Vidie Morgan and Comcare
[2014] AATA 324
[2014] AATA 324
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2483 & 2012/3853
Re
Vidie Morgan
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 27 May 2014 Place Brisbane The decisions under review are affirmed.
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CATCHWORDS
COMPENSATION – Application for compensation in respect of “adjustment reaction with mixed emotional features” – Date of onset unclear – Cause of applicant’s condition multi-factorial – No corroborative evidence demonstrating work stressors were significant contributor to onset of condition – reviewable decisions affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A; 5B; 14; 24; 27
REASONS FOR DECISION
Senior Member Bernard J McCabe
27 May 2014
Ms Vidie Morgan has been diagnosed with major depressive disorder. She says the condition arose as a consequence of bullying and stress in her workplace when she was employed at Centrelink between 2006 and 2011. She has made claims under the
Safety, Rehabilitation and Compensation Act 1988(Cth) (“the SRC Act”). She says Comcare:
·is liable for her condition under s 14 of the SRC Act; and
·must pay compensation in respect of permanent impairment (under s 24 of the SRC Act) and non-economic loss (under s 27 of the SRC Act).
Comcare’s reviewable decisions (dated 2 May 2012 and 13 August 2012) concluded Comcare was not liable under s 14, and there was no entitlement to compensation under ss 24 and 27. Comcare says Ms Morgan’s employment did not contribute significantly to her condition but – if it did – reasonable administrative action within the meaning of
s 5A was the most likely trigger. If Comcare is right, the reviewable decisions must be affirmed.
THE MEDICAL EVIDENCE
The parties agree the applicant is suffering from major depression. Professor Catts, a psychiatrist who prepared a report at the request of the respondent, opined the date of onset was around September 2010: Exhibit 12, p 9. While he agreed the condition was multi-factorial in origin, and there were a number of non-work related contributors, he was satisfied the applicant’s heavy workload and other issues in the workplace precipitated the onset of the condition. That conclusion inevitably relies on Ms Morgan’s own history. I note Professor Catts stood by his opinion after being provided with further information about Ms Morgan’s other medical conditions: Exhibit 13.
Dr Reeves-Saunders, a general practitioner, saw Ms Morgan on 15 March 2011:
Exhibit 1 at p 4. The notes of that consultation say Ms Morgan was not clinically depressed at that point but referred to instances of bullying and humiliation being a source of stress. The notes shed little light on the date of onset. The report of Dr Ng, a consultant psychiatrist, records the applicant saying her symptoms commenced around November 2010 as a result of events at work. That report (reproduced in Exhibit 1, p 50) was prepared for the respondent in December 2011.I accept the applicant suffers from major depression. I will return to the date of onset in due course, as it depends on my assessment of the history offered by the applicant.
A SUMMARY OF THE VARIOUS ACCOUNTS OF WHAT HAPPENED AT WORK
Ms Morgan was working as a Centrelink call centre operator in Cairns. In early 2010, she took on a role as a case manager dealing with Indigenous Services, including income management. She was asked to develop a training package for other staff working in the area. In due course, she was asked to deliver the training. In or around June 2010,
Ms Morgan was promoted to the position of Senior Practitioner. It was a temporary position lasting twelve months. In that role, Ms Morgan was required to monitor (but not supervise) call centre operators, provide advice on technical and legislative issues and deal with “escalations” when one of the operators referred a caller that required the attention of a more senior officer.
The applicant explained she was asked to continue with both the case management responsibilities and the development and delivery of the training package after she was promoted to the senior practitioner’s role. Ms Morgan said in her oral evidence (and alleged in her statement and statement of facts, issues and contentions) that she felt overburdened and stressed by this workload by around August or September 2010.
She referred in her statement (Exhibit 2 at p 2) to a multiplicity of roles that she was expected to undertake. She also described her distress when some of the staff whom she was training reacted negatively, and became unruly in training sessions. She said (at [10] in Exhibit 2): “I felt that the level of work required and the negative responses I was getting affected me mentally”. She said she spoke with Ms Bunworth, her line manager, about reducing the workload but nothing changed. She claimed this work-related stress led to the onset of depression by September 2010.
A good deal of time was devoted in the hearing to exploring interactions between
Ms Morgan and her managers in November 2010. I was told Ms Morgan was expected to participate (alongside Ms Colley, the assistant operations manager, and Ms Bunworth) in teleconferences with other customer service operators nationally to discuss matters of common interest. The applicant missed one teleconference on 3 November 2010; she said in her statement she was unaware she was supposed to attend: Exhibit 2 at p 3. She attended another teleconference on 5 November 2010. In her statement (Exhibit 2 at
pp 3-4), she explained how there was some confusion over the delivery of training in the Cairns office and other call centres. She turned to Ms Colley while the phone was ‘on mute’ to suggest she had a contribution to make. Ms Colley advised her not to speak. After the call concluded, Ms Morgan said Ms Colley upbraided her over the remarks she was going to make on the call because they might have embarrassed the Cairns call centre: Exhibit 2 at pp 3-4.
Ms Colley offers a slightly different account of that meeting in her statement (Exhibit 9). She says Ms Morgan indicated during the teleconference she wanted to point out the training that was being discussed had not taken place in Cairns. Ms Colley recalled she was not so sure and – after putting the phone ‘on mute’ – asked Ms Morgan to hold off making her comments until Ms Colley was able to seek clarification about whether the training had occurred. Ms Colley agreed it would reflect poorly on the Cairns centre if the training had not been provided, so she wanted to be sure. Ms Colley said she recalled Ms Morgan was agitated by this request as the applicant had prepared comments on the issue in advance of the meeting. As it happened, Ms Colley said she subsequently learned the training had been provided in Cairns when Ms Morgan was on leave.
The applicant was late for a subsequent teleconference on 9 November 2010. Ms Morgan recalled in her statement (Exhibit 2 at p 4) that the participants (including Ms Colley and Ms Bunworth) were discussing a national training package. Part way through the call,
Ms Morgan said a female participant at another location make some inopportune remarks that elicited eye-rolls and derisive comments from Ms Colley and Ms Bunworth while the phone was ‘on mute’. Ms Morgan claimed Ms Colley said the woman on the phone was “pathetic” and “an embarrassment to her call Centre” and said she “clearly has no strategic thinking”: Exhibit 2 at [25].
At the conclusion of the call, the applicant recalled Ms Colley turning on her. Ms Colley said “you really are no different to the girl on the hookup”, and laughed in Ms Morgan’s face. Ms Morgan said Ms Colley alluded to what had occurred in the previous teleconference and suggested she (Ms Colley) “could not trust me on phone hookups by myself because I had displayed a lack of strategic thinking”. The applicant said
Ms Bunworth joined in the laughter at her expense: Exhibit 2 at p 4. Ms Colley also mentioned an email the applicant had written to a more senior manager. The applicant was told she had acted inappropriately in sending the message. Ms Colley’s comments were apparently punctuated with more giggles from both Ms Colley and Ms Bunworth.
Ms Morgan said in her statement (Exhibit 2 at [27]-[28]) she:
felt shocked and defenseless [sic] and found it difficult to speak or respond. I was fighting back tears and was very uncomfortable…In this meeting I felt abused, belittled, humiliated and defenseless [sic]. I was given no prior indication this meeting was about to take place….
The applicant went on in her statement (Exhibit 2 at [30]) to say:
After this I started to feel hopelessness in my work and private life. I had no motivation and found it difficult to attend work and present in a positive frame of being. I also broke down into tears all the time. I was finding it difficult to cope, was suffering from anxiety, loss of motivation, passion and positivity in the workplace and from life.
I note Ms Morgan completed an incident report some time later in which she nominated the remarks made in this meeting as being a form of bullying and harassment that were the source of her “Emotional, Stress” complaint. An extract from the report is Exhibit 7. (I note the report refers to the meeting occurring on or about 1 November 2010, but I am satisfied that date was wrong. There seems little doubt the note refers to the meeting we now know occurred on 9 November 2010.)
Ms Colley tells a different story about the meeting of 9 November 2010. She addressed the issue in two of her statements (Exhibits 8 and 9). She agreed she had placed the phone ‘on mute’ during the teleconference and expressed her astonishment at a comment made by another participant, but Ms Colley expressed doubt in her oral evidence and her statement that she laughed at the individual: Exhibit 9 at [19]. She agreed that she,
Ms Bunworth and Ms Morgan remained together after the teleconference to discuss the action items. Ms Colley recalled (Exhibit 9 at [20]) that she took the opportunity to discuss with Ms Morgan the importance of representing the office “professionally” in teleconferences. Ms Colley agreed she alluded to what had occurred in the teleconference on 5 November 2010 and used the example of the individual who had spoken out of turn in the teleconference that had just occurred to reinforce the message to Ms Morgan that it was important to be prepared and careful when representing the office.
Ms Colley insisted she did not use a disrespectful tone in the course of the discussion. She pointed out she had over 25 years of experience as a manager: she knew better than that. She explained (Exhibit 8, at [8]):
I do not recall asking Ms Morgan why she was late. I certainly did not speak to Ms Morgan in an aggressive tone. I certainly did not say I could not trust Ms Morgan on phone hook ups or that she displayed a lack of strategic thinking. I deny that I laughed at Ms Morgan or compared her with the girl on the hook up.
In the same statement, Ms Colley indicated she did not regard the meeting as a coaching session. In her oral evidence, she knew that would come later: Ms Bunworth was scheduled to speak with the applicant in a coaching session set down in the following week. She said (at Exhibit 8 at [10]-[14]) she had identified a “learning need” for
Ms Morgan and she used the opportunity to provide some feedback which lasted about ten minutes. She said in her oral evidence she was effectively calling attention to the issue so it could be dealt with in the coaching session. In any event, she said in her statement that she finished her remarks and then moved on to deal with the rest of the action items. Ms Morgan appeared to accept the advice: Exhibit 9 at [21]. Ms Colley added (Exhibit 8 at [15]-[16]) she was aware Ms Bunworth subsequently met with
Ms Morgan to discuss the expectations of Ms Morgan’s role, and that Ms Morgan said she was unhappy at what transpired in connection with the teleconference..
I note Ms Bunworth provided a statement (Exhibit 10) that is consistent with the evidence provided by Ms Colley. Ms Bunworth confirmed she raised the feedback provided in the meeting of 9 November 2010, although she said Ms Morgan was reluctant to discuss what had occurred: Exhibit 10 at [11]-[13].
Ms Morgan continued working in her role through the New Year. She said she was working very hard, and the situation only got worse when Cyclone Yasi struck in February 2011. In her statement (Exhibit 2 at p 5) she claimed she spoke to Ms Bunworth about her intention to leave the call centre when her senior practitioner role came to an end.
The applicant said (in Exhibit 2 at p 5) matters came to a head on 8 March 2011. She had previously been asked to undertake a trainer/mentor role lasting about 6-8 weeks but she said an abrupt announcement was made that she would have a reduced role. That news came after her senior practitioner role had been cut short. She said in her oral evidence that she was shocked. In her statement, she said she felt anxiety and speculated she was being punished by Ms Colley for asking for a day off and for making complaints against her. She left the office and took leave: (Exhibit 2 at p 5).
Ms Colley denied any of this was intended as punishment for Ms Morgan. In her statement (Exhibit 8), Ms Colley explained the senior practitioner role was cut short because it was a temporary role and she was aware Ms Morgan had planned eight weeks of annual leave to be taken in around April or May 2011. Ms Colley said it was appropriate for the senior practitioner role to end in advance of the holiday given budget strictures and the need to move a replacement into the role. In her oral evidence, Ms Colley denied there was anything sinister about the reduction in the training role. She attributed the change, in effect, to operational requirements.
Ms Morgan said she sought a temporary transfer to a call centre in Brisbane on
11 March 2011 following these events. As soon as the move was approved, she loaded her son into the car and drove to Brisbane. She stopped to visit a doctor in Sarina on the way on 15 March 2011. She says she spoke of her anxiety following incidents at work (Exhibit 2 at p 6), and obtained a medical certificate: Exhibit 1 at p 6. It seems the transfer came as a surprise to managers in Brisbane, and to Ms Colley. The applicant recounted a telephone conversation with Ms Colley that took place soon after Ms Morgan arrived in Brisbane. She said in her oral evidence the conversation was conducted in a “gentle” tone but Ms Colley managed to say thing Ms Morgan found hurtful.
The applicant remained in the Brisbane call centre until October 2011. She had a number of performance issues as her health deteriorated. She ceased work in that month.
I note Ms Morgan has experienced a number of serious health conditions between 2006 and 2012. They are described in her statement (Exhibit 3).
Ms Colley said she had a relatively friendly relationship with the applicant. She said the relationship continued following the meeting of 9 November 2010. Ms Colley said she recalled the applicant discussing her relationship with a colleague visiting from Brisbane, and noted the applicant was quite emotional on the subject: Exhibit 8 at [18]-[20]. Ms Bunworth also gave evidence that she accompanied Ms Morgan to a meeting in relation to a real estate transaction in which Ms Morgan was involved. Ms Morgan had apparently asked for support because she was feeling bullied. Ms Bunworth recalled in her oral evidence that the meeting with the real estate agent occurred after
9 November 2010, which is difficult to reconcile with Ms Morgan’s account of her deteriorating mental state and her relationship with Ms Bunworth by that point. The evidence of Ms Colley and Ms Bunworth suggests there was no reason to believe the workplace was causing undue stress on the applicant, or that she was reacting badly to events in the workplace – although Ms Colley certainly acknowledged there was a heavy workload.
Ms Colley pointed out the heavy workload following Cyclone Yasi meant she was reluctant to allow staff to take leave unless it was absolutely necessary. She explained in her oral evidence that she refused to give Ms Morgan leave in March so she could spend a day with her male friend before he left the city. I note Ms Morgan denied there was a serious relationship: she said they were just friends, and brushed off the suggestion she was deeply distressed by the decision to deny her leave. She also denied in her oral evidence that part of her motivation in moving to Brisbane was to further a relationship with that man.
THE LAW
Section 14 of the SRC Act says Comcare is liable to pay compensation in respect of an injury suffered by an employee. Section 5A makes it clear that an injury includes a disease. Section 5B defines disease to include an ailment (or aggravation of an ailment) “that was contributed to, to a significant degree, by the employee’s employment”. Importantly, s 5A excludes from the definition of injury:
…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.
It follows the applicant’s major depression was potentially a disease (and therefore an injury) within the meaning of the SRC Act provided it was attributable to the workplace in the relevant sense and the reasonable administrative action exemption does not apply.
THE MEDICAL EVIDENCE
The medical evidence – in particular the report of Professor Catts, who was engaged by the respondent – confirms the applicant’s condition is multi-factorial but suggests workplace factors did make a significant contribution to the onset of the condition. If taken at face value, that evidence suggests the applicant’s claim is an injury in the relevant sense unless the reasonable administrative action exemption applies. But should I take that evidence at face value?
The respondent says I should not. It argues the medical evidence relies on self-reporting and there was no clear contemporaneous evidence of the applicant experiencing any anxiety or other symptoms of depression before 15 March 2011 when she consulted
Dr Reeves-Saunders in Sarina. I note Ms Morgan’s incident report (Exhibit 7) and the history she gave to Dr Ng (recounted in Exhibit 1 pp 50-51) suggested her problems began in November 2010. I also note Ms Morgan’s statement suggests (Exhibit 2 at
pp 4-5) that clinically significant symptoms really began in November 2010, although she did refer to her mental health being affected before that point: see Exhibit 2 at p 2. The respondent invites me to conclude that evidence is self-serving.
A psychiatrist interviewing an applicant for the purposes of a medico-legal report is not necessarily in a good position to evaluate that individual’s story. Provided the individual is not obviously lying or delusional, a psychiatrist would ordinarily accept the truth of what he or she is told for the purpose of forming an opinion. The Tribunal can take a more critical approach in a case like this. I have the benefit of being able to assess the applicant’s story in light of competing versions of the same events that were not available to the medical experts.
ASSESSING THE DIFFERENT STORIES
I had the opportunity to observe Ms Morgan, Ms Colley and Ms Bunworth in the witness box. Ms Morgan was plainly distressed as a consequence of her condition. She appeared to obsess on aspects of the behaviour she recounted. (Professor Catts noted this tendency in his report.) Her demeanour in the witness box was emotional, defensive and occasionally elusive, especially with respect to questions she was asked in
cross-examination about her relationship with the male colleague who had a temporary posting to Cairns. Ms Colley and Ms Bunworth, in contrast, gave their evidence in a measured way. Their accounts were not shaken during cross-examination.
I accept a witness’s demeanour may not be a reliable guide to his or credit. In this case,
I am ultimately inclined to prefer the evidence of Ms Colley and Ms Bunworth as to the events in November 2010 because their accounts strike me as being inherently more likely in the circumstances. Ms Morgan described two individuals behaving in a bizarre and confrontational fashion in the meeting of 9 November 2010. The fulsome account of the meetings offered by Ms Colley is more credible.
Having reached that view of the applicant’s account of what transpired in
November 2010, I think I should be cautious in my approach to her uncorroborated evidence of symptoms of anxiety emerging as early as September 2010. I accept she may have complained of a heavy workload during that period, but I am not satisfied the evidence establishes she was experiencing symptoms of her condition before
November 2010. It follows that I do not accept the evidence of Professor Catts as to the date of onset, or the nature of the workplace stressors that contributed to the development of the applicant’s condition.
Having reached that view, I am left to ponder on whether there is any reliable evidence suggesting the applicant was suffering from psychiatric symptoms before she first consulted a medical practitioner on 15 March 2011 as she was making her way to Brisbane. (I note Dr Reeves-Saunders was not inclined to make a diagnosis at that point, although he foreshadowed the applicant was likely to develop a diagnosable condition in due course.)
The circumstances of the applicant’s sudden departure from Cairns in March 2011 are suggestive of erratic behaviour that is presumably consistent with the onset of symptoms. The symptoms had presumably been manifesting themselves for some time before that point – but there is no evidence apart from the applicant’s account that would enable me to fix a date of onset or be reasonably satisfied as to what events or circumstances made a significant contribution to the development of the condition. While I accept the opinion of Professor Catts to the effect that the condition was multi-factorial, it is unclear what those individual factors might be, and what role they played in the onset of the condition. In any event, I have already made it clear I am not satisfied I should accept the applicant’s uncorroborated account of what occurred. In those circumstances, I am not persuaded the applicant has established she has suffered an injury within the meaning of s 5A of the SRC Act.
CONCLUSION
The reviewable decisions are affirmed.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Dated 27 May 2014
Date(s) of hearing 10 December 2013 Counsel for the Applicant Mr M Black Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Ms E Ford Solicitors for the Respondent Australian Government Solicitor
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