from schizophrenia when he was admitted to hospital on 22 April 2013, well before the taxi incident on 9 March 2013 possibly as early as February or March 2012 around the time of the decline in his work performance following his promotion to APS6. That is, there could be a temporal coincidence between a perceived increase and work related stress and the start of the Applicant’s prodromal phase.
·People with schizophrenia often become anxious, irritable and unable to concentrate before any acute symptoms are evident, which can cause problems with work, study and relationships. Often these factors are then blamed for the onset of the illness when in fact, the illness itself has caused the stressful event.
·Part of the condition means persons may misinterpret the behaviours or others, suffer from paranoid and persecutory delusions (which may be non-bizarre in the early or ‘prodromal’ stage, where people may not realise they are misinterpreting the words of those around them and may be difficult to detect). The Applicant may have misinterpreted the words and behaviours of his managers and colleagues at the Department in the early stage. If so, then the Applicant may have had no insight into these misinterpretations, which may explain why the Applicant appeared to genuinely believe the account of events he gave his parents.
·People who suffer schizophrenia may develop ‘delusional memories’ of past events through a process of retrospective reconstructions in which they try to make sense of what ‘must have’ happened to them based on their perceptions or recollections of how an alleged event made them feel at the time. The Applicant’s claims and perceptions regarding events in the workplace in 2011 to 2013, including bullying and harassment, may have been delusional despite the absence of any bizarre elements to them. The Applicant may have also experienced ‘delusional’ memories or reconstructions around the time he prepared his injured worker’s statement, just prior to lodging his claim in 2015.
·People may only begin to suspect what they are being told is inaccurate when the more bizarre delusions emerge later. It was only when the Applicant’s accounts began to include bizarre claims about the ASIO, the police and Departmental staff following him or conspiring to ‘get rid of’ him that the Applicant’s parents may have begun to suspect that he was delusional.
·Psychiatrists assessing patients must rely on contemporaneous documents and assumptions about the accuracy of accounts given to them because they have no way of knowing whether relevant events happened in the way described.
Based on the opinions and evidence summarised above, the Tribunal finds that it was more probable than not that the Applicant was suffering from the early, prodromal symptoms of schizophrenia prior to the events of March 2013 and April 2013, resulting in him misinterpreting the words and actions of the first manager, the second manager and other work colleagues.
Whether the Applicant was subject to bullying and harassment in the workplace
The Applicant claims that he was bullied and harassed while working for the Department and that a number of workplace stressors and events significantly contributed to the development of his ailment. Those workplace stressors and events have been detailed in the lay witness evidence set out above and include:
·Being singled out, picked on and given an unreasonable amount of work.
·Constant criticism of the Applicant’s work to the extent that the Applicant felt that he had to ‘justify his existence’ at the Department.
·The Applicant’s first and second manager deliberately trying to stop his progress at work, for example, by delaying his promotion to the APS6 level.
·The Applicant’s colleague saying to him, “what makes you think we care about what you think” and “who hired you?”
·Not being given any credit for his work for any of the policies that he worked on.
·The Applicants’ first manager asking him “what the hell are you doing here?” during a discussion regarding performance criteria.
·Another staff member calling him a nickname using words that suggested that the Applicant’s work was sloppy. Other staff members also used this nickname for the Applicant (although the second manager did not).
·The second manager saying to the Applicant at the Christmas Party, “I do not want people like you in my unit.”
·The first manager talking to other staff members about how useless and incompetent the Applicant was.
·The Applicant’s request for leave without pay being refused.
The Tribunal notes that the Applicant’s claims set out above are supported only by the Applicant’s evidence. The limited evidentiary value of the Applicant’s evidence is discussed at paragraph 225 above. The Applicant also gave evidence under cross examination that he has used words like “bullying” and “harassment” in a way that might mean something completely different to others, his performance appraisals at the Department were “probably fine” and he did not recall any formal negative assessment of his work.
The Tribunal notes Psychiatrist A’s evidence that in the Applicant’s earlier reports to him, he never told Psychiatrist A about the claimed bullying in the workplace. Rather, the Applicant began to voice his recollections of the claimed bullying and harassment to Psychiatrist B after he had lodged his compensation claim. Prior to lodging his claim, the Applicant never reported any work related incidents to the Department (either contemporaneously or with some delay) or to any of the Psychiatrists, whom he attended for a period of 18 months.
It appears from the Applicant’s evidence that the mere return to the city in which he worked (as opposed to performing the work itself) was stressful to him. The Tribunal considers that this does not necessarily prove he was bullied. Rather, the stress could also stem from being separated from his parents and returning to a place where he is socially isolated from them.
The Tribunal also notes that the Applicant’s first and second manager and his colleague, in their oral evidence to the Tribunal, completely deny the claims regarding statements made by them to the Applicant in the order of those set out at paragraph 251 and further, deny ever having said anything overly critical of the Applicant or not giving the Applicant appropriate recognition and thanks for his work. The Applicant’s first and second manager and his colleague also gave evidence that they had never seen anyone else at the Department treat the Applicant in this way. From the statements provided, it appears the only events that the Applicant claims contributed to his condition that are independently verified are that the Applicant was not promoted to level APS6 until February 2012 and he was at times required to work late to meet certain deadlines.
Having considered the available evidence above, the Tribunal finds there is no evidence, in particular contemporaneous evidence, that the Applicant was bullied or harassed in the workplace.
Rather, the Tribunal finds that the Applicant experienced a number of reactions to real events in the workplace (performance appraisals, the Christmas Party, work desks being repositioned etc.), which he misinterpreted due to a psychological condition in no way connected to workplace bullying. Given the Tribunal’s findings regarding the Applicant’s prodromal symptoms and the emergence of his condition, the Tribunal also finds that the Applicant’s perception of the events that actually occurred genuinely is his own reality, events which clearly have caused the Applicant a great degree of stress, however there has been a misinterpretation of those events.
Whether the Applicant’s ailment is a disease, that is, an ailment that was contributed to, to a significant degree, by the Applicant’s employment by the Department
The Tribunal finds that the Applicant’s diagnosed condition, schizophrenia, is an ailment for the purposes of section 5B(1) of the Act in accordance with the definition of ‘ailment’ in section 4 of the Act.
Therefore, to a be a ‘disease’ for which compensation is payable under section 14 of the Act, the Tribunal needs to be satisfied that the Applicant’s ailment was contributed to, to a significant degree, by the Applicant’s employment with the Department (section 5A(1)(a) of the Act, section 5B(1) of the Act). Section 5B(3) of the Act defines ‘significant degree’ to mean a degree that is substantially more than material.
The available medical evidence refers to a number of possible causes of or contributing factors to the Applicant’s condition, including:
·Perceived workplace bullying and harassment, including belittling comments, unfair criticism of the Applicant’s work performance and not receiving due recognition for his work.
·The Applicant’s belief his professional progress/promotion within the Department had been hindered, by not being promoted to APS6 at the time he thought he should, by the Department trying to ‘get rid of’ him and by being given tasks that were below his level.
·The Department’s decision to refuse the Applicant’s application for leave without pay.
·Binge drinking/alcohol abuse.
·Misinterpreted events such as the idea that, in being stopped by the police while in the taxi, the ASIO was trying to remove the Applicant from his employment with the Department.
·Possible neurological signs and developmental factors.
·Stress, in the sense that perceived workplace stress, on a background of a vulnerable personality, acts as a precipitating factor for mental illness.
·Isolation from the Applicant’s family while working for the Department.
·The Applicant’s concerns for his father’s health.
·The Applicant’s use of bioactive ingredients including very large quantities of caffeine for 18 months in his body building efforts in the gym.
From the Applicant’s statement, it appears that it is only the first two points above (i.e., the work related incidents) that the Applicant considers caused his condition and the third point above regarding his leave with pay application being refused having been an aggravating factor after the date of injury.
In considering whether these events significantly contributed to the Applicant’s condition, the Tribunal must have regard to whether it can be satisfied that these events occurred as claimed. The reality test in Wiegand at [31] provides the following guidance:
“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 [to a significant] degree to [an aggravation of, in Mr Wiegand’s case] the employee’s ailment, the requirements of the definition of disease are fulfilled.”
A further authority dealing with this issue is Kirkpatrick v Commonwealth (1985) 9 FCR 36, which at [40] - [41] relevantly states:
“…The fact that the applicant thought his disability arose out of his work, and therefore thought it compensable, may have been potent factors in the development of his neurosis. But these were thoughts in his mind. They did not mean that his employment actually was a contributing factor in the development of his neurosis. The contrary view would lead to absurd consequences…”
A number of more recent decisions set a task for the Tribunal to consider, in its assessment of the Applicant’s allegations of bullying and harassment, whether the Applicant’s perceptions about those claimed events are contributory to, or symptomatic of, the Applicant’s condition. In Dean v Australian Postal Corporation [2010] FCA 680, Justice Perram at [9] – [10] described the nature of the problem presented by unreasonable or unreliable perceptions:
“The problem arises where, for example, an employee develops a persecution complex as a result of an argument in the workplace. As the complex takes hold the employee becomes convinced — inaccurately — that co-workers are plotting his or her downfall and some nervous disorder from the mental anguish this perception generates then ensues. The view has generally been taken that such a condition can be an ailment which has been “contributed to in a material degree by the employee’s employment”. Because the scheme of compensation is in essence a no-fault one it has been necessary to discount any assessment of whether the employee’s perceptions are rational or reasonable. On the other hand, it has also been necessary to place some outer limits on the extent to which mental unwellness may generate a compensation claim. The particular problem the authorities exhibit a desire to avoid is the case of a person whose nervous condition predates the incident in question but whose symptomology fixes on to the workplace incident and inaccurately attributes the aggravation of the pre-existing condition to that incident. This is a difficult concept to convey. In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 41 Davies, Beaumont and Burchett JJ (at 41) upheld the approach of the Tribunal in treating the appellant’s neurotic belief that his leg pain was attributed to a work incident as “an inert focus for a neurosis determined by other factors”. A similar analysis was contemplated in Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195 where Sweeney and Woodward JJ said:
There is of course, an important difference between, on the one hand, the sequelae making a sick mind sicker and thus perhaps contributing to incapacity and, on the other, a sick mind latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity … we think it is likely that the distinction that we have referred to was not always borne in mind by the Tribunal.
However, no special principle arises from these decisions; each is merely an illustration of a particular — albeit unusual — set of facts. The critical question always remains the one posed by the statutory language, namely, whether the ailment “was contributed to in a material degree by the employee’s employment”. That question is one involving notions of causation which are factual in nature and informed by commonsense.”
The Dean decision goes on at [12] to cite the Wiegand passage above and that it contemplates the following three step test:
(i)whether the incident occurred;
(ii)whether it created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others); and
(iii)whether that perception contributed to, in a material degree, [an aggravation of] the employee’s ailment.
The Tribunal notes the following additional principles set out in the Dean decision:
·A Tribunal may be “well within its rights” to find that a perception existed, but that the problems caused by it did not (at [28]).
·Since the inquiry required by Wiegand was precisely whether the perception contributed [to, to a significant degree] to Mr Dean’s condition it both permits, and indeed requires, an assessment of what the effects of his perceptions were (at [28]).
·It was open to a Tribunal to reject the value of certain medical evidence and reject the proposition that Mr Dean’s perception of being bullied was connected to his symptoms (at [32]).
·A Tribunal is quite entitled to conclude that the negative perceptions arose from an earlier condition and that the workplace incidents were “an inert focus for a neurosis determined by other factors” (at [36]).
Most recently, the Tribunal held in Cho and Comcare [2017] AATA 175 (10 February 2016) that:
173. In submissions the Respondent referred to Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 at 195, where Sweeney and Woodward JJ referred to the difference between, on the one hand, the sequelae of employment making a sick mind sicker and thus contributing to incapacity and, on the other hand, a sick mind ‘latching on to the factors described so that, in one sense, they play a part in the illness, but not in such a way as to add to existing incapacity’.
174. The question is simply whether the condition is a result of the events relied on: Commonwealth Bank of Australia v Reeve and Anor [2012] FCAFC 21; (2012) 199 FCR 463 at [473]. The Applicant experienced a number of non-work-related psychosocial stressors in 2012 and 2013…
175. None of these issues resolved before the events relied on, and to the extent possible, worsened. The workplace was the environment in which his condition played out.
176. On the evidence I find it is more likely than not that Mr Cho’s incapacity for work from June 2013 was merely the inevitable progression of his pre-existing psychological condition. I therefore find that to the extent that the Applicant’s condition may have worsened during his employment, the events relied on were not a significant contributing factor in the worsening and so the Applicant did not suffer an ‘injury’ as defined in s 5A of the SRC Act.
[emphasis added]
The Tribunal is satisfied from the medical evidence that the most appropriate diagnosis for the Applicant’s condition is schizophrenia (see paragraphs 231 to 237 above). The Tribunal is also satisfied that it was more probable than not that the Applicant was suffering from prodromal symptoms of schizophrenia in the 12 to 18 months prior to the taxi incident in March 2013.
These findings sit with the evidence from Psychiatrists A and C that benzodiazepines can serve to disinhibit or unmask an illness already present, in a similar way to alcohol. That is, the medications administered prevented the Applicant from continuing to conceal symptoms of an illness already present, albeit in its early stages. The Tribunal considers that this is why the Applicant experienced the reaction he did on each occasion the benzodiazepine medication was administered and the Applicant also suffered unusual perceptual experiences during the taxi incident and the Christmas Party, events where the Applicant had been drinking alcohol in the hours prior.
In this regard, the Tribunal notes the following extract from Psychiatrist B’s report (R1, T22 at page 198):
“In retrospect, it is very difficult to tease out what started first. It seems that there was temporal coincidence between work related stress and the emergence of mental illness. One possibility is that perceived increased work stress acted as a psychological precipitating factor for [the Applicant’s] mental illness which came on a background of vulnerable personality. Second possibility is that prodromal phase of his mental illness started and undermined his cognitive abilities including concentration, attention, memory and executing functioning, which all overwhelmed his fragile coping mechanisms and caused him to decompensate.”
While Psychiatrist B is of the view that a stressful incident might precipitate or trigger a the development of a mental illness, all of the Psychiatrists agreed that people can become withdrawn and anxious in the months or even years prior to the time when acute symptoms first become evident. The stress factors are then attributed to the onset of the illness, when rather; the illness itself has precipitated or triggered the stressful event.
It is not in dispute that the Applicant’s work performance declined from around February 2012. It is also around that time that the Applicant’s perceptions, or ‘persecutory delusions’ of bullying and harassment and of the conspiracy within the Department to ‘get rid of him’, began to increase. Regarding the latter (the Applicant’s belief that the Department was trying to force him out), it appears the Applicant formed this view from as early as the August 2011 performance appraisal he had with the second manager.
From the evidence, the Applicant’s delusions began to take on a more ‘bizarre’ character around late 2012 or early 2013, when he thought that someone may have interfered with his laptop which he then connected to his later certainty that he was being watched and followed by the ASIO. The Applicant then began to express these delusions to his parents shortly after the taxi incident, at which time the Applicant’s parents began to realise he was unwell. The Applicant took a short period of leave, following which he applied for and was refused leave without pay, which he also erroneously believed was part of the Department’s plan to force him out.
By the time the Applicant attended the meeting with security staff on 19 April 2013, it had become “obvious” during the interview that he “had problems and perhaps what he had told us was his imagining, and perhaps distorting, the events which had occurred to him.” The Applicant was assessed that weekend and admitted to hospital the Tuesday following, when the full extent of his symptoms became apparent.
The Applicant claims that his psychological condition (which he says is something other than schizophrenia, although the Tribunal has found otherwise) is caused by the bullying and harassment in the workplace based on events addressed throughout this decision. However, the Tribunal has also found that there is no evidence to support a finding that the Applicant was bullied and harassed at work. This is not to say that the Applicant’s employment has had no role in the development of his mental health condition. It clearly has in the sense that it is the environment in which the condition was played out. However, the factors which the Tribunal finds did contribute (geographical separation from a supportive family, and adjustment to a new workplace) are not contributing factors that the Psychiatrists have considered to be significant.
Rather, the Tribunal has found, and respectfully so, that the Applicant’s perceptions of events were based on either events which did not occur (for example, statements which the Applicant said were made to him were not actually made) or misinterpretations of events that did occur (for example, undergoing a performance appraisal but interpreting the feedback as overly critical or part of the Department’s broader plan to ‘get rid of him’). As stated in the Dean decision at [36], the Applicant’s negative perceptions arose from an earlier condition and that the workplace events were “an inert focus for a neurosis determined by other factors.” In basic terms, the workplace was the environment in which the Applicant’s condition developed.
The Applicant submitted that the Respondent is asking the Tribunal to determine when the Applicant’s prodromal phase started. The Tribunal is not required to do so. Even if it did the same outcome with respect to causation would be reached, because:
·On the balance of probabilities the Applicant’s early reports of moods changes and his concerns and unhappiness in the workplace in the 12 to 18 months prior to his hospitalisation in April 2013 (see ST15, page 876) were prodromal symptoms of a slowly developing illness rather than evidence of events (or perceptions of events) that caused the eventuating schizophrenia condition.
·Therefore, the Applicant’s perceptions relating to the claimed workplace events occurred at a point in time after the development of the ailment (albeit the earlier, prodromal phase of the ailment).
·As such, those perceptions were symptoms of an ailment already in existence, rather than factors contributing to the onset of that ailment (or aggravation of that ailment, for that matter).
·The exact point in time when the prodromal phase began (or the exact date of onset, so to speak) is irrelevant to the result because whether it commenced prior to any of the claimed events or only some of the claimed events, those events did not contribute to the Applicant’s ailment, to a significant degree.
It is on this basis that the Tribunal finds that the Applicant’s condition is not an ailment that was contributed to, to a significant degree, by the Applicant’s employment by the Department and hence not a disease within the meaning of section 5B of the Act.
Having reached this view, it is unnecessary to consider if any of the events relied upon by the Applicant fall within the ‘reasonable administrative action’ exclusion in section 5A of the Act.
The Tribunal considers it important to note that irrespective of its findings with regard to causation, the Department failed to address the Applicant’s mental health issues that were clearly visible prior to his hospitalisation. While nothing turns on this in terms of the Respondent’s liability to the Applicant, the Tribunal finds it troubling that the Department did not take steps at an earlier stage to refer the Applicant to the Employee Assistance Provider or other counselling services.
CONCLUSION
The Tribunal finds that the Applicant suffers from schizophrenia, an ailment within the definition of section 4 of the Act. The Applicant claims that his ailment (something other than schizophrenia, although the Tribunal did not so find) was caused by prolonged workplace bullying. The Applicant seeks an acceptance of liability under section 14 of the Act.
The Respondent concedes that the Applicant suffers an ailment (schizophrenia), but denies liability under section 14 of the Act on the basis that his ailment was not significantly contributed to by his employment with the Department and hence is not a ‘disease’ within the meaning of section 5B(1) of the Act.
The Tribunal finds that the Applicant was not subject to bullying and harassment in the workplace. The Applicant perceived certain actions by other employees within the Department (and at times persons external to the Department) as bullying and harassment or part of a broader conspiracy to remove him from the Department. The events upon which the Applicant based his perceptions were events which did not occur or misinterpretations of events that did occur.
As such, the Tribunal could not find that these events or the Applicant’s perceptions of these events caused the Applicant’s condition, or that degree of contribution of these events was significant. Rather, the Applicant’s condition, in the prodromal phase, indicated a situation where his condition at times pre-dated and at other times ran alongside those perceived events. Hence, those perceptions are symptomatic of, not causative of, the Applicant’s condition.
DECISION
For the reasons outlined above, Comcare’s reviewable decision of 13 November 2015 to deny liability under section 14 of the Act in relation to the Applicant’s claim for compensation is affirmed.
PUBLICATION OF DECISION
Clearly, the hearing of this application was distressing to the Applicant. The subject matter at times moved into areas that were of a highly sensitive nature and clearly upsetting for the Applicant and his parents. Again, the Tribunal is grateful to the parties and their representatives and witnesses for the manner in which they have conducted themselves.
Despite the care and consideration that has been shown, there is a reasonable possibility that the decision in this review, and these reasons for decision, will cause the Applicant additional stress. In the circumstances, the Tribunal orders that these reasons for decision be made available to the Applicant through his parents.
I certify that the preceding two hundred and eighty six (286) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall.
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Administrative Assistant
Dated: 14 July 2017
Dates of hearing: 13-15 March 2017 Date final submissions received 30 May 2017 Representative of the Applicant: Applicant's father Counsel for the
Respondent:Mr A Schatz Solicitors for the Respondent:
Australian Government Solicitor
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