Wieczorek and Comcare
[2007] AATA 1852
•12 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1852
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2006/76, 237 & 238
GENERAL ADMINISTRATIVE DIVISION ) Re ANNA WIECZOREK Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr P. Wilkins MBE, Member
Date12 October 2007
PlaceCanberra
Decision Application A 2006/76
1. The reviewable decision made 23 February 2006 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Dr Matias on 27 July 2005 and 3 August 2005.
Applications A2006/237 and 238
2. The reviewable decision made 18 August 2006 is set aside.
3. In substitution for the decision set aside, it is decided that:
(1) Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Gungahlin Medical Centre on the following dates:
· 27/5/2005;
· 10/6/2005;
· 25/6/2005;
· 1/7/2005;
· 10/7/2005;
· 15/7/2005;
· 1/8/2005;
and in respect of the cost of medical treatment provided by Dr Grundel referred to in the account dated 14 October 2005;
(2) Comcare is liable to pay compensation to Ms Wieczorek for incapacity for the period 14 July 2005 to 14 October 2005 inclusive.
4. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Wieczorek.
..…..............................................
J.W. Constance, Senior Member
CATCHWORDS
Compensation – Commonwealth employees – Psychological injury/Disease – Whether there was a failure to obtain a promotion or transfer - Whether compensable injury had resolved – Whether subsequent incident aggravated condition – Whether aggravation is a separate injury - Whether medical treatment was obtained in relation to the injury
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14, 16, 19
Albanese v Comcare [2004] AATA 768
Australian Postal Corporation v Nadge, Unreported decision 21 June 1994, WAG 36 of 1994
Comcare v Ross [1996] 680 FCA 1
Hart v Comcare [2005] FCAFC 16
Trewin v Comcare (1998) 156 ALR 615
REASONS FOR DECISION
J.W. Constance, Senior Member
Dr P Wilkins MBE, Member
12 October 2007
INTRODUCTION
1. In April 2005 Comcare accepted liability to compensate Ms Wieczorek in respect of injury she received whilst employed by the Department of Agriculture, Fisheries and Forestry. However Comcare has denied liability to compensate Ms Wieczorek for medical treatment received in 2005 on the basis that it was not treatment obtained in relation to the injury.
2. For the reasons which follow we have decided that Ms Wieczorek is entitled to be compensated for the cost of this treatment.
EVIDENCE AND FINDINGS OF FACT
3. Unless otherwise stated the following findings of fact are based on the evidence of Ms Wieczorek. For ease of reference we will make further findings when dealing with particular issues. We are satisfied of all facts found on the balance of probabilities.
4. Ms Wieczorek is a university graduate with degrees in food manufacturing and management and in human nutrition and food science. She also has two post-graduate degrees in education with majors in languages. Ms Wieczorek started work as an officer with AQIS (Australian Quarantine an Inspection Service) in 2001. AQIS is part of the Department of Agriculture, Fisheries and Forestry. She became a permanent employee in May 2002. Her first position, in the Cargo Management Unit, did not utilise her tertiary qualifications.
5. In 2003 Ms Wieczorek was told that she would be moving to the Food Operations Unit within AQIS. She was reluctant to make this move as she had been told the unit had problems with staff retention, staff shortages and a lack of qualified staff. Ms Wieczorek sought to remain in the Cargo Unit. Her request was refused and she was transferred to the Food Operations Unit against her will. Sometime after her transfer the Food Operations Unit was combined with another unit to form the Food Safety Unit.
6. When Ms Wieczorek commenced in the Food Operations Unit she initially found the work interesting and challenging, however she did not enjoy working in the environment of the Food Unit as much as she had in the Cargo Unit. She found that the working relationship between the people employed in the Food Unit made working in that unit unpleasant. On two occasions between October 2003 and October 2004 she asked to be transferred out of the Unit. In the same period she submitted three applications for new positions, two of which were for positions outside AQIS.[1]
[1] Ex. A2.
7. Sometime between joining the Food Operations Unit in 2003 and September 2004 Ms Wieczorek formed the belief that she was being harassed by at least two staff members of the Unit, Mr Southgate and Ms Clark. Comcare concedes that Ms Wieczorek held this belief. We are satisfied that the incidents referred to in the following two paragraphs occurred in Ms Wieczorek workplace and gave rise to her perception of harassment.
8. On two occasions Mr Southgate, who was an officer senior to Ms Wieczorek, said to her words to the following effect:
“There is a position [within the unit]. You might get it because you are experienced, because you’re qualified, but I don’t want you to get it because I want someone else to be in this position.” [2]
[2] Transcript 20.8.07 p-53.
Although she did not intend applying for either of the positions, both of which were within the Unit, Ms Wieczorek was distressed by these statements. They were made to her without her having initiated any discussion concerning the issue with Mr Southgate.
9. About the end of July 2004 Ms Clark joined the Unit and a short time later became Ms Wieczorek’s supervisor. On the basis of the evidence of Ms Wieczorek and the notes kept by the counsellor, to which we refer later in these reasons, we are satisfied that Ms Clark acted towards Ms Wieczorek in such a way that Ms Wieczorek perceived that Ms Clark was harassing her. These actions include placing unreasonable requirements upon Ms Wieczorek to inform Ms Clark of her whereabouts at all times during the working day, being restrictions which were not placed on other employees. There were also times when Ms Clark did not speak to Ms Wieczorek when it would have been appropriate for her to do so, instead leaving written instruction on Ms Wieczorek’s desk. On other occasions Ms Clark would speak about Ms Wieczorek to others within the hearing of Ms Wieczorek but apparently ignoring her presence. At times Ms Clark also prevented other people speaking to Ms Wieczorek. On one occasion Ms Clark told Ms Wieczorek that she did not want her to continue working in the section. We are satisfied that these incidents were distressing to Ms Wieczorek.
10. On 1 September 2004 Ms Wieczorek became so distressed by her situation at work that a colleague conveyed her to the offices of Davidson Trahaire where she spoke to a counsellor at some length. Davidson Trahaire provide an Employee Assistance Program which includes the provision of counselling services. The Counsellor’s notes [3] record the following incidents as having been referred to by Ms Wieczorek in that session:
[3] Ex. A6, document 56.
“Phone calls logged
Talked about in front of her + then continue elsewhere.
Need clearance to send emails.
Have to explain absences from desk.
Accumulated flex time – pressure to take.
Ron signing off Anna’s work.
Not to talk to anyone outside AQIS – need clearance from Ron.
Excluded.
Fabricate things.
Gossip spread - husband left (Ferne suspected)
-terminally ill
Rostrum Club - told to do it in own time
- no phone calls (only person in Dept treated this way)”
The Counsellor’s notes also record that Ms Wieczorek was “very distressed at continuing harassment.”
11. On 2 September 2004 Ms Wieczorek consulted Dr Grundel, General Practitioner. Dr Grundel reported that:
“Mrs Anna Wieczorek consulted me for the first time on 2/9/2004. She presented crying and visibly upset. She stated she was harassed at work by her direct supervisor, she was unable to cope with the situation at work anymore. Anna was employed by Australian Quarantine and Inspection Service. She said her colleagues at work were concerned about her situation and one of them organised a counselling at work for her. She saw a counsellor on 2/9/2004 [sic], before seeing me.
I made a diagnosis of acute anxiety. She was given a medical certificate till 12/9/2004. She had further counselling arranged." [4]
[4] Ex.Z5, report of 3/9/2006.
12. Ms Wieczorek next consulted Dr Grundel on 13 September 2004. At that time Dr Grundel diagnosed her as suffering anxiety, depression and insomnia and prescribed the anti-depressant medication Zoloft. In the opinion of Dr Grundel the precipitating factor for the depressive illness was unresolved conflict at work and the feeling of being bullied at work. She diagnosed Ms Wieczorek as suffering major depression.[5]
[5] Ex.Z1.
13. On 24 September 2004 Ms Wieczorek made a claim for workers’ compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth)[6] in respect of the condition of “anxiety/depression”. Ms Wieczorek’s application contained the following questions and answers:
[6] T7.
“What started the chain of events that led to your injury or illness?
Appointment of a new supervisor at the end of July ‘04, prior to this there was harassment events, but at a lower level/intensity.
What action, exposure or event happened to cause your injury or illness?
Work atmosphere, harassment, unfair criticism, makes unreasonable job demands, denial of promotional opportunities, suggestion of me leaving, singled out for a unfair treatment, exclusion, unfairly blamed for many things, constant monitoring.
What actually injured you, or made you ill?
Fabricated incidents, gossip spread, working in this very destructive work environment for over a year, which got worse over the last weeks."
On 18 April 2005 Comcare accepted liability to compensate Ms Wieczorek in respect of an injury described by Comcare as “anxiety state”. [7]
[7] T31.
14. In September 2004 Ms Wieczorek was assessed by Dr Lark, Occupational Physician and in October 2004 by Ms Stevenson, Clinical Psychologist. Both these assessments were carried out at the request of Ms Wieczorek’s employer for the purpose of assessing her fitness to return to work.
15. Ms Wieczorek did not return to work until 20 December 2004. In that time Dr Grundel continued to treat Ms Wieczorek. It was not until 1 November 2004 that Dr Grundel formed the opinion that Ms Wieczorek was fit to return to work on restricted hours. She did not return until 20 December 2004 as the Department was not able to find her suitable work until that time. Ms Wieczorek resumed full-time duties on 5 January 2005.
16. On 14 January 2005 Ms Wieczorek lodged a Formal Grievance with her employer. Ms Wieczorek stated that the grievance was “in relation to the way I was treated by my ex-supervisor Ferne Clarke and Ron Southgate while working for AQIS in the Food Unit.” [8] In May 2005 Ms Wieczorek received a copy of the report of the investigation of her complaint, which included the following:
“On the basis of the evidence gathered the allegations of harassment by Ms Clark and Mr Southgate cannot be sustained. It is concluded however, that while consistent with the provisions of the AFFA Certified Agreement, the direction that Ms Wieczorek clear an excess flex time credit amounting to over 18 days within one month was, in all the circumstances, unreasonable." [9]
[8] Ex. R1.
[9] Ex. R1.
Ms Wieczorek gave evidence that she was “mortified” by the findings of the report. We accept this as an accurate statement of her feeling at the time.
17. On 27 May 2005 Ms Wieczorek consulted Dr Grundel whose notes record “crying upset, stress at work…move at work.”[10] . In the opinion of Dr Grundel, at that time Ms Wieczorek had a “recurrence of her depressive illness which was clearly related to her previous depression diagnosed in September 2004.” [11]
[10] Ex.R10.
[11] Ex. Z5.
18. Ms Wieczorek was absent from work from 1 July 2005 to 14 October 2005.
19. On 27 July 2005 Ms Wieczorek first consulted Dr Matias, Consultant Psychiatrist. The consultation was on the referral of Dr Grundel. Dr Matias diagnosed Ms Wieczorek as suffering a major depressive disorder with symptoms of anxiety. In Dr Matias’ opinion this condition was precipitated by harassment and bullying in the workplace prior to September 2004 and was exacerbated by ongoing harassment after her return to work in December 2004.[12]. Dr Matias referred Ms Wieczorek to Ms Fisher for further counselling. The Department had earlier ceased funding counselling by Davidson Trahaire.
[12] Ex.A4.
20. In July 2005 the Department requested Dr George, Consultant Psychiatrist, to assess Ms Wieczorek’s capability of undertaking a rehabilitation program. This assessment was requested under section 36 of the Safety, Rehabilitation and Compensation Act 1988. Dr George assessed Ms Wieczorek on 28 July 2005 and reported that at that time she was suffering a major depression to which her employment had made a significant contribution [13]
[13] T70c.
THE REVIEWABLE DECISIONS
21. Two decisions are before us for review:
(a)a decision denying liability to compensate Ms Wieczorek for the cost of her consultations with Dr Matias on 27 July 2005 and 3 August 2005 [14];
(b)a decision denying liability to compensate Ms Wieczorek for the cost of consultations at the Gungahlin Medical Centre on 27/5/2005, 10/6/2005, 25/6/2005, 1/7/2005, 10/7/2005, 15/7/2005, 1/8/2005, and 14/10 2005 and denying liability to make incapacity payments to Ms Wieczorek for the period 14/7/2005 to 14/10/2005.[15]
[14] T72; copies of accounts appear at T56 and T57..
[15] T93.
STATUTORY BACKGROUND
22. The following are relevant parts of sections of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
Section 14 Compensation for injuries
14(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 4 Interpretation
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
“disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”
Section 16 Compensation in respect of medical expenses etc.
“(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
Section 19 Compensation for injuries resulting in incapacity
“(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.”
ISSUES FOR DETERMINATION
23. Comcare no longer accepts that its determination that Ms Wieczorek suffered a compensable injury in September 2004 is correct and it is necessary that we decide whether Ms Wieczorek suffered an injury as claimed in the form lodged by her in September 2004. The main point of contention between the parties is whether any of the exclusionary provisions in the definition of injury are applicable in this case.
24. Comcare has argued further that, if Ms Wieczorek did suffer a compensable injury in September 2004, she had recovered from that injury by February 2005, and that treatment and incapacity after that date related to a new condition (for which no claim has been made) which developed sometime after February 2005. Alternatively Comcare argues that if it is determined that after February 2005 Ms Wieczorek suffered an aggravation of a compensable condition, she is not entitled to compensation for expenses and incapacity resulting from that aggravation as part of her claim in respect of the compensable condition. Comcare argues that Ms Wieczorek should lodge a new claim.
25. The following issues arise for determination.
1)Did Ms Wieczorek suffer a disease in September 2004?
2)If so, did she suffer an injury at that time?
3)If so, was the medical treatment for which compensation is claimed, treatment obtained in relation to the injury?
4)If it was so obtained, was it reasonable for Ms Wieczorek to obtain such treatment in the circumstances?
5)If Ms Wieczorek did suffer an injury as claimed, was she incapacitated for the period claimed as a result of the injury?
If it is necessary to decide the third, fourth and fifth issues the following issues will arise.
1) Did Ms Wieczorek recover fully from the compensable injury prior to her incurring the claimed expenses and/or the claimed period of incapacity?
2) If she did not so recover, did she suffer an aggravation of her compensable injury and, if she did, when did the aggravation occur?
DETERMINATION OF THE ISSUES
1. Did Ms Wieczorek suffer a disease within the meaning of the Act in September 2004?
Further evidence and findings of fact
26. We have already referred to Dr Grundel having diagnosed Ms Wieczorek as suffering anxiety and depression in September 2004. When Dr Lark assessed Ms Wieczorek on 22 September 2004 he was of the opinion that she was suffering from “significant anxiety/depression.” [16] On 13 October 2004 Ms Stevenson, assessed Ms Wieczorek as suffering “from a significant degree of both anxiety and depression” and was of the opinion that “the most likely specific diagnosis was Major Depressive Episode with some form of anxiety disorder”.[17] All these practitioners, each of whom had the benefit of assessing Ms Wieczorek at or shortly after she ceased working, were of the view that the condition was caused by incidents which occurred in Ms Wieczorek’s workplace. This view is supported by the notes of the Counsellor who saw Ms Wieczorek on 1 September 2004.
[16] T25a.
[17] T25c.
27. Although she did not examine Ms Wieczorek until 27 July 2005, Dr Matias was of the opinion that Ms Wieczorek was suffering from a major depressive disorder caused by harassment in the workplace prior to September 2004 and perpetuated by her treatment at work following her return.
28. When Dr George examined Ms Wieczorek on 28 July 2005 he was of the opinion that she was suffering Major Depression. He took a history which included reference to the workplace incidents prior to September 2004. He reported that ‘Ms Wieczorek’s employment with AQIS has contributed significantly to her present symptoms, has aggravated her past situation and accelerated her condition.” [18] Although Dr George did not give his opinion as to Ms Wieczorek’ condition in September 2004, he accepted without adverse comment that she developed “quite a marked state of anxiety and depression as a result of her situation in the workplace on that occasion.” [19]
[18] T70b.
[19] T70b.
29. Dr Skinner examined Ms Wieczorek on behalf of Comcare in September 2006. She provided a report of 6 October 2006 and gave evidence. In the opinion of Dr Skinner Ms Wieczorek suffered from symptoms of depression and anxiety in 2004 which was probably “a diagnosable psychiatric condition of adjustment disorder with depression and anxiety.” [20] When giving evidence Dr Skinner said that such a condition is usually resolved in a period of up to six months and if the person was later exposed to another stressor there may be an adjustment disorder to that other stressor.[21] She acknowledged that Ms Wieczorek may have improved by the time she saw her and that she was relying on the reports of other doctors. She also stated that she did not know what Ms Wieczorek was suffering from in mid-2005.[22]
[20] Ex. R8.
[21] Transcript 23.8.07 pp-49-50.
[22] Transcript 23.8.07 p-59
30. Having considered all the evidence we are satisfied that in September 2004 Ms Wieczorek suffered Major Depression and anxiety and that this condition was an “ailment” within the meaning of the Act. We prefer the evidence of Dr Grundel and Dr Matias in this regard to that of Dr Skinner. They were Ms Wieczorek’s treating practitioners and had the opportunity of assessing Ms Wieczorek nearer to the time of the development of the condition than did Dr Skinner. We are satisfied that they were in a better position to reach a diagnosis than was Dr Skinner. As Dr Skinner was not in a position to diagnose Ms Wieczorek‘s condition in mid-2005 it is difficult to understand how she was in a position to diagnose her condition in September 2004. In addition the opinions of Dr Grundel and Dr Matias are supported by the views of Dr George, Dr Lark and Ms Stevenson.
31. Further we are satisfied that in September 2004 Ms Wieczorek suffered a “disease” within the meaning of the Act as we are satisfied that the ailment she suffered was contributed in a material degree by her employment by the Department. These findings are based on the evidence of the practitioners referred to in the preceding paragraph.
2. Did Ms Wieczorek suffer an “injury” within the meaning of the Act in September 2004?
32. Whilst we are satisfied that Ms Wieczorek suffered a disease, the disease is not an injury for the purposes of the Act if it was suffered “as a result of………. failure by [Ms Wieczorek] to obtain a promotion, transfer or benefit in connection with………her employment.” [23] It matters not that the disease may also have been a result of other aspects of the employment: Hart v Comcare [2005] FCAFC 16. Counsel for Comcare has argued that in this case the disease suffered by Ms Wieczorek was suffered in part at least as a result of each of the three factors referred to above.
[23] Subsection 4(1).
33. In arguing that her disease was in part a result of her failure to obtain a promotion, Comcare relied upon Ms Wieczorek’s reference to “Preventing opportunities for promotion” under the heading “Some Examples of Harassment Incidents” in her formal grievance lodged in January 2005. [24] The whole of her comment under this subheading was:
“When new positions were advertised in the Unit, I was told by Ron Southgate (on two occasions) that they were earmarked for particular applicants and I should not apply because that would ‘cloud the issue.’”
[24] Attachment A in ex.R1.
Ms Wieczorek also referred to a “denial of promotional opportunities” in her claim for compensation.[25]
[25] T7.
34. When she gave evidence Ms Wieczorek said that she did not intend to apply for either of the positions as she did not wish to remain in the Unit. She also said that she did not raise the issue with Mr Southgate, rather he spoke to her directly and that she found it distressing to be told that she should not apply regardless of whether she wished to do so.[26] We accept this evidence.
[26] Transcript 20.8.07 p-53.
35. It is necessary to look carefully at facts said to give rise to the application of the exclusionary provisions in the definition of “injury”: Comcare v Ross [1996] 680 FCA 1; Albanese v Comcare [2004] AATA 768. We do not accept the argument that Ms Wieczorek failed to obtain a promotion. Being told not to apply for a position for which she did not intend applying is not a failure to obtain that position. It was the fact of Mr Southgate speaking to her in the manner he did which caused Ms Wieczorek distress, not a failure to obtain a promotion.
36. In relation to the issue of a failure to obtain a transfer, Comcare argued that Ms Wieczorek was dissatisfied with her role in the Food Unit and wished to transfer out of this position. Ms Wieczorek stated that her transfer to the Unit in 2003 was against her will and that she had sought to return to her previous position in the Cargo Unit. We are satisfied that between 8 October 2002 and 1 July 2004 Ms Wieczorek applied for seven positions, all of which would have involved a transfer from the position she held had any of her applications been successful.[27]
[27] Ex. A2.
37. Whilst we are satisfied that Ms Wieczorek failed to obtain the transfers she sought we are not satisfied that the disease from which she suffered was suffered as a result of that failure. Comcare argued that we should be so satisfied on the basis of the evidence of Dr Lark, Ms Stevenson and Dr Skinner.
38. In his report of 24 September 2004 Dr Lark noted as part of the occupational history taken by him from Ms Wieczorek that she had been looking for a transfer out of the Unit.[28] In response to a question from the Department as to the effect of Ms Wieczorek’s condition [significant anxiety/depression] on her capacity to work, Dr Lark responded that at the time Ms Wieczorek was unfit for work in her present position. The mere noting of Ms Wieczorek having sought a transfer in taking a history does not indicate to us that Dr Lark was of the opinion that the failure to obtain the transfer played a role in the development of the “significant anxiety/depression. Dr Lark was not called to give evidence.
[28] T25a.
39. Similarly, in her report of 22 October 2004, Ms Stevenson noted that Ms Wieczorek had sought transfers out of the Unit.[29] However Ms Stevenson does not express the opinion that the failure to obtain the transfer resulted in the condition of Major Depressive Episode with anxiety which she diagnosed as the condition from which Ms Wieczorek was suffering. Again, Ms Stevenson was not called to give evidence.
[29] T25c.
40. Comcare has argued that the necessary causal link between the failure to obtain a transfer and the disease is to be inferred from the reports of Dr Lark and Ms Stevenson. We do not accept that such an inference can be drawn. However even if it could we prefer the evidence of Dr Matias, Dr Grundel and Ms Wieczorek as to the cause of her condition and to which we have referred in paragraphs 3-20 of these reasons.
41. Dr Skinner expressed the following opinion:
“Ms Wieczorek’s originally accepted compensable condition probably resulted from her failure to obtain a transfer and she was unhappy with the position and sought transfer to a position in which she felt her skills would be better utilised." [30]
[30] Ex. R8.
Dr Skinner confirmed this opinion when she gave evidence. In her report she stated that she considered that a number of employment factors, including her perception of having been harassed and bullied, contributed to the condition suffered by Ms Wieczorek. She did not satisfactorily explain this apparent divergence in her opinions. Although questioned by the Tribunal Dr Skinner did not provide a satisfactory explanation for her concentration on the effect of the failure to obtain a transfer. On this basis, and taking into account that Dr Skinner was not a treating practitioner and did not assess Ms Wieczorek until September 2006, we prefer the opinions of Ms Wieczorek’s treating practitioners previously referred to.
42. Comcare further argued that Ms Wieczorek’s condition was in part a result of her failure to obtain a benefit in connection with her employment. Comcare identified a number of benefits which it argues Ms Wieczorek failed to obtain :
· the benefit of recognition of her skills by officers outside the Food Unit;
· the benefit of recognition of her work said to have arisen as a result of the practice of documents prepared by Ms Wieczorek being signed by superior officers, in particular Mr Southgate;
During the hearing Comcare indicated it no longer relied upon Ms Wieczorek’s failure to obtain the benefit of ongoing training.
43. In the Act, the word “benefit” is used in the sense of “anything that is good for a person……”: Trewin v Comcare (1998) 156 ALR 615 at 620. In that case Heerey J observed that “…… the intention to be deduced from the exception to the definition of "injury" in s4 is that parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable."[31]
[31] At p. 620.
44. We are not satisfied that the alleged failure to obtain recognition outside the Unit played a part in the development of Ms Wieczorek’s condition. We accept the evidence of Ms Wieczorek that she did not seek such recognition and that persons outside the unit in which she worked would not have understood the nature of the work she was doing in any event. [32] We also accept her evidence that she did not feel that her superiors were blocking the appreciation of her skills by persons outside the Unit.[33]
[32] Transcript 21.8.07 p-21.
[33] Transcript 21.8.07 p-22.
45. Counsel for Comcare did not press the argument that Ms Wieczorek had failed to obtain a benefit of being permitted to continue to attend a Rostrum Club organised within the Department and which she had attended for some time. We are satisfied that this was appropriate. On the basis of her evidence we are satisfied that Ms Wieczorek was angered by the action of Ms Clark in preventing her continuing to attend the Rostrum Club, including part of that time as secretary of the Club.[34] However this cannot be characterised as a failure to obtain a benefit but rather was a failure to retain a benefit. As such it is not within the exclusions in the definition of “injury” : Comcare v Ross; Albanese v Comcare (ibid);
[34] Transcript 21.8.07 p-27.
46. Even if we had been satisfied that there had been a failure to obtain a benefit in any of the above situations we would not have been satisfied that any such failure or failures resulted in the disease suffered by Ms Wieczorek. In this regard Comcare again relied upon the reports of Dr Lark and Ms Stevenson but in neither report is an opinion expressed that the disease suffered was a result of any of these factors. As noted earlier we prefer the evidence of the treating practitioners as to the factors which did contribute to the development of the disease.
47. For the reasons set out we are satisfied on the balance of probabilities that Ms Wieczorek suffered an injury of Major Depression within the meaning of the Act. As Ms Wieczorek first sought medical treatment for this condition on 2 September 2004 the injury is taken to have been sustained on that date.[35]
[35] Section 7(4).
48. Comcare argued that even if Ms Wieczorek had not failed to obtain a promotion, transfer or benefit, her condition would still be excluded from the definition of “injury” if she believed that she had failed to do so. On the evidence before us we are not satisfied that Ms Wieczorek was of any such belief. Further, we do not agree that the definition of “Injury” permits such an interpretation as it would require the definition to be read as if the word “perceived” had been inserted before the words “failure by the employee to obtain”. This interpretation would further limit the entitlement to compensation of an injured worker and in these circumstances it should not be inferred that such a result was intended by Parliament, particularly in beneficial legislation.
3. Was the medical treatment in respect of which compensation is claimed, treatment obtained in relation to the injury?
49. The claim is for treatment in the period May 2005 to October 2005 inclusive. Comcare argues that compensation is not payable on two grounds:
1) that by February 2005 Ms Wieczorek had fully recovered from the injury suffered in September 2004 and any treatment later undertaken was not obtained in relation to that injury;
2) that alternatively, the treatment claimed was obtained in relation to an aggravation of the September 2004 injury and, as a matter of law, such treatment was obtained in relation to a new injury.[36]
[36] Transcript 28.4.07 pp-46-47.
Had Ms Wieczorek fully recovered from the September 2004 injury by February 2004 or some other date?
50. Comcare relies upon the following factors which it argues lead to the conclusion that Ms Wieczorek fully recovered from the September 2004 injury.
1) Ms Wieczorek consulted Dr Grundel on 28 January 2005. Dr Grundel’s note of that consultation reads:
“feels well, back to work felly[sic] recovered, claim closed”. [37]
[37] Ex. R10.
2) In an email to Ms Dreyer on 1 February 2005 Ms Wieczorek stated:
“I think that I am doing just fine. And the doctor confirms that.” [38]
[38] Ex.A6, document 69.
3) Although Ms Wieczorek consulted Dr Grundel and Dr Pahn at the Gungahlin Medical practice on a number of occasions between 28 January 2005 and 27 May 2005, it was not until the latter date that there was a further reference in the consultation notes to Ms Wieczorek experiencing problems relating to her mental condition and/or the effect of conditions at her workplace. Dr Grundel gave evidence that she would make a note of any discussions of clinical significance which took place between Ms Wieczorek and herself during consultations.
4) Dr Grundel’s note of the consultation on 27 May 2005 reads in part:
“crying upset, stress at work move at work” [39]
5) Ms Wieczorek’s distress in late May 2005 followed a proposal that she move to a new position which she believed was in a section known as a section for “misfits” and also followed the release of the report on her formal grievance. The report did not make the findings sought by Ms Wieczorek. In addition, at this time Ms Wieczorek wished to be transferred out of the Department.
6) Dr Skinner was of the opinion that she expected Ms Wieczorek would recover from adjustment order with depression and anxiety (the condition diagnosed by Dr Skinner) within six months of the onset of the condition, i.e. by the end of February 2006.
7) Mr Ironside observed Ms Wieczorek to be “very upset a lot of the time” and dwelling on the events prior to September 2004 when she returned to work in December 2004. However by the end of January 2005 he observed that she was not as upset as previously but still dissatisfied with her role.[40]
8) Ms Dreyer met with Ms Wieczorek, Ms Cursley and Mr Ironside on 7 February 2005. In her opinion Ms Wieczorek “came over as quite happy with her work” [41]. In the opinion of Ms Dreyer the return to work plan had been successful as Ms Wieczorek had returned to full-time hours which was the final goal of the plan.[42]
[39] Ex.R10.
[40] Transcript 23.8.07 pp-35-36.
[41] Transcript 23.8.07 at p-4.
[42] Transcript 23.8.07 at p-5.
51. We are satisfied on the balance of probabilities that Ms Wieczorek continued to suffer from major depression first diagnosed in September 2004 at least until June 2006 when she was examined by Dr Saboisky, Consultant psychiatrist. This conclusion is based on the evidence of Dr Grundel, Dr Matias, Dr George, Dr Saboisky and Ms Wieczorek.
52. Ms Wieczorek gave evidence that between her returning to full-time work in January 2005 and July 2005 she had some days off work because of depression and anxiety and that she started taking sleeping pills to alleviate insomnia. She also continued with counselling.[43] We accept this evidence. Ms Wieczorek also gave evidence that she saw Ms Clark and Mr Southgate on a daily basis and that on occasions they walked through the area in which she was working “just to look what kind of distress that cause me, I suppose.” [44] Whether or not Ms Wieczorek misinterpreted the intentions of Ms Clark and/or Mr Southgate after she returned to work, we accept her evidence that she believed that these persons continued to harass her. We take into account the evidence of Mr Ironside that Ms Clark was in the immediate vicinity of Ms Wieczorek’s work area on at least one occasion and this caused Ms Wieczorek to express her concern at this. Further, we take into account that, when asked as to her condition in February 2005, she did not say that she felt she had fully recovered. She said that she was “well enough to work.” [45]
[43] Transcript 230.8.07 p-20.
[44] Transcript 20.8.07 at p-22.
[45] Transcript 21.8.07 at p-42.
53. We also accept the evidence of Ms Wieczorek that she was asked to sign a Return to Work Plan Closure Report in April 2005 and that she refused to do so because she did not believe the Plan had been successful. The Closure Report referred to the injury of “depression/anxiety” and noted that the Final Vocation Goal was achieved on 7 February 2005. This conclusion immediately followed notations that there was the same employer, new duties and same hours.[46] It was signed by Ms Cursley and Ms Dreyer on 31 March 2005. It was noted by Ms Dreyer on the form that “Anna not prepared to sign”. In cross-examination Ms Wieczorek agreed that she did not sign the document because the position she had been given was not satisfactory and that “the problem was the situation and …… which caused me to have a breakdown and I tried to recover and I’m saying that the …… wasn’t ideal, that’s what I’m saying.” [47]
[46] T29.
[47] Transcript 21.8.07 at p-36.
54. We also accept the evidence of Ms Wieczorek that during consultations with both Dr Grundel and Dr Pahn between January and July 2005 she discussed her ongoing situation at work and that on 11 March 2005 Dr Grundel advised her to continue counselling as part of her treatment.[48]
[48] Transcript 21.8.07 at p-64.
55. When she gave evidence Dr Grundel stated that when she was advised by Ms Cursley on 28 January 2005 that Ms Wieczorek’s position was suitable she (Dr Grundel) was happy to close the case. She said that regardless of what her notes say if Ms Wieczorek said that she had not fully recovered in January 2005 she would agree. Dr Grundel said that Ms Wieczorek’s vulnerability remained.[49] She also said that consultations lasted about twenty minutes and that she did not record all that was discussed. We accept this evidence.
[49] Ranscript 22.8.07 at p-35.
56. We accept Mr Ironside’s evidence that Ms Wieczorek’s condition improved after January 2005. However we are of the view that it is unlikely that Ms Wieczorek had fully recovered by 27 January 2005 in view of his description of her condition earlier that month. As to Ms Dreyer’ opinion that the work plan had been successful by 27 January 2005, this appears to be based on the completion of an administrative procedure of Ms Wieczorek returning to full-time employment rather than upon an assessment of her medical condition.
57. On 2 August 2005 Dr Matias reported to Dr Grundel:
“My impression is Ms Wieczorek is suffering from a major depressive disorder with symptoms of anxiety which is precipitated by prolonged harassment and bullying in the workforce characterised by threats, put-downs, coercion, isolation, trivialisations of views and opinions and persistent need-picking (sic) and criticism of her work. This is exacerbated by ongoing harassment and threats by her workplace and exposure to her former harasses on a daily basis on return to work."
58. In his report to which we have already referred, Dr George expressed the opinion that when he examined her on 28 July 2005 Ms Wieczorek was suffering from ongoing major depression which was contributed to by her employment prior to September 2004.
59. Although Dr Saboisky was of the view that Ms Wieczorek suffered an Adjustment Disorder rather than a Major Depressive Disorder, he expressed the opinion that her condition was “inextricably linked” [50] to her employment, including the events prior to September 2004. He does not suggest that there was a period during which Ms Wieczorek had recovered from her illness.
[50] Ex.A6 document 41.
60. We prefer the opinions of the medical witnesses referred to above to the opinion of Dr Skinner. Dr Skinner is of the opinion that Ms Wieczorek was not suffering from a diagnosable psychiatric condition at the time she returned to full-time work in early January 2005. We are of the view that the treating practitioners were in a better position to assess Ms Wieczorek than Dr Skinner. Dr Skinner acknowledged that she formed her view based on the reports of other practitioners and does not know whether Ms Wieczorek was suffering symptoms of her condition in early January 2005. Dr Skinner was in part relying on the statement of Dr Grundel that she considered Ms Wieczorek fit to return to work. Dr Skinner agreed that if Ms Wieczorek’s symptoms had continued she would change her opinion.[51] As we have indicated, we are satisfied that Ms Wieczorek‘s condition and accompanying symptoms had not resolved, and continued at least until June 2006 when she was examined by Dr Saboisky.
[51] Transcript 23.8.07 at p-53.
61. Dr Skinner agreed in cross-examination that she did not know what condition Ms Wieczorek was suffering from in July 2004 and would not exclude that the diagnosis of major depression made by Dr Matias was correct.[52] She also agreed that if Ms Wieczorek’s symptomology continued after she returned to work until July 2005 and that if her psychiatric condition continued over that period then her incapacity for work in July 2005 related back to her condition in 2004.[53]
Did Ms Wieczorek suffer an aggravation of the 2004 injury in 2005 and therefore suffer a new injury?
[52] Transcript 23.8.07 at p-59.
[53] Transcript 23.8.07 at p-54.
62. Comcare has argued that if Ms Wieczorek had not fully recovered from the 2004 injury, incidents in 2005 caused an aggravation of that injury and that as a matter of law such an aggravation was a new injury which broke the chain of causation between the earlier injury and the need for any treatment after the aggravation.
63. Counsel relied upon the decision in Australian Postal Corporation v Nadge[54] as authority for this proposition. In that matter Mr Nadge suffered a compensable injury to his back in 1988. In 1990 he underwent a laminectomy which relieved most of the pain and thereafter he suffered only minor symptoms. On 1 January 1993 Mr Nadge spent a day at the beach with his family and as a result of those activities his back condition substantially worsened, incapacitating him for work. The question before the Federal Court was whether Australia Post was liable to compensate Mr Nadge in respect of the period of incapacity.
[54] Unreported decision 21 June 1994, WAG 36 of 1994.
64. The Court accepted, without comment, Australia Post's agreement that the Tribunal had correctly stated that the question to be answered was:
“Did (Nadge’s) activities on the beach constitute a new injury or aggravation of the 1988 injury, in either of which cases (Australia Post) is not liable, or did the old injury re-occur when it played up either spontaneously or because of the ordinary stresses and strains of living and working."
65. The Court held that it was a matter of fact for the Tribunal to decide whether there had been a new injury or a recurrence of the compensable injury. At page 13 of the decision the Court said:
“This was not a case where the evidence before the Tribunal permitted only one conclusion by a reasoned process of fact-finding. It was for the Tribunal to determine whether the activities were such as to be likely to have occasioned a fresh injury or whether they constituted no more than a give-and-take of daily activities which, if they occasioned the re-emergence of symptoms in the damaged spine, could be said to be a continuation or recurrence of the original injury. If that continuation of symptoms, albeit of greater severity, brought incapacity for employment, the incapacity could be said to result from the original injury. All those issues were plainly matters of fact for the Tribunal to determine. …… It was obviously a question of fact whether another injury had intervened to break the chain of causation between the original injury and subsequent incapacity."
66. As we have already indicated, we are satisfied as a matter of fact that the injury suffered by Ms Wieczorek in 2004 continued until at least until June 2006. We are satisfied that the release of the report of the investigation into Ms Wieczorek’s grievance in May 2005 and her proposed move to a new position played a role in the emergence of the symptoms of the depression suffered since September 2004. This finding is based on the reports of Dr Matias and Dr Saboisky, the records of Gungahlin Medical Centre[55] and the evidence of Dr Grundel and Ms Wieczorek to which we have previously referred. We are satisfied that these symptoms re-emerged as a result of the ordinary stresses of Ms Wieczorek’s working life.
[55] Ex.R10.
67. The symptoms recorded by Dr Grundel on 27 May 2005 were “crying upset” and those recorded by Dr Pahn on 25 June 2005 were tearful, depressed mood, anxious, poor sleep and poor appetite. Dr Pahn also recorded that the symptoms were worse since May 2005.[56] In her report of 8 July 2006 [57] Dr Matias described Ms Wieczorek’s symptoms on 27 July 2005 as:
“……Ms Wieczorek was still extremely tearful, anxious, was not able to get out of bed, she was fearful, hypervigilant avoidant of any situations which would remind her of her harassers or anything associated with the department she was isolating and at one stage just took to bed in a foetal position who is not able to function. She describes no enjoyment in life, suicidal thoughts, poor sleep, fatigue, weight loss of more than 5 kgs and loss of appetite. Her concentration, memory, ability to think and self-confidence were also affected. She felt helpless and out of control."
[56] Ex.R10.
[57] Ex.A5.
In the opinion of Dr Matias these symptoms were not adequately treated in December 2004 notwithstanding Dr Grundel’s certification that at that time Ms Wieczorek was able to work in a limited capacity.
68. On the basis of the evidence referred to in the preceding two paragraphs we are satisfied that Ms Wieczorek was suffering the same symptoms in July 2005 as she suffered in September 2004.
4. In the circumstances, was it reasonable for Ms Wieczorek to obtain the treatment for which compensation is claimed?
69. There was no issue raised as to the reasonableness of Ms Wieczorek obtaining the treatment for which compensation is claimed. The treatment was for several visits to her General Practitioner when her symptoms worsened and for two visits to Dr Matias on referral by Dr Grundel. We are satisfied that the treatment for which compensation has been claimed was in relation to the injury suffered in September 2004 and that it was reasonable for Ms Wieczorek to obtain such treatment. Ms Wieczorek is entitled to compensation in respect of these expenses under section 16 of the Act.
5. Was Ms Wieczorek incapacitated for the period claimed as a result of the injury suffered in September 2004?
70. For the reasons set out in relation to the claim in relation to medical expenses and on the basis of the evidence of Dr Grundel, Dr Matias, Dr George and Dr Saboisky we are satisfied that during the period 14 July 2005 to 14 October 2005 Ms Wieczorek was incapacitated for work as a result of the injury suffered in September 2004. Ms Wieczorek is entitled to compensation in accordance with section 19 of the Act.
DECISION
Application A 2006/76
71. The reviewable decision made 23 February 2006 is set aside and in substitution it is decided that Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Dr Matias on 27 July 2005 and 3 August 2005.
Applications A2006/237 and 238
72. The reviewable decision made 18 August 2006 is set aside.
73. In substitution for the decision set aside, it is decided that:
1. Comcare is liable to pay compensation to Ms Wieczorek in respect of the cost of medical treatment provided by Gungahlin Medical Centre on the following dates:
·27/5/2005;
·10/6/2005;
·25/6/2005;
·1/7/2005;
·10/7/2005;
·15/7/2005;
·1/8/2005;
and in respect of the cost of medical treatment provided by Dr Grundel referred to in the account dated 14 October 2005;
2. Comcare is liable to pay compensation to Ms Wieczorek for incapacity for the period 14 July 2005 to 14 October 2005 inclusive.
74. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Ms Wieczorek.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.
Signed: .....................................................................................
Geoff Foley, Associate
Date/s of Hearing 20-24 August 2007
Date of Decision 12 October 2007
Counsel for the Applicant David Richards
Solicitor for the Applicant Slater & Gordon
Counsel for the Respondent Matt Gollan
Solicitor for the Respondent Dibbs Abbott Stillman
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