Wright and Australia Post
[2004] AATA 97
•4 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 97
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2003/203 & N2003/1036
GENERAL ADMINISTRATIVE DIVISION ) Re GAI WRIGHT Applicant
And
AUSTRALIA POST
Respondent
DECISION
Tribunal MS N BELL Date4 February 2004
PlaceSydney
Decision The decision under review is affirmed.
[sgd] Ms N Bell, Member
CATCHWORDS
COMPENSATION – Workplace Injury – workplace harassment – claim for loss of earnings - Applicant unsuccessful in promotion application - whether claimed incapacity caused or materially contributed to by events at work – Applicant with family history of Bipolar Disorder – liability accepted for adjustment disorder with depressed mood – Bipolar Disorder not materially contributed to by employment – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 - sections 4, 14
REASONS FOR DECISION
4 February 2004 MS N BELL 1. Gai Wright (“the Applicant”), now aged 50 years, commenced work with the Respondent in 1991 and ultimately worked as a customer sales representative with Post Direct at Australia Post Head Office. After some months of alleged harassment by the then Manager of Post Direct and alleged continued difficulty with an associate of that manager, the Applicant collapsed at work in January 2002 and ceased working until April 2002. The Respondent accepted liability for adjustment disorder with depressed mood, with a notional injury date of 6 September 2001, the date on which the Applicant first received treatment for a psychiatric disorder.
2. The Applicant remained working until 15 October 2002. She has not returned to work since that time. In the intervening period the Applicant had applied for and was unsuccessful in obtaining the position of Team Leader of POSTbusiness Direct. She is very critical of the method by which the selection was made.
3. On 27 November 2002 the Respondent denied liability to pay compensation after the Applicant claimed lost earnings from 14 October 2002. The Respondent affirmed that decision on 15 January 2003. That is the decision under review. The Respondent made a further determination on 6 June 2003 to cease liability for depression and anxiety and affirmed that decision on 19 June 2003 after the Applicant made a claim on 13 June 2003 for compensation for permanent impairment in respect of her psychiatric condition.
4. The Applicant claims that her psychiatric condition was caused or materially contributed to by events at her workplace, in particular the alleged harassment suffered by her and the selection process for the position of Team Leader. The Respondent claims that any condition suffered by the Applicant that resulted from events at work had resolved by October 2002 and any incapacity for work from that time was owing to the Applicant’s disappointment at not being promoted.
5. The primary issue for the Tribunal to consider is therefore whether the Applicant’s claimed incapacity for work from October 2002 was caused or was materially contributed to by events at work. The liability or otherwise of the Respondent is governed by section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) which provides:
“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.”
6. The word “injury” is defined in section 4 of the Act to include a disease or injury other than a disease which is physical or mental that arises out of or in the course of the employee’s employment. The definition in section 4 also includes an aggravation of an injury (other than a disease) that arose out of or in the course of employment. However, the definition specifically excludes any disease, injury or aggravation suffered by an employee as a result of failure by the employee to obtain a promotion.
7. The Respondent contends that the Applicant left work in October 2002 because she failed to be promoted to the position of Team Leader. The Applicant contends that it was the process of selection for this position and the events leading up to the decision to not promote her, rather than the outcome of the process, that gave rise to her departure. There is a dispute as to what transpired and what was said to the Applicant by management in the lead up to the interview
8. The more fundamental question, however, is whether, the excluding effects of section 4 aside, the Applicant’s injury arose out of or in the course of her employment with the Respondent.
9. A number of questions arise out of this issue and include the question of whether there is a relationship between the Applicant’s initially diagnosed condition of adjustment disorder with depressed mood, for which liability was accepted, and her present condition, ultimately diagnosed by her treating psychiatrist as bipolar disorder. The nature of that relationship, if any, will be determined by the role, if any, played by the treatment administered to the Applicant for her depression and by her family history. There is conflicting medical evidence on these questions.
10. At the hearing of the application, I heard oral evidence from the Applicant, Dr Brian Bourke, her treating psychiatrist and from Drs Gertler, Lovrick and Waldren, all psychiatrists by whom the Applicant was examined and reported on for the purposes of her claim and this application. Mr Michael Miller, the Applicant’s manager also gave oral evidence at the hearing. I also had before me the following documentary evidence:
Exhibit Number
Document
Date
TD1
Section 37 Documents N03/203
Various dates
TD2
Section 37 Documents N03/1036
Various dates
A1
Applicant’s Statement of Facts and Contentions
16 June 2003
A2
Medical Report + annexures, Dr B Burke
7 October 2003
A3
Applicant’s contemporaneous notes
Various Dates
A4
Email, Applicant to M Paul
18 November 2002
R1
Respondent’s Statement of Facts and Contentions, Medical Reports, Drs Lee and Walden
Various Dates
R2
Medical Report, Dr Walden
21 October 2003
R3
3 x Photographs, including Applicant
Undated
R4
Curriculum Vitae, Dr Lovric
Undated
R5
Statement of Matthew Miller
22 October 2003
R6
Report on recommendations of Selection Committee
11 October 2002
R7
CompAssess Assessment Report for Selection
2 October 2002
R8
Printout of Rolling Stones Press Release
11 October 2003
11. In reaching my decision I have taken into account all of the oral and documentary evidence before me.
Is the injury suffered by the applicant a result of her failure to obtain a promotion?
12. This question requires specification of the Applicant’s injury. Her treating psychiatrist, Dr Bourke, has diagnosed the Applicant as having bipolar disorder in February 2003. Dr Bourke said in his report of 7 October 2003 (Exhibit A2) that :
“In summary I consider Ms Wright is suffering from a rapid cycling Bipolar Affective Bipolar Disorder, its onset probably having been with an Adjustment Disorder with Depressed Mood, caused by the difficulties she experienced in her work at Australia Post from 1999 onwards, as they are outlined above.
It appears from her history that her Adjustment Disorder merged into a Major Depressive episode which in turn has taken on the features of a Bipolar Disorder.”
13. Dr Bourke also said in oral evidence to the Tribunal that the condition has been diagnosable for the last year. Dr Walden, in her report of 21 October 2003 (Exhibit R2) accepted the diagnosis of Bipolar Disorder but differed as to its origins. Dr Lovric declined to diagnose Bipolar Disorder having not observed the Applicant in a hypomanic state.
14. On the basis of Dr Bourke’s and Dr Walden’s evidence, I find that the Applicant suffers from Bipolar Disorder.
15. Dr Bourke’s evidence was that the Applicant’s initial illness was adjustment disorder with depression, which developed into major depression. His view was that the antidepressant medication taken by the Applicant to treat her depression produced “highs” and further stress at work accentuated her instability. He said that one illness took on the features of another. In relation to the Applicant’s family history, conveyed to him by her as an uncle with Bipolar Disorder, a father who experienced many “ups and downs” and a mother with possible post natal depression, Dr Bourke said this suggests there may be a vulnerability to illness but no certainty that it would develop. He conceded that a family history of Bipolar Disorder would increase a person’s risk of developing it.
16. Dr Walden’s evidence was that Bipolar disorder occurs in 0.6 – 0.9% of the population and if a person has a family member with the disorder then the risk of developing it increases by a factor of 12 for each family member with the disorder. She considered that the Applicant, on the history stated by her, has a strong family history of bipolar disorder. She said that Bipolar Disorder is primarily genetic and constitutional and that the evidence that mania is associated with external stressors is very slim. She said that manic behaviour is more likely to create stressors rather than the inverse. In relation to the effect of antidepressant medication, she said there is a theory that antidepressants may make Bipolar Disorder manifest but that in her experience it is unusual for antidepressants to provoke a high. Dr Walden said that the temporal overlapping of the Applicant’s diagnosis of Bipolar Disorder with her taking antidepressants is not significant because she had been on antidepressants for 12 months before any mania was detected and that in the few reported cases the switch is rapid. She concluded that the Applicant’s Bipolar Disorder is a coincidental unrelated event.
17. Dr Lovric’s evidence was that the potential for antidepressants to bring on mania or hypomania is a controversial subject but that some patients can become manic when taking antidepressants if they have a predisposition to Bipolar Disorder and they will switch polarity. However, she said she would expect the onset of mania within the first few months of taking antidepressants. She did allow, however, for different antidepressants to have different effects on different people and noted that the Applicant had changed her medication to Efexor in April 2002. However, she was doubtful that this had happened in relation to the Applicant.
18. All the experts before the Tribunal agreed that the Applicant, on the family history provided by her, has a predisposition to Bipolar Disorder and I find accordingly. That predisposition is a factor unconnected with events or conditions in her employment.
19. On the other hand, events at the Applicant’s workplace that caused her stress and her taking antidepressant medication are matters arising, directly or indirectly out of her employment. There is no evidence before me to detract from the conclusion that the Applicant developed adjustment disorder with depressed mood following events at her workplace and that she was treated for this condition with antidepressant medication. However, the condition now suffered by the Applicant and diagnosed by her treating specialist as having developed from approximately mid 2002 is Bipolar disorder. According to all the experts before the Tribunal, the possibility exists that antidepressants may cause a person to “switch” into a manic state. Drs Lovric and Walden argued that this is rare and would occur soon after the medication commenced and would simply unmask a latent condition rather than cause it. The Applicant had been taking antidepressants for over a year before the onset of Bipolar Disorder.
20. Dr Bourke, less persuasively, argued that the medication alone could give rise to the condition, together with further stressful events at her workplace. I am more persuaded by the views of Drs Lovric and Walden in this respect, that while it may be possible for antidepressant medication to unmask a latent Bipolar Disorder, it is not probable that that occurred in the case of the Applicant, given the length of time she had been taking the medication and, I note, given that, according to Dr Bourke’s diagnosis, she developed signs of Bipolar Disorder some months before the selection process for the promotion began.
21. I also had regard to the material annexed to the reports of Drs Bourke and Walden and found that the possibility of antidepressants triggering a manic state remains theoretical and that reported incidents are rare.
22. On balance, I cannot be reasonably satisfied that the Applicant’s Bipolar Disorder arose out of or was materially contributed to by her employment.
23. Given that conclusion, it is unnecessary for me to consider whether the exclusion in section 4 of the Act applies to the circumstances of this case. However, if I am wrong in my conclusion as to the causation of the Applicant’s condition, I am of the view that the exclusion does so apply.
24. The Applicant’s evidence was that in an interview with her Manager, Mr Miller, prior to her interview for the position of Team Leader, he told her that the selection process would not be based on her experience because that would “discriminate against the other applicants” and she was not to refer to it in the interview. She said she was told that her resume would not be required. She also said that Mr Miller was very detached in the time leading up to the interview. She said that at the interview she was asked 35 questions and told she had 3 seconds to answer each one. However, in cross examination, the Applicant conceded that she had been asked, in the interview, a number of questions which required an explanation by her of her previous experience and knowledge of Australia Post.
25. The Applicant said that she did not attend drinks at the Forbes Hotel with her colleagues on the day all the interviews were held.
26. The Applicant also conceded that she initially expected to get the position but said that it became evident to her that the selection process would be manipulated. She said it was a career goal of hers to obtain the Team Leader position.
27. The Applicant said that when she was told by Mr Miller that she had not got the job she said to him that the other of her two male competitors should have been given the job rather than the one who had been chosen.
28. The Applicant said that she was told the outcome on a Friday in October and when she heard she didn’t get the job it was “not a big deal”.. She said she was already a mess because of the selection process and that she had missed out on other jobs before and coped.
29. Mr Miller’s evidence was that he had told the Applicant, prior to the interview, that her work experience was relevant to the position but that she should concentrate on her supervisory experience because the position was a supervisory one. He said he never told the applicant that her resume was not required. He said 17 questions were asked of interviewees (see Exhibit R6 – report of interview committee) and had no recollection of saying to the Applicant that she had 3 seconds to answer each question. He said that the Committee and all 3 candidates went to a "team building" dinner on the night of the interviews and the Applicant attended that and was effusive and in high spirits. He was certain in his recollection of that evening because he recalled the Applicant and the other candidates raising a toast to each other.
30. Mr Miller said that when he told the Applicant she had been unsuccessful for he position she became very ’cold’ and said she would not be able to work with the successful candidate and would be taking long service leave while she looked for another job. He said he may have become more detached with the 3 candidates in the time leading up to the interview, wanting to appear unbiased.
31. Mr Miller described the applicant, after her return to work in April 2002, as very positive and enthusiastic and as having established herself as the dominant person in her team, coming to him frequently with ideas and reports. He said he encouraged her to apply for the position and her response was that the position was what she had been waiting for and was her career goal.
32. The histories given by the Applicant to various psychiatrists are also relevant. The history given by her to Dr Bourke was of her concern about the process of selection and the perceived unfairness of that process. Dr Lovric agreed that the Applicant had described to her the process of selection rather than the selection itself, but attached significance to the fact that the applicant left her work on the day she was told about the result of the selection process. She considered that the process and the result were of equal significance to the Applicant. In her report dated 15 November 2001 Dr Lovric quotes from the Applicant’s notes, provided by her to Dr Lovric:
“…applied for a well-deserved promotion. Thought my health and mental state would return after this. As my chances of the position were almost assured. Then the work environment deteriorated quickly. Trauma and politics returned. Harassment returned. Asthma returned…
11th October 2002: informed of selection results. Traumatised. Have not returned.”
33. Dr Lovric concluded on 15 November 2002:
She is certainly not motivated to (return to work) in the context of her failed promotion and her perceived betrayal by management in terms of acknowledging her complaints against the ex-manager’s offsider and what she sees as an unfair situation in not attaining her promotion.”
34. I am not satisfied, on the basis of the evidence of the Applicant and that of Mr Miller, that the process, including the interview, leading up to the selection of the Team Leader was as described by the Applicant. I do not doubt the Applicant’s honesty in her account of what happened but I am not satisfied as to the accuracy of her perception. In this respect I have also had regard to the selection Committee report and I am more persuaded by the evidence of Mr Miller.
35. It is difficult to get beyond the fact that the Applicant left work immediately upon being informed that she had not obtained the promotion. She described herself, in her notes, as “traumatised” and she has not returned to work since then. I accept that her reaction to the news that she had not been successful may have been the result of a culmination of events over time but it is doubtful, given, according to her own evidence, that the job was her “career goal”, that she would have left work had she obtained the position.
36. It is also difficult to assess the interplay between the Applicant’s reaction to her failure to obtain the promotion and her Bipolar Disorder. It is possible that the disorder affected her reaction to the news of her failure and that, in the absence of it, she may have been less traumatised by that news. However, I have concluded that the Applicant’s Bipolar Disorder did not arise out of her employment and so speculation on its effect on her response, for there is no evidence of that, is of no use.
Decision
37. The decision under review is affirmed.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL
Signed: Guy Moloney
AssociateDate/s of Hearing 10 November 2003
Date of Decision 4 February 2004
Counsel for the Applicant L.T. Grey
Solicitor for the Applicant T Mannah
Counsel for the Respondent R.M. Henderson
Solicitor for the Respondent L. Forner
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