Williams and Comcare (Compensation)

[2022] AATA 1584

Williams and Comcare (Compensation) [2022] AATA 1584 (10 June 2022)

Division:GENERAL DIVISION

File Number:          2021/1967

Re:Laura Williams

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:10 June 2022

Place:Brisbane

The decision under review is affirmed.

....................[SGD]....................................................

Deputy President J Sosso

CATCHWORDS

COMPENSATION – Applicant denied interview or feedback on application for role she had been acting in for two years – period off work – claim for “reactive depression” –  liability for injury denied – whether applicant suffered an ailment – medical evidence outlining no psychological condition – Mooi principles – Applicant’s condition not outside the boundaries of normal mental functioning – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Comcare v Mooi (1996) 69 FCR 439

Fittock and Comcare [2022] AATA 72

Richardson and Comcare [2010] AATA 245

REASONS FOR DECISION

Deputy President J Sosso

10 June 2022

INTRODUCTION

1. Ms Laura Williams (the Applicant) seeks review of a reconsideration decision of 19 February 2022, which affirmed a determination of 13 January 2021, that Comcare was not liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) to pay compensation for the claimed condition of “reactive depression” – Exhibit 1 T21 pp. 136 – 141, T2 pp. 9 – 19.

2. The Applicant was born in Sydney in August 1967 and, at the time of the Hearing, was 54 years of age – Exhibit 1 T4 p. 21, T18 p. 118. She moved to the United Kingdom with her family when she was three and completed her schooling, entered the workforce and got married overseas. When she was approximately 30 years of age, she returned to Australia and settled in Queensland – Exhibit 1 T18 p. 118.

3. On 21 June 1999, the Applicant commenced working at Centrelink (now Services Australia) and in 2000, she separated from her husband – Exhibit 1 T4 p. 26, T18 p. 118. The Applicant initially performed call centre work before moving to face-to-face service delivery at Mount Gravatt, Brisbane, for approximately six years – Exhibit 1 T18 p. 118.

4. In 2012, the Applicant was transferred to the Random Sample Survey Program as a Random Sample Survey Officer at the APS-4 level. The Random Sample Survey Team carried out audits to determine if social welfare recipients were still alive and entitled to payments – Exhibit 1 T4 p. 26, T18 p. 119.

5. In June 2018, the Applicant was offered to act in the position of Quality Development Officer at the APS-5 level for a month while an officer was on leave. The Applicant enjoyed the role and she was asked again in September 2018 to apply to perform this role on an ongoing basis via an Expression of Interest. The Quality Development Officer checked the work of the Random Sample Survey Officers and also offered support and training – Exhibit 1 T4 p. 26, T18 p. 119.

6. In July 2019, while the Applicant was on long leave, she was informed that the position was going to be advertised to be filled on a permanent basis. In fact, the position was not advertised until August 2020, and the Applicant prepared an application in her own time and submitted it. The Applicant received no feedback until 13 November 2020, when she was sent an email which stated as follows – Exhibit 1 T12 p. 81:

   “Thank you for applying for the position of Quality Development Officer, EXP-APSL-2020-1306: APS5 advertised in APSjobs on 18 August 2020.

   The assessment process is complete. On this occasion your application has been assessed as unsuitable.

   Due to the significant number of applications received, we will not be providing feedback on applications.

   In assessing applications, we sought applicants who showcased strong abilities to:

   -       Demonstrated skills in communicating with influence and collaborating.

   -       Contributing to transformation, including an ability to reflect on learnings.

   -       Demonstrated ability to contribute to the achievement of team results.”

7. On 16 November 2020, the Applicant emailed HR Support seeking feedback – Exhibit 1 T12 p. 83:

   “I was wondering if someone could assist me at all.

   I have been on TPA since 20.9.2018 and have passed through 2 pay increments.

   Finally they [advertised] the position and unfortunately I was rated not suitable.

   The following email says that Due to the significant number of applications received, we will not be providing feedback on applications.

   I have been working in this position since 20.9.2018 with no issues and now I am being told that no feedback will be given.

   I am devastated.

   I found out on Friday and have come to work today but am not in the best state mentally.

   2020 has been a nightmare and I have worked so hard and I spent about 20 hours on my application.

   The whole process seems so unfair.

   Can I get feedback?”

8. On 18 November 2020, a Senior HR Advisor responded to the Applicant informing her that while it is best practice to provide feedback to candidates, it was not mandated in the recruitment process. The Applicant was informed that she could write to the chairperson of the recruitment panel and request special consideration be given due to the length of time she had undertaken the role, her achievements and her intention to further develop her skills. However, the Applicant was also advised that it was up to the chairperson to determine whether any feedback would be given – Exhibit 1 T12 p. 84.

9. On 17 November 2020, the Applicant made a Workers’ Compensation Claim for “Reactive depression relating to demotion” – Exhibit 1 T4 pp. 21 – 28. Attached to the claim was a statement, the latter portion of which is set out below – Exhibit 1 T4 p. 26:

   “I spoke to my assistant director at length yesterday and she advised me that I will be returning to my APS4 role and probably wont [sic] get the opportunity to act again as these positions would be covered by the order of merit. So that is that. I loved this job and just feel there is nothing to look forward to now.

   Since I received the email, I have been in tears constantly. I am not sleeping. I was in work on 13/11/2020 and left a bit early 3pm and came into work on 16/11/2020 but I am unable to stop myself from crying. My brain hurts and I am unable to function to the best of my abilities.

   I went to the Dr today 17/11/2020 and she has prescribed me antidepressants and referred me to a psychiatrist. She has advised me to take until 30/11/2020 and come back and see her again. I also have an EAP appointment on 19/11/2020 at 1 pm.

   I am so stressed that this is going to make me loose [sic] my job or cease any careers chances I have had but I really am unable to attend work.

   Life outside of work is good and I have no issues whatsoever outside of work.”

10. The Applicant’s treating General Practitioner (GP), Dr Robyn Mawer, in a medical certificate dated 17 November 2020, diagnosed her as suffering from “work related depression” brought about by her demotion “from supervisor job” – Exhibit 1 T5 pp. 29 – 30.

11. The Applicant was referred to Dr Bradley Ng, Consultant Psychiatrist, for examination and assessment. Dr Ng assessed the Applicant on 15 December 2020 and prepared a detailed report dated 22 December 2020 – Exhibit 1 T18 pp. 117 – 124. The assessment was conducted via video conference – Exhibit 1 T18 p. 118.

12. After outlining the Applicant’s personal history and the events leading up to 17 November 2020, Dr Ng provided the following account as provided by the Applicant – Exhibit 1 T18 pp. 119 – 120:

    “Ms Williams ceased work on 17 November 2020 because she was too distressed to continue work. She started seeing her general practitioner who prescribed Valdoxan 25 mg at night. Her depression and tears started to subside and she became more angry about the process. She was planning to appeal. She was referred to a psychologist but there had been no appointments yet.

    I enquired about the period of time away. Ms Williams was sleeping and waking up at 10:00am. She was doing the housework, attending to her garden and going for walks. There were some days where she did nothing: ‘resting my brain’. She had decreased socialising and had decreased going out with her partner. She tried to return to work for a half day on 30 November 2020 and it was not completely successful. Her return-to-work program was delayed and she did a full days work on 8 December 2020 followed by another full day on 10 December 2020. This week, she was planning to return to work three full days per week Monday, Wednesday and Friday. She was going to finish work this Friday and go to Sydney for ten days for a total of three weeks of annual leave. She would be coming back to work on 11 January 2021 in her acting position on a full-time basis.

    Ms Williams noted that she had discussed a return-to-work plan with the appropriate coordinator. It was decided that it is probably going to be better for her to return to work before her three-week holiday. Ms Williams did agree with that aspect. At work, it had been quite busy. Ms Williams stated that she had a good relationship with her work colleagues. Her previous team leader had just retired. Ms Williams did not feel that she had supported her throughout the application process.

    Ms Williams denied any stressors outside of work…”

13. Dr Ng noted that the Applicant described her mood as stable and she denied having any suicidal ideations or engaging in any deliberate self-harm. Her memory and cognition were improving, and she described her work on the previous day as very good. Conversely, she was anxious about her finances and her UK relatives because of the COVID-19 pandemic – Exhibit 1 T18 p. 120.

14. The following summary and assessment was provided by Dr Ng – Exhibit 1 T18 p. 121:

    “The material provided were congruent with Ms Williams’ account today. In essence, she applied for the position that she was acting in and was unsuccessful. She was disappointed and distressed. She took some time away from work and then started a graduated return-to-work program.

    It is understandable that someone may be upset and disappointed at an unsuccessful application for promotion. However, I would be very reluctant to label this a psychiatric disorder. Nearly everyone in the workforce has experienced the disappointment at the lack of promotion at one point in their lives and, in my opinion, it does not constitute a psychiatric disorder, unless there are extenuating circumstances. While the workplace may appear to be insensitive at times, bureaucratic or opaque, there were no extenuating circumstances in this situation.

    Furthermore, even if it were determined that Ms Williams may have suffered from a psychiatric disorder, such as an adjustment disorder, in my opinion it would not be seen as a workplace injury, given the workplace did not do anything to cause the injury. Like any organisation, there will always be disappointment with the lack of promotion or a lack of success in obtaining a substantive position.”

15. Subsequently, Dr Ng opined that the Applicant did not suffer from a psychiatric disorder – Exhibit 1 T18 pp. 122 – 123:

    “… Ms Williams may have been disappointed, anxious and then angry about the lack of promotion. This does not constitute a psychiatric disorder.

    …

    There is no ailment.

    …

    Clearly Ms Williams sees herself as distressed. In my opinion, this does not constitute a psychiatric disorder…

    …

    There is no psychological condition. I do appreciate Ms Williams is on antidepressants. I am not sure if they are beneficial. Most likely, Ms Williams would have to have some time away from work, regroup herself emotionally and then return to work in a graduated return-to-work program.”

16. On 13 January 2021, the Delegate of Comcare found that there was no liability to pay compensation to the Applicant in accordance with s 14 of the Act. In reaching this conclusion, the Delegate adopted the reasons outlined in a report of 12 January 2021 by a Case Manager – Exhibit 1 T21 p. 140.

17. The Case Manager referred to the report of Dr Ng outlined above and then found – Exhibit 1 T21 p. 143:

    “Given Dr Ng did not provide a diagnosis I cannot be satisfied that Ms Williams has suffered an ailment as defined by the SRC Act.”

18. However, the Case Manager noted that if he was incorrect, he would need to consider the relationship between any injury suffered by the Applicant as a result of her employment. In particular, he noted that he would need to consider whether, on the balance of probabilities, the Applicant’s claimed condition was contributed to, to a significant degree, by her employment with Services Australia – Exhibit 1 T21 p. 144.

19. The Case Manager set out, at length, the statement of the Applicant, a statement of facts dated 27 November 2020 from Services Australia, and the medical evidence of Dr Mawer and Dr Ng – Exhibit 1 T21 pp. 144 – 146.

20. Having set out the background information, the Case Manager then reached the following conclusion – Exhibit 1 T21 p. 147:

    “I note that Dr Ng is a specialist in the field of psychiatry and formulated his view with regard to all evidence, not only the matters discussed at the assessment, but also taking into account the information contained in medical records and reports and relevant medical literature. I therefore consider his opinion relevant to this assessment.

    I consider that Dr Ng has provided clear and detailed reasons for his conclusion relating to Ms Williams’ presentation, and specifically, his view that there was no contributory relationship between her psychological symptoms and her employment.

    Taking into account the above, I am unable to make a finding that Ms Williams’s claimed condition of ‘reactive depression’ was significantly contributed to by her employment with Services Australia.

    For completeness, whilst I have already determined Ms Williams would be excluded from compensation as it was found she has no diagnosable injury and if I accepted she did suffer an injury the evidence supports that any such injury was not contributed to a significant degree to her employment, given Dr Ng’s opinion ‘Furthermore, even if it were determined that Ms Williams may have suffered from a psychiatric disorder, such as an adjustment disorder, in my opinion it would not be seen as a workplace injury, given the workplace did not do anything to cause the injury.’

    I have also given consideration to the workplace factors relevant to the case and find that Ms Williams’ perception of work place issues stem from events that are reasonably categorized as ‘reasonable administrative actions.’”

21. The Case Manager then turned to whether the exclusionary operation of a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner provision applied – s 5A(1). The following finding was made by the Case Manager – Exhibit 1 T21 p. 149:

    “Having reviewed the information put forward by Dr Ng and Services Australia, I accept that Ms Williams reacted strongly to the failed attempt for a promotion. I note that Ms Williams had been temporarily acting as an APS5 Quality Development Officer which was the position that she subsequently applied for and in which she was rated unsuitable.

    I consider the evidence is quite compelling that Ms Williams would not have suffered her psychological symptoms if she had been successful in securing a promotion, meaning that her symptoms were suffered as a result of not securing such a promotion, the end result of which required her to move back into her nominal APS4 position.

    I consider it evident that the failure of Ms Williams to secure a promotion contributed to her claimed symptoms and I note this has been reported to be so by Ms Williams, her General Practitioner and Dr Ng. As such I consider Ms William failed to obtain the benefit of securing a promotion and section 5A(2) of the SRC Act is invoked whereby ‘anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit’ is not eligible for an award for compensation.

    It is therefore my assessment any such workplace contribution to Ms Williams’s symptoms were as a result of these work events as discussed above.

    Therefore the exclusionary provisions set out in S5A of the SRC Act operates to exclude her (psychological injury) from compensation.”

    [emphasis in original]

22. On 21 January 2021, the Applicant sought reconsideration of this determination – Exhibit 1 T22 pp. 150 – 151. The Applicant outlined the grounds for seeking reconsideration and concluded as follows – Exhibit 1 T22 p. 151:

    “I truly believe that I do have a medical condition and I also believe that my employer due to their actions are fully responsible for this.”

23. On 19 February 2021, the Applicant was informed that the Comcare Delegate, having evaluated the evidence, concluded that the Determination of 13 January 2021 was correct, and affirmed it – Exhibit 1 T25 pp. 193, 196.

24. The Delegate referred to the Applicant’s request for reconsideration and the submissions she made therein. It was noted that no new medical evidence was submitted for consideration – Exhibit 1 T25 p. 199.

25. Subsequently, the Delegate outlined what issues needed to be determined – Exhibit 1 T25 p. 200:

    (a)whether the Applicant sustained an ailment, or aggravation of an ailment;

    (b)whether the ailment was significantly contributed to by her employment; and

    (c)whether the reasonable administrative action exclusionary provision operated to preclude the Applicant’s claim.

26. First, the Delegate found that the Applicant was not suffering from an ailment. After referring to the diagnoses of Dr Mawer and Dr Ng, the Delegate made the following observation – Exhibit 1 T25 p. 200:

    “I prefer the diagnosis provided by Dr Ng both in his capacity as a psychiatrist, and the evidence of an evaluation of your presentation under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM IV). I note that Dr Ng formulated his view with regard to all evidence, not only the matters discussed at the assessment, but also taking into account the information contained in medical records.”

27. Second, the Delegate found that the Applicant’s injury was not contributed to, to a significant degree, by her employment. The reasons given for this conclusion were, like those given by the first Delegate, somewhat confusing. Reliance was placed on the report of Dr Ng and the views he expressed. The Delegate concluded as follows – Exhibit 1 T25 pp. 201 – 202:

    “In terms of your view that you truly believe that you have developed a medical condition, I refer to the findings of Dr Ng who considered that ‘it is understandable that someone may be upset and disappointed at an unsuccessful application for promotion. However, I would be very reluctant to label this a psychiatrist disorder’. He advised that disappointment or anger do not constitute as psychiatric disorders, however, if he was of the view that had you suffered from a condition, he stated that your employer did not do anything to cause it. I am compelled to agree with Dr Ng’s assertions in this regard.

    Given that no further medical evidence was supplied as a part of your reconsideration request, I consider the opinion of Dr Ng to be of most relevance to this case, in that it was his view that had you suffered from a diagnosable injury, your employment had not contributed to a significant degree to the causation of your condition, and I agree with the original decision maker that he had provided clear and detailed reasons which support this.

    Further, in line with the original decision maker, I agree that Dr Ng is an appropriately qualified specialist for the purposes of the assessment, and consider that his view took into account all available medical evidence and self-reports made by yourself during the examination.

    Having reviewed all information, including the available medical evidence, I concur with the finding of the delegate in the primary determination, being that your employment did not significantly contribute to the development of your psychological condition, or aggravation thereof.”

1. Third, the Delegate turned to the exclusionary provision where an injury has been caused by reasonable administrative action undertaken in a reasonable manner. The following finding was made – Exhibit 1 T25 p. 202:

   “Having reviewed the available evidence, it is my finding that, to the extent that your injury was suffered as a result of your employment, it was suffered as a result of reasonable administrative action undertaken in a reasonable manner and in relation to your employment, this being your failure to secure a promotion within the agency. Your resultant injury is therefore excluded from compensation by the operation of Section 5A of the SRC Act.

   Consequently, I agree with the original decision maker that these actions can reasonably be categorised as ‘reasonable administrative actions’ and that they were conducted in a reasonable manner and in relation to your employment.”

2. On 31 March 2021, the Applicant applied to the Administrative Appeals Tribunal for a review of this decision – Exhibit 1 T2 pp. 4 – 8.

3. The Applicant provided the following reasons for seeking a review of the reviewable decision – Exhibit 1 T2 p. 8:

   “I have been acting in a role since September 2018. There have never been any issues and I have met my performance agreements and been rated fully effective. My programme moved into a new department. My position was advertised in August 2020 and on 13.11.2020 I was advised that I am not suitable. I was also advised that I would not get any feedback even though I had been in the role for over 2 years. I contacted my team leader on 13.11.2020 to discuss what would happen to me. I was told on 16.11.2020 that this would end 30.11.2020. I was pretty shocked at this whole thing as there had not been any discussions regarding what would happen to me. I was having problems sleeping and suffering with anxiety due to the whole thing and the lack of communication from my TL and my AD. My GP gave me anti depressants. I also talked to a counsellor. My team leader lied in the statement to compensation and there is something that just does not add up with the whole thing. I am still on anti depressants and recently came off them and had problems sleeping and went back to Dr who gave me antidepressants again. The psychologist says its just disappointment and that my work haven't done anything wrong. Since all of this I have been extended month by month until 16.4.2021 when this is finally due to end and I will return to my position. I have been unwell due to my work since 16.11.2021 [sic] and am still taking medication. They have lied as I was not offered any assistance with my job application or any direction. Previously in my programme assistance has been offered to staff when these positions have been advertised and in fact that is how all of the leadership team won their positions. I have had time off sick and had to pay for medication that I would not have needed had I been given the support that my managers are telling me they gave me or offered me. This is a total lie. I am still suffering with depression and anxiety and its all because of this.”

   HEARING

4. A Hearing was convened in Brisbane on 15 February 2022.

5. The Applicant was self-represented and Mr Ben Dube represented Comcare.

6. The Applicant gave testimony and was cross-examined by Mr Dube.

7. The Applicant did not call any witnesses and Comcare called Dr Ng.

   THE LAW

8. Subsection 14(1) of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

9. “Injury” is defined by s 5A(1) as follows:

   “(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.”

10. The term “reasonable administrative action” is defined in s 5A(2) 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.”

11. “Disease” is defined by s 5B(1) 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.”

12. “Significant degree” is defined by s 5B(3) to mean “a degree that is substantially more than material.”

13. “Aggravation” is defined in s 4(1) to include “acceleration or recurrence.”

14. Finally, “ailment” is defined in s 4(1) to mean:

    “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”

    CONSIDERATION

    Introduction

15. There are potentially three issues that require attention in this matter:

    (a)did the Applicant suffer an ailment, or aggravation of such an ailment;

    (b)if so, was it contributed to, to a significant degree, by the Applicant’s employment; and

    (c)if so, was it suffered as a result of reasonable administrative action taken in a reasonable manner?

16. As will be seen, the threshold issue in this matter is whether the Applicant has suffered an ailment, or aggravation thereof, as defined by the Act. If the answer to this question is resolved in the negative, then it is unnecessary to consider the remaining two issues.

17. Mr Dube explained at the Hearing that Comcare accepted that if the Tribunal found that the Applicant suffered an ailment, or aggravation thereof, then it was contributed to, to a significant degree by her employment – Transcript (Tr.) 15.2.2022 p. 5.

18. Consequently, if the Tribunal resolves the first issue in the affirmative, the only other issue requiring resolution is the question of reasonable administrative action.

    Did the Applicant suffer an ailment, or aggravation of such an ailment?

19. The threshold issue is whether the Applicant suffered an ailment or an aggravation of an existing ailment. The Tribunal has been presented with very little medical evidence on this fundamental question.

20. For the Applicant, there are the relatively brief diagnoses and reports of Dr Mawer. As explained above, Dr Mawer was not called to give evidence and, as such, she was not subject to cross-examination and the Tribunal did not have the benefit of observing her give evidence.

21. Conversely, the Tribunal has before it, the detailed report of Dr Ng dated 22 December 2020, as well as his testimony at the Hearing.

22. Before turning to the medical evidence, it is desirable to refer to the much-quoted judgment of Drummond J in Comcare v Mooi (1996) 69 FCR 439 (Mooi). The legal representatives of Comcare drew part of his Honour’s judgement to the Tribunal’s attention – Exhibit 3 pp. 2 – 3 para 4.2. Drummond J, very helpfully, explained what constitutes a compensable mental ailment, or aggravation thereof, highlighting, inter alia, that it is not necessary to put a label on such a condition (443 – 444):

    “There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person's mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term ‘injury’ for the purposes of s 14(1) of the Act.

    The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee's mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe… But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and 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, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).”

23. Drummond J explained that it is essential for an applicant claiming to suffer from a mental ailment, or an aggravation thereof, to demonstrate that he or she suffered a condition outside the boundaries of normal mental functioning and behaviour. His Honour went on to observe that there is a distinction between abnormal behaviour and behaviour which, though unusual, falls within the range of behaviour that persons unaffected by mental illness could be expected to exhibit in the same circumstances.

24. The Applicant testified that she did not have a history of depression or psychiatric illness, and that the only time she had an “issue” was when her marriage broke down, and “once that was sorted I was fine. I’ve never had any issues since” – Tr. 15.2.2022 p. 10. In addition, the Applicant testified that prior to the problems in the workplace, and the aftermath of her first marriage breakdown, she had never been prescribed antidepressant medication or had been treated by a psychiatrist or psychologist – Tr. 15.2.2022 p. 18.

25. The only other life stressors that had adversely affected the Applicant were the deaths of her niece and her father, both within six weeks in 2010. However, the Applicant testified that she “used resilience to get through that and that was really difficult” – Tr.15.2.2022 p. 19.

26. When asked what happened after she was informed that she had been unsuccessful in her job application, the Applicant gave the following testimony – Tr. 15.2.2022 pp. 14 – 16:

    “… So I went to my GP because I couldn't stop crying like now. It just brings it back and she just – she said it was reactive depression. I don’t know what any of that means. I don’t understand. I just know that I just couldn’t stop crying and I couldn’t go to work.

    DEPUTY PRESIDENT: How long were you in that condition for? That is, feeling emotionally distressed?

    WITNESS: About three weeks, three and a half weeks.

    DEPUTY PRESIDENT: And how did it manifest itself?

    WITNESS: … I couldn’t stop crying. I couldn’t sleep, I was stressed out. It was causing problems with my relationship, with my partner and I wasn’t going out with my friends and I wasn’t socialising and I didn’t speak to anybody. I didn’t want to see anybody. And I could not stop crying. I’m not a person who cries very often but it just – I just couldn’t stop.

    Anyway, she gave me antidepressants which I really didn’t want to take because I don’t like things like that…

    DEPUTY PRESIDENT: Okay. Now just before we go on, how long were you taking antidepressant medication for?

    WITNESS: I finished – I didn’t take them for very long, maybe three months at the most.

    DEPUTY PRESIDENT: Were you taking any other medication?

    WITNESS: No.

    …

    DEPUTY PRESIDENT: Okay. All right. So you saw your GP. Your GP prescribed you antidepressant medication. She also gave you a referral to see a psychiatrist. You took the antidepressant medication for three months but you didn’t’ go and see the psychiatrist. How did you feel at the conclusion of the time you were taking the antidepressant medication? In other words, after three months of taking that medication, were you still crying? Did you feel better?

    WITNESS: Yes, I [definitely] felt better. You know, I’d gone back to work and everything like that and when I first returned to work which was… just before the Christmas, I was still crying but I’d only been on the antidepressants for a month or something but, yes, like, after Christmas and stuff, I did feel a lot better… if you can sleep better, you can cope better can’t you and I was sleeping better as well then.

    …

    DEPUTY PRESIDENT: So you went back to work and tell me what happened in the work environment after you returned to work.

    WITNESS: Well, I just kind of got on with the job because they needed me. Because they didn’t have anybody else to do, you know, to do the job so… I was just applying for jobs left, right and centre, trying to get…out of there. But I wasn’t negative. I was still, you know, giving the staff the support…”

27. It is tolerably clear from this testimony that although the Applicant was very upset and crying continually for almost a month, she recovered and returned to work feeling much better and her sleeping had improved. Not only was the Applicant feeling better, but she was able to constructively engage in the workplace and started applying for alternative positions. She was cleared fully fit for work by 11 January 2021 – Tr. 15.2.2022 p. 21. The Applicant’s job applications resulted in her transferring to the Nundah Service Centre, and her final day in her old position was 16 April 2021 – Tr. 15.2.2021 p. 16.

28. Attention now must be given to the testimony of Dr Ng. Under questioning by Mr Dube about the nature of the Applicant’s medical condition, the following testimony was given – Tr. 15.2.2022 pp. 28 – 29:

    “Can I ask you, Doctor, can you explain firstly we have a history which you've seen in the notes and we've already had a little bit more history this morning from Ms Williams about her symptomatology which is a period of a number of weeks being having difficulty sleeping, difficulty with some concentration, very tearful which she says was completely out of character to how she normally reacted to issues, and that she was prescribed an antidepressant and took that for a period of three months. Given that history, what's the basis upon which you formed the view that that wasn't sufficient to amount to a psychiatric condition?---Thank you. I must admit it's a fine line between psychiatric symptoms and reaching the threshold of what we'd consider a psychiatric disorder. Ultimately one depends on the retrospective description given by the person at the time of the assessment… and the documents provided in the general practice record. So certainly Ms Williams did describe symptoms and even they are perfectly legitimate they do not reach the threshold for a psychiatric disorder…

    …

    So, Doctor, then in terms of when we’re talking about psychiatric disorders, there’s a diagnosis being given I think by the GP of reactive depression. Is that a diagnosis you’re familiar with or what sort of diagnosis is that?---That would be short-term or a common description – a descriptor of what would be in the DSM 4/5 as adjustment disorder.

    Doctor, I think based on your experience in providing reports in this sort of setting you’re familiar with the test that the tribunal needs to turn its mind to and it’s not – it’s a lower threshold than a diagnostic criteria being met but it’s a test which is whether the person’s symptomatology and reaction is something which could be suited beyond normal human responses to distressing things. If you have regard to the history and material you’ve seen, what’s your opinion with respect to Ms Williams’ condition as at November 2020 as to whether or not her response was something which was beyond the normal human responses to distressing events?  ---I think when you are asked to consider a response that’s considered extreme or beyond what is considered normal, I think that there may be – there is an argument that Ms Williams’ response is quite severe, is quite extreme compared to what would normally be expected in that particular situation. So the idea of having some sort of emotional reaction to the failure to have a promotion I think is a very universal one, very understandable, and for a certain number of the population there may be extreme responses.”

29. At the conclusion of Mr Dube’s questioning of Dr Ng, I read to him an extract from Mooi, and having explained the quote, asked the following Question – Tr. 15.2.2022 p. 31:

    “… What I’m asking you quite plainly is you examined Ms [Williams], did she – was she exhibiting behaviour outside the boundaries of normal mental functioning and behaviour in your clinical opinion?---No.”

30. Dr Ng, then, did not resile from the diagnosis in his report that the Applicant did not suffer from an ailment, or aggravation thereof. The Applicant was given the opportunity to cross-examine Dr Ng, but only asked him a question relating to the period of time he examined her – Tr. 15.2.2022 p. 32. In short, Dr Ng was not challenged as to the veracity of his diagnosis, and there is no substantial medical evidence before the Tribunal that casts any serious doubt about it.

31. It is important now to turn to Mr Dube’s closing statement in relation to the question of whether the Applicant suffered from an ailment, or aggravation thereof. It is set out in full below, together with the Tribunal’s observations – Tr. 15.2.2022 pp. 35 – 36:

    “MR DUBE: Deputy President, as I said and as the tribunal identified in opening, there’s really only two issues for the tribunal to grapple with. Firstly, in respect of the question of diagnosis, the purpose of both my questioning and also that of the tribunal’s really was to get Dr Ng to expand on his report which doesn’t go to the test in Comcare v Mooi but rather was just concluding there wasn’t a diagnosable condition. As I understand Dr Ng’s evidence and then the test that was laid down in that Federal Court decision is that Ms Williams’ response, which was one of distress – and when I say distress I mean it in the context of what she’s described her symptoms and how she experienced those events, in no way is it suggesting that she wasn’t – I'm not trying to downplay in any way her – the impact that this had on her, I’m just trying to summarise that expression.”

32. At this point, I intervened and made the following observations – Tr. 15.2.2022 p. 36:

    “DEPUTY PRESIDENT: Sure. Perhaps I could just intervene just for one minute and just explain something to Ms Williams. Ms Williams, what Mr Dube is saying and what I was asking the question of the doctor is, number one, there is no suggestion this morning and this afternoon that when you received information that you were unsuccessful in obtaining an interview for the position, that you didn’t suffer emotional distress.

    Nothing that Mr Dube is saying and none of the evidence before the tribunal downplays the fact that you suffered not only disappointment but also grave distress which had a detrimental impact on you. So there’s no issue about that. The only question that the tribunal has to grapple with is a purely legal one of whether the nature of that distress meets a certain legal standard, so that’s what we’re discussing this morning. We’re not downplaying, we’re not doubting your word and there’s no question of credit, there’s no question of any of those matters, it’s simply a legal question.”

1. Mr Dube then continued with his summing up – Tr. 15.2.2022 p. 36:

   “MR DUBE: Deputy President, we would say Dr Ng’s report really and his oral evidence together would lead the tribunal or should lead the tribunal to the conclusion that there isn’t an ailment within the meaning of the Act and the tribunal could be satisfied that the decision under review should be affirmed on that basis because we say it really doesn’t get to that threshold of an ailment having regards to Comcare v Mooi. The only other case I’d refer… the tribunal is a recent decision… Fittock v Comcare…”

2. The recent determination of Fittock and Comcare [2022] AATA 72 also involved an employee of Services Australia who claimed compensation for aggravation of an adjustment disorder with mixed anxiety and depressive symptoms. In this matter, the applicant sought to be moved into a different team, which request was denied. Subsequently, the applicant made her claim for compensation. Two months after lodging her claim, the applicant was examined and assessed by Dr D Lovell, consultant psychiatrist. Dr Lovell opined that the applicant was not suffering from a psychological condition – at [16]. In a supplementary report, Dr Lovell reconfirmed his initial diagnosis and opined that there “is no new ailment or aggravation” – at [20].

3. The applicant took issue with Dr Lovell’s report, referring to the length of the appointment, technical difficulties in connecting by video link and noting that she was interviewed in the comfort of her bedroom when she felt safe, as distinct from her work environment – at [44].

4. Member Mitchell referred to the applicant’s contention that if she did not suffer a mental ailment or aggravation thereof, why was she prescribed and was taking antidepressant medication. In response, Member Mitchell made the following observations, with which I concur – at [49]:

   “… on review of the medical evidence and, in particular, the evidence provided by Dr Lovell, it is clear that anti-depressants have a wider use and, as such, the prescription and taking of such medication does not, in itself, mean that a person is suffering from a psychological condition.”

5. Also, similar to this matter, Member Mitchell was presented with comprehensive reports from a Consultant Psychiatrist (Dr Lovell), who was fully briefed with all relevant material, opining that the applicant did not suffer from an ailment, or aggravation thereof, and a short letter from a Consultant Psychiatrist (Dr A Simpson) who relied entirely on self-reporting by the applicant. Member Mitchell then made the following observations:

   “53.Given that Dr Simpson was not provided with any documentary evidence in relation to this application, nor has she provided an independent medical examination report, the Tribunal considers her letter to be of limited assistance to the Applicant’s case.

   54. For these reasons, the Tribunal prefers and accepts the evidence of Dr Lovell that the Applicant had not suffered, and was not suffering from, a psychological condition at the time of his reports.”

6. After referring to the judgment of Drummond J in Mooi, Member Mitchell then made the following key finding:

   “57.Dr Lovell’s opinion was that while the Applicant described feeling stressed and interpreted appropriate statements as being unduly critical and targeting her, this appeared to be a long-term personal characteristic, and the symptoms she described to him did not meet the diagnosis threshold for any psychiatric disorder, rather they were a repetitive behavioural pattern. Dr Lovell explained that the major issue was the Applicant’s ongoing personality style, a lack of insight into her own contribution to her difficulties and her inability to accept feedback.

   …

   59.While the Tribunal does not doubt that the Applicant, at times, feels anxious and stressed as a result of her workplace, it is clear, based on her own submissions and the opinion of Dr Lovell, that she has a now ingrained belief regarding the management of the Agency and how she is perceived.

   60.As such, based on the evidence before it, the Tribunal is not satisfied, on the balance of probabilities, that the Applicant suffered a psychological ailment or aggravation of a psychological ailment, or that she demonstrated she was in a condition that is outside the boundaries of normal mental functioning and behaviour.”

7. The Applicant made the following submissions at the conclusion of the Hearing – Tr. 15.2.2022 pp. 39 – 40:

   “… the email that I got on 13 November 2020 advising me that I’d been unsuccessful was just like the catalyst of stuff that had been going on since February and it was just – it kind of was the straw that broke the camel’s back. You know, and the fact that the GP put it down as whatever she put it, reactive depression due to demotion, that was just something that she, you know, she typed up there and it was in there on all the information.

   So she just kept going with it but, you know, at the end of the day, like, I, you know, I just feel it was more than just that. And obviously I was disappointed… I’ve worked hard in the 24 years… I’ve worked for Services Australia. I’ve never had any issues anywhere I’ve ever worked. All the performance assessments I’ve had with this job there’s never been any issues. So it was a complete shock to me that… things turned out the way they did…

   You know, I ended up being off sick for three and a half, four weeks. I lost… sick pay and basically that’s what it’s about for me. I just want the three and a half weeks’ sick pay that I lost because of a condition that was caused… because of work and not just the demotion… the reaction to that was totally extreme but… looking back on it all, it was just a slow build-up of various things that had happened all the time, right up until the date that the email went out…”

8. The Tribunal has no reason to doubt the testimony and submissions of the Applicant. She appeared to the Tribunal to be an honest and forthcoming person who was clearly distressed by her failure to be appointed to the position she had acted in. Having considered the copious evidence before the Tribunal, it is tolerably clear that the appointment process could have been handled in a more sensitive and appropriate manner. Whilst it is clear that the selection panel had to deal with a huge number of applicants, it would have been good practice for a person acting in a position for a considerable period of time who is unsuccessful, to be given feedback and to be approached individually. Further, it would also be good practice that when a person is acting in a position for a lengthy period without, it would appear, complaint about their performance, to be at least given an interview, or in the absence of an interview, to be provided feedback as to why this has not occurred.

9. As such, the Tribunal is not unsympathetic to the circumstances that befell the Applicant. However, this does not resolve the threshold issue that must be answered, namely, whether the Applicant suffered an ailment, or an aggravation thereof.

10. The medical evidence before the Tribunal strongly supports the proposition that the Applicant did not suffer an ailment, or aggravation thereof. The Tribunal has set out, at length, the assessment and diagnosis of Dr Ng. In addition, the Tribunal had the benefit of observing Dr Ng’s testimony. The Tribunal found Dr Ng to be an impressive witness and his diagnosis was firmly grounded in the material he was presented with, and which is before the Tribunal.

11. Dr Ng was fully briefed with all of the relevant background material and did not have to rely purely on the self-reporting of the Applicant. The Applicant asked Dr Ng how long he interviewed her for, and he testified that it was for approximately 25 minutes – Tr. 15.2.2022 p. 32. The relative shortness of the interview is, itself, an indication that at that time, Dr Ng was able to make a conclusive diagnosis based on the how the Applicant presented. In short, for Dr Ng to make a diagnosis that the Applicant did not suffer from a mental ailment as quickly as he did, indicates that the Applicant was presenting as a person exhibiting behaviour that fell within the range that persons unaffected by mental disease or illness could be expected to exhibit.

12. Dr Ng’s diagnosis was not challenged, and there is no evidence before the Tribunal that would cast any serious doubt on his assessment. The Tribunal did not have the benefit of receiving oral testimony from Dr Mawer, and there is no information before the Tribunal about her experience in treating persons with mental ailments. Further, it is not clear on what basis Dr Mawer diagnosed the Applicant, and her brief medical certificates provide no basis for forming a view as to the correctness of her diagnosis.

13. Dr Ng, on the other hand, did give evidence, is a specialist, wrote a comprehensive and well-reasoned report, and was briefed with copious background material. As noted previously, his diagnosis was founded not only on years of specialist experience, but also on material other than self-reporting.

14. Also of relevance was the testimony of the Applicant. Whilst she was clearly distressed and very emotional about the manner in which she was treated by her employer, nonetheless she was able to return to work within a short period of time, engage productively in the workplace and then successfully obtain a work transfer.

15. In Richardson and Comcare [2010] AATA 245, the Tribunal, after quoting the passage in Mooi set out above, made the following observation (at [37]):

    “Implicit in this last comment is that there are circumstances where the work environment can generate ‘debilitating stress’ without giving rise to a ‘disease’.”

16. A workplace can be, at times, a stressful environment. Persons working to tight schedules, dealing with difficult customers, and perhaps facing interpersonal conflict issues, can suffer mental anguish. The failure to obtain a promotion, the threat of demotion or an unwanted transfer to another position or place of work, can result in a worker suffering anguish, anxiety, low mood, emotional outbursts or physical illness. All of these unfortunate by-products of the workplace are well-known and recognised, but they are not necessarily compensable. Workers’ compensation legislation is in place to deal with, in the case of mental illness, “ailments” that manifest in a worker suffering (inter alia) a condition outside the boundaries of normal mental functioning and behaviour.

17. The reaction of the Applicant to her failure to be appointed to her acting position was, as she explained it, “extreme”, but it did not constitute an ailment for the purposes of the Act.

18. Dr Ng pointed out that while the Applicant “may have been disappointed, anxious and then angry about the lack of promotion. This does not constitute a psychiatric disorder” – Exhibit 1 T18 p. 122. Further, Dr Ng made these pertinent observations – Exhibit 1 T18 p 121:

    “… Nearly everyone in the workforce has experienced the disappointment at the lack of promotion at one point in their lives and, in my opinion, it does not constitute a psychiatric disorder, unless there are extenuating circumstances. While the workplace may appear to be insensitive at times, bureaucratic or opaque, there were no extenuating circumstances in this situation.”

19. To sum up, a person suffering emotional distress by failing to obtain a promotion and not receiving the courtesy of appropriate feedback, does not necessarily suffer a compensable ailment. In order for a person to suffer a compensable ailment, he or she must have a condition which results in them manifesting behaviour outside the boundaries of normal mental functioning and behaviour. “Normal” mental functioning and behaviour is a fluid and imprecise concept, and it is not possible to articulate a definition that would be capable of application in each and every case. Nonetheless, it is implicit that normal mental functioning carries with it, not only behaviour which an average person may exhibit most of the time, but also a range of emotion from extreme distress to unbounded happiness. The grief that a person is afflicted with on the loss of a dear friend or family member, while extreme and sometimes very debilitating, is simply the manifestation of normal human emotion and behaviour in the context of a very distressing event. The circumstances that most people deal with in their lives are diverse and bring with them, a range of emotions. In this matter, the disappointment and anguish the Applicant suffered was understandable, and while her distress was perhaps greater than most people would experience, it was not of such an extreme nature that would constitute a mental injury.

20. The Tribunal, therefore, finds that the Applicant did not suffer from an ailment, or aggravation thereof, for the purposes of the Act.

21. As the Tribunal has answered the first, and threshold, question in the negative, it is not necessary to deal with the remaining two questions.

    DECISION

22. The decision under review is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.................[SGD]......................................................

Associate

Dated: 10/06/2022

Date of hearing:	15 February 2022
Applicant:	By MS Teams
Solicitor for the Respondent at the Hearing:	Mr Ben Dube Sparke Helmore Lawyers
Instructing Solicitor for the Respondent:	Mr Jack Sime Sparke Helmore Lawyers