Turnley and Comcare
[2008] AATA 560
•1 July 2008
ADMINISTRATIVE APPEALS TRIBUNAL N° V 200601125
GENERAL ADMINISTRATIVE DIVISION
Re:GLENN ALAN TURNLEY
Applicant
And: COMCARE
Respondent
CORRIGENDUM
Tribunal: Mr G.D. Friedman, Senior Member
Date: 29 July 2008
Place: Melbourne
Senior Member Friedman made a Decision and Reasons under s 43 of the Administrative Appeals Tribunal Act1975 (the Act) on 1 July 2008.
The respondent’s solicitor advised the Tribunal on 28 July 2008 that there is an error in the Decision dated 1 July 2008.
In accordance with s 43AA(1) of the Act, the Tribunal directs that the Registrar alter the text of the Decision by deleting sub‑paragraph 2(a) on page 1 and page 19 and replacing it with the following sub‑paragraph:
weekly payments of compensation for incapacity for the period 12 September 2005 to the present date under s 19 of the SRC Act for all periods when Mr Turnley’s actual earnings were less than his normal weekly earnings.
(sgd) G.D. Friedman
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 560
ADMINISTRATIVE APPEALS TRIBUNAL No V 200601125
GENERAL ADMINISTRATIVE DIVISION
Re
GLENN ALAN TURNLEY
Applicant
And
COMCARE
Respondent
DECISION
Tribunal: G. D. Friedman, Senior Member Date:1 July 2008
Place:Melbourne
Decision: The Tribunal sets aside the reviewable decision of 28 September 2006 and substitutes the following decision:
1. Mr Turnley suffered incapacity and impairment as a result of injury, being major depressive disorder, arising out of or in the course of employment with the Department of Employment and Workplace Relations which gives rise to entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
2. The respondent shall pay:
(a) weekly payments of compensation for incapacity for the period 12 September 2005 to the present date under s 19 of the SRC Act for all periods when Mr Turnley’s normal weekly earnings were less than actual earnings; and
(b) the costs of medical treatment reasonably incurred by Mr Turnley under s 16 of the SRC Act.
3. The respondent shall pay the Mr Turnley’s costs and disbursements in respect of these proceedings under s 67 of the SRC Act.
Graham Friedman
Senior Member
COMPENSATION - fraud investigator - major depressive disorder - perceptions by applicant from work situations - whether material contribution by employment
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 14(1), 16(1), 16(2), 19
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Kirkpatrick v Commonwealth of Australia (1985) FCR 36
Migge v Wormald Industries Limited [1972] 2 NSWLR 29
O’Neill vCommonwealth Banking Corporation [1987] FCA 224
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Rodriguez v Telstra Corporation Limited [2002] FCA 30
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Westgate v Australian Telecommunications Commission (1987) 17 FCR 235
Whysprun Pty Ltd v Dixon [2003] HCA 48
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
1 July 2008 G.D. Friedman, Senior Member
1. Glenn Turnley joined the Department of Employment and Workplace Relations (DEWR), now known as the Department of Education, Employment and Workplace Relations, on 11 July 2005 as a senior fraud investigator after a long period of service as a police officer, small business owner and investigator with other Commonwealth agencies. On 17 October 2005 he lodged a claim for compensation for depression, which he claimed was caused by a total lack of support through the non-provision of staff, training and guidance since his commencement with DEWR; ill-treatment by supervising officers; and unfair and unjust criticism of his performance during a videoconference on 8 September 2005. On 3 February 2006 the respondent accepted liability for major depressive disorder, single episode, but on 28 September 2006 made a reviewable decision revoking the earlier decision and refusing liability.
ISSUE
2. The issue before the Tribunal is whether Mr Turnley’s employment with DEWR contributed in a material degree to the onset or aggravation of his major depressive disorder.
THE LEGISLATIVE BACKGROUND
3. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), in effect at the relevant time, provides that:
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.
Injury is defined in s 4(1) of the SRC Act as including a disease, which in turn is defined as:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). Aggravation includes acceleration or recurrence.
4. Section 16(1) and (2) of the SRC Act provides that an employee suffering from an injury is entitled to compensation for the cost of medical treatment regardless of whether the injury results in incapacity for work, impairment or death.
DID MR TURNLEY’S EMPLOYMENT WITH DEWR CONTRIBUTE IN A MATERIAL DEGREE TO THE ONSET OR AGGRAVATION OF HIS MAJOR DEPRESSIVE DISORDER?
5. The respondent stated that Mr Turnley’s employment with DEWR was a mere contributing factor, if there was any relationship at all, to the development of his major depressive disorder, and was the scene in which his depression arose because of a number of events which are not within the definition of employment.
6. Mr Turnley claimed that he suffered his depressive condition as a result of a lack of support since his commencement with DEWR; ill-treatment by his supervising officers; and criticism of his performance during a video-conference on 8 September 2005.
7. Mr Turnley told the Tribunal that he grew up in Melbourne and attended teachers’ college before joining the Victoria Police in 1978, where he remained until his resignation in 1996. He spent the last six years of his service in the Fraud Squad as a Detective Sergeant. He said that he had been active in a number of sports, particularly cycling. He suffered back problems, leading to surgery in 1993 and 1994, which left him with occasional back and leg pain.
8. Mr Turnley explained that in 1996 he and his wife bought a business selling and repairing bicycles in Malvern, and he spent up to 70 hours per week working in the business. He stated that he had decided to resume working in the fraud investigation field, and completed a three-month contract for the Department of Veterans’ Affairs in 2001 before selling the bicycle business in 2002. In January 2002 he obtained full-time employment at the APS6 level with the Australian Quarantine and Inspection Service in Melbourne in the investigation and compliance area before accepting a promotion in November 2003 to Executive Level 1 with the Aboriginal and Torres Strait Islander Services (ATSIS) in Canberra. He said that at this time he lived in Canberra during the week and returned to Melbourne most weekends. His family remained in Melbourne.
9. In relation to the work requirements at ASTSIS, Mr Turnley said that the position involved considerable travel and long hours but he enjoyed the work and had no major problems, although the separation from his family was difficult. He said he became aware that ATSIS was to cease its operations on 30 June 2004, and he was given permission to return to Melbourne, where he worked in the Office of Indigenous Policy Coordination within the then Department of Immigration, Multicultural and Indigenous Affairs. He then arranged a transfer to DEWR, which was establishing a Fraud and Investigation Team (FIT) in Melbourne.
10. Mr Turnley stated that he was looking forward to his new position and commenced with DEWR on 11 July 2005 as the manager of the Melbourne FIT. He said that he encountered a number of administrative problems on joining DEWR, including difficulties with the computer system, a temporary location within another area of DEWR, a lack of resources and staff, and an absence of an adequate induction program. He also said that he was not given a position statement or job description, and was not provided with satisfactory instructions by his supervisors, although he was given a training manual to update. Mr Turnley said that soon after taking up the position he applied to his supervisor for a Diners Club charge card to utilise for his travel and other expenses, but because of her inaction the card was not provided until 30 August 2005.
11. In relation to his medical condition, Mr Turnley stated that by 22 July 2005 he began to develop neck and arm pain. He had not experienced prior neck pain and visited a general practitioner on 25 July 2005. The GP referred him to a neurologist. He said that he told Mr S. Howard, his Branch head in Canberra, about the neck pain but did not believe that it was work-related. He had an MRI scan on 8 August 2005 which showed a disc bulge. He commenced physiotherapy on 15 August 2005. Mr Turnley stated that he arranged further appointments for Monday evenings in August and September 2005 to accommodate work commitments, and the treatment was successful.
12. In relation to induction training and familiarisation with DEWR procedures, Mr Turnley told the Tribunal that he met Ms K. Whitman, manager of the Sydney FIT, on 22 July 2005 and was invited to attend a briefing session for an investigation in Sydney to be held on 1 and 2 August 2005. He said that he was eager to attend and meet other FIT staff, but was unable to attend because of his specialist appointment and the deterioration in his neck condition, although he told her the lack of a Diners Club card prevented him from attending. Mr Turnley stated that he was asked to attend an execution of search warrants on 5 and 6 September 2005 in Mildura and Robinvale as a training exercise, conducted by Mr H. McCullagh, manager of the Brisbane FIT. He said that he felt that his attendance would be a waste of time because he was not involved in the investigation, and he believed that his back pain would not be assisted by a long drive from Melbourne. He said that he informed Mr McCullagh that he had a physiotherapy appointment on the evening of 5 September 2005 and would not attend the execution of the warrants. Mr McCullagh then suggested a visit to Brisbane during the week commencing 12 September 2005 to observe the Brisbane FIT and become familiar with the procedures. Mr Turnley said that he informed his supervisor who supported the proposed visit, but the visit did not take place.
13. In relation to recruitment of staff, Mr Turnley described how he had been part of a selection panel for the recruitment of staff at the APS6 level before taking up his position with DEWR. He stated that interviews were held towards the end of June 2005 and one candidate had been rated as suitable but that referee checks had indicated that she may have misled the selection panel. He said that he acted on the advice of the Public Service Commission and contacted the candidate directly about the concerns and was satisfied that these had been addressed adequately. He recommended that the candidate be appointed, against the opinion of Mr Howard and Ms A. Olson, his supervisor in Canberra, and the person was not appointed.
14. In relation to the videoconference on 8 September 2005 Mr Turnley said that he was informed by telephone beforehand that the meeting would be held. There was no agenda. Mr Turnley explained that by this time his initial enthusiasm for his new position had lessened because of the frustrations arising from administrative problems and the delay in recruiting staff. However, he had expected the videoconference to be similar to a meeting of State FIT managers, and was surprised and apprehensive when only Mr Howard and Ms Olson were present. He said that they expressed disappointment in a number of areas of his performance and commitment, including a perceived reluctance to travel to FIT activities such as the Sydney visit, the Mildura/Robinvale execution of warrants and the proposed visit to Brisbane.
15. Mr Turnley stated that he explained that he could not attend these activities because of his neck condition and the need to attend specialists and physiotherapy. He said that he told Mr Howard that he was not willing to change the physiotherapy appointments. He told the Tribunal that by this time he was becoming distressed and upset at the negative comments by Mr Howard and Ms Olson, and felt that he had been let down by them, particularly as he had done his best on his own, under difficult circumstances and without adequate support in Melbourne. He said that he became confused, shocked and upset at the comments, particularly at being accused of focusing only on negatives. He said that he was asked about the progress of an investigation into a Job Network matter, and in his confused, shocked and upset state as a result of the barrage of abuse he incorrectly replied that he had not achieved a great deal, when in fact he had made significant progress. He stated further that he was accused of exercising poor judgment in respect of the recruitment process, causing him to feel extremely deflated and demoralised.
16. The videoconference ended after one hour, and Mr Turnley said that he felt that the exercise had been demeaning, belittling and demoralising. None of his efforts had been recognised and nothing he said had been taken in a positive way. Mr Turnley stated that he telephoned Mr Howard shortly afterwards, and said that Mr Howard had offered to facilitate a transfer to another agency if desired, which left Mr Turnley hurt and offended. He told the Tribunal that at the end of the conversation he broke down in tears and went home in an upset state. He said he then began to develop suicidal thoughts overnight and had difficulty sleeping as a result of the attack on him by Mr Howard and Ms Olson during the videoconference. He began drinking to excess. He said that he returned to work the next day but his state of depression worsened at the weekend. By Monday, 12 September 2005, he was in a state of turmoil, so he contacted Mr McCullagh and outlined his depressed state and said that he would not be able to come to Brisbane the next day as had been arranged. He said that Mr McCullagh advised him to seek urgent medical treatment, which he did; and he obtained a medical certificate stating that he was unfit for work.
17. Mr Turnley said that he obtained further certificates certifying that he was unfit for work until 19 December 2005. He explained that on 12 October 2005 he consulted a psychiatrist, and was admitted to a private hospital from 14 October 2005 to 3 November 2005. He said that on 19 December 2005 he commenced a graduated return to work program involving restricted duties such as minor administrative tasks for 15 hours per week. However, on 6 May 2006 he was re-admitted to hospital for psychiatric treatment. On 26 June 2006 he commenced a second graduated return to work program. In October 2006 he had a disagreement with another officer who took exception to his advice. Mr Turnley said that his supervisor (Mr G. Pretty) gave the impression that he was unhappy with Mr Turnley’s performance, and asked him to work from home. Mr Turnley stated that he agreed to do so, but he felt isolated and rejected and suffered a relapse in his psychiatric condition, resulting in a further admission to hospital as an inpatient from 15 February 2007 to 7 March 2007.
18. Mr Turnley told the Tribunal that after his discharge from the hospital he performed voluntary work for the Salvation Army, and planned a further return to work program for 25 June 2007, preferably with another agency, but the proposed transfer did not occur. Mr Turnley said that he has been certified as totally unfit for work since February 2007 and has not resumed any work with DEWR, although a possible placement with a Victorian Government department at the APS5 level was scheduled to commence in January 2008.
19. Under cross-examination Mr Turnley agreed that his experience in the Victoria Police involved leadership, initiative, liaison, report-writing and investigation, and required a robust personality. He said that he had no personal or emotional problems or issues while he was a police officer, and no significant medical or work-related problems. He agreed that his move to Canberra in November 2003 caused a strain on his family, particularly as he had ageing parents and parents-in-law, and teenage children.
20. In relation to his employment with DEWR, Mr Turnley said that he was ecstatic at the prospect of heading the FIT in Melbourne and building up the team. He said that he did not ask for a job description at any time because the duties were made clear to him before he commenced. He agreed that DEWR officers assisted him to overcome administrative and other problems he encountered when he started with DEWR, but he said that there was a general lack of support, particularly from his superiors in Canberra. Mr Turnley denied that he had exaggerated the extent of the problems, and said that his neck injury prevented him from undertaking travel shortly after he commenced work with DEWR. He agreed that he been untruthful when he had told Ms Whitman that the lack of a Diners Club card was the reason he could not travel, but explained that the real reason was not her concern. He said that he believed Ms Olson and Mr Howard knew about his neck and arm pain.
21. In relation to the Mildura/Robinvale execution of warrants, Mr Turnley agreed that he had no intention of changing his physiotherapy appointment to enable him to undertake the trip, and said that he believed that Mr McCullagh was aware of his neck problem. In relation to the recruitment exercise he maintained that he acted appropriately in contacting the candidate after seeking advice from the relevant Australian Public Service authority, despite the instruction from Mr Howard and Ms Olson to close the file.
22. In relation to the videoconference, Mr Turnley agreed that his workload was not heavy at the time because he had no staff and no major investigations. He conceded that the wording of his compensation claim that included total lack of support might be an exaggeration, but that the criticism of him and the negative comments by Mr Howard and Ms Olson constituted a barrage of abuse and an ambush. Mr Turnley said that he contacted Mr Howard shortly afterwards because he was angry and highly stressed about the conduct of the videoconference and because the videoconference had ended abruptly. He denied that his recall of events had been selective or that he had been drinking to excess at that time.
23. In a written report dated 4 December 2005 (T23 page 179) Professor N. Keks, psychiatrist, stated that Mr Turnley was referred to him on 14 October 2005 by his general practitioner. Professor Keks took a history of no previous psychiatric illness or treatment. He noted a number of life stresses, such as an illness suffered by his wife in 1991 and a cycling accident in 1992, which Mr Turnley was able to deal with reasonably well. Professor Keks diagnosed major depression in a person with obsessional personality traits, who had decompensated in the face of severe work stress and difficulties. There was increasing alcohol intake but no pre-existing or underlying condition. Treatment included psychotherapy and medication. Professor Keks said that in his opinion the difficulty experienced by Mr Turnley during his employment with DEWR was the main causative factor in precipitating major depressive illness. Professor Keks stated:
Mr Turnley had a long history of stable employment in the public sector for which he had received commendation. As a person with non-pathological obsessional personality traits, I believe he has relied on the presence of a solid employment framework, lines of accountability, clear communication and performance goals, as well as clearly defined associations, with his work colleagues. After a period of many months of uncertainty, Mr Turnley came to a new position with hope. He found himself in an organisationally chaotic situation with no managerial or logistical support and no apparent capacity to remedy the situation. In my opinion, this represents a recognised psychological phenomenon of learned helplessness, which predisposes to depressive illness.
24. In a further written report dated 29 May 2007 (Exhibit A2) Professor Keks stated that when he saw Mr Turnley on 25 May 2007 his condition had improved significantly, and Professor Keks recommended a graduated return to work on or about 25 June 2007. Professor Keks said that the combination of Mr Turnley’s circumstances and personality at his stage of life led to a vulnerability, so that the stress he suffered in his work experience led to the reactive depression from which he became seriously ill. In a report received by DEWR on 21 August 2007 (Exhibit A3) Professor Keks stated that since his previous report the situation has remained much the same, with Mr Turnley displaying negative feelings towards the management of DEWR and continuing to suffer from major depression but not being totally or permanently incapacitated. Professor Keks concluded that these negative feelings were understandable and were …in keeping with the reality of what has occurred.
25. In oral evidence, Professor Keks stated that he had spent many hours with Mr Turnley as his treating psychiatrist and that the history taken from him was detailed and precise. Professor Keks said that the learned helplessness flowed from Mr Turnley’s expectations of his position with DEWR and the inability to achieve the desired outcome. Under cross-examination Professor Keks agreed that his diagnosis assumed the accuracy of the history given by Mr Turnley, but he emphasised that the impact of Mr Turnley’s perception of his treatment by DEWR was the major factor. Professor Keks acknowledged some family issues but was unable to identify any non-employment psycho-social factors that might account for the symptoms of depression.
26. In a report written on about 23 November 2005 (T19 page 75) Dr N. Cameron, general practitioner, diagnosed major depression and said that Mr Turnley had mentioned stress at work as a factor which pushed him to a point where he was not able to function capably any more. Dr Cameron stated:
There seems to be a relationship between Mr T.’s condition & employment. As Prof. Keks’s letter explains, there were a series of stressors at work that seemed to compound & lead to decompensation of mental state then, ultimately, clinical depression. The specific incidents are mentioned in the correspondence. They certainly aggravated Mr T.’s condition. Other factors which contribute include a range of things such as personality type, ability to cope with loss/stress etc.
Dr Cameron also mentioned that he was not aware of any previous treatment for depressive illness, although he referred to instances of lowered mood by Mr Turnley over the years.
27. In a written statement dated 21 August 2007 (Exhibit R1) Ms Olson said that she met Mr Turnley in about June 2005 together with Mr Howard, when the nature of the position was described to Mr Turnley in detail. She said that Mr Turnley seemed keen to take on the challenging and dynamic investigatory role which required lateral thinking and problem solving. She said that the position did not require a formal duty statement and she did not recall that Mr Turnley asked for one at any time. In relation to the recruitment exercise, Ms Olson said that she and Mr Howard sent an email to Mr Turnley setting out the reasons for not agreeing with his recommendation to employ the person who was believed to have lied to the selection panel. She denied that their response to Mr Turnley was terse, insulting or demeaning. Ms Olson stated that Mr Turnley was given a light workload because he was new to the role, and in his short period in the position he did not, at any stage, face the demands of long hours, extensive travel, or the high pressure involved in investigations carried out by the FIT.
28. Ms Olson rejected the assertion that DEWR did not provide Mr Turnley with appropriate support, training and guidance. She said that he was given appropriate resources and equipment including office accommodation, computer access, mobile telephone, motor vehicle and Diners Club card. She also stated that she was in regular contact with Mr Turnley during the early period of his employment and that the manager of the Melbourne office of DEWR conducted an orientation process when Mr Turnley arrived on 11 July 2005. Ms Olson told the Tribunal that she set up a buddy system in which Ms Whitman and Mr McCullagh would provide ongoing support, training and guidance. She said that on 18 July 2005 she met Mr Turnley in Melbourne where they discussed options for the recruitment of staff and Mr Turnley‘s progress generally.
29. Ms Olson stated that on 20 July 2005 Mr Turnley advised her that he had a longstanding back problem that caused him pain when travelling, but had not mentioned this prior to commencement with DEWR. She said that she and Mr Howard had tried to be supportive of Mr Turnley by encouraging him to take personal leave, and gave examples of occasions when they gave positive feedback to him after he completed projects satisfactorily. She described a number of occasions upon which Mr Turnley was invited to meetings and briefings as part of his training. However, he chose not to attend and gave the impression to several FIT officers that he was not interested in participating. Ms Olson told the Tribunal that at no stage did Mr Turnley indicate that he was not coping with the workload or that the tasks were beyond his capability, or that expectations were unrealistic.
30. In relation to the videoconference, Ms Olson said that the meeting was intended to be an informal discussion of the progress of the Melbourne FIT, so there was no need for an agenda. She said that at no time did she or Mr Howard attack or ambush Mr Turnley or behave in an aggressive manner towards him. She stated that she observed him to be uncomfortable and agitated at the commencement and asked whether he was feeling all right, and he had assured her that he was not stressed. She said that she and Mr Howard referred to a range of issues where concerns had been raised about the progress of investigations and Mr Turnley’s apparent inability to attend briefings and meetings or to show any initiative. They encouraged Mr Turnley to accept the offer of assistance by Mr McCullagh. There was no unjust criticism of him. Ms Olson described Mr Turnley’s allegations as an intensely disproportionate reaction to being asked to answer legitimate, work-related concerns. She said that he did not present as distressed during the videoconference, otherwise the meeting would have been discontinued.
31. In oral evidence Ms Olson stated that she was aware that Mr Turnley had telephoned Mr Howard after the videoconference, but was not informed that Mr Turnley had been overly distressed. She said that she was shocked when she learned of the allegations made by Mr Turnley about the conduct of the videoconference as described in his claim for compensation.
32. Mr Howard, formerly Branch head, Fraud Investigations Team, DEWR, told the Tribunal that he recruited Mr Turnley in June 2005 to head the new FIT in Melbourne. In an email dated 4 November 2005 (T11 page 45) in response to Mr Turnley’s compensation claim, Mr Howard stated that Mr Turnley represented himself as an experienced fraud investigator and manager, with experience in Commonwealth agencies, the police and small business; and as a capable and mature person with a robust character. Mr Howard said that Ms Olson was Mr Turnley’s immediate supervisor.
33. Mr Howard stated that he and Ms Olson arranged the videoconference to see how Mr Turnley was settling into his new role and to raise several situations that seemed to suggest that Mr Turnley might be reluctant to take part in FIT operations. Mr Howard said that after the videoconference Mr Turnley telephoned him and indicated that he was not happy at his work being called into question, and had raised personal issues that had been impacting on his ability to focus on his work. Mr Howard stated that the following week Mr Turnley took sick leave and has not returned to the department. In oral evidence Mr Howard stated that he and Ms Olson attempted, at all times, to assist Mr Turnley settle into his new position and to provide whatever resources and guidance were available. Under cross‑examination Mr Howard denied that the videoconference was designed to demean, belittle or demoralise Mr Turnley.
34. There was no dispute that Mr Turnley suffers from major depressive disorder, which began immediately following the videoconference and his telephone conversation with Mr Howard. There was no dispute that major depressive disorder is the ailment that resulted in his incapacity for work from 8 September 2005. There is also no dispute that no exclusionary factors apply (such as reasonable disciplinary action) as set out in the proviso to the definition of injury in s 4(1) of the SRC Act, raised by the respondent.
35. On the question of whether Mr Turnley’s employment with DEWR contributed to the ailment to a material degree the Tribunal notes that in Rodriguez v Telstra Corporation Limited [2002] FCA 30 Keifel J held that the Tribunal should not draw its own inferences in matters where a medical opinion is appropriate.
36. On the question of whether an irrational response is relevant, in Wiegand v Comcare Australia [2002] FCA 1464 von Doussa J stated at [31]:
In my opinion it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which MrWiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by MrWiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee's perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.
37. On the question of whether a response to an occurrence in the course of employment is a contributing factor, in Westgate vAustralian Telecommunications Commission (1987) 17 FCR 235 Davies J held at 240:
It does not matter that the worker's response to what occurred in the course of employment was irrational. It is sufficient that there was an incident or an event or circumstances in the employment constituting a fact or factors which contributed to the contraction of the disease, its aggravation, acceleration or recurrence.
In Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52 Madgwick J said at [51-52]:
…the Tribunal relied on Wiegand 72 ALD 795 only to reject the applicant’s assertion that it needed to be shown that the workload required of Ms Caire was "excessive". In that regard, in my opinion, von Doussa J’s approach in Wiegand 72 ALD 795 was correct, and there was no error of law arising from the Tribunal’s reliance on it. An alleged contribution which is merely imagined by the employee, in circumstances where the employment was in truth, in the apt phrase of Davies J in Westgate v Australian Telecommunications Commission (1987) 17 FCR 235, an "inert" factor will plainly not suffice. But that was expressly acknowledged in Wiegand 72 ALD 795 at [24] and [25] and there was no suggestion to the contrary here.
[52] Nothing the Tribunal said denies that some aspect of the employment must make an actual contribution to the ailment in question, which must be a contribution in a material degree. The Tribunal found as a matter of fact that Ms Caire had to fulfil from time to time "a heavy workload" notwithstanding ameliorative effects on behalf of the applicant. Whether such workload warranted the epithet "excessive" was, as the Tribunal observed, immaterial.
38. In Kirkpatrick v Commonwealth of Australia (1985) FCR 36 the Full Federal Court held that the fact that the applicant thought his leg injury arose out of his work, and therefore believed it to be compensable, did not mean that his employment actually was a contributing factor to a neurosis that he developed based on his belief and resentment at the rejection of his claim. The Court referred to Migge v Wormald Industries Limited [1972] 2 NSWLR 29 in which Mason JA, whose dissenting judgment was approved upon appeal to the High Court, held that questions of causation are to be resolved by the application to the facts of common sense, rather than scientific or logical theories of causation. In Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173 Sweeney and Woodward JJ held that resentment about lower earnings and delays in litigation cannot be said to have been contributed to by employment. They stated at 195:
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.
39. On the question of whether there is a necessity for an employee to show that there was a special, unusual or wrongful factor that contributed to the condition, in Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42 the Tribunal held at 43:
It is sufficient that the employment contributes to the contraction, aggravation, acceleration or recurrence of the disease. The contributing factor need do no more than contribute in a material way. The factor is not required to be the real, proximate or effective cause of the disease or of its development. In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker's employment.
40. In relation to the size of the contribution to the condition, in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 the Full Federal Court applied Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and held at 323:
…once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree.
41. In Comcare v Sahu-Khan (2007) 156 FCR 536 Finn J adopted the conclusions of the majority in Comcare v Canute (2005) 148 FCR 232 on the question of material contribution required for liability in respect of an ailment, and referred to an evaluative threshold below which a causal connection with an ailment may be disregarded. Finn J held that this requires an evaluation of all relevant contributing factors in deciding whether the employment contributed to the necessary threshold level in relation to the ailment and stated at [16]:
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) "in a material degree" requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question ("the threshold evaluation");
(iii) whether this will be so in a given case will be a matter of fact and degree.
42. On the question of the conduct of the employer, in O’Neill vCommonwealth Banking Corporation [1987] FCA 224 Pincus J stated at [18]:
It is, of course, not the law that mental conditions caused by employment are compensable only if there is unusual stress or extra stimulus, although no doubt the absence or such stress would make it more difficult to show a causal connection between a mental condition and the employment. Nor is it the law that only neurotic conditions arising in circumstances in which an ordinary man of normal personality would become neurotic (if there are such circumstances) are compensable.
43. The Tribunal accepts the evidence from Mr Turnley that on commencement with DEWR on 11 July 2005 he was enthusiastic about his new position, managing the FIT in Melbourne and was keen to perform well. He had no prior psychiatric history. The Tribunal also accepts that he encountered a range of administrative problems such as lack of computer access, a delay in receiving a Diners Club card, recruitment of staff, and communications with other officers, that he perceived to be stressful to him, and which led to frustration and disappointment. This culminated in the videoconference of 8 September 2005 in which his performance and progress were discussed with Mr Howard and Ms Olson. After the videoconference Mr Turnley became highly distressed and his emotional state worsened, leading to thoughts of self-harm. He sought medical treatment and was diagnosed with major depressive disorder.
44. The Tribunal accepts the evidence from Mr Howard and Ms Olson that they attempted to assist Mr Turnley from the commencement of his employment with DEWR by providing support from other officers, responding to his requests for assistance and encouraging him to seek help if needed. The Tribunal is also satisfied that the videoconference was conducted professionally, and that any criticism of Mr Turnley was made in a constructive manner, with a view to achieving positive outcomes.
45. The Tribunal is satisfied that relevant evidence was taken from Professor Keks, the treating psychiatrist, whose evidence was not contradicted by any medical evidence called on behalf of the respondent (Rodriguez). The Tribunal accepts that Professor Keks carried out a clinical examination of Mr Turnley and based his diagnosis on the history given by Mr Turnley and used other diagnostic tools.
46. The Tribunal accepts the evidence from Professor Keks that the combination of Mr Turnley’s circumstances at this particular stage in his life and his obsessive personality traits led to a particular vulnerability. Mr Turnley had decompensated in the face of severe stress suffered in his work experience, which led to learned helplessness and the reactive depression. Although Professor Keks used terms such as enormous logistical difficulties and organisational chaotic situation, the Tribunal does not accept that his evidence should be disregarded or discounted (Whysprun Pty Ltd v Dixon [2003] HCA 48); even if the history on which it was based does not support objectively the use of descriptions such as enormous and chaotic, because other descriptions of the workplace by Mr Turnley reflect Mr Turnley’s perception that he encountered significant administrative and logistical difficulties during his employment.
47. Despite the Tribunal’s finding on the professional conduct of Mr Howard and Ms Olson, the absence of fault by the employer is irrelevant (O’Neill). The Tribunal finds that Mr Turnley’s perception of the administrative difficulties and the conduct of the videoconference caused him extreme stress, which contributed to his depressive disorder (Wiegand). Although the perception was not necessarily based on an objective assessment or on an assessment that another officer in the same situation might make (Westgate), Mr Turnley was not delusional, and any predisposition is irrelevant.
48. Taking a common sense approach to the facts (Migge), the Tribunal finds that the contribution was to a material degree, rather than to a mere degree (Canute), because the perception arose in the course of Mr Turnley’s duties with the FIT in Melbourne over a period of almost two months from 11 July 2005 to 8 September 2005. In addition, the videoconference was held as a review exercise to discuss Mr Turnley’s progress and his work performance, and Mr Turnley attended the video conference. These events actually occurred, they were real and were a factor (Welsford) and not imagined. They are properly characterised as part of Mr Turnley’s employment, rather than as facts of his employment, so the employment with the Commonwealth, in conjunction with the perception, comprise the material contribution to the cause or aggravation of the ailment.
49. For these reasons the Tribunal finds that the respondent is liable to pay compensation to Mr Turnley under ss 14, 16 and 19 of the SRC Act.
DECISION
50. The Tribunal sets aside the reviewable decision of 28 September 2006 and substitutes the following decision:
1. Mr Turnley suffered incapacity and impairment as a result of injury, being major depressive disorder, arising out of or in the course of employment with DEWR which gives rise to entitlement to compensation under the SRC Act.
2. The respondent shall pay:
(a)weekly payments of compensation for incapacity for the period 12 September 2005 to the present date under s 19 of the SRC Act for all periods when Mr Turnley’s normal weekly earnings were less than actual earnings; and
(b)the costs of medical treatment reasonably incurred by Mr Turnley under s 16 of the SRC Act.
3. The respondent shall pay the Mr Turnley’s costs and disbursements in respect of these proceedings under s 67 of the SRC Act.
I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
signed: Olympia Sarrinikolaou
Clerk
Dates of hearing: 13, 14 and 17 December 2007; 14, 15 and 16 April 2008; 25 June 2008
Date of decision: 1 July 2008
Counsel for the applicant: Mr M. Carey
Solicitor for the applicant: Slater & Gordon
Counsel for the respondent: Mr J. Wallace
Solicitor for the respondent: Sparke Helmore
0
14
0