Want and Comcare (Compensation) [2018] AATA 877 (12 April 2018)
Division:GENERAL DIVISION
File Number(s): 2015/2353; and 2016/3847
Re:Gary Want
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:12 April 2018
Place:Canberra
The Tribunal:
(a)sets aside the reviewable decision dated 23 April 2015 and finds instead that the Applicant, Mr Gary Want, suffered an injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988, being an adjustment disorder with depression and anxiety, with a date of injury of 21 June 2013 in matter 2015/2353; and
(b)affirms the reviewable decision dated 22 July 2016 in matter 2016/3847.
.......................................................................
Deputy President Gary Humphries
Catchwords
COMPENSATION – whether disease is clinically significant i.e. abnormal behaviour in the circumstances of the Applicant – whether psychological ailment contributed to, to a significant degree, by employment – whether reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment – where there is a multiplicity of work related and non-work related factors – date on which the psychological ailment was suffered – reviewable decision set aside and substituted.
Whether psychiatric injury sequela to back injury – whether disease clinically significant i.e. abnormal behaviour in the circumstances of the Applicant – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 7, 14
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No2) 302 ALR 608
Comcare v Mooi (1996) 42 ALD 495
Commonwealth Bank v Reeve [2012] FCAFC 21
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare [2017] FCAFC 64
Smith v Comcare[2013] FCAFC 65
REASONS FOR DECISION
Deputy President Gary Humphries
12 April 2018
BACKGROUND
Mr Gary Want, the Applicant, is a public servant who previously served in the Royal Australian Air Force (RAAF) for 12 years. He commenced work for the Department of Defence at RAAF Tindal in the Northern Territory in an Executive Level 1 (EL1) position in 2006, and transferred to Darwin in 2008 at the same level, becoming an Estate Development Manager.
Mr Want’s service for the Department of Defence (the Department) in the Northern Territory has, however, been marred both by injury and significant workplace issues. He had an accident in February 2010 when he fell from a chair, leading to Comcare’s acceptance of liability for a back injury the following month. In addition, both at RAAF Tindal and in Darwin there were episodes where Mr Want found himself in conflict with both subordinates and supervisors. He took extensive periods of leave between 2010 and 2014 which appear to have related to both his physical condition and stress arising from workplace conflict, as well as other personal factors.
He was assessed by a psychiatrist in April 2012 at the behest of the Department and began to see a psychologist from mid-2013. In February 2014, after some months of hip-related pain, he had hip replacement surgery. In May 2013 he was subject to performance review processes which continued into the following year.
On 20 August 2014 Mr Want was sent an email critical of him by a subordinate. He took leave later that day. He returned to work on 1 September 2014. On 4 September 2014, after submitting his personal assessment of performance against the performance appraisal which was then being conducted in relation to him, he took leave. He never returned to work at the Darwin office.
He submitted a claim for workers compensation on 22 September 2014 claiming nausea and anxiety. On 12 February 2015 Comcare denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for adjustment reaction with mixed emotional features.[1] It affirmed that decision on reconsideration on 23 April 2015. Mr Want has appealed to the Tribunal for merits review of that reviewable decision (matter 2015/2353). On 15 April 2016, through his solicitors, Mr Want asked Comcare to accept liability for a psychiatric injury as a sequela of the back injury for which Comcare had accepted liability in March 2010. Comcare denied liability under s 14 for such an injury on 21 June 2016 and affirmed that decision on 22 July 2016. The delegate refused liability on the basis that There is no evidence before me to support that the psychological injury you are currently claiming compensation for, is a separate psychological injury to the claim you have appealed to the AAT. Mr Want has appealed to the Tribunal for merits review of this decision also (matter 2016/3847).
[1] The use of italics herein generally indicates quotations from tendered documents or from live evidence.
RELEVANT FACTS
Mr Want gave evidence to the Tribunal that he was transferred from RAAF Tindal to Darwin in May 2008. He served in an EL1 position in the Department. He told the Tribunal about low morale among staff in the area in which he worked, and of conflict between himself and other members of staff.
In September 2009 Mr Marcus Jeffrey, Mr Want’s then supervisor, wrote to Mr Want regarding the outcome of a so-called Quick Assessment regarding concerns surrounding Mr Want’s general management of [his] staff and in particular, his communication style. Mr Jeffrey indicated that:
Regarding the complaints made by your staff, I agree with the [Quick Assessment] recommendation that your actions do not constitute a breach of either the code of conduct or APS values. However, I do believe there is a fundamental issue with your management style that has resulted in your entire staff taking such a serious action. This issue must be recognised by you and addressed as a matter of urgency…
Based on the consistent observations of both your supervisors during the reporting period I am obliged to assess you as ineffective and therefore deferred for salary progression in November 2009.
As you will be deemed as ineffective and deferred for salary progression, upon your return from leave, your manager will work with you to develop a Performance Improvement Plan (PIP)…
A PIP in relation to Mr Want commenced on 26 October 2009. A final Performance Assessment was completed on 10 December 2009 in which the following comments were recorded:
Gary has generally met the KER [Key Expected Results] requirements, however his leadership, staff management & communication skills would benefit with ongoing development & mentoring from his supervisor.
In February 2010 he fell from a chair at work while attempting to pick up some keys from the floor causing him severe hip and lower back pain. He was diagnosed with sciatica and L5/S1 disc prolapse, and the following month Comcare, as insurer for the Department, accepted liability for two conditions: aggravation of degeneration of intervertebral disc and aggravation of sciatica (left). He took some weeks leave, followed by a graduated return to work over several months until October that year.
During 2010 a dispute between Mr Want and his wife and the builder of their new home in Darwin escalated. In April 2011 he suffered a relapse of his back condition, requiring further time off work. A decompressive laminectomy was eventually carried out in July 2011. He undertook another graduated return to work from September 2011, at which time he was placed in a ground floor office. His staff were on the first floor, and could only be accessed by stairs. He had difficulties using the stairs.
Mr Want also told the Tribunal of difficulties with his supervisor, Ms Rachel Rees-Scott. He said that he would discover details about projects he was supposed to be managing from other people, but not from her. He said he had told her about his medical requirements but that by not keeping me informed [she] was isolating me. He spoke of problems communicating effectively with her.
Under cross-examination, an entry in the clinical notes of his GP, Dr Richard Giese, dated 8 June 2010 was put to him: stress with work site and builder at home and feeling the pinch needs time to sort out problems. He agreed that There was issues at work and home I dare say, but denied that the building problems were causing him stress or lack of sleep. He said however that his back condition was causing him lack of sleep.
He was also asked why, when he met with Dr Hundertmark in April 2012 in relation to work-related stress, he failed to mention any difficulties he was having with Ms Rees-Scott. He told the Tribunal he attempted to tell Dr Hundertmark about this, but that the doctor would cut me off because this did not relate to the questions he was asking.
He suffered a probable cruciate ligament tear in November 2012, and a serious dog bite in March 2013. In January 2013 his father died and the trial of his dispute with his house builder commenced in the Supreme Court in Darwin in April 2013. In August 2013 judgement was given against him and his wife in the sum of over $130,000.
At this time he was dissatisfied at work:
I was unhappy in the workplace. I was stressed to the hilt day in day out. I had the feelings of being isolated, my advice and guidance was being taken over by other people, I began second-guessing myself. I was seeing things occurring that should have been within my role and responsibilities being taken away from me. I felt superfluous.
He told the Tribunal of problems dealing with other staff, including his supervisor. He complained of being dealt with inconsistently compared with other staff and of being kept outside the loop with projects. For example:
There have been a number of instances where I have been told that I had not met deadlines for release or provision of documents which have impacted my performance and meeting tasks. I am not perfect but there have also been many instances where documents have been sent for clearance, review or comment to my supervisor or key stakeholders to ensure the documents are complete and can be released. I have had my supervisor tell me that I had not provided minutes and other documents. I have advised that these had been done and were sent to her via email only to be told that her email box was so full that she had not seen it or she had had not [sic] time to respond or even review. I recall several instances where tasks required clearance by my supervisor before I could release them but this did not occur and I received phone calls from the tasker’s resulting in my releasing the documents with the advice that the response had not been cleared by my manager. Numerous one on one meetings with my supervisor were commenced with comments regarding the several hundred emails not reviewed, or responded to, by her and the vetting of the continuous phone messages and calls just so she could get some work done. This seemed to be a double standard to me and I found it impossible to understand how it was ok for her to not respond to emails and requests but not others or myself.
Some support for this evidence came from Mr Dennis Keating, a fellow manager in the Department’s Darwin office at about this time. A statement of Mr Keating dated 30 September 2016 was tendered, in which he said:
Gary’s team was challenging and difficult. I’m not sure of the genesis of that. However, I in the course of my duties, had to have close contact with both Gary and his team. It was often difficult to deal with Gary’s team and to maintain a degree of trust and cooperation with them.
It appeared to me that Gary’s team didn’t always appear to be working with and for him. Sometimes they appeared to go out of their way to work against him or frustrate his intent.
It appeared to me from my observations of Gary and conversations with him that his confidence level dropped after he injured his back. He also appeared to lose resilience as a Manager. He was less able to deal with confrontation and the challenging behaviours exhibited by some members of his team. He seemed to become more frustrated and more easily fatigued. I recall seeing Gary, from time to time, at work in pain and there were some days where his medication was clearly affecting his ability to concentrate and apply himself to his work tasks. There were occasions where he had to leave work at short notice to go home due to the pain he was in.
Mr Keating told the Tribunal of instances where other managers would be in the upstairs part of the Darwin office while Mr Want was downstairs, and Mr Want’s team would run ideas or concepts or questions past these people but subsequently it wouldn’t be translated back to Gary that the agreements and the way forward that he was working to had now been changed. Mr Keating said that, in response to this, I’d seen him rather upset on a couple of occasions where he appeared to have lost confidence.
Similar evidence was given by Ms Robyn Maurer, also a manager in the Darwin office of the Department and a contemporary of Mr Want. In a statement dated 26 September 2016, she said:
I was aware of issues that had existed in Gary’s team, the Estate Planning Team, dating well prior to Gary taking as the manager of the Estate Planning team. The team contained a number of members who were difficult to manage, with at least one of these members being put on a performance plan at some point between 2012 and 2014.
From my observations Gary was a strict but fair mentor and manager. It appeared to me that Gary’s team required strict guidance and control. It was also evident that some of his team were not happy with Gary’s management style as they had been leaderless for some time prior to his commencing and preferred to do things ‘their own way’. This was despite the changes to the organisation and changes to systems within Defence. Mr Want also told the Tribunal about difficulties he had with particular staff members, particularly a member of his team, Ms Debra Negus. He identified performance issues with Ms Negus, but had difficulty addressing them:
Every time I raised issues in relation to Deb Negus' performances it kept on bouncing back [from Ms Rees-Scott] and saying well you're the manager, fix it - you're the manager, fix it. And I'd go to Rachel saying I'm trying to do this, but I need some advice on how. Whenever I arrange a meeting with Deb she never turns up; I go looking for her, she's never here; I ring her on her mobile, she never answers; I send her an email, she doesn't respond.
He told the Tribunal Ms Negus was frequently absent from work, and that it seemed Ms Rees-Scott was protecting Ms Negus and showing her preferential treatment. He said they were seen to go and get coffee together, laughing and giggling and carrying on…
Evidence was given by Mr Gavin Nicholls, Mr Want’s second level supervisor (the level above Ms Rees-Scott). He was based in Perth, but visited the Darwin office periodically. He told the Tribunal of steps taken to manage disagreement between Mr Want and his staff in Darwin. He said this disagreement sometimes resulted in yelling matches. He said that the staff complained about unacceptable behaviour, bullying nature and verbally abusive nature that they felt they had received at times from Gary Want.
Mr Nicholls also described how he and his own supervisor, Mr Hunter, had attempted to find a suitable vacancy for Mr Want in Queensland. Those inquiries were made a couple of times, but without success. The endeavours were hampered by a recruitment freeze.
Mr Want told the Tribunal by 2013 he began applying for positions, in both the Commonwealth and state public services, in Queensland, where other members of his family lived. He said that he had no indication that anybody in his office (including supervisors who had agreed to be referees for positions he was applying for) was playing any role in respect of these applications.
Under cross-examination, Mr Want agreed that the proceedings in the Supreme Court produced some stress in him, but he denied that this distracted him from his employment. He also agreed that fear about the imminent hip replacement was fairly stressful.
Ms Rees-Scott placed him on a further Performance Improvement Plan (PIP) in August 2012. The PIP contained 12 KERs. Mr Want said that usually there would be six or seven KERs in a plan like that. He said that he found some of the KERs difficult to understand or follow, and that there was little feedback from Ms Rees-Scott about his progress against them. He said he felt he was being set up to fail.
Mr Want agreed that by March 2013 his hip pain was getting worse, and that by October 2013 it was quite disabling. He said that the building dispute trial in the Supreme Court on 29 April 2013 caused him minor stress. After losing their case in the Supreme Court, he and his wife appealed to the Court of Appeal, where they also lost. Mr Want guessed that their total losses, including costs, were probably $300-and-something thousand. He agreed that the last appeal stage was fairly stressful for him.
On 10 May 2013 Ms Rees-Scott completed a Mid-Cycle Performance Review. She made the following comments on his performance against the set KERs:
Most KER’s partially met or not met, refer attached comments. To address I will work with Gary to complete a self assessment against the APSC ILS and a capability development toolbox. Monthly performance meetings will also be held and formalised plans put in place if required.
Mr Want took some leave in June. On his return, Ms Rees-Scott sent an email to a colleague in which she said
When he returned last Tuesday he was quite agitated and opened the conversation with that he didn’t want to be at work, that the idea of coming to work was making him anxious and ill…
On 11 July 2013 Ms Rees-Scott wrote to Mr Want regarding behaviour recently observed and reported within his workplace. She formally directed Mr Want to fully adhere to and model the APS and Defence Values, as well as the Code of Conduct, and gave the following warning:
I caution you that a failure to conduct yourself appropriately in the workplace and adhere to this direction may constitute a breach of the APS Code of Conduct. Your compliance with this direction will be monitored and any incidences, reported or observed, will be investigated and if appropriate may be referred to the Code of Conduct Delegate for appropriate action.
Ms Rees-Scott completed an end of cycle performance assessment on 17 September 2013 in which she recommended a rating of Partially Effective on Mr Want’s performance agreement. Ms Rees-Scott provided the following comments:
Under the reporting period Gary has demonstrated a willingness to engage with the performance framework and take on feedback that has been provided over a number of formal performance meetings, especially over the last 6 months. In terms of meeting KER’s, the requirements of his duty statement and general EL1 expectations under the APSC ILS, Gary has been more variable… There are still concerns relating to Gary’s communication and general management style and approach which needs specific attention.
As a result of this rating, Ms Rees-Scott put him on a further PIP, to commence on 16 June 2014.
An incident occurred on about 20 August 2014 which Mr Want described as the straw …that broke the camel’s back. Following a complaint from a contractor, he had cause to reprimand Ms Negus about her conduct. Later that day he received an email from Ms Negus, copied to Ms Rees-Scott, complaining about the approach he had taken with her and levelling criticism at him. He sent an email to Ms Rees-Scott shortly afterwards, saying:
I am going home as I am feeling stressed to the hilt, stomach is churning and have a massive headache. I may not be in tomorrow and will be seeing my doctor.
He left the office soon afterwards. He told the Tribunal he found this experience gut wrenching.
On 3 September 2014 Mr Want wrote to Mr Ron Hunter, Regional Director of Defence Central and West, seeking approval for a reduction/reclassification in level from his substantive position as an EL1 to an APS 6, and reassignment from his then current role. In this letter he indicated that he had suffered stress and anxiety as a result of a combination of factors, including various physical injuries, increasing and ongoing workplace pressures, internal issues around management support and staff relationship breakdown as a result in the extensive periods away and… impending organisational
changes. He stated:
Further to the above you may have been made aware that both my wife and I have been under heavy pressure, from family, to relocate to Brisbane to be closer to our family and grandchildren. This has not decreased especially with the imminent birth of our youngest son’s first child and future requirement of surgery.
Relocation/reassignment to SE QLD would provide the necessary support for myself and my wife to cope with the outcomes and requirements in reduction in stress and of the impending surgery and assist both of us in my recovery as we have no family in this location for support, all immediate family is located in the Brisbane area.
On 4 September 2014 Mr Want submitted his PIP Self-Assessment. He included numerous comments, including that he did not feel the PIP was warranted or supportable. The following day Ms Rees-Scott completed a final Performance Assessment in relation to the PIP. She rated him as Partially Effective, and indicated that she supported his proposal for a reduction in level to an APS 6. He left work early that day, as he was feeling unwell.
On 7 September 2014 Mr Want was taken to Royal Darwin Hospital after having taken diazepam and a large amount of alcohol. The hospital record notes:
Denies was attempt at suicide – stating that he just ‘lost it’ due to all stressors in life – family, work, finances.
He never returned to work at the Department’s Darwin office.
Mr Want lodged a claim for stress/anxiety and depressive disorder on 22 September 2014. In that claim he cited receiving an email from staff member as being the trigger for his condition and indicated that he first sought treatment from Darwin Hospital when he was admitted on 7 September 2014. He provided the following answers on his claim for workers’ compensation:
10. For what injury or illness are you claiming workers’ compensation?
Diagnosed condition: STRESS/ANXIETY & DEPRESSION…
12. When were you injured or when did you first notice you were ill?
Date: 04 / 09 /2014
Time: 3:30pm…
17. Have you ever received medical treatment for a similar injury or illness?
Yes
Date: / 08 /2013Name of doctor: ARTHUR VAN EIGEN…
24. What were you doing at the time you were injured or contracted your illness?
READING AN E-MAIL RECEIVED FROM A STAFF MEMBER WHO I HAD TO COUNSEL OVER A RECEIVED COMPLAINT REGARDING THEIR MANNER AND COMMUNICATION AND ISSUE AROUND THEIR RELATIONSHIP WITH OTHER STAFF.25. What action, exposure or event happened to cause your injury or illness?
E-MAIL UPSET ME AND CAUSED ME TO FEEL STRESSED AND ILL AS THIS ISSUE HAD BEEN RAISED SEVERAL TIMES WITH THE PERSON AND MY SUPERVISOR. E-MAIL TRIGGERED EMOTIONAL RESPONSE AND CAUSED NAUSEA AND ANXIETY.
Mr Want also submitted a Statement of Facts, in which he noted:
In 2010 I had an accident whilst at work, a fall landing heavily on my left hip. This resulted in sever hip and lower back pain and lengthy time off work to recover…
On my return to work I was not given a back brief nor support to catch up on what had occurred whilst I was absent… I was blamed when things were not completed or rectified. In many cases I was unaware of issues as my supervisor was not keeping me updated. My staff were being urged to go around me and thus I was being kept out of the loop. As a result I did not have information causing me stress and anxiety and I was unable to address issues as I had no information. I brought this to my supervisor’s attention but she continued to allow staff to go around me and not keep me informed, causing me more distress, confusion and consequent mistrust…
My back injury continued to cause problems and issues and became worse over time. I was referred to a specialist and was scheduled for surgery in early 2012. I underwent major surgery on my back and was again off work for a lengthy period of recovery followed by a lengthy period on a return to work program.
Throughout the entire time on leave for the back injury and surgery I had virtually no communication from my management and I became isolated and uninformed as to what was occurring. I found on my return to work both on the RTW program and when I returned full time I was still isolated and was not provided any supportive handover/takeover or advice on what occurred during my time away. I was left to try and find out and bring myself up to speed even though the expectation was I was back and responsible for the section…
As my specialist had informed me I was not allowed to walk up and down stairs, so it was decided that my office would be relocated to an office downstairs adjacent to my supervisor. Further it was still expected that I walk upstairs to talk to my staff during my working day. It would take me several minutes to walk up the stairs and caused me increased levels of pain. My supervisor was aware but still impressed upon me that I needed to go up and to talk with staff…
I continued with my recovery and reached a point where it seemed to plateau. I suffered chronic back pain and leg pain and was on strong medication. My supervisor was aware of the continuing problem and also the medication. At a point in time the ongoing pain, lack of sleep, workload and work pressures began to take a toll. I felt I was becoming angry and short tempered which reflected in my workplace and at home…
Workload and staffing issues at work continued to be very high. Workplace problems and location continued to be raised with staff morale being very low. Staff were complaining about each other and also management. Lack of support, and an unwillingness to provide feedback and ongoing concerns about the workplace were of concern…
In late 2013 my pain reached a limit that I could no longer ignore… I made an appointment to see the orthopaedic surgeon in October 2013 and was schedule for surgery, a hip replacement in February 2014…
In the employer’s response to this claim dated 24 October 2014 Ms Rees-Scott raised issues that she thought might be relevant, including:
·Mr Want had a significant history of leave and absences, especially over the past four years that she had been supervising him.
·His father passed away during that period.
·He declared bankruptcy following an unsuccessful Court action against a builder.
·Mr Want had had back and hip surgery.
·His son had married and Mr Want had grandchildren born interstate.
·Mr Want had been diagnosed with hemochromatosis.
·Mr Want had been mauled by dogs.
·Mr Want’s niece was diagnosed with a brain tumour.
·There was increasing pressure on Mr Want from his family to relocate from Darwin to Queensland.
·Mr Want had been seeking jobs in Queensland but had as yet been unsuccessful in gaining an interview.
She speculated that this had placed a strain on Mr Want’s relationship with his wife, and concluded:
There is no doubt that Gary is unwell. However, when all of the events and stressors in his personal life over the last few years are considered I don’t believe that 20 Aug 2014, or the 4 September event should be considered an isolation. [sic] It should also be clarified which event he is claiming for, as the submission document is contradictory to the events which occurred.
Under cross-examination, Mr Want agreed that the death of his father and arguments with his wife in 2013 caused some stress to him, but his niece’s illness caused him only concern.
Ms Rees-Scott gave evidence before the Tribunal. She said that there had been some difficulties with Mr Want’s team, arising from an organisational restructure and a rapid turnover of managers in the period before Mr Want arrived.
Ms Rees-Scott defended her handling of issues arising from Mr Want’s leadership of the team. She said she raised with him complaints made by his subordinates and…
He wanted me to provide more detail about the specific nature of the complaint[s]. And considering the general nature of the comments I found that difficult.
She said she discussed the terms of the PIP in mid-2014 with him and that he entered into the PIP willingly. She added It’s never nice to be in that situation. She said he agreed to this PIP. She also said that he never raised any concerns about the number of KERs to me at the time of the discussion about the PIP. She later indicated that, at the mid-cycle review, there was no request from Gary or myself to actually modify or amend the KERs. She did acknowledge, however, that feedback on his performance against the KERs wasn’t as regular as I had hoped.
Ms Rees-Scott denied that Mr Want was overloaded with work, and said every time Gary requested any leave or support, we provided that. She said she was conscious that he was experiencing pressure in his life, but told the Tribunal the work environment was not a factor the Gary and I had discussed.
She described the attempts she had made to assist Mr Want to move to Queensland. She said she discussed the issue with her superiors, including a first assistant secretary and the deputy secretary. She also contacted the Public Service Commission and the Department’s rehabilitation and case management team in Canberra seeking to arrange a transfer.
Evidence was also given by Ms Kari Lynn, the rehabilitation case manager who handled Mr Want’s injury management from 2011 to 2014. She said that in mid-2013 Mr Want had failed to authorise contact between the Department and his treating GP – leading to Ms Lynn closing his file. She told the Tribunal of difficulties in dealing with Mr Want because sometimes he is extremely agreeable and sometimes he is extremely belligerent.
THE MEDICAL EVIDENCE
In March 2010 Comcare accepted liability for two conditions of Mr Want arising from the workplace accident the previous month where he fell off a chair: aggravation of degeneration of intervertebral disc and aggravation of sciatica (left).
On 2 June 2010 Dr Phillip Haynes, a consultant occupational physician, diagnosed an L5/S1 disc protrusion with left sided sciatica and opined:
Any recovery will be slow and will take many months…
Mr Want is not currently fit to undertake work in his pre-injury environment because he has significant ongoing back pain. He is fit to continue on his current graduated return to work program, working for four hours per day on four days of the week from home and one in the office…
Mr Want was able to return to his normal duties by December 2010.
On 6 July 2011 a decompressive laminectomy left S1 plus discectomy plus Rhizolysis left L5/S1 was performed by Dr Ba Nyunt, consultant orthopaedic surgeon, at the L5/S1 level of Mr Want’s back. Dr Haynes reported to the Department on 21 October 2011 that he was not currently fit for work and that the prognosis was going to be for protracted recovery. Dr Haynes thought Mr Want would not be able to return to the full range of his pre-injury duties.
On 17 October 2011 Dr Nyunt reported to Mr Want’s GP, Dr Giese, that:
He has a bit of pressure at work too and he felt very tired at the end of the week and he is feeling stressed because he has to do performance improvements [sic] plan at a fixed date.
Another GP at the same medical centre, Dr Janet Wong, examined him on 14 February 2012. Her clinical notes include:
2-3wks of low energy, poor concentration. Getting depressed at work. Social withdrawal from people. Anhedonia and poor motivation to things he normally enjoys… Poor sleep. Fluctuating appetite… Mood flat and irritable.
In summary, she recorded nonspecific complaints constellation suspicious of depression. Following a further consultation on 28 February 2012 her clinical notes record Sx consistent with Mild depression, but also record Scores mostly DASS 42 Scores mostly Extreme severe category for Depression and Anxiety. REpeated 3x.
References in the centre’s clinical notes to his mental health recur periodically over the next three years. In March 2012 he was prescribed amitriptyline, an antidepressant, but by August this had ceased. No specific mention of symptoms of mental illness appears in the clinical notes between April 2012 and March 2013. On 14 March 2013 Dr Julian Charles, a GP, records Moods: Up and down but Not feeling depressed.
On 5 April 2012 Dr Wong’s notes record Severe OA [osteoarthritis] of both hips, L worse than R.
On 17 April 2012 the Department requested a fitness for duty assessment from a psychiatrist, Dr James Hundertmark. In the referral letter Ms Lynn noted:
Mr Want expressed that he was feeling disconnected from the workplace…
Around the same Mr Want also revealed to me that he had been suffering with anxiety and depression. He said that he had discussed this with his doctor going back as far as 2008, prior to his injury…
Mr Want said the new work area was not very functional…
Dr Hundertmark examined Mr Want on 24 April 2012 and reported on 2 May 2012. He did not consider that Mr Want was suffering from psychiatric illness, noting:
He has some relatively low level emotional symptoms including insomnia and change in appetite and weight. He has had four sessions of treatment with an EAP provider. It is my opinion that he does not suffer from a psychiatric illness per se and there is no condition which is classifiable using the DSM IV TR. He presents as being fit to return to his previous duties based on psychiatric grounds. It is noted that he does report being quite jaded in his current section and it may be advisable for the workplace to reallocate him to alternative duties on a permanent basis within the Department of Defence in order to avoid a significant decompensation.
On 9 May 2012 Mr Peter Fry, an Orthopaedic Surgeon, provided a report to the Department in which he stated:
[Mr Want’s] back was ‘fine’ – until 2010 when at a meeting a chair rolled, he fell on the floor, hitting his left hip…
Further questioning suggested (and confirmed by Mr Want) that his back had now essentially settled to minimal symptoms, and the present set of problems was mostly due to the hips, more especially the left one…
Mr Want has problems with his lower back, and these relate to the degenerative changes that are prominent on the MRI that was seen. He has longstanding degenerative change that predominantly affect the L4/5 disc, but to a lesser extent the discs adjacent to it too. This process, degenerative spondylosis, has been present for a very long time, many years, slowly progressive, with other related ill-effects nearby as well…
There is however another problem: It is not a problem of the back, it affects both hips. Both hips are in fact extremely degenerate. The x-rays taken on 9 March 2012 make this point very clearly. Both hip joints show longstanding, gross, degenerative change, to the point that there appears to be no articular cartilage remaining. Mr Want is getting noticeable symptoms from these, it appeared from the history that I took; a gradual appearance of symptoms affecting the thighs, but mostly stiffness…
Dr Fry responded to this question:
5. Are you of the opinion that a change to the existing incremental structure and timeline should be considered to assist Mr Want to increase his work capacity? If so, please explain.
…
His back does not restrict him for any of this as things currently stand. More restricting appears to be the developing effects of the hip degenerative changes. There are problems going up the stairs, for example, and mobility difficulties will gradually increase. This is going to have a later effect upon his working capacity, and interfere with it…
I am unable to comment beyond the general overview, given by the history, that there did not appear to be psychosocial issues.
On 16 July 2012 Dr Nyunt reported to Dr Giese that Mr Want was continuing improving and at the moment there is no complaint of back or the [sic] leg pain.
On 3 June 2013 he consulted Dr Charles, reporting Workplace ructions, filed a complaint about obstructive behaviour of another worker. Dr Charles notes Tearful, rambling, anxious affect. He saw him again on 6 June, when he initiated a Mental Health Care Plan. Dr Charles suggested a trial of sertraline.
Mr Want was referred to psychologist Arthur van Eigen for treatment of symptoms of depression and anxiety. He continued to see Mr van Eigen until October 2013. Mr Want told the Tribunal that he ceased seeing Mr van Eigen because of the cost.
Also on 6 June 2013 Dr Charles wrote to the Department stating:
I am writing to support Gary’s application for transfer out of Defence Support Central and West to another area within defence on medical grounds. The rigors of his current job are negatively affecting his health, and the situation is likely to escalate if he remains in the role. I appreciate your help in dealing with this.
In October of 2013 Mr Want reported to Dr Geoff Thompson, an exercise physician, that pain would wake him at night, that he had pain when standing and that he had difficulty reaching down and with forward flexion. He attended the Bayside Clinic, which recorded among his current problems Depression – mild.
In February 2014 he underwent hip replacement surgery. He went off work, not returning until May of that year.
On 16 June 2014 Mr Want consulted Dr L J Crompton of Arafura Medical Clinic. The clinical notes record:
Fluey illness. Very down on the weekend.
On 20 August 2014, following the email from Ms Negus of earlier that day, he consulted Dr M Habib at the same clinic. The clinical notes record:
Stressed out at work place, work as manager in public service
Having problem with his staff as well as with his boss,
Recently had issue with a stuff [sic] who is not happy and she seems to be have [sic] a good relationship with the boss
He is not happy with it
Today he was feeling sick, nauseated, chocked at the office and walked out fo the office
He thinks he need to relax for someday [sic]On 7 September 2014 Mr Want presented at the Emergency Department of Royal Darwin Hospital following an apparent overdose of prescription drugs and alcohol. He reported that he had been feeling overwhelmed with the stress of work/financial/family life… for the past week and a half with it becoming unbearable as of today. He stated that he just ‘lost it’ due to all stressors in [his] life – family, work, finances.
On 9 September 2014 he consulted Dr Marcellina Martins of Arafura Medical Clinic. The clinical notes record:
ED report noted – attempted self harm : overdosed with Diazepam and alcohol
Work related stress ongoing for more than six months
- not sleeping well at nights
- work has become a nightmare for him
- seeking a reduction in level of management – no support from workplace – Defence
- home is fine – partner is supportive
- lost a lot of money to his builder – going [sic]
- suicidal ideations+
- No suicidal intents
Psychotherapy discussed – will see Mr ArthurOn 15 September 2014, 13 October 2014, 31 October 2014, 21 November 2014, 6 January 2015, and 17 February 2015 Dr Martins provided medical certificates in which she diagnosed Generalised Anxiety and Depression.
Mr Want began to consult Mr van Eigen again in October 2014.
On 24 November 2014 Dr Barry Kenny, a consultant psychiatrist, provided a report to Comcare in which he commented:
[Mr Want] had been working for the Department of Defence, in defence support, in Tindal, from 2001 to 2008. He said he was very happy there, managing the job well and was quite frustrated that they insisted he move to Darwin, where he had not been happy…
He did not specifically mention to me any specific incidents but certainly saw himself as not being well treated, well supported and well cared for. He also thought they were not sympathetic. They were not supportive, really, getting him out of that area and moving down to south Queensland, where his family is, he thinks he will be much better…
There are clearly other stressors in this man’s situation. For example, these longstanding problems he had, over financial matters associated with his house and I understand that he lost the legal process, but he claims that he has coped with that. He is not happy in the Darwin area. His father died within the last 12 months or thereabouts…
This is quite a complex matter really, with many interacting, overlapping stressors but all coming together to cause a significant degree of adjustment disorder with depression and anxiety, rendering him at this stage unfit for work.
Now, as far as I know, there is nothing to suggest that he had significant, relevant problems before he first hurt his back at work in, I think, 2010….
He clearly carries around some resentment, when he was virtually forced to move from Tindal to Darwin, where he has been, I think, since 2010. So, I think there is some basic resentment at his placement in Darwin…
I have no doubt, but that his physical symptoms and the restrictions associated with his prior injuries and operations, etc., make a significant contribution to his anxiety level and his difficulties in coping with the workplace…
I think that his physical injuries, at least some of which were work related, are very significant and a major determinant of his anxiety and his coping of the workplace…
Even from the emails I read, there is a strong suggestion that there are major interpersonal tensions in this workplace, and I am sure that there are some such between him and his immediate supervisor… Now, I note that he has been on a performance management program and that this is invariably stressful and anxiety provoking, and I am sure that he perceives that as him not being supported.
Now there are other issues for this man too; one is he does not want to be in Darwin anymore. He wants to be in south Queensland where the rest of his family is and has been seeking transfer. So, he is dissatisfied from that point of view as well.
In addition, there has been this major problem in terms of funding their house, which has led to legal problems and major financial difficulties. However, the point I am trying to make is that the causation of this man’s adjustment disorder is very complex indeed.
Having said that, I cannot avoid the conclusion that tensions and pressures in the workplace, the demands of work (especially in the light of his injuries) are a very major component of the development of his adjustment disorder…
However, regardless of what treatment he has, I am afraid, I think there is no possibility of returning this man to work at the level he has been working and certainly not in the area he has been working…
In my view, the most appropriate diagnostic label to use here is adjustment disorder with anxiety and depressed mood. Adjustment disorder refers to emotional and behavioural symptoms in response to stressors and that is clearly the case in this man…
I think he has had symptoms of a fluctuating level for a long period of time and I note that he had some anxiety and depression through August 2013 and October 2013 but his symptoms came to attention on 04.09.2014, but he had obviously had them some time before…
… the work related [stressors] are certainly significant and major contributors to the development of his symptoms.
I am of the view that his prior work related injury, the back injury, is a significant contributor even now, insofar that it has disrupted the continuity of his work and caused him considerable and continuing distress…
You have asked me, if possible, to detail the level of contribution for each of the factors listed above, I am afraid I simply cannot do that, as it is a complex interaction of factors…(emphasis added)
Dr Leonard Singh, a consultant psychiatrist, saw Mr Want on 18 December 2014. Dr Singh reported to Mr Want’s GP:
My impression is a major depressive episode in the context of work related stressors… The work situation appears to be intractable from his perceptions so it would be advisable that he does not return to that work environment. He will be incapable of routine employment until there is substantial improvement in his classic symptoms.
Two reports (one to Comcare dated 1 December 2014 and one to the Mr Want’s solicitors dated 29 June 2015) were provided by Mr Want’s treating psychologist, Mr van Eigen. In them he diagnosed adjustment disorder with anxiety and depressed mood and noted that bullying, harassment, and poor often contradicting management communication caused the psychiatric condition...
In February 2015 Mr Want was assessed via teleconference by Dr Jonathon Spear, a consultant psychiatrist, at the request of the Department. In his report dated 25 February 2015 he diagnosed generalised anxiety disorder and noted in respect of the diagnosis Perceived work stress, personal stress, bankruptcy, work performance issues. Dr Spear also stated:
‘[Mr Want] expressed a desire to move employment to live in Brisbane near to his children. He has been subject to significant personal stressors including a legal battle over a building contract since 2009. This has led him to file for bankruptcy and to be evicted from his home. He has previously participated in a protracted rehabilitation program in relation to a compensable back injury. He previously indicated in 2012 that he was stressed in the workplace. He might benefit from a transfer. He was referred to Dr James Hundertmark. He did not meet the DSM-IV criteria for a diagnosis at that time. He has been subject to several work performance improvement plans over the past few years. He had declined previous offers of having a reduction of level to APS6. He expressed the desire to move to Brisbane for personal reasons…
He has been diagnosed as having generalised anxiety disorder and depression. There is a number of stressors including a perceived lack of support and heavy workload. Despite weekly meetings with his supervisor, he reported he has had no opportunities for feedback. He has expressed a lack of trust in management…
He has only been present [at work] at 75 out of 271 days. There have been issues regarding his absence from work over the past five years. He also has performance issues, particularly difficulties with leadership and communication skills which have been under performance management since 22 June 2014...
Mr Want presents with excessive worry associated with impaired concentration and irritability. This may affect his work performance, contributing to work absences and lead to the possibility of interpersonal conflict…
In addition he was an evasive and inconsistent historian. He was not hostile or threatening at any time during the interview but given this was a medico legal assessment, malingering should be considered, in his case, as a possibility. Malingering can only be excluded by a period of prolonged observation…
The Department had commissioned Dr Spear’s report for the purposes of assessing his fitness for rehabilitation; as such he was not asked to comment on the causes of the generalised anxiety disorder.
Another consultant psychiatrist, Dr Jennifer Lockwood, did express an opinion on those causes in a report dated 30 July 2015. In that report she recounted a history provided to her by Mr Want, which included work and non-work stressors as well as stressors arising from his work related significant physical injuries. She noted:
For a number of years, Gary had been wanting to move away from Darwin and move to Brisbane, where his sons and earlier his father lived. He had wanted to be close to his family, not only to support them, but also to receive support due to the difficulties he was having with his health. As time went on he also felt that it would be better for him to work in a different work environment due to the ongoing workplace stress that he was experiencing…
His thoughts have altered over time. He initially developed anxious thoughts about his health in 2010/2011, and these have continued to a lesser extent over the years. Over time he has become increasingly preoccupied with his work and ruminated over his work, finances and health situations and current problems. Over time his ruminations have become more overwhelming to the point where at the present time he is ruminating constantly about his difficulties…
His symptoms started developing after his initial accident in early 2010. After this time for a period of time he was quite anxious about his health and at times felt quite depressed. He was having sleep problems and some anxious ruminations. These worsened a little when he returned to work, where he was very preoccupied with his pain and the difficulties he was having with mobility, and the effect these had on his work. His symptoms became more marked in around 2011, and then settled down to some extent, particularly as he became aware that he would be having an operation.
After his back operation in 2012, he struggled to return to work comfortably. After a period of time off… he started to develop the symptoms that are described above in terms of preoccupation with his work, feeling left out, an increasing sense of anxiety, and the development of panic attacks and some avoidance behaviours. He also was starting to notice at times that his concentration and short term memory were not as reliable as previously and started to develop a great deal of self-doubt, lack of confidence and some self-critical ideation. These symptoms were far worse than after his initial accident. He did seek psychological assistance and found this to be helpful with some reduction of his symptoms, though he remained overall symptomatic.
His symptoms worsened again after his return to work following his hip replacement surgery in 2014…. The symptoms described above worsened throughout 2014 to the point where by the end of 2014 he had quite severe symptoms of both anxiety and depression, was functioning poorly in every area, and he made a suicide attempt…
Since early 2010 he has had a series of complex events which have contributed to him having trouble with work and life, and which have all contributed to the development of psychiatric symptoms…
As a result of all these difficulties, it is my opinion that he has been developing psychiatric problems since around 2010. I think that initially he gradually developed anxious and depressive responses to chronic pain and other difficulties after his first injury. By the time his responses became problematic in terms of his functioning, and I consider that in time, probably initially around 2011 or 2012, he developed symptoms consistent with a diagnosis of an adjustment disorder with mixed anxiety and depressed mood, with these symptoms becoming more severe over time. Over the past six to twelve months, I consider his symptoms have worsened to the point where he currently satisfies the diagnostic criteria for a Major Depressive Episode, which is currently severe. He currently presents with Major Depression which is associated with a high degree of anxiety, and severe avoidance. Of concern is his recent deterioration, associated with irrational and paranoid thinking, the presence of depressive pseudo-hallucinations, and significant behavioural disturbance and current evidence of poor judgement. I consider that he is currently exhibits [sic] some early symptoms of developing psychosis associated with his depression…
It is my opinion that these disorders have arisen directly in response to a combination of stressful circumstances, as outline above. His most recent exacerbation has occurred in response to accumulative stressors and, most prominently, his understanding that he will be required to return to work in Darwin.
Dr Lockwood opined that when stressors or circumstances, which she recounted in detail, unrelated to work, occurred, Mr Want was already struggling with well-established pre-existing anxiety and depressive symptoms. She was of the opinion that the further stressors added to the severity of his symptoms.
She was asked to comment on contributing factors leading to his medical condition. In relation to his accepted physical condition and the pain and restrictions associated with it, she said that it had been a contributing factor. His feeling of being unsupported in the workplace and overworked had been a highly significant factor, and his desire to relocate to Brisbane has become a very important factor. Of issues arising out of the performance management process, however, she commented:
This has been influential.
Overall Dr Lockwood expressed the following opinion:
It is my opinion that his anxiety and depressive symptoms have arisen due to a complex combination of factors, many of which have influenced the other. For example, his health problems, namely his back injury and later long difficulties with his hip, started off initially after a workplace accident and have caused chronic pain which is in itself a severe stressor but also contributed to the workplace difficulties he has had by causing him to require significant periods away on leave and also to be relocated to a more isolated part of the office, with both of these factors significantly contributing to his sense of marginalised, ostracised and excluded from workplace communications and processes.
On 2 October 2015 Dr Kenny again reported on Mr Want. He commented:
Firstly, we are all aware of the fact that there are multiple stressors acting on this man and most of those who have assisted him have considered that work related stressors have been significant…
Anyway, I go back to my assertion that I say he has an adjustment disorder with depression and anxiety and at least one occasion an incident of symptomatic substance abuse. I also stand by the fact that there were many stressors contributing to the development of his condition. Having read all the various documentation, it certainly seems that the majority of the work-related stressors stem from his own difficulties coping with work and the consequent need for him to have had performance improvement plans. Whether we like it or not, these performance improvement plans are extremely stressful for people. Whether they are justified or not, they are actually extremely stressful for people.
It also seems so often that the person describes himself as having been bullied in the workplace whereas the employer’s view is one of taking appropriate action to improve a person’s function. That is a problem we come across so commonly. This man sees the work-related stressors as being inflicted on him by the workplace whereas work considers that his work-related “stressors” are a function of appropriate and legitimate performance improvement planning…
None of us as professional assessors can say that with any degree of certainty, but I have to acknowledge that having read all of the documentation I tend to come down on the side that the work-related stressors relate to the performance improvement plans, etc. I am not saying that in a dogmatic sense but I have to acknowledge that that is the impression I have but I insist that the critical question then is not a psychiatric one…
…there are real questions about whether the interpersonal tensions in the workplace are a function of the workplace or a function of this man and depend or not upon the performance management program that he has been involved in - he has had several performance management programs. I am also aware that the facts are that he transferred to South Queensland to be with his family and this is an important factor now.
In relation to a question regarding whether Mr Want’s condition resulted, at least in part, from his failure to obtain a transfer to Queensland, and/or the performance management program on which he placed, Dr Kenny stated that both factors were certainly contributing factors.
Expert testimony during the hearing
The doctors whose reports were tendered were not called to give live evidence. Only Mr van Eigen did so. His clinical notes from his consultation of 21 June 2013 were tendered. In them he refers to
…12 to 18 months ongoing issues with supervisor. Reports his work is never good enough, Gary is often told he should have done it this way or that way and is micromanaged.
The notes also refer to weekly meetings with the supervisor failing because she did not attend, and to her contradicting, undermining, and belittling his work. Mr van Eigen told the Tribunal he diagnosed severe adjustment disorder, anxiety and depressed mood at that time.
Mr van Eigen said that Mr Want had not raised with him any issues concerning his loss in the court proceedings in around August 2013. After a gap of about one year from October 2013, Mr Want again consulted Mr van Eigen in September 2014, following his hospitalisation earlier that month. In a report dated 1 December 2014 to Comcare, Mr van Eigen diagnosed Depression, Adjustment Disorder, severe Anxiety Disorder and Panic Attacks. He agreed in the witness box that work-related factors such as bullying, harassment and poor and often contradicting management communication have predominantly caused the condition.
THE RELEVANT LEGISLATION
Section 14 of the Act is the gateway through which entitlement to compensation under the Act generally must pass. It provides:
(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.
Section 5A defines injury to mean:
(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.
Disease is defined is s 5B to mean:
(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.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
There is a measure of agreement between the parties as to some of the matters before the Tribunal. The parties agree, and the medical evidence is unanimous in supporting, that Mr Want was suffering a psychological ailment (satisfying the test of a disease under s 5B) no later than September 2014. It is agreed that his employment with the Department had significantly contributed to the onset of that ailment. It is further agreed that both work and non-work-related factors were distressing Mr Want for some years before September 2014.
Comcare contends that the ailment was suffered no earlier than September 2014, and that it is not compensable because it was suffered as a result of actions which amount to reasonable administrative action within the proviso to s 5A(1). Mr Want, on the other hand, contends that his work-caused ailment arose well before September 2014, indeed possibly as early as February 2012. A disease suffered at that time, he asserts, cannot have been the product of reasonable administrative action by his employer, and even if he did not suffer his ailment until September 2014, his employer’s actions do not amount to reasonable administrative action.
Faced with these divergent interpretations of the evidence before the Tribunal, much turns on the date on which Mr Want could be said to have suffered his injury. Noting that Mr Want was being treated by a psychologist from June 2013, and had been sent by the Department for a psychiatric assessment more than a year prior to this, it falls to the Tribunal to appraise the relative contribution of a number of factors – some work-related, others not – made to the state of his mental health. If, by a particular date, an employment-related factor can be said to have significantly contributed to the onset of an injury, as defined in the Act, it must then be determined whether that factor is caught by the exclusion in s 5A. This will be more easily determined in some situations than in others. For example, psychological distress attributable to pain arising from his back injury (a condition already accepted as employment-related) could not feasibly be characterised as having been caused by reasonable administrative action.
This approach is, it should be conceded, not fully consistent with the Federal Court’s decision in Smith v Comcare[2013] FCAFC 65. There, the Full Court considered an appeal from a decision of the Tribunal in which the applicant claimed that his condition of aggravation of osteoarthritis had been contributed to by his employment as a meat inspector. The Tribunal had had regard to s 7(4) of the Act which provides:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
The Tribunal had determined a notional date of injury, using this subsection, based on its view of when the applicant first sought medical treatment. It only then considered the question of whether his employment had contributed to a material degree (the test of causation for which the Act provided in respect of an injury occurring before 2007) to the onset of his condition. It concluded that his employment had not so contributed.
The Full Court considered that this approach constituted an error of law. Buchanan J, with whom Greenwood J agreed, characterised the error as follows (at [35]):
The error was making a finding about a matter which arose under s 7(4) of the Act without any foundation upon which to do so, whether by way of prior finding for the purpose of s 14 or by way of assumption.
His Honour considered that this approach may have led the Tribunal to exclude evidence after the notional date of injury which might have been relevant to the issue of material contribution.
The approach approved by the Full Court in Smith is efficacious in relation to a physical injury; with respect, it is less useful in the context of a psychological injury to which, the parties concede, both work and non-work-related factors were actively contributing over an extended period. In any case, the parties here agree that Mr Want was mentally injured by his employment, but disagree as to when this occurred. The Tribunal considers, in the present case, that the issues it must determine are best characterised as follows:
(a)On what date did Mr Want suffer this psychological ailment?
(b)Did a work-related factor (or factors), contribute, to a significant degree, to the psychological ailment he was suffering on that date (s 5B(1))?
(c)If a work-related factor (or factors), did so contribute, does that factor, or any of those factors, constitute reasonable administrative action taken in a reasonable manner (s 5A(1))?
(d)If a factor or factors constituted reasonable administrative action taken in a reasonable manner, would Mr Want have suffered his ailment if that factor, or one of those factors, constituting reasonable administrative action had not been taken (pursuant to Comcare v Martin [2016] HCA 43)?
CONSIDERATION
Matter 2016/3847
It is convenient to dispose first of this matter, the reviewable decision made on 22 July 2016 to refuse liability for a psychiatric injury said to be a sequela of the back injury for which Comcare had accepted liability in March 2010 (the 2016 claim). Comcare‘s delegate refused liability on the basis that There is no evidence before me to support that the psychological injury you are currently claiming compensation for, is a separate psychological injury to the claim you have appealed to the AAT (i.e. the injury claimed in matter 2015/2353 – the 2015 claim).
Mr Want had submitted the claim for a psychiatric sequelae to the back injury because Comcare considered that he did not suffer an injury before September 2014. He pointed to the evidence of his psychological distress in the period following the work-related injury to his back in February 2010. Comcare had determined, in rejecting the 2016 claim, that the condition being claimed for was the same condition which was the subject of the 2015 claim. However, before the Tribunal, it conceded that this approach had been wrong and that there were two separate episodes of alleged injury which should be considered separately. In relation to the earlier episode, it conceded that Mr Want may have suffered psychological symptoms from as early as 2010, possibly related to his accepted back condition, but that the back condition had resolved by May 2012 at the latest and that, in any case, Mr Want’s mental state at that time did not constitute a diagnosable psychiatric condition.
It should be observed that, because of this late change of position, Comcare did not subject the 2016 claim to the full gamut of consideration and reconsideration provided for by Part VI of the Act before making its reviewable decision. It simply determined – inaccurately, as it now concedes – that the claim was the same as one already made. This is unfortunate, because it gives rise to the question of whether the Tribunal has jurisdiction to undertake merits review of a decision which, on one reading, has not passed through the gateway of review under Part VI (see Comcare v Muir [2016] FCA 346 at [28]-[37]). While it might satisfy the technical requirements of that Part, it must be doubted that it received the substance of the actual review the Part contemplates.
Whatever the merits of this observation, the Tribunal considers that the claim must fail because the weight of the evidence suggests that the condition Mr Want suffered from before mid-2012 did not rise to the status of an ailment pursuant to s 5B, and whatever lesser psychological condition he suffered from had abated or disappeared in the period between mid-2012 and mid-2013.
There was evidently a range of work and non-work-related pressures in Mr Want’s life from early 2010 until mid-2012. The compensable back injury was causing him pain and requiring him to take time off work. He also began in this period to develop problems in his relationship with Ms Rees-Scott. On return to work, he found himself separated from his staff by a staircase which his condition made difficult to use. In addition, a dispute with the builder of his home began to escalate and the first indications of a problem with his hips emerged. He was experiencing stress and insomnia. One doctor recorded in October 2011 that he felt very tired at the end of the week and he is feeling stressed.
His GP, Dr Wong, noted in February 2012 that Mr Want had nonspecific complaints constellation suspicious of depression, and that his symptoms were consistent with Mild depression.
This diagnosis was not, however, supported by Dr Hundertmark, a psychiatrist, who examined him in April 2012 and considered that Mr Want did not suffer from a psychiatric illness. He identified relatively low level emotional symptoms, and observed that he felt being quite jaded in his current section. There is no other medical evidence about his mental state available from this period.
Dr Wong’s conclusions were based, of course, on a series of consultations whereas Dr Hundertmark based his diagnosis on a single examination. Neither was called to give live evidence at the hearing to test the basis for their opinions. Nonetheless, generally speaking I consider it preferable to defer to the testimony of a psychiatrist to that of a GP in relation to a psychiatric condition. It is possible, of course, that the depression Dr Wong identified in February had waned by April when Dr Hundertmark examined him; noting, however, the somewhat tentative tone in Dr Wong’s diagnosis I think the better view is that his condition never amounted to a diagnosable mental illness during this period.
The evidence supports the view that Mr Want’s mental state moderated as 2012 progressed. In August his doctor took him off the antidepressant which had been prescribed in March, and no specific mention of symptoms of mental illness appears in the clinical notes between April 2012 and March 2013. On 14 March 2013 his GP recorded Moods: Up and down but Not feeling depressed. If he did not have a mental illness meeting the test of a disease under s 5B in April 2012, he certainly didn’t have one by the end of that year.
Therefore, and notwithstanding the concerns about its provenance, the Tribunal affirms the reviewable decision of 22 July 2016 in matter 2016/3847.
Matter 2015/2353
The evidence further indicates that Mr Want’s mental health deteriorated around the middle of 2013. By September 2014, when he presented at the Royal Darwin Hospital with an apparent overdose, he was quite clearly suffering a diagnosable mental illness – a conclusion supported by all the medical evidence. The question the Tribunal now considers is whether a diagnosable mental illness was manifested earlier than September 2014.
What is the date of injury?
On 6 June 2013 Dr Charles recorded that his patient was Tearful, rambling... Mr Want was referred to a psychologist, Mr van Eigen, for treatment of symptoms of depression and anxiety. On the same day Dr Charles wrote to the Department, saying that the rigors of his current job are negatively affecting his health.
Mr van Eigen diagnosed him as suffering from adjustment disorder with anxiety and depressed mood. His clinical notes from 21 June 2013 qualify Adjustment Disorder with the adjective Severe. The Tribunal notes that there was no examination by a specialist commissioned by Comcare from this time until after his hospitalisation in September 2014, although the evidence of Ms Lynn suggested that Mr Want had not been cooperative in facilitating such an examination.
The clinical notes of his GPs between June 2013 and September 2014 make intermittent reference to stress and to symptoms such as loss of sleep, but otherwise make little reference to a mental health condition. However, he was still prescribed sertraline, an antidepressant, until October 2013.
Dr Kenny, who diagnosed him with adjustment disorder with mixed anxiety and depressed mood in November 2014, answered questions from Comcare about the date symptoms first appeared by saying:
I think he has had symptoms of a fluctuating level for a long period of time and I note that he had some anxiety and depression through August 2013 and October 2013 but his symptoms came to attention on 04.09.2014, but he had obviously had them some time before.
Dr Lockwood, for her part, reported on 30 July 2015:
His symptoms worsened again after his return to work following his hip replacement surgery in 2014…. The symptoms described above worsened throughout 2014 to the point where by the end of 2014 he had quite severe symptoms of both anxiety and depression, was functioning poorly in every area, and he made a suicide attempt…
As a result of all these difficulties, it is my opinion that he has been developing psychiatric problems since around 2010. I think that initially he gradually developed anxious and depressive responses to chronic pain and other difficulties after his first injury. By the time his responses became problematic in terms of his functioning, and I consider that in time, probably initially around 2011 or 2012, he developed symptoms consistent with a diagnosis of an adjustment disorder with mixed anxiety and depressed mood, with these symptoms becoming more severe over time. Over the past six to twelve months, I consider his symptoms have worsened to the point where he currently satisfies the diagnostic criteria for a Major Depressive Episode, which is currently severe.
Dr Lockwood also considered that the condition Mr Want suffering from in mid-2015 was the same condition Mr van Eigen identified in June 2013. Other psychiatrists who examined him in 2015 were not asked to comment on a date of first injury.
The Tribunal accepts the evidence of Mr van Eigen that, in June 2013, Mr Want was suffering from a diagnosable mental illness. His evidence shows Mr Want reached the threshold referred to in Comcare v Mooi (1996) 42 ALD 495 at 499 of clinically significant, ie, abnormal behaviour in the circumstances of the particular patient as opposed to behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances.
It also accepts the body of evidence (Drs Martins, Kenny, Singh and Lockwood) that he suffered a diagnosable mental illness in the last quarter of 2014. The medical evidence about his mental state in the period between October 2013 (when he ceased consulting Mr van Eigen for financial reasons) and September 2014 (when he apparently overdosed) is somewhat more scant. Once again, it is possible that his condition receded in this period to the point where it ceased to be an ailment, but such a conclusion is largely speculative. There is certainly some evidence of stress in the work context during this period, particularly in June and July 2013.
On the balance of probabilities, the Tribunal regards the evidence before it as demonstrating that Mr Want suffered an adjustment disorder with anxiety and depressed mood as at 21 June 2013, a condition which persisted until at least the middle of 2015. What the Tribunal now turns to is the question, did Mr Want’s employment contribute significantly to the onset of his condition?
Did Mr Want’s employment contribute significantly to his ailment?
Dr Lockwood, in her report of 30 July 2015, succinctly summarises the challenge facing the Tribunal in answering this question:
Since early 2010 he has had a series of complex events which have contributed to him having trouble with work and life, and which have all contributed to the development of psychiatric symptoms…
The nature of that challenge is made more complex by a number of factors, many of which recur, in one form or another, in many cases the Tribunal is required to determine in applying s 5B of the Act to a factual situation where work and non-work causes of injury (particularly a mental injury) are in play. One factor is that those causes are often interconnected and overlapping, such that a non-work-related cause of an injury may contribute to or exacerbate a work-related cause, and vice versa. Partly for this reason, some causes are not susceptible to being neatly compartmentalised and labelled as being either work-related or non-work-related.
Another challenge is defining the scope or ambit of a cause. Where injury is said to result from a particular incident, defining that cause is unproblematic, but causes can be much more multifarious. In the present case, for example, a cause of Mr Want’s injury could be defined as the environment at work, or it could be broken down (adopting the categorisations put to Dr Lockwood) to issues and events occurring in the workplace and characterised by Mr Want as including his feeling ostracised, unsupported, stressed, pressured and overworked, as distinct from issues arising out of any performance management process. The first of those two causes could be further broken down into particular episodes, such as the delivery of partially effective verdicts by Ms Rees-Scott, or the email of 20 August 2013 from Ms Negus.
Another factor is that medical evidence of causation is often obtained months or even years after a date of injury, requiring specialists to construct hypotheses regarding chains of causation where a degree of speculation is inescapable. Yet a further complication is that the threshold a doctor uses to assess whether a particular cause makes a significant contribution may not be the same threshold used by a member of the Tribunal – a problem made more acute by the fact that neither the legislation nor the decided precedents define the meaning of the word significant in s 5B (except that it is substantially more than material – subsection (3)).
This latter problem arises in the context of the present case. In October 2014, Ms Rees-Scott listed 10 factors which she thought may be relevant to the onset of Mr Want’s mental condition (see paragraph [39] above). Assuming all the factors to have had some bearing on the development of his condition, some factors would need to have made a contribution of as little as 10%. It seems to me that a contribution of 10% falls short of being a contribution to a significant degree, as required by the section, but I am unaware of any previous decision to that effect.
Dr Lockwood was asked, in her report of 30 July 2015, to give an opinion as to the contribution of four specific factors and one generic factor (Issues unrelated to Mr Want’s workplace environment or his work-related injuries). She attached some importance to all five factors, though using different language to describe the contribution of each (contributing factor, highly significant factor, very important factor, etc.). Arithmetically, the highest contribution that the least important factor could make, therefore, is 20%. Can a work-related cause making a 20% contribution to the onset of a disease be a significant cause? That is a question to which there is no clear answer, and which decision-makers in the workers compensation jurisdiction may therefore answer differently faced with similar circumstances.
What can be said, however, is that the greater number of active causes to the onset of an ailment, the less likely it is that many of them will reach the threshold contemplated in s 5B. That, in essence, was an argument put to me by Comcare in the present proceedings. It submitted that there were so many factors impacting Mr Want’s personal life – including pain from his hip, unsuccessful court proceedings, his subsequent bankruptcy, the death of his father, being mauled by dogs – that, even if there were work-related factors contributing to his mental illness, these were so crowded out by non-work factors that none of them reached the s 5B threshold.
It seems clear that some non-work factors had a powerful bearing on Mr Want’s illness. The best approach to this issue, however, is to first identify and assess the likely contribution of each of the alleged work-related factors. If a work-related factor has made a significant contribution to the onset of his illness, the contribution of a non-work-related factor is clearly irrelevant.
Failure to obtain a transfer to Queensland
The inability to arrange a transfer to a suitable position in Queensland appears to have been a matter vexing and frustrating Mr Want from the middle of 2013. It appears that this ambition to move arose partly from a desire to be closer to his family there, and partly to get away from the work environment in Darwin. The issue was raised by Mr Want at various times both with his superiors at work and with his doctors.
Although his desire to move was restated with some regularity, and he expressed some frustration with what he considered the lack of action by his superiors in addressing the issue, it is not at all clear that the issue assumed major proportions in his mind, such as to be contributing significantly to the onset of his mental illness. Dr Kenny describes the issue as a contributing factor, but calibrating this comment against the threshold in s 5A is not straightforward. The same observation applies, but perhaps to a lesser extent, to Dr Lockwood’s opinion that this was a very important factor. As Mr Grey, Mr Want’s counsel, aptly noted, however, the move to Queensland issue was a response to a problem he already had, not the cause of it.
Overall, I am not persuaded that this factor significantly contributed to the onset of his ailment.
The back injury
There is considerable evidence that the accepted back condition arising from the fall in February 2010 was contributing to distress in the following years. The condition caused him to take extensive periods of leave, and later to reduce his work hours, during 2010. He returned to his preinjury duties in October that year. During 2011 he experienced more pain – particularly in his left leg, but also in his back – and required further time off work. By early 2012 Dr Wong was examining the evidence of depression in him.
However, in April 2012 Dr Wong identified osteoarthritis in both Mr Want’s hips, particularly the left one. That month he was examined by Dr Fry, who identified degenerative change in his hips, but who said that the back problem was unrelated to the hip problem. In July 2012 Dr Nyunt reported no complaint of back or leg pain, but reported severe osteoarthritis of his hips, to which he attributed most of Mr Want’s physical problems. Thereafter there is regular reference in the clinical notes to the problems with his hips but many fewer to the problem with his back.
This evidence offers support to the view that his accepted back condition may still have been a factor in the mental illness he experienced in mid-2013, but it falls far short of establishing that it made a significant contribution. It appears his hip condition had largely eclipsed his back condition as the principal contributor towards his physical pain by this time. I note that Dr Kenny, in his report of 24 November 2014, considers the back injury a significant contributor to his mental condition; it does not appear to me likely, however, taking into account the range of factors Dr Kenny considers significant, that this particular cause can be significant in the sense used in s 5B.
I am not persuaded that the back condition significantly contributed to the onset of his ailment.
The Performance Improvement Plan process
The PIP begun in June 2014 was the third to which Mr Want had been subjected since 2009. Comcare submitted that this PIP contributed significantly to his ailment. Moreover, I do not consider that there was any serious disagreement with this proposition from counsel for Mr Want.
Of course, the PIP begun in June 2014 cannot have contributed to the onset of his mental illness if, as I have already determined, that illness began in June 2013. However, I consider that the more appropriate way of defining this potential element of causation is the PIP process, not an individual episode of PIP. Mr Want had been subject to such processes of review since before he moved to the Darwin office, and on one view of the evidence the various PIPs were having a cumulative effect on his mental well-being.
In May 2013 a mid-cycle performance review by Ms Rees-Scott found that his KERs were either not met or only partially met. He was told monthly meetings were to be held and if necessary formalised improvement plans would be put in place. He told the Tribunal he felt, in relation to this process, that he was being set up to fail. The following month he began consultations with Mr van Eigen, and initiated his bid to transfer to Queensland. At about this time he told his doctor about feelings of being humiliated and undermined by his supervisor.
There is other evidence before and after this point of his distress occasioned by the PIP process. I consider that the evidence comfortably allows the Tribunal to conclude that the process significantly contributed to the onset of his ailment.
Issues in Mr Want’s workplace (other than the PIP process)
There was evidently a number of factors pertaining to the general conditions and environment of Mr Want’s workplace in Darwin which contributed to the decline in his mental health. These factors derive in part from his relationship with his superiors, particularly Ms Rees-Scott, but also had their origin in relationships with those under him in his team.
It is convenient to deal with this asserted element of causation separately to the PIP process. The PIP process is clearly administrative action taken in respect of the employee’s employment (s 5A(1)), whereas tensions and frictions generally rising within the workplace are unlikely to fall into that category. In Commonwealth Bank v Reeve [2012] FCAFC 21 at [60] Rares and Tracey JJ observed:
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”.
The issues in Mr Want’s workplace, which appear to have contributed to his unhappiness and distress, include:
·friction with members of his team – leading to yelling matches;
·a sense of isolation engendered by the physical separation from his staff on another floor when he had difficulty negotiating the staircase;
·his perception that Ms Rees-Scott and others left him out of important conversations about work projects;
·being told by his supervisor that he had not provided minutes and other documents, when in fact he had;
·the lack of trust his team appeared to have in him – and the appearance that they would go out of their way to work against him or frustrate his intent;
·his perception that Ms Rees-Scott didn’t back him up in dealing with unsatisfactory staff performance, especially in relation to Ms Negus;
·his perception that superiors failed to take account of his physical and mental injuries in assigning work, and that he was not supported; and
·his perception that he had an excessive workload.
Issues of this calibre were mentioned from time to time to his doctors, and also – but less frequently – to his superiors. For convenience I will refer to these factors collectively as workplace friction.
Workplace friction led to a sense of not being valued at work:
I was unhappy in the workplace. I was stressed to the hilt day in day out. I had the feelings of being isolated, my advice and guidance was being taken over by other people, I began second-guessing myself. I was seeing things occurring that should have been within my role and responsibilities being taken away from me. I felt superfluous.
Of course, some evidence was led to contradict the basis for some of the assertions made by Mr Want. Ms Rees Scott and Mr Nicholls, for example, told the Tribunal that allowances were indeed made for Mr Want’s state of health. In this regard the Tribunal observes that Mr Want was, in many respects, the architect of his own dissatisfaction, given that he appeared to have a confrontational style and shortcomings in his mode of leadership which no doubt lent some weight of the complaints made by his staff. As Dr Kenny noted in his report of 2 October 2015:
…there are real questions about whether the interpersonal tensions in the workplace are a function of the workplace or a function of this man…
The extent to which he shares some of the blame for the unsatisfactory situation he found himself in by mid-2013 is, however, beside the point. The inescapable fact is that the workplace friction at the Darwin office, whatever its genesis, was actively compounding the deteriorating state of his mental health.
Any doubt about this conclusion is eased by reference to the medical evidence. In his report of November 2014 Dr Kenny, while noting many interacting, overlapping stressors, observed:
I cannot avoid the conclusion that tensions and pressures in the workplace, the demands of work (especially in the light of his injuries) are a very major component of the development of his adjustment disorder…
In his subsequent report dated 2 October 2015, Dr Kenny modifies his position slightly:
None of us as professional assessors can say that with any degree of certainty, but I have to acknowledge that having read all of the documentation I tend to come down on the side that the work-related stressors relate to the performance improvement plans, etc. I am not saying that in a dogmatic sense but I have to acknowledge that that is the impression I have
Dr Kenny does not explicitly separate, and determine the contribution of, the PIP process and the workplace friction. However, Dr Lockwood does. She explicitly isolates these factors and attaches discrete weighting to each. In relation to a contribution from issues and events occurring in the workplace and characterised by Mr Want as including his feeling ostracised, unsupported, stressed, pressured and overworked, she offers the opinion:
This has been a highly significant factor.
She rates as influential
Issues arising out of any performance management process.
It is fair to deduce from this differentiation in description that she considered the workplace friction a major reason for his mental illness. Dr Lockwood’s opinion was supported by the evidence given by Mr van Eigen:
…work-related factors such as bullying, harassment and poor and often contradicting management communication have predominantly caused the condition.
On the balance of probabilities I am satisfied that the workplace friction, considered separately from the PIP process, contributed to a significant degree to the onset of Mr Want’s mental illness in June 2013.
Did these contributing factors constitute reasonable administrative action taken in a reasonable manner?
The issues impacting on Mr Want’s health, which collectively I have called workplace friction, cannot constitute reasonable administrative action pursuant to s 5A. This is because they do not generally have the character of administrative action, whether reasonable or otherwise. Many of the issues relate to personal relationships within the workplace, including relationships with people answerable to Mr Want. It is difficult to imagine how the actions of subordinates could ever constitute administrative action in respect of his employment. Even the actions of his superiors (outside the PIP process) do not fall within the quality of administrative action referred to by the Federal Court in Reeve, that is, they are not
…administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job.
Counsel for Mr Want, Mr Grey, submitted that the PIP process, similarly, could not be regarded as reasonable administrative action. He focused on the onerous and unspecific nature of the KERs Mr Want was expected to work towards, and submitted:
The comments made by the Applicant himself in response to his beliefs about his performance totally at odds with those provided by Ms Rees-Scott. The Applicant believed he had met all 12 of his KERs. Ms Rees-Scott found that he had met only 1 out of 12, had not met 4 and only partially met 6. The reasons for these ratings are nebulous. It is quite clear that, despite being the Applicant’s direct supervisor, Ms Rees-Scott had (on the most charitable view of her) a totally inadequate understanding of the totality of the Applicant’s mental and physical health between 2012 and 2014, notwithstanding that he was regularly informing her that he was going to see a mental health practitioner, Mr van Eigen, and was otherwise providing medical certificates, during that period. There is nothing to suggest that Ms Rees-Scott made any allowances for his mental and physical health in assessing his achievement of KERs. All of this affected the reasonableness of imposing a PIP on him, and required careful handling of the process of performance management. None of that occurred.
In addition, Mr Grey extensively cross-examined Ms Rees-Scott, Ms Lynn and Mr Nicholls in respect of the PIP process as applied to Mr Want.
In Comcare v Martinez (No2) 302 ALR 608 Robertson J held that administrative action did not become unreasonable merely because alternative reasonable courses of action were available to the employer. His Honour said (at [81]):
The further error of law which the applicant contends is evident in this paragraph goes to the issue of alternatives. In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably.
Similarly, in Lee and Comcare [2012] AATA 867, the Tribunal observed:
There will frequently be a range of ways in which administrative action might be taken reasonably as well as a range of ways that are unreasonable. Here, I consider, the action was taken in a reasonable manner even though, with the benefit of hindsight, it may now be said that the actions could have been done better.
To say that administrative action must be reasonable is not the equivalent of saying it must be perfect. In the circumstances of the present matter, it is possible that some steps taken by Ms Rees-Scott and others in dealing with Mr Want’s performance in the workplace might, with the benefit of hindsight, have been conducted somewhat differently. But little in the nature of significant mishandling of his circumstances appears from the evidence. To some extent, the submissions made on his behalf seem to presuppose that he performed competently in his employment, and that the various PIP exercises were heavy-handed and inappropriate. If so, I do not agree that this characterises the situation he was in. There do appear to have been valid concerns about Mr Want’s style of leadership of his unit, and the PIP process appears generally to have been a measured and appropriate response to that. Little was revealed in the cross-examination which would sustain the view that Mr Want’s physical and mental needs were being inadequately taken into account in that process.
Mr Grey pointed out that both the Comcare delegates involved in making and then affirming the reviewable decision of 23 April 2015 were of the opinion that the Department’s actions in relation to the PIP, while reasonable administrative action, were nonetheless not undertaken in a reasonable manner. He criticised the fact that Comcare appeared now to be resiling from that opinion. While agreeing that such an approach by a respondent is less than desirable, there is nothing in the operation of the Act preventing it from doing so. Indeed, on my reading of the evidence, Comcare had good cause to discard the opinion of its delegates.
Accordingly, the Tribunal finds that the PIP process was reasonable administrative action taken in a reasonable manner in respect of Mr Want’s employment.
(As an aside, the Tribunal observes that, if it is wrong in determining that the failure to obtain a transfer to Queensland did not significantly contribute to Mr Want’s mental illness, it would nevertheless have found that this cause of his illness did not constitute reasonable administrative action. In so finding, the Tribunal accepts the argument of Mr Grey that a failure to obtain a transfer is not administrative action. What could be said, in this hypothetical situation, to have injured Mr Want was not the fact that several of his superiors were trying but failing to obtain a transfer for him, but the fact that no transfer was available per se. That fact was not the product of administrative action but rather an independent, freestanding reality of his situation. It could be said to have occurred despite, not because of, the actions of his superiors in attempting to secure it.)
Does the PIP process meet the test imposed in Comcare v Martin?
The law surrounding reasonable administrative action has been refined and clarified by the High Court in its decision of Comcare v Martin [2016] HCA 43. The court considered the meaning of the words as a result of in s 5A(1). It held (at [47]):
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
Prior to this decision, it was generally understood, pursuant to the decision in Hart v Comcare (2005) 145 FCR 29, that where several causes significantly contributed to a claimant’s condition, and just one such cause could be classified as reasonable administrative action taken in a reasonable manner, the exclusion in s 5A(1) would operate to exclude that claim from liability under the Act. The High Court has now clarified in Martin that the further test referred to above must be applied to such a cause before it will operate to exclude liability.
The test as now understood was set out by the Federal Court in Lim v Comcare [2017] FCAFC 64 at [45] as follows:
We observe that in a different case, where both employment and non-employment factors are posited as contributing to an ailment or an aggravation of such an ailment (within the meaning of s 5B(1)), in order to determine whether s 5B applies, a finding would need to be made as to whether the ailment or aggravation was contributed to, to a significant degree, by the employee’s employment. If there was an affirmative finding, then the further questions would arise as to whether or not there was reasonable administrative action taken in a reasonable manner; and, if so, whether or not the disease would have been suffered by the employee if that action had not been taken. If the Tribunal were so satisfied, then the exclusion to the definition of “injury” in s 5A(1) would apply.
In the present matter, the Tribunal has determined that the PIP process, an employment related-factor which contributed to a significant degree to Mr Want’s disease, constituted reasonable administrative action taken in a reasonable manner. Following Martin and Lim, the Tribunal now considers the question: would Mr Want have suffered his mental illness if the PIP process had not been undertaken?
On this question there is very little direct evidence before the Tribunal. On the contrary, the evidence suggests that a complex matrix of issues – some work-related, some not – have led to the onset of his illness. If identifying with precision what exactly has significantly contributed to his condition has been difficult, it is a further order of difficulty again to say whether he would have suffered his illness but for the occurrence of one particular cause.
The Tribunal notes that none of the doctors answered this hypothetical question, because none were asked it. There was a tentativeness about the question of causation in the opinion of all the doctors, for reasons which are entirely understandable. Dr Kenny said in his opinion for Comcare:
You have asked me, if possible, to detail the level of contribution for each of the factors listed above, I am afraid I simply cannot do that, as it is a complex interaction of factors…
In the circumstances, the Tribunal cannot, with any reasonable level of satisfaction, find that Mr Want would not have suffered his disease if the PIP process had not occurred. If it cannot make that finding, then the exclusion in s 5A(1) cannot apply.
DECISION
Based on the evidence before it, the Tribunal:
(a)sets aside the reviewable decision dated 23 April 2015 and finds instead that Mr Want suffered an injury under s 14, being an adjustment disorder with depression and anxiety, with a date of injury of 21 June 2013; and
(b)affirms the reviewable decision dated 22 July 2016.
I certify that the preceding 162 (one hundred and sixty two paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
........................................................................
Associate
Dated: 12 April 2018
Date(s) of hearing: 2 November 2016; 3 November 2016; 4 November 2016; and 21 April 2017 Date final submissions received: 23 May 2017 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: Mr N Gabbedy, Pappas J Attorney Counsel for the Respondent: Mr C Clark Solicitors for the Respondent: Ms L Hinwood, Sparke Helmore
- AGLC
- Want and Comcare (Compensation) [2018] AATA 877
- Case
- [2018] AATA 877
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine several key issues. These included identifying the date on which Mr. Want suffered his psychological ailment, whether a work-related factor contributed to a significant degree to that ailment, and if so, whether that factor constituted reasonable administrative action taken in a reasonable manner. Furthermore, the Tribunal had to consider whether Mr. Want would have suffered his ailment if the reasonable administrative action had not been taken. A preliminary issue also arose regarding the jurisdiction to review a decision that Comcare conceded had been inaccurately processed.
In its reasoning, the Tribunal noted that while the approach approved for physical injuries might be less useful for psychological injuries with multiple contributing factors, the parties agreed that Mr. Want was mentally injured by his employment, but disagreed on the timing. The Tribunal found that Comcare's concession that it had wrongly treated the second claim as identical to the first, and its late change of position, meant that the 2016 claim had not undergone the full review process contemplated by the Act. Regarding the merits, the Tribunal could not be satisfied that Mr. Want would not have suffered his disease if the Performance Improvement Plan (PIP) process had not occurred, meaning the exclusion under s 5A(1) could not apply.
Consequently, the Tribunal set aside the reviewable decision of 23 April 2015, finding that Mr. Want suffered an injury under s 14, specifically an adjustment disorder with depression and anxiety, with a date of injury of 21 June 2013. The Tribunal affirmed the reviewable decision of 22 July 2016.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The approach approved by the Full Court in Smith is efficacious in relation to a physical injury; with respect, it is less useful in the context of a psychological injury to which, the parties concede, both work and non-work-related factors were actively contributing over an extended period. In any case, the parties here agree that Mr Want was mentally injured by his employment, but disagree as to when this occurred. The Tribunal considers, in the present case, that the issues it must determine are best characterised as follows: (a)On what date did Mr Want suffer this psychological ailment?(b)Did a work-related factor (or factors), contribute, to a significant degree, to the psychological ailment he was suffering on that date (s 5B(1))?(c)If a work-related factor (or factors), did so contribute, does that factor, or any of those factors, constitute reasonable administrative action taken in a reasonable manner (s 5A(1))?(d)If a factor or factors constituted reasonable administrative action taken in a reasonable manner, would Mr Want have suffered his ailment if that factor, or one of those factors, constituting reasonable administrative action had not been taken (pursuant to Comcare v Martin [2016] HCA 43)?CONSIDERATIONMatter 2016/3847 It is convenient to dispose first of this matter, the reviewable decision made on 22 July 2016 to refuse liability for a psychiatric injury said to be a sequela of the back injury for which Comcare had accepted liability in March 2010 (the 2016 claim). Comcare‘s delegate refused liability on the basis that There is no evidence before me to support that the psychological injury you are currently claiming compensation for, is a separate psychological injury to the claim you have appealed to the AAT (i.e. the injury claimed in matter 2015/2353 – the 2015 claim). Mr Want had submitted the claim for a psychiatric sequelae to the back injury because Comcare considered that he did not suffer an injury before September 2014. He pointed to the evidence of his psychological distress in the period following the work-related injury to his back in February 2010. Comcare had determined, in rejecting the 2016 claim, that the condition being claimed for was the same condition which was the subject of the 2015 claim. However, before the Tribunal, it conceded that this approach had been wrong and that there were two separate episodes of alleged injury which should be considered separately. In relation to the earlier episode, it conceded that Mr Want may have suffered psychological symptoms from as early as 2010, possibly related to his accepted back condition, but that the back condition had resolved by May 2012 at the latest and that, in any case, Mr Want’s mental state at that time did not constitute a diagnosable psychiatric condition. It should be observed that, because of this late change of position, Comcare did not subject the 2016 claim to the full gamut of consideration and reconsideration provided for by Part VI of the Act before making its reviewable decision. It simply determined – inaccurately, as it now concedes – that the claim was the same as one already made. This is unfortunate, because it gives rise to the question of whether the Tribunal has jurisdiction to undertake merits review of a decision which, on one reading, has not passed through the gateway of review under Part VI (see Comcare v Muir [2016] FCA 346 at [28]-[37]). While it might satisfy the technical requirements of that Part, it must be doubted that it received the substance of the actual review the Part contemplates.