Valentina Stefanoski and Telstra Corporation Limited - [2013] AATA 50

[2013] AATA 50

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/3143
Re	Valentina Stefanoski
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	1 February 2013
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Miss E A Shanahan, Member

WORKERS COMPENSATION – depressive disorder – anxiety disorder – panic – attributed to workplace harassment and bullying – back pain – coexisting thyrotoxicosis – disciplinary action – reasonable administrative action undertaken in a reasonable manner – decision affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 sections 5A, 5B, 14

Cases

WorkCover Corporation of South Australia v Summers (1995) 65 SASR 243

Re Reeve v Commonwealth Bank of Australia [2010] AATA 893 (12 November 2010)

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

Re KRDV and National Bank Limited [2011] AATA 210 (29 March 2011)

National Bank Limited v KRDV (2012) 204 FCR 436

Re Loane and National Bank of Australia Limited [2011] AATA 252 (15 April 2011)

Hart v Comcare (2005) 145 FCR 29

REASONS FOR DECISION

Miss E A Shanahan, Member

1 February 2013

Ms Stefanoski lodged a claim for workers’ compensation for anxiety, depression, panic attacks and low back pain on 24 March 2010. She attributed the psychiatric disorders to harassment and bullying by her manager, Ms Joan Davies and the low back pain as being a sequela of an injury sustained at work in 1998. Telstra rejected the claim on 10 May 2010 denying any liability. Following reconsideration, the rejection was affirmed on 22 June 2010, on the basis that no employment associated injury existed but if there was any employment contribution to Ms Stefanoski’s medical conditions, it resulted from reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Ms Stefanoski sought review of the decision by the Administrative Appeals Tribunal on 28 July 2010.
Ms Stefanoski was represented by Ms A Malpas of counsel, instructed by John Dellios and Associates, solicitors. Telstra was represented by Mr John Wallace of counsel, instructed by Sparke Helmore, solicitors.
The Tribunal was provided with documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents and Supplementary T-documents). The parties tendered documents as exhibits, listed in the annexure to this decision. Ms Stefanoski, Ms Mihi Shaw, Ms Edith Retemeyer, Mr Phillip Penn, Ms Joan Davies, Dr Jim Ristevski, Dr George Wahr, Dr Geoffrey Klug and Dr Yvonne Greenberg gave evidence before the Tribunal.

BACKGROUND TO THE APPLICATION

Ms Stefanoski commenced employment with Telecom (Telstra’s predecessor) two days after completing her Year 12 examinations in late 1991. She was then aged 17. Following placement in various branches of Telecom (Telstra’s predecessor) she then underwent a 12-month training period before becoming a full time member of the Emergency Call Centre now known as Triple Zero. Initially she took calls from the public, referred to as being on the boards. From approximately 2000, she was a Team Manager in charge of 5 to 15 agents.
The call centre operators/agents work 8-hour shifts from 6am to 2pm, 2pm to 10pm and 10pm to 6am. The Team Managers commence work at staggered times of 6am, 10am, 12pm, 2pm and 10pm in accordance with a roster system. Of the 90 staff in Melbourne, 30 are Telstra employees and the others are provided, as needed, by an outside agency. A large percentage of the Telstra-employed staff of Triple Zero appear to have a long employment record with the company, one having been so employed for over 40 years and several, including Ms Stefanoski, for nearly 20 years. Ms Stefanoski’s brother has worked as a Triple Zero call centre operator for 10 years.
Ms Joan Davies was appointed National Manager of Triple Zero on 1 July 2001, having commenced employment with Telecom in 1993. Ms Davies had responsibility for the Melbourne and Sydney Triple Zero services. She was based at the Melbourne call centre in Windsor, where Ms Stefanoski worked as a Team Manager.
After she had lodged her claim for workers’ compensation, Ms Stefanoski was asked to provide more information in regard to Question 12 of the claim form. By letter dated 11 April 2010, Ms Stefanoski outlined the events she considered to contribute to her illnesses, most of which related to Ms Davies but also extended to her fellow Team Managers. In her statement of 8 March 2011, Ms Stefanoski said the alleged harassment and bullying began sometime in 2004 when she was pregnant with her first child. She said her doctor had advised her that she should not work the night shift or late into the evening as she tired easily; and any afternoon shift she worked should commence at 1pm rather than 2pm. This request for an early start was refused and she claims she was demoted to the position of agent, taking emergency calls, from the second month of her pregnancy until the commencement of her maternity leave in early July 2004.
Ms Davies gave evidence that despite this demotion, Ms Stefanoski was paid as a Team Manager. She also explained the difficulties with rostering during staff absences or alterations in duties; and in this instance the need to replace Ms Stefanoski as a Team Manager with a substitute or the temporary elevation of an agent.
In Ms Stefanoski’s statement of 12 December 2011 she placed the onset of harassment and bullying to New Year’s Eve 2001 when she had been rostered to work the overnight shift. Ms Stefanoski alleges Ms Davies said to her; if you’re not at work you better be in hospital. Ms Stefanoski found this most offensive.
While Ms Stefanoski illustrated the alleged bullying and harassment with several discrete episodes in 2004, one in 2007, one in 2008 and another in 2009, she also described harassment in the form of disciplinary meetings as occurring at least weekly from 2001 until she ceased attending work in January 2010. Ms Stefanoski said she sought explanations from Ms Davies for the reasons for directions she had given but did not receive any explanation. She was obliged to follow these directions. Ms Davies had refused to alter her rosters to accommodate happenings in my personal life and had criticised Ms Stefanoski and her husband in their management of their childcare arrangements in relation to their work commitments. Ms Stefanoski regarded her treatment by Ms Davies as being unfair and that she had been singled out for disciplinary action.
Some of the discrete examples given by Ms Stefanoski were:

on her return to work in 2004 after the birth of her first child, she was required to attend a course entitled Leading Performance People. She declined to attend the course as she believed it would be very stressful. She states she was compelled to attend the course. She appears to have attended for one day and found that extremely stressful.
on 21 November 2007 Ms Stefanoski had instructed a staff member, Mr Glen Alsop, to sit up straight and not slouch on his chair as it was not good for his back and it caused chairs to break. Mr Alsop who has worked for the corporation or its predecessor for over 40 years, became upset and is said to have yelled and screamed at Ms Stefanoski causing her to report the incident to Ms Davies. Ms Stefanoski claims that she was blamed for the incident and verbally disciplined by Ms Davies.
sometime in 2008 a battery exploded, apparently in the stairwell at the workplace, resulting in the escape of irritant fumes. Ms Stefanoski in accordance with Occupational, Health and Safety regulations believed the staff should evacuate but Ms Davies did not. According to Ms Stefanoski, other members of staff reported this event to Comcare. Ms Davies then asked her to prepare a statement to say that she, Ms Davies, was in support of evacuation. Ms Stefanoski refused to do so and according to her, Ms Davies became very upset.
in January 2009 Ms Stefanoski said she had been questioned by Ms Davies about the amount of sick leave she had taken in the preceding year. Ms Stefanoski had attributed her absence to illness in the family and her need to stay home and care for her two daughters. In addition, she was questioned about not working on Christmas Eve 2008 as rostered. She had arranged with her team that she should have the evening off but did so without obtaining any approval or even notification of these plans to Ms Davies. Ms Stefanoski believed that the manner of Ms Davies’ questioning and her response to Ms Stefanoski’s explanations was unreasonable.
in 2009 Ms Stefanoski had complained to the Ms Davies regarding one of her team members, Loretta Matthews, who according to other team members, had made derogatory comments about Ms Stefanoski in her absence. Ms Davies transferred Ms Matthews to another team but to Ms Stefanoski’s knowledge no other action was taken against this worker and she herself was verbally disciplined in relation to the incident.
Ms Stefanoski referred to several other, relatively minor, episodes.

Ms Stefanoski claims that these incidents and Ms Davies’ general attitude towards her amounted to bullying and harassment, as a result of which she developed anxiety, panic attacks and depression.
From about mid-November 2008, Ms Stefanoski had been experiencing excessive sweating, palpitations, diarrhoea, anxiety and panic attacks. Her sleep pattern had become abnormal and she was having difficulty sleeping. On 8 January 2009 Ms Stefanoski attended the accident and emergency department at Northern Hospital in relation to these symptoms. She was diagnosed as suffering from thyrotoxicosis and was referred to an outpatient clinic at the hospital where she saw a Dr Baker, who confirmed the diagnosis. Dr Baker prescribed Neo‑Mercazole (Carbimazole) and Propranolol. She was subsequently referred to Dr Suresh Varadarajan, an endocrinologist at Northern Hospital. Dr Varadarajan continued treatment with Neo‑Mercazole (Carbimazole) and Propranolol. Regular biochemical assays of Ms Stefanoski’s thyroid function were performed. Her symptoms improved rapidly with treatment.
On 4 February 2009 Ms Stefanoski informed Dr Varadarajan that she was considering having another child. He advised that she should wait until her thyroid status was absolutely normal, that is, euthyroid. When she was next seen by Dr Varadarajan on 1 April 2009, Ms Stefanoski informed him that she had undergone a medical termination of pregnancy in March. Treatment with Carbimazole was ceased on 15 March 2009 but recommenced when some of her biochemistry was abnormal. Treatment was again stopped on 15 March 2010. The treatment was recommenced on 26 October 2010 and ceased on 15 March 2011. Despite the need for recommencing therapy on two occasions, Ms Stefanoski had remained euthyroid throughout.
On 21 August 2009 Ms Stefanoski consulted her general practitioner, Dr Jim Ristevski regarding a recurrence of back pain and a new symptom of radiation of this pain to her left leg and thigh. Dr Ristevski requested a plain x‑ray of her lumbar spine, which revealed severe disc space narrowing at L3/4, L4/5 and L5/S1 levels. Ms Stefanoski had had an x-ray of her lumbar spine performed at the request of Dr Ristevski on 7 January 1993, although she has no recall of this event. The 1993 x-ray had revealed moderate disc narrowing at L4/5 and L5/S1. As Ms Stefanoski’s low back pain and left sided symptoms persisted, a CT scan of the lumbar spine was performed. This revealed small disc herniations at L3/L4 and L4/5 levels, with no evidence of significant canal stenosis or nerve root compression. On 1 June 2010 Ms Stefanoski reported pain in both legs, which led to the performance of an MRI scan. The MRI scan showed changes similar to those of the CT scan, with no evidence of nerve compression or canal stenosis.
It was not until 19 November 2009 that Ms Stefanoski first complained to Dr Ristevski of bullying by her manager On 2 March 2010 Dr Ristevski completed a Certificate of Capacity for workers’ compensation purposes, as opposed to ordinary off-work certificates. This change appears to have been precipitated by Ms Stefanoski’s treating psychiatrist, Dr George Wahr, who had advised to Ms Stefanoski that she should lodge a workers’ compensation claim.

EVIDENCE BEFORE THE TRIBUNAL

Four of Ms Stefanoski’s co-workers provided statements and three of them gave evidence before the Tribunal. Much of the content of the statements was hearsay and therefore their evidence was confined to those issues of which they had personal knowledge. Ms Mihi Shaw, who had worked with the Ms Stefanoski for 18 years, found it personally humiliating seeing Tina as a Team Manager being brought back to the boards not once but twice. Ms Shaw was unable to say what year or in what circumstances this occurred; nor could she remember any details of the second incident. Ms Shaw also found it inappropriate that Ms Davies had, in Ms Shaw’s presence and in response to a question as to Ms Stefanoski’s health, said she’s sick. I don’t know what’s wrong with her.
Ms Shaw’s sister, Ms Edith Retemeyer also gave evidence. Ms Retemeyer is a Team Manager. She explained that all Team Managers met with Ms Davies once a week as a group. Ms Davies had asked her to contact Ms Stefanoski to make enquiries regarding her health but she had refused as this was not, in her opinion, her role.
Mr Phillip Penn, an agent and sometime team manager, in his evidence confirmed that if a Team Manager’s activities were contrary to Telstra’s bullying policies, an employee was able to make a formal complaint.
Ms Joan Davies provided a detailed statement dated 13 July 2011, with multiple annexures. She gave evidence before the Tribunal and addressed all points raised in her statement. Ms Davies had commenced in the role of National Operations Manager of Triple Zero on 1 July 2001. She was Ms Stefanoski’s manager and immediate supervisor. Ms Davies required Team Managers who were not coming to work to telephone her and advise her of their absence.
Ms Stefanoski had taken long service leave commencing in late April 2002 in order to travel to Macedonia, the birthplace of her parents. Before her long service leave expired, she contacted Ms Davies and asked if she could extend her visit to Macedonia, taking unpaid leave. Her request was approved and she returned to Australia and to work in mid-December 2002. It would appear that during this visit to Macedonia, Ms Stefanoski met her future husband and subsequently married him.
In early 2004 Ms Stefanoski became pregnant and maternity leave was arranged from July to September 2004. Early in her pregnancy, she advised Ms Davies that she was struggling with her shifts. Following discussion of these problems, it was agreed that Ms Stefanoski would work as an agent on the boards rather than a Team Manager for approximately three months prior to her maternity leave commencing. However, Ms Stefanoski was paid at the Team Manager rate of salary. Following her maternity leave, Ms Stefanoski returned to work as a Team Manager.
Ms Davies stated that the battery explosion at the Windsor workplace occurred on 17 April 2007. She stated that she had advised evacuation, although the fire authorities in attendance had considered this was not necessary as the fumes were contained to the stairwell. As she and Ms Stefanoski, who was the Team Manager on duty at the time, had been exposed to the fumes and developed symptoms they were taken by ambulance to a hospital. Ms Davies denied that there was any argument or disagreement with Ms Stefanoski regarding whether to evacuate the building. She also denied that she had asked Ms Stefanoski to prepare a false statement for Comcare purposes.
Ms Davies addressed the incident between Ms Stefanoski and Mr Glen Alsop which occurred on 21 November 2007. The incident had been reported to her at 11.00pm and she then drove to the call centre. She denied disciplining or blaming Ms Stefanoski for the incident. Mr Alsop was subjected to a Performance Improvement and Conduct Management Investigation (PICM) and his interview with Ms Helen Gambrell, EAP (Employee Assistance Program) Team Manager, was recorded. In this interview, Mr Alsop claimed his reaction to Ms Stefanoski telling him to sit up straight in his chair and not lean back for health reasons and to prevent damage to the chair had been a reaction to or reflection of Ms Stefanoski’s attitude toward him. He considered her to be a bully. It is not known what the decision of the PICM investigation was, although it was very clear to Mr Alsop that it could result in discipline or termination of employment.
Ms Davies’ recollection regarding Christmas Eve of 2008, when Ms Stefanoski was rostered on duty but arranged with the agency staff to have the evening off, was similar to that of Ms Stefanoski. Ms Davies had only become aware of Ms Stefanoski’s absence when she rang the centre, while she herself was on leave, in relation to another matter and asked to speak to the Team Manager.
In 2009 Ms Davies had become aware that Ms Stefanoski was taking a considerable amount of unpaid and sick leave. As was her normal practice, she discussed this with Ms Stefanoski and met with her on several occasions, all of which were recorded by Ms Davies in the form of notes made immediately after each interview. These notes of meetings and telephone conversations of 26 April 2009, 12 August 2009, 24 August 2009, 22 September 2009, 17 December 2009, 16 March 2010 and 18 March 2010 are documented as annexures to her statement. On two occasions Ms Stefanoski was offered access to EAP counselling but neither offer was accepted.
As Ms Stefanoski’s episodes of absence from work continued, Ms Davies arranged for her to be seen by Dr Boothby, an Occupational Health Physician, in order to assess Ms Stefanoski’s capacity for work. During this time, Dr Ristevski was still providing Certificates of Capacity declaring Ms Stefanoski unfit for work in those periods during which she was absent from the workplace. Dr Boothby advised that there were no physical or psychological reason why Ms Stefanoski could not return to work but, given her prolonged absence from the workplace, he recommended that she work as a line worker for a couple of months to make things easier for her. Her position as Team Manager was to be reserved for her return. While Ms Stefanoski agreed to this arrangement she did not return to work as planned on 10 November 2009.
Contact between Ms Davies and Ms Stefanoski thereafter was by letter or telephone conversations. With Ms Stefanoski’s permission, Ms Davies wrote to Dr Ristevski for further advice as to Ms Stefanoski’s work capacity. Dr Ristevski declined to reply.
Ms Stefanoski was also contacted regarding her Telstra-owned motor vehicle, which in her absence from work had a benefit arrears of $2000. The car was subsequently returned to Telstra.
On 16 March 2010 Ms Davies contacted Ms Stefanoski to discuss her ongoing sick leave and absence from work. Ms Stefanoski was asked to attend the call centre but she asked that they meet outside of the call centre in a cafe. It was at this meeting that Ms Stefanoski had handed Ms Davies a letter containing a list of issues regarding her work and Ms Davies’ attitude. Following discussion of these issues, Ms Davies was under the impression that they had resolved their differences and that Ms Stefanoski would return to work the following Monday. However, Ms Stefanoski did not resume her employment with Telstra.
Ms Stefanoski’s leave records were annexed to Ms Davies’ statement. These reveal that in 2002 Ms Stefanoski was absent on long service leave and leave without pay from 19 May 2002 until 19 December 2002. In 2004 Ms Stefanoski had 12 weeks of maternity leave and 31 days of sick leave. In 2005 she was absent on sick leave for 12 days and in 2006 there were 26 days of sick leave and 12 weeks of maternity leave. In 2007 Ms Stefanoski again took long service leave of approximately 9 weeks, in addition to her normal annual leave and 9 days of sick leave. In 2008 there were 32 days of sick leave and in 2009 there were 94 days of sick leave and three days leave without pay. Between 1 January 2009 and 18 January 2010 Ms Stefanoski was on sick leave for a total of 122 days out of a possible 250 working days.

In her statement, Ms Davies confirmed that she had asked Ms Retemeyer to contact Ms Stefanoski in order to enquire as to when she would be returning to work. Ms Davies did so on the basis that Ms Retemeyer was a friend of Ms Stefanoski. She also confirmed that in response to a question asked at a social gathering regarding Ms Stefanoski, she had stated that Ms Stefanoski was sick and she did not know the nature of her illness.
In her evidence before the Tribunal, Ms Davies addressed each item of complaint by Ms Stefanoski and expanded on her written statement. She did not know the outcome of the enquiries into the incidents concerning Mr Alsop and Ms Matthews, as Telstra strictly followed the requirements of the Privacy Act and neither she nor the complainant, Ms Stefanoski, would have been informed of any decision made with respect to these co-workers.
Ms Davies also detailed the difficulties that arose from a managerial point of view with respect to the rostering of Team Managers when one of them was frequently absent on sick leave.
Ms Davies said that despite Ms Stefanoski’s absence from her rostered overnight role as Team Manager on Christmas Eve in 2008, she had decided not to dock her pay for that shift as she had been performing overtime and working extremely hard in the month preceding this event. She also confirmed that she has had discussions with Ms Stefanoski regarding her child-care responsibilities and competing work requirements.
Under cross examination, Ms Malpas referred to e-mail communications between Ms Davies and Ms Jane Elkington, Ms Davies’ superior, and between Ms Davies and Ms Kristy Murray of Human Resources. Both of these individuals had been kept up to date with Ms Stefanoski’s absences due to illness However, these communications did not take place until January 2010, when Ms Stefanoski had been absent from work continuously for approximately four months.
As Dr Boothby had more recently assessed Ms Stefanoski as being unfit for work on psychological grounds, it was felt that Ms Stefanoski should make a decision as to whether she would return to work or resign. In fact, this plan was never put into effect. Ms Davies was questioned at some length regarding Telstra’s intent. She said that any resignation would have been on medical grounds and while it had been planned to discuss these issues with Ms Stefanoski, this never eventuated. Ms Davies said Ms Stefanoski’s position as a Team Manager remained open for her return and at all times Telstra’s first concern had been Ms Stefanoski’s health and welfare.
Dr Ristevski is one of two general practitioners Ms Stefanoski attends. He provided two reports, the first on 22 October 2010 and the latest on 2 July 2012. Ms Stefanoski first presented to Dr Ristevski on 21 August 2009 complaining of episodic lumbar back pain with left sided radiation to her lower limb. She advised him that she had been diagnosed with thyrotoxicosis, having developed symptoms of palpitations in early 2009. Dr Ristevski considered that Ms Stefanoski had difficulty accepting this diagnosis and had become depressed and withdrawn. Ms Stefanoski had claimed that because of the sick leave she took she was disciplined by her manager who scrutinised her work excessively. Ms Stefanoski was subsequently referred to Dr Wahr, for a psychiatric assessment and treatment of persisting anxiety, panic and depression. Despite psychiatric treatment, Ms Stefanoski continued to suffer from anxiety and panic attacks as at the time of the written report.
In his evidence before the Tribunal, Dr Ristevski stated that he was continuing to treat Ms Stefanoski by providing workers’ compensation certification, general support and analgesics. He believed she was totally incapacitated for her former work. He considered that work events had been an aggravating factor but when challenged as to the assumption that there was an underlying psychiatric condition he declared this to be the anxiety and palpitations accompanying the thyrotoxicosis. Dr Ristevski was unable to comment as to whether Ms Stefanoski had a propensity for the development of anxiety or depression. He agreed with Mr Wallace that the clinical notes, which had been summonsed, did not mention work problems or any complaints of low back pain by Ms Stefanoski for the eight years prior to her presentation on 21 August 2009. Dr Ristevski had treated her for lumbar back pain in 1999. The Tribunal asked Dr Ristevski if in his opinion Ms Stefanoski had been excessively worried about the diagnosis of thyrotoxicosis and that she thought it to be an extremely serious illness. He said yes.
Dr Wahr, Ms Stefanoski’s treating psychiatrist first saw Ms Stefanoski in February 2010 on referral from Dr Ristevski. He continues to see her at intervals of two to three weeks. Dr Wahr had made a diagnosis of agitated depression and considered Ms Stefanoski to have no capacity for work. While he could not be certain, Dr Wahr agreed that it was most probably he who had advised Ms Stefanoski to lodge a workers’ compensation claim. This was because he considered her psychiatric condition to be due purely to work related stress, although his reports and records do not nominate any work related experiences that might have precipitated the psychiatric condition. Dr Wahr said that was a failure on his part to fully record the history obtained. He disagreed with Dr Yvonne Greenberg’s opinion (discussed below). Dr Wahr was adamant that thyrotoxicosis, while giving rise to anxiety, was not associated with depression.
Dr Greenberg had seen Ms Stefanoski on 17 November 2010 at the request of the Telstra. Dr Greenberg’s assessment is the most detailed of any made available to the Tribunal. She recorded Ms Stefanoski’s entire work history, family history, personal history and background and assessed most of the medical reports already referred to in this decision. Ms Stefanoski told her that her work at Telstra went well until Ms Davies became her boss. She said she always felt there was a barrier between her and Ms Davies. Ms Stefanoski related the incident on New Year’s Eve 2001; Ms Davies’ failure to congratulate Ms Stefanoski when she was promoted to a Team Manager position; the events of 2004 when Ms Stefanoski was pregnant with her first child; differences in Ms Davies’ approach to her in comparison to other staff and Ms Davies’ disciplinary actions directed at her because of the level of her sick leave. Ms Stefanoski estimated that prior to 2008 to 2009 she would have been absent from work five to six days per year.
Ms Stefanoski agreed that she developed symptoms of palpitations, dizziness and blurriness of vision some time in 2008 but her doctor felt she was just tired or overworked. Mention was made of the episode with Mr Alsop.
In terms of her current psychiatric symptoms, Ms Stefanoski told Dr Greenberg she was afraid to go to work; felt sad; suffered from nightmares or frequent dreams that she might be dismissed from her work with Telstra and had lost all her drive. She further stated that she had no plans for the future and could not cope with her daily tasks in relation to her children and her home. Ms Stefanoski informed Dr Greenberg that she had stopped attending work in September 2009.
On examination, Dr Greenberg noted that Ms Stefanoski spoke rapidly, was tearful throughout the interview and showed marked signs of agitation and anxiety. She spoke so loudly that it was necessary for a radio to be turned on in the waiting room so that other patients could not hear the conversation. Dr Greenberg described Ms Stefanoski as appearing to talk at, rather than with, the interviewer and as having fixed or unshakable ideas about various rules of interpersonal behaviour. There were, however, no symptoms or evidence of psychosis or cognitive impairment.
Dr Greenberg had been asked to comment on the reports of Dr Ristevski, Dr Boothby, Dr Wahr, the clinical medical records and the reports of various endocrinologists. Dr Greenberg noted that Dr Ristevski, Dr Boothby and Dr Varadarajan had all recorded Ms Stefanoski’s reluctance to accept the diagnosis of thyrotoxicosis and her anxiety regarding this diagnosis. Dr Greenberg was of the opinion that Ms Stefanoski’s major weight gain was attributable to the antidepressants she was taking, the dose of which had not changed over a period of two or more years despite her poor response to treatment. Ms Stefanoski was taking Avanza and Xanax, in addition to the Neo‑Mercazole and Propranolol, the latter two drugs being prescribed for thyrotoxicosis. Dr Greenberg noted that Dr Wahr’s clinical notes made no mention of any work-related problems until the visit of 2 March 2010.
Dr Greenberg had access to a letter from Dr Baker, the endocrinologist who first saw Ms Stefanoski at Northern Hospital. Dr Baker had obtained a two-year history of muscle weakness, heat intolerance, loss of weight and palpitations. Dr Baker also noted that there was a family history of thyrotoxicosis.
Dr Greenberg diagnosed an anxiety disorder, the most important causative factor being the hyperthyroidism and its impact on Ms Stefanoski’s emotional state. While Ms Stefanoski perceived her treatment by Ms Davies to be harassment and bullying, Dr Greenberg was unable, on clinical grounds, to attribute Ms Stefanoski’s psychological status to the distress that she had described as arising from work.
In her evidence before the Tribunal, Dr Greenberg expanded on her diagnosis and its cause. It was her opinion that Ms Stefanoski’s thyrotoxicosis had triggered psychological symptoms, which were now ongoing because of her predicament arising from loss of work, loss of interest, her difficulties with provision of childcare for her two daughters and her regrets regarding the termination of her pregnancy in March 2009. Dr Greenberg attributed Ms Stefanoski’s chronic tiredness to the taking of Xanax three to four times per day. She advised that the medication for Ms Stefanoski’s psychiatric disorder should be reviewed and that a change in medication was warranted. Dr Greenberg disagreed with Dr Wahr’s opinion that depression was not a feature of thyrotoxicosis as there existed medical articles from several sources relating to depression in thyrotoxicosis. However, Dr Greenberg felt that, in this instance, Ms Stefanoski’s psychiatric disorder was mainly related to the health scare she experienced following the diagnosis of thyrotoxicosis. Dr Greenberg had, at the time she saw Ms Stefanoski, found her to be incapacitated for work.
Mr Geoffrey Klug had assessed Ms Stefanoski with regard to her lumbar back pain and pathology. Mr Klug obtained a history from Ms Stefanoski that she had suffered a fall on a wet floor in a toilet in 1997 and while initially asymptomatic, she had developed progressively increasing lower back pain over a few days. She was off work, she said, for a period of three weeks before her symptoms lessened. In 1998 the pain had become somewhat worse and she was off work on two weeks sick leave. In 1998 she also noted occasional radiation of pain to one or the other lower limb and was treated with myotherapy.
Accordingly to Mr Klug’s report, Ms Stefanoski told him that she had ceased work in September 2009 because of persistent and increasing pain in her lower back in addition to a difficult work relationship with her employer. In 2009 treatment had consisted of analgesics in the form of Panamax or Panadol Osteo, with a referral to Mr Brian Barrett, an orthopaedic surgeon, for an opinion.
Ms Stefanoski told Mr Klug she continued to suffer from intermittent low back pain and what Mr Klug described as ill-defined pain in the lower limbs. Despite this, Ms Stefanoski was able cope with the activities of daily living.
Mr Klug’s physical examination of Ms Stefanoski had revealed a moderate restriction of movements of the lumbar spine, the limitation being caused by pain. Mr Klug did not detect any tenderness over Ms Stefanoski’s spine; nor was there any evidence of motor or sensory impairment of the lower limbs.
Mr Klug had been provided with a plain x-ray of Ms Stefanoski’s lumbar spine dated 21 August 2009, a CT scan of the lumbar spine performed on 1 April 2010 and an MRI scan of the lumbar spine performed on 28 September 2010. He agreed with the radiologist’s report of the plain x-ray which showed L3/4, L4/5 and L5/S1 disc space narrowing. The CT scan had revealed multi-level disc degenerative changes from L2/3 to the L5/S1 level, with some facet joint changes and some degree of spinal canal stenosis relating to the mild to moderate disc bulges. The MRI had confirmed these findings on CT scanning but showed no evidence of nerve root compression.
Mr Klug concluded that Ms Stefanoski had quite significant degeneration in her lumbar spine at multiple levels. Despite this being unusual in a person then aged 37 years, he felt these changes were constitutional. Based on the history he had obtained, he formed the opinion that the injury in 1997 or 1998 [sic] was a soft tissue injury, which resolved within a relatively short period of time. He found there was no evidence to link the current back disorder with any employment with Telstra.
Mr Klug maintained his opinion in his oral evidence. He had been unaware that Ms Stefanoski had undergone plain x-rays of the spine in 1993 when she was 19 years old. These x-rays had shown changes in the form of loss of disc height at L4/5 and L5/S1. This information reinforced his opinion that this condition of spondylosis was constitutional and degenerative in nature and not related to the fall at work in 1998 [sic] which he maintained was a strain of soft tissue origin and had not altered the underlying pathology. He agreed with Mr Barrett’s opinion (see below) that the back condition had developed before the fall but not that it had resulted in any pathological change in the lumbar spine. Mr Klug was asked to compare the CT scan of 1999 with the plain x-ray of 2009. He declined to do so because they were totally different studies. The Tribunal asked him to compare the plain x-rays of 1993 and 2009, based on the reports available. He noted there had been a change in terms of the degree of loss of disc height but said this was the expected natural progression of the disease.

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

The clinical record regarding Ms Stefanoski created by Epping Plaza Medical Clinic and Dr Ristevski has been referred to earlier under BACKGROUND TO THE APPLICATION. The notes record Ms Stefanoski’s vacillation regarding a return to work date, having on several occasions set a date of return and then not done so.
The medical records of Dr Aouad, who appears to have treated Ms Stefanoski between approximately 2000 and mid-2009, are regrettably illegible. He had however referred Ms Stefanoski to a Dr Richard Arnott, an endocrinologist, for a second opinion regarding her thyrotoxicosis. Dr Arnott, who saw Ms Stefanoski on 29 June 2009, obtained a history that suggested Ms Stefanoski may have been thyrotoxic for one to two years prior to the diagnosis actually being made. Dr Arnott found Ms Stefanoski extremely worried about her physical condition and felt that anxiety was playing a big role in her current symptomatology. At the time he saw her she was euthyroid. He was in agreement with her current treatment program but felt it likely that she would relapse if she was to cease Carbimazole. He postulated that it may be necessary to consider ablative radio iodine therapy or surgery, as a quicker way to restoring her to permanent normal thyroid function.
Dr Aouad had provided a report to Telstra on 1 July 2009 confirming the diagnosis of thyrotoxicosis and that Ms Stefanoski had a tendency to become quite anxious and frustrated and also have a short temper. He attributed all of Ms Stefanoski’s symptoms to the thyrotoxicosis
Dr Suresh Varadarajan first saw Ms Stefanoski on 4 February 2009. By the time Ms Stefanoski was seen in February 2009 she was euthyroid, all clinical symptoms and signs of the disease having resolved, although she was described as being anxious. Initial testing had shown she had a high thyroid stimulating hormone (TSH) receptor antibody titre. Dr Varadarajan had advised Ms Stefanoski not to become pregnant (she having said that she was considering doing so) as it was possible that the baby also could become thyrotoxic. When he next saw her on 1 April 2009, she informed him she had a medical termination of pregnancy (on 17 March 2009). She was monitored regularly by Dr Varadarajan with repeat thyroid function testing every three months.
Dr Varadarajan described thyrotoxicosis as a very common medical condition, more frequently seen in females. He classified Ms Stefanoski’s initial disease as moderate to severe. He stated that the common symptoms of the condition are palpitations, heat intolerance, weight loss, tremors, gastrointestinal disturbance in the form of diarrhoea, agitation, insomnia, emotional lability, irritability, restlessness and anxiety.
It was not until the review visit of 26 June 2009 that Ms Stefanoski first told Dr Varadarajan that she was very anxious and stressed at work. He agreed to her suggestion that she should be assigned to a less stressful role at her workplace.
Dr Varadarajan was reluctant to attribute Ms Stefanoski’s anxiety, restlessness and agitation entirely to her thyrotoxicosis as he felt she had a pre-existing anxious personality, which the hyperthyroidism may have made worse. Dr Varadarajan commented on the medical literature which reported cognitive and behavioural dysfunction in hyperthyroidism in the form of nervousness and emotional lability which caused the patient to lose their temper easily and cry on the slightest provocation. In addition, there could be restlessness, shortness of attention span and compulsion to move around. Early mental disturbances could in fact be quite severe and manic depressive, schizoid and occasionally paranoid in nature.
Dr Varadarajan agreed with Dr Greenberg’s comments that Ms Stefanoski’s history suggested she may be anxious by nature and possibly inflexible. He also agreed that Ms Stefanoski’s reported work stress had only been a feature since the 2009 diagnosis of thyrotoxicosis. Despite these comments, he remained of the opinion that any underlying anxiety state probably played a larger role than did the hyperthyroidism.
Dr Boothby, an occupational physician, assessed Ms Stefanoski at the request of Telstra on 14 September 2009, and again on 2 September 2010. On the first occasion, Ms Stefanoski stated she felt a lot better since her thyrotoxicosis had been treated but felt anxious now and again. She said she had suffered emotionally as she struggled to accept her medical problems, having previously been a strong and well woman. She also admitted that she did not cope well when she felt ill and tendered to withdraw and stay at home. Dr Boothby assessed her as being both physically and psychologically fit for work as a Team Manager in the Triple Zero call centre. He recommended that when she did return to work and if she was still having difficulty coping, it might be advisable for her to return to being a line worker for a defined period of say three months before resuming duties as a Team Manager.
On the second occasion, in October 2010, Dr Boothby assessed Ms Stefanoski’s thyrotoxicosis as being fully controlled by medication but that her psychological status had become a major issue. Dr Boothby found Ms Stefanoski unfit, for psychological reasons, for work at the Triple Zero call centre. He believed with time and appropriate treatment she would eventually recover but he was not optimistic regarding her long-term prognosis.
Mr Barrett saw Ms Stefanoski at the request of Dr Ristevski. This referral was in relation to Ms Stefanoski’s lumbar back pain. Mr Barrett obtained the already known history regarding the fall in 1998. On examination he found moderate restriction of movement of Ms Stefanoski’s lumbar spine and mild to moderate reduction in straight leg raising on both sides. No neurological abnormality was detected. Mr Barrett reviewed the x-rays, the first of which made available to him was dated 21 August 2009. He was not told of the earlier x-rays of 1993 or the findings therein.

Mr Barrett commented on the severity and widespread nature of the changes in a woman still in her 30’s. He described Ms Stefanoski as being very overweight. In Mr Barrett’s opinion there was no role for surgical treatment and physiotherapy was unlikely to be beneficial. He was of the opinion that her back condition had been developing prior to the fall at work but that the fall had aggravated and worsened her widespread lumbar disc pathology. He expressed doubt that she would be able to continue working for much longer.
Dr Louise Seward is a consultant psychiatrist. She provided a report dated 24 April 2012. The medical history obtained by Dr Seward from Ms Stefanoski is somewhat different to that obtained by other doctors. Ms Stefanoski reportedly described her duties at the Triple Zero call centre as being responsible for the training, development and supervision of staff and for managing the call centre. Ms Stefanoski told Dr Seward that she first became unwell on 9 January 2009 while at work, was seen at a nearby medical clinic and given the weekend off work. She was reviewed a week later and was told that investigations had revealed she had a seriously overactive thyroid gland. Ms Stefanoski stated that she was offered treatment at the clinic in Windsor but preferred to go back to her own doctor at that time, Dr Aouad.
Ms Stefanoski told Dr Seward that while she had been treated for her thyroid condition she continued to feel unwell. She became particularly distressed when discussing the pregnancy termination in 2009. Ms Stefanoski told Dr Seward that she felt constantly pressured by Ms Davies to return to work despite the fact that she was not well and dated her conflict with Ms Davies from the year 2000, which is sometime before Ms Davies actually started working at Triple Zero.
Ms Stefanoski related to Dr Seward the various incidents previously reported and also that Ms Davies had failed to congratulate her on her appointment as a Team Manager or to advise her that she was to be so appointed. She placed these events in the year 2000, again before Ms Davies had commenced working at Triple Zero. Ms Stefanoski referred to the events of her first pregnancy in 2004 and what she termed as her demotion to board work in the early stages of her pregnancy, which she found to be humiliating. As she worked weekdays with no penalties and no weekends, her pay had been dramatically reduced. According to the history given, Ms Stefanoski had not been progressing under the treatment provided by her then local doctor, Dr Aouad, and her family took her back to her previously local doctor, Dr Jim Ristevski. Dr Ristevski told her that she was depressed and anxious and that these difficulties were not related to her thyroid condition but to the problems at work. Ms Stefanoski told Dr Seward that she had requested a meeting with Ms Davies in order to clear the air. This was the meeting that is said to have taken place in a cafe in March 2010.
Ms Stefanoski described herself to Dr Seward as being worthless, isolated, frightened to be by herself, and not functioning properly as a mother or a wife. Despite her desire to isolate herself, she felt uncomfortable alone and spent most of her day at her parents’ home. She was sleeping excessively, up to 12 hours per night, and had gained considerable weight. Her memory and concentration were reduced and she had a loss of pleasure in most activities and a loss of libido. Ms Stefanoski said she might have one to two good days per week but then her mood slipped back and she felt even more anxious and depressed.
Ms Stefanoski told Dr Seward she had never undergone a formal review of her work performance. However, she admitted that the staff she supervised had lodged complaints on two occasions regarding her enforcement of Telstra’s recommendations, such as, not allowing them to watch television or have extended breaks during night shifts.
During the interview, Ms Stefanoski was initially calm and then intermittently tearful. Her thought content was reportedly focused on her distress over previous difficulties at work. She appeared to Dr Seward to be preoccupied with these experiences, although she did attribute some of her depression and anxiety to the development of the thyroid condition and the termination of her third pregnancy. Despite two and a half years of psychiatric treatment and medication, Ms Stefanoski did not believe her condition had improved.
Dr Seward diagnosed a major depressive disorder attributed to alleged bullying and harassment by Ms Davies for a period of at least nine years. In her opinion, Ms Stefanoski’s employment with Telstra had been a significant contributing factor to the development of her psychiatric condition. Dr Seward noted that Ms Stefanoski had been on the same anti-depressant medication for two and a half years with minimal improvement and recommended review of her treatment with a view to changing her anti-depressants or to the use of a mood stabilising agent. Dr Seward concluded that Ms Stefanoski’s psychological injury was long term and permanent, with a guarded prognosis.

RELEVANT LEGISLATION

The Safety, Rehabilitation and Compensation Act 1988 (the Act) provides for compensation to employees for work related injuries and states:
14Compensation 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.
2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Section 5A of the Act defines an injury as:
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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B provides a definition of disease but this is not relevant.
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;
(dany 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.
(2)In this Act:
significant degree means a degree that is substantially more than material.

SUBMISSIONS

The Applicant

Ms Malpas submitted that both conditions, the lumbar back pain and Ms Stefanoski’s psychiatric disorder, had occurred in the course of employment and were causally related to Ms Davies’ actions regarding the sick leave Ms Stefanoski had taken during 2008 and 2009. While Ms Davies’ actions had the appearance of disciplinary measures arising from the excessive sick leave taken, Ms Malpas urged the Tribunal to look behind Ms Davies’ evidence and particularly the content of the emails of 6 and 14 January 2010. Ms Malpas submitted that Ms Davies was plotting to sack Ms Stefanoski. The emails were said to reveal this covert agenda, despite Ms Davies’ evidence that she wanted Ms Stefanoski to return to work. It followed that the disciplinary actions taken were not in good faith and therefore not reasonable.
Ms Malpas cited the decision of the Full Court of the Supreme Court of South Australia in WorkCover Corporation of South Australia v Summers (1995) 65 SASR 243 at page 248 the Court said:
... stress is caused simply by an inability to cope with the requirements of her work
She also cited the Administrative Appeals Tribunal decision in Re Reeve v Commonwealth Bank of Australia [2010] AATA 893 (12 November 2010) and the decision of the Full Court of the Federal Court on appeal in the matter (Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463), as to the differentiation between administrative action and operational matters in the attraction of the exclusionary provision of s 5A of the Act.
With reference to the meeting between Ms Davies and Ms Stefanoski in March 2010 in a cafe, Ms Malpas cited the AAT decision of Re KRDV and National Bank Limited [2011] AATA 210 (29 March 2011) and that of the Federal Court in the same matter (National Bank Limited v KRDV (2012) 204 FCR 436), wherein it was found that a casual conversation was not administrative action taken in a reasonable manner. Ms Malpas also cited the decision of the AAT in Re Loane and National Bank of Australia Limited [2011] AATA 252 (15 April 2011) in support of Ms Stefanoski’s contention that Ms Davies had already predetermined certain matters in relation to Ms Stefanoski’s work performance.
In regard to Ms Stefanoski’s lumbar back pain, the Tribunal was urged to accept the evidence of Mr Barrett and Dr Ristevski, who considered the accident of 1998 contributed significantly to the recurrence of back pain in 2009.

The Respondent

Mr Wallace submitted that the Tribunal should reject the Applicant’s contention that a covert agenda existed behind the apparently reasonable administrative action taken by Ms Davies in relation to Ms Stefanoski’s prolonged and repeated taking of sick leave. He contended that the emails referred to by the Applicant constituted a discussion between Ms Davies, Ms Elkington and the Human Resources representative, Ms Kristy Murray, as to the manner in which it might be possible to resolve the problems arising from Ms Stefanoski’s sick leave. While these emails mentioned the possibility of seeking Ms Stefanoski’s resignation, this was never acted upon and Ms Stefanoski was never asked to resign. In fact, her position at Triple Zero remained open to her should she wish to resume work. It was submitted that Ms Davies’ records and evidence indicate that her actions were to ask Ms Stefanoski when she was intending to resume work, offer support during her illness and to give her the opportunity to consult the Employee Assistance Program on two occasions.
Mr Wallace contended that Ms Stefanoski’s development of thyrotoxicosis may have resulted in a change in her perception of Ms Davies’ actions, such that she perceived them to be harassment and bullying. While Ms Stefanoski had stated that this harassment and bullying had been ongoing for nine years, there had not been any complaint of any workplace problems provided to her general practitioner until well after the diagnosis of thyrotoxicosis and after her mid-year appraisal in August 2009.
Mr Wallace further contended that while Ms Davies did counsel Ms Stefanoski regarding her absenting herself from work on Christmas Eve 2008, Ms Stefanoski in her discussions with Ms Davies had readily agreed that she had a responsibility to report her absence to either Ms Davies or Ms Elkington.
Mr Wallace submitted that the records indicated the quantity of Ms Stefanoski’s sick leave was excessive and required resolution. However, such resolution was made more difficult by the conflicting advice of Dr Boothby in 2009 that Ms Stefanoski was fit from both physical and psychological viewpoints to resume work and the continuing provision of certification by Dr Ristevski that she was unfit for work. Dr Ristevski had refused the invitation for him to outline his reasons for continuing to find Ms Stefanoski incapacitated for work.
The Respondent relied on the psychiatric report of Dr Greenberg, as she alone had given consideration not only to the alleged workplace stressors, harassment and bullying but also to the effect of Ms Stefanoski’s thyrotoxicosis, her termination of pregnancy in early 2009 and other personal problems, such as her childcare arrangements. In contrast, Dr Seward had dealt only with the perceived workplace bullying and harassment; and Dr Wahr in his reports had not identified any incidents in the workplace which may have precipitated the psychiatric disorder. When Dr Wahr was informed of the various incidents in the course of giving his evidence, he identified all as causative factors, including counselling by Ms Davies with respect to Ms Stefanoski’s sick leave. Mr Wallace contended that these counselling episodes were excluded by s 5A(2)(b) of the Act, as was any appraisal of Ms Stefanoski’s performance (s 5A(2)(a) of the Act).
Mr Wallace cited the decision of the Full Court of the Federal Court in Hart v Comcare (2005) 145 FCR 29, where the Court accepted the contention that the failure to obtain a promotion which gave rise to an adjustment disorder was by virtue of the exclusionary cause not an injury as defined. This was so, irrespective of other so-called operative and non-excluded causes.
Mr Wallace distinguished the decision in Summers on the basis that there was no evidence that Ms Stefanoski was unable to cope with her assigned duties as was the case in Summers. In addition, the Full Court of the Federal Court had stated in Reeve that the decision in Summers was not relevant to the Act. Similarly, he distinguished the decision of the AAT in Re Loane on the basis that, unlike Ms Loane, Ms Stefanoski was given the opportunity to respond to any concerns raised.
In relation to Ms Stefanoski’s claim regarding her low back pain, Mr Wallace submitted that the Tribunal should accept the opinion of Mr Klug rather than that of Mr Barrett, as Mr Barrett was unaware of the existence of x-rays undertaken in 1993 that revealed disc degenerative changes at a time when Ms Stefanoski was 19 years old. Mr Wallace argued that following the fall in 1998, Ms Stefanoski only had three weeks off work in 1999 for low back pain and had not submitted a worker’s compensation claim. He further submitted that Ms Stefanoski had not complained of any back pain for over eight years prior to 21 August 2009, when she attended Dr Ristevski for this symptom. Therefore, the evidence indicated, in line with the opinion of Mr Klug, that the changes in Ms Stefanoski’s lower back were the normal progression of lumbar spondylosis albeit at a younger than normal age.
Mr Wallace submitted that the Tribunal should affirm the decision under review on the basis that the administrative action taken by Ms Davies in the form of counselling and performance appraisal was reasonable and taken in a reasonable manner in respect of the employee’s employment.

TRIBUNAL’S DELIBERATIONS

The Tribunal accepts that the claimed injuries meet the definition of injury in s 5A of the Act. The claim for low back pain relates to the physical injury sustained in 1998, when Ms Stefanoski slipped on a wet floor at her place of work; there being no evidence of any other incident of injury thereafter. The mental injury claimed is variously diagnosed as; agitated depression by Dr Wahr, a chronic depressive disorder by Dr Seward and an anxiety disorder by Dr Greenberg. The mental injury is based on alleged harassment and bullying of Ms Stefanoski by Ms Davies in relation to various incidents. More specifically, the mental injury is based on the disciplinary measures taken by Ms Davies between 2008 and 2010 as a result of Ms Stefanoski’s absence from work on sick leave and her extended absence from September 2009 to the present time.

THE BACK INJURY

Ms Stefanoski’s fall at work in late 1998 has been documented and its occurrence is not challenged. Ms Stefanoski had three weeks of sick leave in 1999 as a result of this fall. A plain x-ray followed by a CT scan in 1999 revealed small disc herniations at L3/4 at and L4/5 without canal stenosis or nerve root compression. While her general practitioner Dr Ristevski had treated her as an adolescent as a teenager and did not recall her having any early back symptoms, Ms Stefanoski’s (nee Mitrovski) records reveal that she had a plain x-ray of the lumbar spine in January 1993. This x-ray revealed mild to moderate disc narrowing at L4/5 and L5/S1.
Although Ms Stefanoski states that she continued to experience intermittent back pain thereafter, it was not until mid-2009 that her symptoms became severe and she consulted Dr Ristevski. An MRI scan on 28 September 2010 revealed degenerative changes, following which she was referred to Mr Barrett in February 2011. Mr Barrett’s opinion that the fall of 1998 had aggravated and worsened Ms Stefanoski’s widespread lumbar disc pathology was given without his knowledge of the x-ray findings on 1993, although he considered it likely that the condition was developing prior to the fall.
Mr Klug was made aware of the x-ray findings in 1993. As a result, he considered that the changes between 1993 and 2010 represented the usual degenerative progression of lumbar spondylosis, albeit severe and of early onset in Ms Stefanoski’s case. In his opinion, the fall in 1998 resulted in a lumbar soft tissue strain that resolved in a few weeks and did not result in any underlying spinal pathological change. Mr Klug assessed Ms Stefanoski as able to work with restrictions.
Ms Stefanoski did not lodge a workers’ compensation claim in 1998 although the incident has said to have been reported. Her current claim was lodged on 24 October 2010, 12 years after the only known incident of injury and contrary to the requirements of s 53 of the Act. It would be prejudicial to Telstra should this claim be treated as sufficient notice of injury 12 years earlier.
In addition, there is no evidence of Ms Stefanoski seeking medical treatment for back pain from Dr Ristevski for more than nine years; or from Dr Aouad, who in his report to Telstra of 1 July 2009 made no mention of any back problems. Ms Siobhan Leahy in her statement of 12 August 2011 states that she provided back massages on a weekly to monthly basis to Ms Stefanoski from 1998 to 2005. Ms Allison Felton (statement of 7 March 2011) had witnessed Ms Stefanoski’s fall at work in 1998 and after Ms Felton left Telstra that same year, she maintained contact with Ms Stefanoski, who complained to her of ongoing back pain and her need for back massages.

In light of the lack of medical evidence supporting ongoing low back pain of sufficient degree to impact on Ms Stefanoski’s capacity to work; the 12-year interval in giving of notice; the pre-injury evidence of degenerative disease and the lack of medical evidence of incapacity for work due to Ms Stefanoski’s spondylosis, the Tribunal affirms the decision that Telstra is not liable to pay compensation in accordance with the Act in respect of the back injury.

THE MENTAL INJURY

The Tribunal accepts that Ms Stefanoski suffers from a psychiatric disorder, the exact nature of which is debateable having been diagnosed as having agitated depression by her treating psychiatrist Dr Wahr; a major depressive disorder by Dr Seward and an anxiety disorder by Dr Greenberg. The date of injury giving rise to this condition is said by Dr Seward to be 8 January 2009. 8 January 2009 is actually the date on which Ms Stefanoski was diagnosed with thyrotoxicosis.
The existence of thyrotoxicosis, with its commonly attendant symptoms of anxiety, has distorted the clinical picture from 2007 or 2008 to the present. The endocrinologists, Doctors Varadarajan, Baker and Arnott, are all of the opinion that Ms Stefanoski’s symptoms of thyrotoxicosis were present for up to two years before her presentation in January 2009. Despite a rapid response, symptomatically and biochemically, as evidenced by her thyroid function testing, Ms Stefanoski was extremely anxious about the illness, which she obviously regarded as very serious and had difficulty accepting.
Between March 2009 and March 2011, Ms Stefanoski experienced two relapses, as measured by the biochemical levels of thyroid function and antibody titre, following cessation of the treatment with Carbimazole. She was fearful of having to undergo surgery or thyroid ablative radioactive iodine therapy. As late as July 2009, Dr Aouad attributed Ms Stefanoski’s anxiety state to the thyrotoxicosis.
The Tribunal accepts Dr Greenberg’s opinion in preference to that of Doctors Wahr and Seward, as she alone has considered and addressed all possible factors contributing to Ms Stefanoski’s psychiatric illness. As the treating psychiatrist, Dr Wahr’s evidence is of great importance. However, he was adamant that depression was not associated with thyrotoxicosis and maintained this opinion despite the contrary evidence of Dr Greenberg and the treating endocrinologist Dr Varadarajan and the medical psychiatric literature they had relied on to support their opinions. Dr Varadarajan had also agreed with Dr Greenberg’s assessment that Ms Stefanoski had traits of inflexible personality and was of anxious disposition.
Dr Seward considered the major causal factors in Ms Stefanoski’s major depressive disorder to be her alleged bullying and harassment by Ms Davies, despite recording that Ms Stefanoski only became distressed to the point of crying when she recounted the events of the termination of her pregnancy in 2009. Apart from the history regarding the termination, Dr Seward described Ms Stefanoski’s account of events throughout 2009 as vague.
Dr Greenberg attributed Ms Stefanoski’s anxiety disorder to her thyrotoxicosis and her reaction to this diagnosis. Despite now being euthyroid, Ms Stefanoski’s anxiety state and depressed mood had persisted in response to the predicament she now finds herself in, her inability to work and her loss of self-confidence and self-esteem.
Based on the medical evidence, the Tribunal finds that the alleged harassment and bullying leading to excessive disciplinary action by Ms Davies did not cause Ms Stefanoski’s psychiatric disorder.
The question of whether the claimed actions of Ms Davies aggravated the psychiatric disorder remains to be considered, particularly in light of the exclusionary clauses (5A(2) of the Act).
Ms Stefanoski has raised several incidents in support of her contention that she was bullied and harassed by Ms Davies, as demonstrated by what she considered to be excessive disciplinary action. The major issue relates to perceived bullying and unwarranted disciplinary action in relation to Ms Stefanoski’s sick leave in the years 2008, 2009 and 2010.
In the Full Federal Court decision in Reeve, the Court considered the meaning of administrative action in respect of an employee’s employment which forms the basis of the exclusionary clause in s 5A(2) of the Act, which without limiting s 5A(1), includes:
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
...
(d a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
...
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Justice Gray referred to the explanatory memorandum to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth) (the Bill), which relevantly stated under the heading Regulation Impact Statement dealing with the exclusionary clause:
The SRC Act aims to prevent compensation claims being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of reasonable disciplinary action or a failure to obtain a promotion, transfer or benefit in connection with the employee’s employment.
The term, “disciplinary action”, has been interpreted in a number of court and tribunal decisions very narrowly to mean formal disciplinary action taken under, for example, the Public Service Act 1999 (or prior to this the Public Service Act 1922) or action taken pursuant to an award or certified agreement.
...
Claims for injuries purportedly arising in these circumstances have been allowed, which was not the intention of the Act.
In Re Tan and Comcare (1997), the AAT held that a session described as a “counselling session” was not counselling but a preceding step, a “discussion, an investigation of complaints”, which did not attract the “disciplinary action” exclusion. In Re Murray and Comcare (1998), the AAT held that “disciplinary action” did not include investigations undertaken prior to formal disciplinary action under section 61 of the Public Service Act 1922.
As a result of decisions such as these, employers under the SRC Act are exposed to liability for workers’ compensation in a much wider range of circumstances than was intended when the legislation was enacted. The narrow terms of the exclusion provision relating to “disciplinary action” is also inconsistent with a broader exclusion for “management actions taken reasonably” which are a feature of all Australian jurisdictions, except the Northern Territory.
Justice Gray also referred to the Objectives of the Bill which included:
A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation.
At paragraph 24 of his decision, Gray J referred to the established principle of Hart v Comcare (2005) 145 FCR 29:
... that, however many separate causes of an injury may have arisen out of, or in the course of, an employee’s employment, if any one of those causes falls within the exclusion, the employee is wholly disentitled to compensation in respect of that injury.
Justice Gray identified the central word in the exclusion to be the noun action, qualified by the requirement that the action must have a relationship with employment, not just of any person but of a particular person; and the limits of the exclusion appeared to lie in the words employment and the administrative. Justice Gray distinguished administrative action from that which could be called operational in that it related to activities or business of the institution or enterprise in which the employee was employed. To further illustrate the distinction, Gray J used the example that an instruction to perform particular duties was not administrative but operational.
In Reeve, the Court found that none of the events or circumstances relating to Mr Reeve could be described as administrative action in respect of his employment. Rather, they fell under the definition of operational action.
In the decision of the Full Federal Court in Reeves Rares and Tracey JJ adopted the decision in Hart with approval (paragraphs [55] and [57]) and also stated:
[52] The ordinary and natural meaning of “administrative” concerns the management of a body or enterprise as opposed to the task or job entrusted to a person who is subject to that management. ...
In defining the term administrative they referred to the Macquarie Dictionary and the Oxford English Dictionary definitions.
The Justices emphasised what they identified the key qualification as being that the reasonable administrative action had to be taken in respect of the employee’s employment. This was in contrast to the first part of the definition in s 5A(1) regarding the aetiology of the disease or injury which fell into the realm of ordinary incidents of employment; that is, of the employee performing his or her work or is part of his or her duties or activities as an employee.
The Tribunal finds that the incident of Christmas Eve 2008 which lead to counselling on the part of Ms Stefanoski by Ms Davies was reasonable administrative action. The Tribunal also finds the actions taken by Ms Davies from January 2009 onwards with respect to Ms Stefanoski’s prolonged sick leave (of 122 days taken in a possible 250 working-day period) and her prolonged and uninterrupted absence from work since 28 September 2009 to the present to be reasonable administrative action.
The remaining issue for consideration is whether the administrative action taken, be it disciplinary (5A(2)(d)) or in the form of counselling (5A(2)(b)) was taken in a reasonable manner in respect of the employee’s employment. Ms Stefanoski contends it was not.
Ms Davies has kept contemporaneous notes of her meetings and telephone conversations with Ms Stefanoski, the notes having been made within minutes of their discussions. These notes are annexed to Ms Davies’ statement and relate to face-to-face discussions in January 2009, 26 April 2009, 12 August 2009, 24 August 2009, 17 September 2009 and 22 September 2009. On 16 March 2010 Ms Stefanoski and Ms Davies met in a cafe, rather than the workplace, at Ms Stefanoski’s request. There are also records of four letters and two telephone calls.
The contemporaneous notes kept by Ms Davies all display the same tenor of approach. The Tribunal has selected three at random to include in these reasons.

Exhibit R3 (JD4)

J:We need to put a plan in place together so this doesn't keep happening.
What happened on Christmas Eve, I called to find out about [name] and was told that you were no working; you were rostered on, where were you?
T:I have been doing a lot of extra time, so I discussed it with the others that I would not be working.
J:Did you think that perhaps you should have asked me? Did you advise Jane that you would not be in?
T:No, the others were fine with it and I told them I would tell you when you got back, you were on holidays and I did not want to call you
J:You know that I am available, then why did you not call Jane?
T:I should have called Jane, I thought it would be okay
J:Tina, you did exceptional work with Jimmy, it was a great result. 1 know you worked extra time, came in on your days off. However Christmas Eve was not the day to have off. Everyone in this centre would have liked to be home on Christmas Eve. What kind of message do you think that sends the people? You do good work and then you do something like this.
T:I know I should have called.
J:You know that you were on unauthorised leave on Christmas Eve, now how do you think we should deal with that?
T:I guess you should dock me the day.
J:I will have to have a think about what happens now, send me the forms for your sick leave and I will get back to you concerning Christmas Eve. Is there anything further you wish to discuss with me?
T:No, that is all
J:Thanks for coming in to speak to me; I will get back to you about the 24^th.

Exhibit R3 (JD6)

Meeting between Tina & Joan – Wednesday 12 August, 2009
This discussion was part of Tina's July MPR
Explained to Tina that I had booked her into the Frontline leader program to assist her in the way she deals with the staff.
Also discussed the issue of her leave, I asked her to be aware of the impact her leave was having on the centre and if there was anything that Telstra could do to assist her with her issues around attendance.
Tina assured me that she was aware of the impact and that she was trying very hard to come to work but she was having some problems.
I asked her to work with me so that we could take care of her and also take care of the business.
I told her that we would do all we could to assist her to get her to lessen her drop outs.
I also offered her the EAP service if she would like and she said that she was much better and would not drop out as often.

Exhibit R3 (JD8)

Meeting between Joan Davies and Tina Stefanoski
Thursday 17/9/2009
I spoke with Tina and discussed the letter that I had received from Dr Boothby after she had attended his surgery for a fitness for duty assessment.
I explained that we were concerned for her health and that we would like to follow the doctor's advice and get her to work on the positions for a couple of months to relieve the pressure of work from to assist in her getting better
I explained that her team manager role at this time was not in jeopardy however we felt she would benefit in taking the doctor’s advice
She said she was feeling better could probably come to work.
We then spoke about how that would work, I said what ever would be best for her, 9 to 5 Monday to Friday or afternoon shifts.
We then agreed that we would meet again in a couple of days to make the decision.

The Tribunal cannot discern any evidence from these notes of Ms Davies’ dealings with Ms Stefanoski that Ms Davies was acting in an unreasonable manner. In fact, Ms Davies’ claim that Telstra’s aim was to ensure Ms Stefanoski’s health and welfare is evident.
While Ms Davies did counsel Ms Stefanoski regarding the arrangements she had made with the night shift agents, enabling her to absent herself from that shift on Christmas Eve 2008, Ms Davies in recognition of Ms Stefanoski’s work did not dock her pay for this unworked shift. The Tribunal considers this a rather generous action by Ms Davies.
Ms Malpas has urged the Tribunal to look behind the communications and particularly the emails between Ms Davies and Ms Elkington and Ms Davies and Ms Kirsty Murphy, alleging a hidden or covert agenda to remove Ms Stefanoski from her employment. The Tribunal cannot identify anything in these emails suggesting a hidden agenda. Although the email of 6 January 2010 refers to suggesting to Ms Stefanoski that she resign, Ms Davies clarified this as being a resignation on medical grounds. However, the question of her resignation was never put to Ms Stefanoski and her position as a Team Manager at Triple Zero remains open to her to this day.
Ms Stefanoski’s so-called demotion to an agent on the boards during the early stages of her pregnancy in 2004 is considered to be an operational action rather than an administrative action in character. However, this took place at Ms Stefanoski’s request that she not work beyond 9:00pm on any shift, for medical reasons, as advised by her doctor. This could not be accommodated given the shift rosters of the six Team Managers without inconvenience and probable hardship to these managers, whereas the agents’ hours of employment catered for such flexibility. Despite working as an agent over these three months, Ms Stefanoski was paid at a Team Manager’s rate.
The principle in Hart is that only one cause of injury must fall within the exclusion to wholly disentitle the employee to compensation in respect of that injury. Accordingly, the Tribunal decides that Telstra’s actions with respect to Ms Stefanoski, during the period of disciplinary or counselling action in 2009 and 2010, was reasonable administrative action taken in a reasonable manner.
The decision under review is affirmed.

I certify that the preceding 124 (one hundred and twenty-four) paragraphs are a true copy of the reasons for the decision herein of
Miss E A Shanahan, Member

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Dianne Eva – Administrative Support

Dated 1 February 2013

Dates of hearing	23 & 24 July 2012, 12 & 13 November 2012
Counsel for the Applicant	Ms Angela Malpas
Solicitors for the Applicant	John Dellios & Associates
Counsel for the Respondent	Mr John Wallace
Solicitors for the Respondent	Sparke Helmore Lawyers

ANNEXURE

APPLICANT’S EXHIBITS

A1 Statement of Ms Stefanoski dated 8 March 2011

A2 Supplementary Statement of Ms Stefanoski dated 22 December 2011

A3 Ms Mihi Shaw’s statement (subject to objections) dated 9 March 2011

(Objection Paragraph 5, 6, & 7)

A4 Statement of Ms Edith Retemeyer (subject to objections) dated 9 March 2011 (Objection paragraph 3 last sentence)