Whitty and Comcare
[2011] AATA 594
•26 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 594
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3557
GENERAL ADMINISTRATIVE DIVISION ) Re MICHAEL WHITTY Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member and
Dr M Denovan, MemberDate26 August 2011
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for psychiatric injury – Diagnosis of recurrent depressive episodes – No significant contribution by aspects of employment - Disease not attributable to employment – Any contribution resulted from reasonable administrative action taken in a reasonable manner – No injury – No liability of respondent for compensation for incapacity or impairment – Decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14
Comcare v Chenhall (1992) 37 FCR 75
Re Georges and Telstra Corporation Limited [2009] AATA 731
Gilbert and Comcare [2009] AATA 224
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Radulovic and Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Repatriation Commission v Webb (1987) 13 ALD 421
Wilson and Comcare [2010] AATA 396REASONS FOR DECISION
26 August 2011 Mr R G Kenny, Senior Member and
Dr M Denovan, MemberBACKGROUND
1. On 28 November 2009, Michael Whitty lodged a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for rehabilitation and compensation in respect of “depression”. He claimed that he had suffered a mental condition from when he was aged 13 years as a result of sexual abuse and that this condition was exacerbated by an employment-related phone call he had while working with the Department of Veterans’ Affairs (DVA) on 6 August 2009. On 18 March 2010, Comcare diagnosed an injury of “aggravation of major depressive disorder, recurrent episode”. It found that this was contributed to, to a significant degree, by Mr Whitty’s employment with DVA. However, Comcare determined that there was no liability under s 14 of the Act as the condition resulted from reasonable administrative action taken by DVA in a reasonable manner. That determination was affirmed by Comcare in a reviewable decision on 2 July 2010.
APPLICANT’S AND RESPONDENT’S SUBMISSIONS
2. Mr Whitty referred to a telephone conversation he had with a veteran on 6 August 2009 in relation to financial matters as part of assessing the veteran’s proper pension entitlements. During that conversation, the veteran threatened to report him to the Minister for Veterans’ Affairs. Mr Whitty conceded that he had suffered from dysthymia and episodes of depression prior to 2009 but submitted that the recurrent episode of depression developed because of the effects of the veteran’s threat and the need for a subsequent investigation of the resultant ministerial complaint which was conducted by DVA staff. He submitted that his impairment commenced on 6 August 2009 and that this marked the day on which he should be taken to have sustained the episode of depression. Mr Whitty accepted that the procedures adopted in investigating the veteran’s complaint were appropriate but contended that the level of seriousness with which the investigation was conducted further contributed to his depression. He contended that his depression was already present when he was involved in a further telephone incident with a different pension recipient on 2 October 2009 and subsequent formal counselling on 6 October 2009. Mr Whitty submitted that, accordingly, those events in October 2009 played no causal role in the onset of the depressive episode.
3. Although not identified in his initial claim for compensation, in his evidence Mr Whitty referred to an additional aspect of his employment with DVA as having also contributed to his depression. This was the manner in which senior DVA staff conducted training and accreditation procedures with him in 2008 and 2009. Indeed, this was the only matter referred to by him in his final submission at the hearing.
4. For the respondent, Mr Clark submitted that Mr Whitty’s psychiatric condition was not contributed to, to a significant degree, by his employment with DVA, in that his employment was merely the setting within which his pre-existing recurrent depression became manifest. Alternatively, Mr Clark submitted that, if there was a significant contribution to the condition by any aspect of Mr Whitty’s employment with DVA, it would constitute an ‘ailment’ and therefore a ‘disease’ as set out in s 5B of the Act. However, he also submitted that, in that situation, Mr Whitty’s claim would fall within the exclusionary provisions of s 5A of the Act, in that the condition developed as a result of reasonable administrative action undertaken by DVA staff in a reasonable manner. He submitted that this was the case even if the administrative action only partly contributed to the condition.
ISSUES AND LEGISLATION
5. The diagnosis given to Mr Whitty’s psychiatric condition in the decision under review is “aggravation of major depressive disorder, recurrent episode” as sustained by him on 7 October 2009, the date on which he first received treatment. The issues for the Tribunal are the appropriate diagnosis of Mr Whitty’s condition, the date to be taken as the onset of the condition and whether Comcare is liable, under s 14 of the Act, to provide rehabilitation and to pay compensation to Mr Whitty for an injury or disease which has resulted in incapacity for work or in impairment.
6. Amendments to the Act in 2007[1] commenced operation on 13 April 2007. It is not in dispute that the recurrent episode of Mr Whitty’s depression occurred after the commencement of the 2007 amendments. The relevant provisions of the Act read:
[1] See Act No 54 of 2007.
4(1)ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease has the meaning given by section 5B.
injury has the meaning given by section 5A.
…
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) ...
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.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
EVIDENCE
7. Mr Whitty was born, educated and employed in a wide range of activities in Canberra before joining the Commonwealth Public Service in 1997. By 2007, he had attained a position at level APS 5 with the DVA. His Canberra position became redundant and he transferred to Brisbane in 2007, where he retained his level APS 5 classification but performed duties at level APS 3. From July 2008, he underwent training for Income Support duties at level APS 3 and obtained accreditation at that level in November 2008. From February 2009, he underwent training for level APS 4 and was accredited at that level in May 2009. As a member of the Income Support team at DVA, he assisted in providing a telephone enquiry service to the veteran community.
8. On arriving in Brisbane, Mr Whitty and his wife opened a coffee shop with the intention that Mrs Whitty would operate that business. The venture was unsuccessful. Mr and Mrs Whitty suffered severe financial loss, which resulted in their having to sell their house and car.
9. Mr Whitty was critical of the training and accreditation process he underwent with DVA. He perceived that the persons responsible for it were attempting to demonstrate that he did not have the ability to pass, with the result that he would be dismissed from his employment. The Assistant Director of Income Support in Brisbane, Elizabeth Serisier, gave evidence, as did Mr Whitty’s team leader, Marion Milne. They referred to the training and accreditation of Mr Whitty and said that it was done in accordance with the Income Support National Protocols for the Quality Assurance program, a copy of which was included in the evidence. For level APS 3, Ms Serisier noted that Mr Whitty did not quite meet the required capability threshold but was assured by Ms Milne that he had acquired the basic knowledge for that level. Ms Serisier said that it was decided to pass Mr Whitty at level APS 3 but with a requirement that he consolidate his role for a few months before commencing the training for level APS 4.
10. In relation to Mr Whitty’s level APS 4 training, Ms Serisier contacted the local People Services team. This was because of Mr Whitty’s difficulties in being accredited at level APS 3 and because of his previous health problems, including absences from work due to a carpal tunnel condition. The team suggested that Mr Whitty undergo an assessment by a clinical psychologist to ensure that any health or other issues were considered when planning his training, accreditation and day-to-day work. This was done by Arena Karatzis, who prepared a detailed report on 22 December 2008. After that report was received, Mr Whitty commenced his level APS 4 training. Ms Serisier and Ms Milne said that Mr Whitty did not satisfy the accreditation requirements for that level, even though his training spanned the full three-month period allocated to it. At a formal meeting attended by Ms Serisier, Ms Milne, Mr Whitty and a union representative who accompanied Mr Whitty, he was advised that he had not passed accreditation for level APS 4. Despite that, after discussion with the Union representative in June 2009, Grant McCorry, the Director of Income Support, resolved that Mr Whitty should be conceded level APS 4 accreditation. This was subject to his working at that level for a few months to consolidate his knowledge. Mr Whitty was also to be subject to monthly review by Ms Milne, and in evidence was a favourable report completed by her for July 2009.
11. Ms Serisier described concerns with the manner in which Mr Whitty was carrying out his duties of answering telephone calls. He frequently passed the call on to another operator without speaking to the caller. When this was noted, Ms Serisier arranged for team leaders to speak to all operators to confirm telephone answering protocols and the principles of teamwork associated with transferring calls. Ms Serisier noted that, thereafter, Mr Whitty dramatically reduced the number of transfers he made.
12. On 6 August 2009, Mr Whitty was processing a change in the pension assessment of a particular veteran and contacted him by telephone to check on information about aspects of his financial circumstances. During that contact, the veteran became upset with Mr Whitty’s questioning. Before terminating the conversation by hanging up the phone, the veteran advised Mr Whitty that he would report him to the Minister, whom he knew personally. The prospect of a ministerial complaint greatly concerned Mr Whitty, to the extent that it interfered with his capacity to sleep restfully. He believed that this lack of sleep was responsible for the subsequent onset of his depression. Mr Whitty was aware that the veteran’s complaint was taken seriously by his superiors at DVA and that a thorough investigation took place. In his statement dated 17 March 2011, Mr Whitty accepted that due process was followed by the investigators and was relieved to learn that the allegations against him were found to be groundless.
13. Ms Serisier’s evidence was that the veteran made a written complaint to the Minister about Mr Whitty’s call on 6 August 2009, accusing him of bullying and demanding that his employment be terminated. She investigated the complaint but recommended to Mr McCorry that a formal investigation was not warranted. However, Ms Milne, who had overheard the conversation, spoke to him about training issues that arose from the phone call. The veteran continued to complain about Mr Whitty, and Ms Serisier met with Mr Whitty on 15 September 2009 to inform him of the complaints. She noted that no attempt had been made by Mr Whitty to gain access to the veteran’s files and concluded that Mr Whitty was not following the case and was not concerned about it. Ms Serisier recalled that Mr Whitty remained relaxed and appeared happy throughout her meeting with him.
14. A phone call on 2 October 2009 between Mr Whitty and a different pension recipient was overheard by Ms Milne and by Ms Serisier. Mr Whitty had been speaking in a raised and angry voice and was counselled by Ms Milne immediately after the call. Ms Serisier reported this incident to Mr McCorry who instructed her to arrange a formal counselling session with Mr Whitty about his telephone work. This was done at a meeting on 6 October 2009 with Ms Serisier, Ms Milne and Mr Whitty. At the meeting, Ms Serisier advised Mr Whitty that there were concerns about his phone calls and that although he had been supported in relation to the call on 6 August 2009, this was not so with his call on 2 October 2009. She advised him that, if there were further complaints about him speaking in an aggressive or threatening manner to veterans, she would consider a formal code of conduct breach. She said that Mr Whitty left after the meeting and did not return to work.
15. Mr Whitty’s medical records reveal that, whilst in Canberra, he attended for psychiatric treatment in 1984, 1987, 2000 and 2003.[2] These consultations were associated with Mr Whitty’s use of drugs. He also saw a psychiatrist in 2004 and was diagnosed with depression.[3] In Brisbane in August 2008, Mr Whitty saw forensic psychiatrist Dr Peter Klug in relation to the impact upon him of sexual abuse he experienced when he was at school. In 2008, the perpetrator of the sexual abuse was convicted in Canberra and Mr Whitty was engaged in settlement negotiations for compensation in relation to the sexual abuse. Dr Klug diagnosed dysthymic disorder with superimposed major depressive disorder.
Medical evidence
[2] See the report dated 1 September 2008 by psychiatrist Dr Peter Klug (page 6).
[3] See the report dated 14 March 2011 by psychiatrist Dr Frank Varghese (page 3).
16. Mr Whitty’s treating psychiatrist, Dr Steve Kisely, completed reports on 1 December 2009, 15 December 2009, 19 January 2010, 2 February 2010 and 29 April 2011. Psychiatrist Dr Frank Varghese completed a report on 14 March 2011. Dr Kisely and Dr Varghese also gave evidence. The evidence before us also included a report from Dr Klug, dated 1 September 2008, as well as several reports from Mr Whitty’s treating medical practitioner, Dr Kenny Loi. As well, there were psychologist reports from Arena Karatzis, dated 17 December 2008, 22 December 2008 and 8 February 2010; from Alison Christensen, dated 19 December 2008; and from Stephanie Stephens, dated 20 May 2011. There were also clinical notes from Ms Stephens for the period from 3 September 2009 until 23 October 2009; from the Ipswich Hospital dated 19 October 2009; and from Dr Loi for the period from 14 April 2009 to 15 October 2009.
Dr Kisely
17. Dr Kisely said that Mr Whitty had depressive symptoms since approximately 1993 and that he has seen psychiatrists for over 30 years. His diagnosis of Mr Whitty’s psychiatric state was major depression in the context of dysthymic disorder. In his report of 2 February 2010, he described Mr Whitty’s depression as having occurred with the re-emergence of the child sexual abuse matters, in the context of the conviction of the perpetrator, and as having been exacerbated by conflict in the workplace. In his evidence, Dr Kisely said that the telephone threat to involve the Minister may have increased symptoms for a while but was not the major cause of Mr Whitty’s depressive episode. He considered that the depression pre‑dated the phone call and he attributed this to conflict with a supervisor during the process of upgrading Mr Whitty’s employment ratings to levels APS 3 and 4.
18. Dr Kisely also referred to the insomnia experienced by Mr Whitty after the phone call on 6 August 2009. He considered that this was a symptom of depression and not a causal factor in its development. His opinion was that there were several factors involved in the recurrence of Mr Whitty’s depression, including the sexual abuse issues, the financial consequences of the collapse of the coffee shop venture, domestic issues relating to his daughter as well as constitutional factors.
19. Dr Kisely conceded that he had not seen the various reports completed by DVA staff or by psychologists concerning Mr Whitty. He also agreed that there was a limited role to be played by a treating psychiatrist in relation to attributing causation to a condition. He confirmed that his function was that of treating Mr Whitty for his psychiatric problems rather than that of attributing cause to them.
Dr Varghese
20. Dr Varghese saw Mr Whitty on 14 February 2011 and provided a very detailed report which set out the background of psychiatric treatment that Mr Whitty has undergone. In the history that he took, Dr Varghese noted that, in 2008 to 2009 there were several issues that Mr Whitty claimed to be troubling him. These included his previous sexual abuse, the failed coffee shop venture, domestic problems with his daughter and his wife, and his treatment at work. With the work situation, Mr Whitty reported to Dr Varghese that his training process for levels APS 3 and 4 had been sabotaged, that he was told he was not going to pass the training tests and that he was referred to a psychologist. He told Dr Varghese that he was already seeing a psychologist, Ms Stephens, in relation to the court case associated with his sexual abuse as a child. Mr Whitty advised Dr Varghese about the threatening phone call on 6 August 2009. He also advised him of the phone call on 2 October 2009 and his meeting with his supervisors on 6 October 2009. After the meeting, he went home and saw Dr Loi, who referred him to Dr Kisely. Dr Varghese noted that Mr Whitty had been focussed on the work difficulties which preceded the phone call on 6 August 2009.
21. On the basis of the history given by Mr Whitty, Dr Varghese concluded that Mr Whitty suffers from an underlying dysthymic disorder with episodes of recurrent major depression. He supposed that, if Mr Whitty’s training had been sabotaged and he was badly treated as he claimed, this may have contributed to Mr Whitty’s depression. In the alternative, Dr Varghese supposed that Mr Whitty’s difficulties with performance may have been a reflection of a developing depressive illness which caused him to see the workplace as hostile and threatening. Dr Varghese doubted that either of the phone calls on 6 August 2009 and 2 October 2009 could have precipitated major depression and that there appeared to be depressive symptoms prior to these calls. He considered that Mr Whitty’s reaction to the phone calls was likely to be a reflection of his depression.
22. After expressing those views, Dr Varghese read the material supplied to him by the respondent. This included reports from Dr Loi, Dr Klug and Dr Kisely; from psychologists Ms Karatzis, Ms Stephens and Ms Christensen; from Ms Serisier, Ms Milne and the Ipswich Hospital. On doing so, he confirmed his opinion that Mr Whitty suffers from recurrent major depression and that he was suffering from an episode of major depression which pre-dated his cessation of work by a significant period. He described an underlying dysthymic disorder which was likely to have been present for several years. He identified Mr Whitty’s depression as being multifactorial in origin but considered that the episode of major depression in 2009 was brought about by psychosocial adversity unrelated to his work. He identified relevant factors as child sexual abuse, the failed coffee shop venture, court proceedings and domestic family issues. Dr Varghese also said that depression may develop without a specific “trigger” and explained that there can also be a seasonality to the onset of the condition. His final opinion was that Mr Whitty’s depressive episode was unrelated to work but that, as a result of his depression, he came to see the workplace as hostile and persecutory and that the reactions to the phone calls was a reflection of his depressive cognition.
Dr Loi
23. Dr Loi’s clinical notes for April, June and July 2009 refer to attendances by Mr Whitty for an ear infection and URTI symptoms. On 16 September 2009, his attendance was for a sore ear and throat. On 7 October 2009, Dr Loi noted “work stressors esp at work; lack of sleep”. He also noted that Mr Whitty had seen psychiatrists in Canberra and that he felt depressed and victimised at work. In his report of 12 October 2009, he described Mr Whitty as having paranoid ideations for the previous few weeks with symptoms of depression. He also noted that Mr Whitty had experienced childhood sexual abuse and described his main problem at that time as obesity. On 12 October 2009, Dr Loi referred Mr Whitty to Ipswich Mental Health at Ipswich Hospital.
24. In his report of 1 February 2010, Dr Loi expressed the opinion that the phone call incident on 6 August 2009 and the subsequent DVA investigation were the main employment factors which aggravated his depression. Dr Loi also described contribution from workplace discrimination, being singled out and lack of support in training.
Ipswich Hospital
25. Peter Cosgrove was the clinician who interviewed Mr Whitty at the Ipswich Hospital on 19 October 2009. He noted that Mr Whitty had been referred by Dr Loi in relation to his depression and experiences of paranoid ideation. Dr Cosgrove noted that Mr Whitty reported deterioration in his mental health over several months with increased intensity in the previous two weeks. He noted a number of sources of stress: moving from Canberra to Brisbane two years earlier, failure of the coffee shop venture with resultant loss of his house and car, prosecution and conviction two years earlier of the perpetrator of his child sexual abuse, his current involvement in civil proceedings for compensation in relation to that sexual abuse and being “brutalised by his bosses” at work. Dr Cosgrove wrote that Mr Whitty reported a persistent pattern of behaviour which was designed to make him leave work with DVA. He referred to “issues with management for a period of time over several issues” and to Mr Whitty having been given a formal warning in the previous week about his behaviour and underperformance. Dr Cosgrove also noted that Mr Whitty felt that his bosses at work were systematically making it impossible for him to continue working and that he felt hopeless about his work situation.
Psychologists’ reports
26. Before completing her report on 22 December 2008, Ms Karatzis obtained a report from clinical psychologist Alison Christensen, who saw Mr Whitty on six occasions between 1 September 2008 and 17 December 2008. Ms Christensen recommended clearer training for Mr Whitty with timely feedback in a positive manner as well as psychological therapy to assist him with obesity management. She also noted that he had previously suffered from a mood disorder but that he did not fulfil the diagnostic criteria for that condition when she saw him.
27. In her report, Ms Karatzis detailed Mr Whitty’s work history with DVA, as well as non-work stressors including his failed coffee shop venture, his civil action relating to sexual abuse and family stresses. She noted that he had been absent from work in the Brisbane office of DVA for three months because of his carpal tunnel condition. Ms Karatzis also noted that Mr Whitty was concerned that he was not receiving adequate training, that he felt harassed and marginalised by his team leader, who had an “obvious dislike” of him, and was concerned that he may be “demoted or sacked”. She wrote that the team leader’s feelings of mistrust and paranoia were the only symptoms Mr Whitty described in relation to his psychological health. Ms Karatzis concluded that Mr Whitty experienced significant personal and family life pressures which were impacting on his work performance and for which it was imperative that he receive regular psychological intervention. As for his work situation, Ms Karatzis recommended that Mr Whitty be provided with a copy of his proposed level APS 4 training plan, that he have increased supervision during the accreditation process, with formalised regular meetings to review his progress, and that strategies be identified to improve his attendance at work.
28. Ms Karatzis completed a second report on 8 February 2010, after completing an assessment on 2 February 2010. Mr Whitty had not returned to work after 6 October 2009. She referred to the phone call by Mr Whitty on 6 August 2009 and wrote that Mr Whitty was not worried by the complaint made by the veteran. He also referred to the phone call on 2 October 2009 and subsequent formal warning on 6 October 2009. Ms Karatzis’s opinion was that Mr Whitty was not fit to return to work at that time, that medical management would be required to enable him to return to work and that some form of conflict resolution process with his manager and team leader may be advantageous at that time.
29. Ms Stephens’ clinical notes on 3 September 2009 relate to Mr Whitty’s child sexual abuse and weight problems. On 10 September 2009, she wrote: “Problems with job. Problems to authority figures who abuse power”. On 17 September 2009, Ms Stephens was again concerned with Mr Whitty’s weight control. On 24 September 2009, she noted that he “went back to work ok” and was concerned with personal and family issues. Notes for 1 October 2009 were about weight control and gaining confidence. On 15 October 2009, she noted:
Problems at work.- thinking that he is being got rid of (prob right). Is borderline with work... But they will eventually sack him - under official warning now.
30. Ms Stephens also noted that Mr Whitty was seeing a psychiatrist for paranoid tendencies. On 23 October 2009, her notes were concerned with writing ability and dietary matters.
31. Ms Stephens expressed an unreasoned opinion on 20 May 2011 that Mr Whitty’s work situation significantly affected his mental and emotional state. On 12 July 2011, Ms Stephens sent an email message to the respondent in this matter advising that she had seen Mr Whitty some two years earlier solely in relation to his obesity.
CONSIDERATION
32. As we understand the evidence of both Dr Varghese and Dr Kisely, the diagnosis of Mr Whitty’s psychiatric condition is recurrent major depression, which arose in the context of underlying dysthymic disorder. We accept recurrent major depression as the diagnosis in Mr Whitty’s case. We are also satisfied on the evidence of Dr Varghese and Dr Kisely that the dysthymic disorder is of a long‑standing nature which pre-dates any of the employment-related matters raised by Mr Whitty and that it is unrelated to his DVA employment.
33. In respect of the recurrent episode of major depression, we have noted the opinion of Dr Loi concerning the significance of the phone call of 6 August 2009 and subsequent DVA investigation. That opinion is not confirmed in the evidence of Dr Varghese or Dr Kisely. It is also inconsistent with the clinical note that he made on 16 September 2009, which refers to treatment for sore ear and throat but makes no reference to psychiatric matters.
34. Dr Varghese’s opinion was that Mr Whitty’s depressive episode was unrelated to his employment, that he saw the workplace as hostile because of his depression, that the depressive symptoms pre-dated the phone calls and that his reaction to them was a reflection of his depressive cognition.
35. Dr Kisely attributed the condition to conflict with Mr Whitty’s supervisors during the process of upgrading Mr Whitty’s employment ratings to levels APS 3 and 4. He also found contribution to the depression from other non-employment matters including the sexual abuse issues, the financial consequences of the coffee shop venture, domestic issues as well as constitutional factors. Consistent with that opinion, he considered that the depression pre-dated the phone call exchange that Mr Whitty had with a veteran on 6 August 2009, and that Mr Whitty’s subsequent sleeping difficulty was a symptom of depression and not a causal factor in its development.
36. In determining the role of Mr Whitty’s employment in the development of depression, we rely on the evidence of the specialist psychiatrists where it differs from that of Dr Loi. Both Dr Varghese and Dr Kisely concluded that the depression was present prior to the phone calls of 6 August 2009 and 2 October 2009 and we accept their evidence in that regard. Accordingly, we are satisfied that those phone calls, and the subsequent investigations and counselling by DVA staff in relation to those phone calls, have no causal relationship with Mr Whitty’s recurrent depression.
37. There is support in Dr Kisely’s evidence for contribution to Mr Whitty‘s recurrent episode of depression by aspects of his employment associated with training and accreditation for levels APS 3 and 4. We note that Dr Kisely described his role in relation to Mr Whitty as one of providing treatment rather than an analysis of underlying causes of his psychiatric condition. As we understand it, Dr Kisely was relying on the self-report of Mr Whitty and he reached his conclusion without the advantage of having viewed all the medical and other reports that were made available to Dr Varghese. In addition to speaking with Mr Whitty, Dr Varghese read reports from Dr Loi, Dr Klug, Dr Kisely, Ms Karatzis, Ms Stephens, Ms Christensen, Ms Serisier, Ms Milne and the Ipswich Hospital. Before reading that material, Dr Varghese supposed that, if Mr Whitty’s training had been sabotaged and he was badly treated as he claimed, this may have contributed to his depression. However, Dr Varghese’s concluded opinion was that there was no contribution to Mr Whitty’s depression from his employment.
38. Dr Varghese and Dr Kisely agreed on the diagnosis of Mr Whitty’s psychiatric condition and the timing of its onset before the phone call of 6 August 2009. However, in relation to causation, we accept the evidence of Dr Varghese in this matter. We have noted Dr Kisely’s reluctance, as a treating doctor, to be involved in issues of causation but, more relevantly, we consider that the broader base of material which Dr Varghese consulted makes his conclusion preferable to that of Dr Kisely.
39. We are satisfied that Mr Whitty’s recurrent depression is a mental disorder and, therefore, an ailment and a disease. However, for it to meet the definition of disease in s 5B(1) of the Act, the recurrent depression must have been contributed to, to a significant degree, by Mr Whitty’s employment by the Commonwealth. To be significant, the contribution must be substantially more than material. In determining that degree of contribution, s 5B(2) of the Act sets out a non-exhaustive list of matters that may be taken into account. We have considered those. Of particular relevance are the non-workplace activities noted above.[4] In his case, there are several very significant matters which have been commented upon by medical practitioners and psychologists, including Dr Varghese and Dr Kisely. These include the move from Canberra to Brisbane, the financial consequences resulting from his failed coffee shop venture, his domestic difficulties and the continuing effects of his child sexual abuse through the prosecution of the perpetrator and the associated civil action for damages. We are satisfied that these matters played the major role in the development of Mr Whitty’s recurrent depression before either of the phone calls in August and October 2009. We are satisfied that Mr Whitty’s employment did not make a significant contribution to the development of his recurrent depression and there is no liability under s 14 of the Act in respect of that condition.
[4] See s 5B(2)(d) of the Act.
40. Dr Kisely attributed Mr Whitty’s condition to conflict during the process of upgrading Mr Whitty’s employment ratings to levels APS 3 and 4. While we have not accepted his evidence in that regard, we are satisfied that such a conclusion would not assist Mr Whitty in any event. The term injury is defined in s 5A(1)(a) of the Act to include a disease, but not if that disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. For the purposes of that provision, reasonable administrative action is taken to include several factors including a reasonable appraisal of the employee’s performance, as well as anything reasonable done in connection with such an action.[5]
[5] See ss 5A(2)(a) and (e) of the Act.
41. The ambit of the term administrative action was referred to by the Tribunal in Radulovic and Comcare[6] in the following way:
... the Tribunal considers that section 5A(2) does not extend to all forms of management action which may cause injury. To so interpret the provision could unduly stultify the underlying purpose or object of the Act, namely, to provide a ‘scheme of rehabilitation and compensation for employees who are injured in the course of employment’[7] unless there has been intentional self-infliction of an injury, or serious or wilful misconduct. The Tribunal considers the preferable interpretation, as a matter of statutory construction, is to limit the provision to the examples listed, to ‘anything reasonable done in connection with’ those examples, and to other administrative action which falls within categories comparable to those listed.
That conclusion is reinforced by the history of the provision and by interpretation of other similar legislation. Prior to the amendment of the exclusionary provisions in 2007, the exclusionary provisions referred only to disciplinary action, failure to obtain promotion or loss of a benefit. Although the current provision has clearly expanded that list, in particular, to make it clear that the provision was not limited to ‘disciplinary action’ as narrowly defined in the cases, the matters covered by section 5A(2) retain as a central theme that the administrative actions involve any assessment of performance or corrective action of an employee by a manager, as well as the failure to obtain a promotion, reclassification, transfer or benefit. The exclusionary provisions are not intended to be at large. In support of this conclusion, the expression ‘administrative action’ in the comparable WorkersRehabilitation and Compensation Act 1986 (SA) section 30A(a)(iii), for example, did not extend to the management style of a manager.[8]
[6] [2010] AATA 777 at [73] – [74].
[7] Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006 (Cth), iii.
[8] Keen v Workers Rehabilitation and Compensation Corporation(1998) 71 SASR 42 at 50.
42. We are satisfied that the training and accreditation process which Mr Whitty underwent in 2008 and 2009 constituted an appraisal of his performance at levels APS 3 and 4 and that that process, as well as anything reasonable done in connection with that process, comprises administrative action under s 5A(2) of the Act.
43. The processes of training and accreditation which Mr Whitty underwent in 2008 and 2009 were detailed by Ms Serisier and Ms Milne, whom we accept as witnesses of truth in this matter. We are satisfied that the process was in accordance with the procedure set out in the Income Support National Protocols for the Quality Assurance program, which was in evidence.[9] Mr Whitty has variously referred to the process as involving bullying and harassment and threats of dismissal from his employment. We do not accept that this reflects the approach adopted by Ms Serisier or Ms Milne. At both levels APS 3 and 4, they recognised difficulties Mr Whitty faced and were aware that he struggled to meet the required standards. This did not result in suggestions of Mr Whitty being dismissed. Rather, he was permitted to gain accreditation for progression to the assessed level. They arranged for him to see a clinical psychologist prior to commencing his level APS 4 training and did so because they were concerned to see if there were any matters which they needed to consider before the training at that level commenced. Mr Whitty was critical of this because he was already seeing psychologist Ms Stephens. However, as we understand Ms Stephens’ evidence, her involvement with Mr Whitty was in respect of Mr Whitty’s child sexual abuse and obesity issues and not with employment-related matters. After Mr Whitty’s consultations with psychologists Ms Christensen and Ms Karatzis, reports were provided to Ms Serisier. She described the recommendations made therein, providing no basis for any change in the training and accreditation plan for Mr Whitty to progress to level APS 4.
[9] See attachment to Ms Serisier’s statement dated 2 March 2010.
44. The term reasonable, in the context of s 5A(1) of the Act, was referred to by the Tribunal in Re Georges and Telstra Corporation Limited:[10]
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of soundness of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less nor more than might be expected, tolerable, fair.
[10] [2009] AATA 731 at [22]. See also Wilson and Comcare [2010] AATA 396 at [52]; Australian Concise Oxford Dictionary, 4th edition 2004.
45. The Tribunal has also held that, to be reasonable, the action must be lawful, must involve nothing ‘untoward’ and must not be ‘irrational, absurd or ridiculous’.[11] We agree with those respective interpretations. We are also satisfied that the administrative action of DVA staff in relation to Mr Whitty’s training and accreditation process for both levels APS 3 and 4 and the manner of its implementation were reasonable in accordance with those interpretations.
[11] See Wilson and Comcare [2010] AATA 396 at [52]-[53], citing Comcare v Chenhall (1992) 37 FCR 75; Re Gilbert and Comcare [2009] AATA 224; and Repatriation Commission v Webb (1987) 13 ALD 421.
46. We are satisfied that Mr Whitty’s training and accreditation process was reasonable administrative action conducted in a reasonable manner. Accordingly, because of the exclusionary terms of s 5A(1) of the Act, any contribution to Mr Whitty’s depression by that administrative action, as suggested by Dr Kisely or by Mr Whitty’s perception of that administrative action, cannot be relied upon to establish liability under the Act.[12]
[12] See Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29.
DECISION
47. The Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr M Denovan, Member
Signed: ..............................[Sgd]...............................................
Danielle Armstrong, Research AssociateDate/s of Hearing 14 and 15 July 2011
Date of Decision 26 August 2011
The Applicant was self-represented
Counsel for the Respondent Mr C ClarkSolicitor for the Respondent Mr M Hawker, Sparke Helmore Lawyers
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