Veness and Comcare
[2005] AATA 934
•27 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 934
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/428
GENERAL ADMINISTRATIVE DIVISION )
Re KATRINA SHEREE VENESS Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member P McDermott
Dr KP Kennedy, MemberDate27 September 2005
PlaceBrisbane
Decision The decision under review is affirmed.
...................[Sgd]......................
P McDermott
Senior Member
CATCHWORDS
COMPENSATION – alleged workplace harassment, bullying and victimization – stress environment adjustment disorder – failure to provide medical evidence of disorder – decision affirmed.
Safety, Rehabilitation and Compensation Act 1988 ss 14
Ileris and Comcare (1999) 30 AAR 98
Comcare v Mooi (1996) 69 FCR 439REASONS FOR DECISION
27 September 2005 Senior Member P McDermott Dr KP Kennedy, Member Introduction
1. We have to decide whether Ms Katrina Veness suffered a psychiatric injury which was materially contributed by her employment in the Australian Taxation Office.
Compensation Claim
2. On 25 November 2003 Ms Veness lodged a claim for compensation for a “stress environment adjustment disorder” while employed with the Australian Taxation Office.
3. On 12 December 2003 Comcare made a determination rejecting this claim [fol T12].
4. This determination was affirmed on 6 April 2004 by an Independent Review Officer of Comcare [T-documents, T2 folio 3)
5. Ms Veness has sought a review of this decision of Comcare to refuse compensation.
Issues
6. We have to decide whether Ms Veness suffered a psychiatric injury which was materially contributed by her employment and whether she is entitled to compensation under the Safety Rehabilitation and Compensation Act 1988 (“the Act”). If she has suffered such an injury we also will have to consider whether that injury is excluded by s 4 of the Act as being a failure by her to obtain a benefit in respect of her employment.
Facts
7. Ms Veness was employed with the Australian Taxation Office under a contract which expired on 28 November 2003.
8. On 25 November 2003, some three days prior to the expiration of her contract, she lodged a claim for compensation for a “stress environment adjustment disorder” as a result of what she claimed to be harassment, victimization and workplace bullying.
9. In her evidence Ms Veness referred to the details of events which she had recorded and which are set out in T Documents (T4, folio 20-29). She described a happy relationship with other staff in her workplace until 1 October 2003. On that day she had received an email from the Julia Ross agency advising her that she had been successful in being selected to attend an assessment centre in relation to an application for a permanent position. She subsequently found that others within her section had been unsuccessful with their applications.
10. Ms Veness stated that her supervisor Kathy Woolnough had seemed surprised that she had been successful and she said that she was upset at Kathy’s reaction. Later, when she found that only one other person from two floors at Chermside had been accepted, she found Kathy’s reaction to be less upsetting. One person congratulated her but Mr Ian Collie asked her who had written her selection criteria. Initially she wondered if this was said in sarcasm but later she accepted that it had been intended only as a joke.
11. Ms Veness claimed that, in the hearing of three other staff members, she had heard Ms Wendy Myers in a personal call to someone else, while looking at the applicant say “How did that fat bitch get through, she is never here.” Ms Veness said that she felt publicly humiliated but stated that Mr Collie had lent over and told her not to let it get to her. (T-documents, folio 20)
12. On 3 October she sent an email to her colleagues regarding health concerns regarding reusing plastic bottles. Ms Myers sent her a reply stating that she thought everyone knew that was crap. Ms Veness said that this made her feel like an idiot. (T-documents, folio 21)
13. About 10am that morning she mentioned to Ms Clarke the telephone comments made by Ms Myers and the fact that other staff had commented on the amount of leave that the applicant had taken and had criticized the process of selection, in that the good staff had not got through to the next stage in the selection process. (T-documents, folio 21)
14. Ms Veness told Robyn Clarke that she was going home not because of the comments, but because her dog had been hit by a car, and that her partner was upset because he had witnessed the dog being run over. Ms Veness told Ms Clarke that the only reason that she came to work that day was to show those team members with issues regarding her success that they were not affecting her, when really they were. (T-documents, folio 21)
15. After Ms Veness returned to work there was continuing talk about the merit or lack of merit of the selection process and she did not regard the work environment as being harmonious. One week later there was an incident when she did not take a telephone call because she believed that the call was to be diverted to another floor but when the call came back to her level, it was answered by Ms Myers who then asked the applicant why she did not just help people rather than waste the time of others. ( T-documents, folio 22)
16. On the following Monday Ms Veness stated that Wendy Myers had overheard her say to Terry Caldwell that she was unaware that their section processed PAYG branching. Ms Myers allegedly chucked 2 applications for PAYG branching on her desk and said that they had always done PAYG branching. (T-documents, folio 22)
17. Four days later on Friday 17 October Ms Veness was in the tearoom eating her meat pie when Jane commented that the applicant reminded her of Tony Bourke because she was eating a meat pie and sitting where Tony sits. Ms Veness took this to mean that Jane was referring to her use of personal leave because Tony had been off on sick leave for 2 months. Ms Veness said that there was a stigma attached to Tony Bourke. (T-documents, folio 22)
18. Ms Veness said that Ms Hunt had commented that she had got to the next stage of the selection process because she had the gift of the gab. Ms Veness said that the statement implied that she had no intellectual ability (T-documents, folio 23).
19. On 20 October Ms Veness made a formal verbal harassment complaint to Ms Kathy Woolnough but she was told to submit her claims in writing. The following day at 9.15am Ms Woolnough asked if she had documented her complaint because she wanted to sort the matter out. Ms Veness was subsequently asked at 11.45am and at 1.55pm if she had completed the claim. The applicant said that she found these requests to be unreasonable and intimidating and at 2.05pm on 21 October she went home sick.
20. The next morning Ms Veness left a message with Terry Caldwell for her team leader explaining that she had tried to document her harassment complaint the previous day but that as the information that she was documenting was confidential, she was staying home to complete her complaints and would drop them off and then go to the assessment centre.
21. At 11.30 she had an appointment with Dr Rockcliffe. Dr Rockcliffe issued a certificate to cover the previous afternoon and the morning of 22 October. In the afternoon she went to the assessment centre as previously arranged. (The relevant medical certificate at folio 14(e) of the T-documents stated that she was suffering from a medical condition.)
22. In subsequent documentation Ms Veness referred to 31 October when Ms Clarke had discussions with her concerning the fact that she had claimed flex leave for two days instead of the agreed leave without pay for one day, one day recreation leave and one day flex leave for her three day attendance at Indy. During that discussion Ms Clarke had accused her of not following any orders but of just doing what she wanted. Ms Clarke told her that as a result of her experiences while doing higher duties on this occasion that she (Ms Clarke) would not be doing higher duties again. Ms Veness stated that that statement resulted in tears streaming down her face and she mentioned a number of staff by name who saw how upset she was and who assisted her at the time. She saw a medical practitioner soon after and was given a certificate for one week.
23. Ms Veness claimed that on the following day she felt that she was going to collapse or faint but she went to a friend’s birthday party. She did not return to work at Chermside after 31 October 2003.
24. During cross examination Ms Veness confirmed that she had seen Dr Rockcliffe on 22 October and also earlier in October. She agreed that when she saw Dr Rockcliffe early in October she had been concerned about an aunt who was being investigated for lupus and had also been concerned about a lump in her breast. She had also mentioned to Dr Rockcliffe about the selection process at work, that she had been treated unfairly and was really “pissed off”. It was put to the applicant that her reaction at the time was really that of anger. The applicant replied that she was emotionally upset. (The notes of Dr Rockcliffe record that the applicant was given a medical certificate for the 6th, 7th and 8th October.)
25. Ms Veness agreed that she had not received approval to cover the Indy leave on the basis of two flex days and one recreation day but she had changed the note in the book from two Rec Days and one flex day to 2 Flex days and one recreation day. The applicant claimed that she had made the change prior to taking leave.
26. In relation to the discussion about leave on 31 October, Ms Veness said that Ms Clarke stood over her at the time and that she felt that she was intimidating. Regarding the incident involving the meat pie she had perceived the comment to be unfriendly but agreed with counsel that nothing unfriendly had been said.
27. When asked about her activities after leaving work on 30 October Ms Veness said that she had locked herself in the house except for maybe picking up some milk from the shop. She did agree that she had attended a party on the day after leaving work but said that she was in tears for most of the night.
28. A statement dated 4 December 2003 was prepared by her team leader, Ms Kathy Woolnough, in relation to the compensation claim. (T9) In that statement, Kathy Woolnough stated that the applicant did not always ring in and inform the team leader when taking unplanned leave. There were three occasions when that occurred. In relation to the Indy leave, Ms Veness had written in the leave book that she wanted leave on 23rd, 24th and 27th October. It had been entered as two recreation days and one flex day. Ms Veness did not however input her leave through SAP (the electronic leave system) as required before she went on leave.
29. On 28 October Ms Veness was told that the three days Indy leave would have to be taken as one flex day, one day’s recreation leave and one day without pay and that was confirmed in an email on 30 October.
30. The reason for this arrangement was that flex days were conditional on operational requirements and the applicant did not have any additional recreation leave entitlement at the time. On 31 October Ms Veness rushed up to her desk looking extremely angry and upset and shortly after she came upon Ms Clarke who was also upset, sobbing and shaking uncontrollably. Ms Clarke said that she could not deal with Ms Veness anymore and that the higher duties were not worth the stress. It was agreed that other staff members would try to sort out problems with Katrina. Ms Woolnough had not seen or spoken to Ms Veness subsequent to 31 October 2003. (T-documents, folio 35)
31. At the hearing Ms Woolnough gave her evidence by telephone. She explained that as far as flex leave was concerned the limit was 15 hours at the end of the period but approval to go over 15 hours could be given if the section was not busy. In relation to the meeting between her, Ms Clarke and Ms Veness, Ms Woolnough said that Ms Veness had agreed to take the leave as subsequently set out in her email of 30 October. (T-documents T9a, folio 36-37)
32. As far as the alleged statement of Ms Myers referring to the “fat bitch”, Ms Woolnough said that the staff worked close together and yet none of them had heard such a comment.
33. The next witness was Ms Robyn Clarke. Ms Clarke said that she had had no problems with Ms Veness until the leave discussion. She had needed assistance from Ms Woolnough to deal with the issue because she found the issue stressful. She said that she tried to avoid upsetting Ms Veness because she found her to be a sensitive person. The witness also said that when talking to staff she does talk in a lower tone to maintain privacy. If she had raised her voice it would have been only slightly but she was frustrated with Ms Veness. During the discussion Ms Veness became agitated, put her hands on the chair and pushed the chair back. Ms Veness was not crying. She does not recall saying to Ms Veness that she would not do higher duties again. When she was cross examined the witness said that she did not recall Ms Veness crying at all.
34. Mr Collie is now retired having worked at the ATO for 15 years. When at the ATO he had been about one metre from Ms Veness’ chair and Ms Myers was about 4 metres away. There were low level partitions and the ceiling was low. Mr Collie said that he did not hear the alleged “fat bitch” statement. He also said that he did not recall seeing her in tears although she had been upset by the selection talk. He said that he had been surprised that Ms Veness had been selected but did not remember any particular discussion on the topic. He did not hear the discussion between Ms Clarke and Ms Veness.
35. During cross examination, Mr Collie said that he would not have talked about Ms Veness when she could hear. He said that there was always selection talk in the office when any selection process was current. In his written statement he denied hearing any comment about “the fat bitch” and he said that he had not said to her at the time not to let it get to her and not to give Ms Myers the satisfaction of a reaction.
36. The next witness was Ms Hunt. She had been employed with the ATO for approximately 18 months between April 2003 and October 2004. She said that she got on well with Ms Veness. Ms Hunt denied making any reference to her leave history and she did not recall telling Ms Veness that she had the gift of the gab. Ms Hunt said that she had not noticed any change in their relationship and she had no reason to believe that she had offended Katrina.
37. In her written statement, Ms Hunt referred to the meat pie incident. She said that she could smell a beautiful pie smell and commented to Ms Veness that she could smell pies like Tony’s and Ms Veness told her that her neighbour had given her a pie making machine and that she and her boyfriend had made pies over the weekend. She did not recall Ms Veness appearing to be upset about the conversation and at no time did she tell her that anything about the conversation had been hurtful Her recollection was that there had been a pleasant conversation about home made pies and there had been nothing personal about Mr Bourke or Ms Veness.
38. Ms Myers had been a non-ongoing employee with ATO at Chermside between December 2002 and February 2004. She is currently a non-ongoing employee with the ATO in the Brisbane CBD. In her evidence in chief she stated that her relations with Ms Veness had been fine until the job application results had come out. She herself was upset that she had not got through to the next level but she had nothing against Ms Veness. She said that she would not use the term “fat bitch” because she had weighed 147 Kg herself at one stage. She had been upset that anything like that would be brought up as a complaint against her. Subsequently she did sit at a different table to Ms Veness in the tearoom as she did not want to give any further reason for complaint.
39. In her written statement dated 4 March 2005, Ms Myers said that she did not recall having seen the applicant upset or distressed in any conversation that she had had with her, nor in her presence, about something that she may have said,
40. In relation to the water bottle incident Ms Myers said that she had replied and may have said that everyone knew that it was rubbish but crap was not a word that she would use.
41. Ms Myers in her statement acknowledged that she may have spoken strongly to the applicant about the telephone call which Ms Veness had passed on and the fact that Ms Myers had to then deal with the client. Ms Myers stated that she was unaware that Ms Veness had been acting on instructions given by a supervisor.
42. In relation to the PAYG branching application forms, Ms Myers said that she overheard Ms Veness ask Terry Caldwell if their section did PAYG branching. She recalled that Terry Caldwell seemed surprised because Ms Veness had then been working in the section for some time and PAYG branching had always been done in the section. The witness stated that she took some PAYG forms from the cabinet, slid them across Ms Veness’ desk and said that they were the forms that she needed for that. She denied that she had “chucked” the forms at her and said that she thought that she was helping her because Ms Veness did not appear to know what she needed.
Medical Evidence
43. Ms Veness did not call any medical practitioner to give evidence on her behalf but the clinical records of Dr Rockcliffe for 8 October 2003 and the clinical records of the Platinum Medical Centre for the period October 31 to November 14 were made available to the Tribunal.
44. The T Documents also contain a medical certificate issued by Dr Rockcliffe on 22 October for “a medical condition” and stating that Ms Veness was unfit for work on the previous afternoon and the morning of 22 October 2003.
45. The entry by Dr Rockcliffe on 8 October was as follows:-
Headaches ? stress - Auntie ?SLE (M has it) Had a few days off work. Selection process at work – patient made it to next stage; others didn’t and treated others unfairly. Really pissed off. Pimple. Mole itchy on back. Breast lump . Referred for U/S medical certificate for 6th 7th 8th.
46. On 31 October Ms Veness was seen by Dr Sharma following the discussion with Robyn Clarke. Dr Sharma recorded the history given by the applicant of work place bullying and harassment at work by co-workers and management since 1 October. She told Dr Sharma of the incidents involving Ms Myers and Ms Hunt. She told Dr Sharma that she had to take sick leave from LMO because of stress. She was crying and felt faint. Dr Sharma diagnosed stress environment adjustment disorder’.
47. One week later Ms Veness saw Dr Leesa McRae – she told her that she was tense, angry and shaky, thinking of the issues, broken sleep. She saw another GP, Dr Wendy Parker and then Dr Sharma again on 14 November. Dr Parker diagnosed post traumatic stress disorder.
48. When seen on 14 November Ms Veness said that she was a lot better but was fearful of returning to work. She was advised by Dr Sharma against prolonged absence from work. Ms Veness told her of workplace rehab offer but said union not happy for her to have rehabilitation as it was felt that workplace needed change.
49. The only medical witness was Dr John Chalk, a specialist psychiatrist, who gave evidence by telephone. Dr Chalk had interviewed Ms Veness and made a clinical assessment on 28 November 2004 Dr Chalk confirmed that he still held to the views expressed in his written report. In that report Dr Chalk noted that she did not report any significant symptoms at the time of the interview but that she felt anxious when she thought about the events at Chermside. She told Dr Chalk that she remained angry and upset and believed that justice had not prevailed.
50. In his assessment Dr Chalk said that it was not clear from the evidence and his interview whether the applicant had in fact developed an adjustment disorder with depressed mood at the time of the events. That she was upset, tearful and angry was beyond doubt. There was in his view insufficient information to suggest that she went on to develop a psychiatric illness as a result. While she did develop clinical symptoms, Dr Chalk said that those symptoms such as they were would have ceased by the time her contract finished.
51. During his evidence in chief Dr Chalk said that one can be angry without having a psychiatric condition and that it is not necessary to have a psychiatric condition to explain someone going off work under such circumstances
Relevant Statutory Provisions
52. Under s 14(1) of the Act, Comcare is liable to pay compensation in accordance with the Act in respect of an “injury” that is suffered by an employee if the injury results in incapacity.
53. The word “injury” is defined in s 4 of the Act as including “a disease suffered by an employee”.
54. The term “disease” is defined in s 4 of the Act to mean any ailment suffered by an employee or the aggravation of such ailment where the ailment was contributed in a material degree by the employee’s employment by the Commonwealth.
55. The term “ailment’ is defined in s 4 of the Act to include mental ailment, disorder, defect or morbid condition.
Findings
56. It should be mentioned that “the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision”: see Ileris and Comcare (1999) 30 AAR 98 at 121. In deciding this matter we have carefully considered the medical evidence that has been placed before us.
57. First, we shall deal with the events prior to 31 October 2003.
58. In our view, the incidents described by Ms Veness prior to 31 October 2003 do not provide any basis for the onset of any psychiatric illness. Ms Veness has mentioned the alleged comment referring to her as “a fat bitch” but although she has claimed that this comment was heard by other staff members, the claim has been denied by the person said to have been responsible and also by the other named staff member who was said to have heard the comment and consoled her. No corroborative evidence has been provided by anyone at any stage to support this claim, and whether such words were actually said, must remain in considerable doubt.
59. Ms Veness also said that she was upset because Ms Woolnough had seemed surprised when she was successful in the selection process and Mr Collie had asked her who had written her selection criteria. She said however that she was less upset with the reaction of Ms Woolnough when she found that she was the only successful applicant on the floor and in relation to the comments of Mr Collie she later accepted that the comment had been intended only as a joke.
60. Then there was the email about drinking from reused plastic bottles. None of these incidents could be accepted as a cause for psychiatric illness.
61. The account given by Ms Myers in relation to the PAYG branching forms and the telephone call that Ms Veness had redirected would suggest that Ms Veness had exaggerated the significance of these events.
62. Ms Veness said that she was upset because Ms Hunt had implied that only the gift of the gab had got her to the next stage. Ms Hunt however does not recall making such a statement and again there is no corroborative evidence.
63. Then there was the meat pie incident. As Ms Veness agrees that no unfavourable comment was made at the time, we do not accept her original complaint about this incident and accept the version given in evidence by Jane Hunt.
64. Apart from the fact that we would find it hard to accept that any of these events either singly or together would result in the development of a psychiatric illness, there is no evidence to support the proposal that Ms Veness was suffering any psychiatric illness at the time.
65. There are no medical reports pointing to any such diagnosis and on Tuesday 21 October Ms Veness herself recorded that she told Ms Clarke that she was really looking forward to going to the Indy and of course she did go to the Indy. There was certainly no suggestion of psychiatric illness at that time.
66. Finally in relation to the claims of Ms Veness which have been made about the impact on her life of the events prior to 31 October 2003, it should be noted that her usual medical practitioner was Dr Rockcliffe.
67. The record of her visit to Dr Rockcliffe on 8 October 2003 indicates that she had a number of reasons for seeing Dr Rockcliffe that day and that she made only a passing reference to events at work. There was no suggestion that events at work were having any psychiatric effect on her. In fact it is not apparent from the notes made by Dr Rockcliffe as to why Dr Rockcliffe should have given her a retrospective medical certificate for the previous two days.
68. Similarly when Dr Rockcliffe also provided a medical certificate for the afternoon of 21 October 2003 and the morning of 22 October 2003, a retrospective certificate was given for “a medical condition“. In this regard it is notable not only that Dr Rockcliffe made no mention of any psychiatric condition but also Ms Veness when telephoning the workplace that morning, had not claimed illness but had given the reason that she had wished to complete the harassment complaint.
69. We come then to consider the discussion with Ms Clarke and the events that followed the discussion on 31 October 2003. It is clear from the evidence that Ms Veness had attempted to change the Indy leave to include two days flex leave when she knew that such a proposal would take her flex debit beyond the 15 hour limit which was imposed unless the workload was low. Ms Veness was also aware of the fact that this aspect had been earlier discussed with her. Ms Veness then became very angry and upset when challenged about the attempted change.
70. It is understandable for the general practitioners who saw her at the time to have been impressed with her story and the nature of her presentation and to have made a diagnosis of adjustment disorder. Ms Veness was not, however, seen by a psychiatrist at the time and no detailed assessment was made. We note that Ms Veness in fact attended a party on the following evening which would be a little surprising if she were suffering an acute psychiatric illness at the time. We comment that she gave different versions of her behaviour at that party at different times.
71. As far as the medical evidence is concerned, we prefer the opinion of the specialist psychiatrist, Dr Chalk, that there is no doubt that Ms Veness did develop clinical symptoms and that she was angry and upset. Dr Chalk stated that she “may well have briefly fulfilled diagnostic criteria for an adjustment disorder”. However, in cross-examination he confirmed his opinion that she did not have a psychiatric illness at the relevant time.
72. It is important to emphasise that we can only make a finding that an employee has been injured where there is evidence to support such a finding. There is no evidence before us that Ms Veness was “in a condition that is outside the normal boundaries of normal mental functioning and behaviour”: see Comcare v Mooi (1996) 69 FCR 439 at 444. There was no suggestion that the general practitioners who saw her at the time thought that she should be referred to a psychiatrist at the time.
73. In view of our finding that Ms Veness did not have a psychiatric injury it is not strictly necessary for us to consider whether she had failed to obtain a benefit in respect of her employment, namely flex leave instead of leave without pay. However, even if she had briefly developed an adjustment disorder following the events of 31 October, we consider that it is excluded by s 4 of the Act.
74. Under such circumstances compensation is not payable.
Decision
75. We affirm the decision made by Comcare on 6 April 2004.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr KP Kennedy, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 5 August 2005
Date of Decision 27 September 2005
The Applicant appeared in person
Counsel for the Respondent Ms E Ford
Solicitor for the Respondent Australian Government Solicitor
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