YJHZ and Commonwealth Bank of Australia (Compensation)
[2022] AATA 1127
•12 May 2022
YJHZ and Commonwealth Bank of Australia (Compensation) [2022] AATA 1127 (12 May 2022)
Division:GENERAL DIVISION
File Number(s): 2018/6884
Re:YJHZ
APPLICANT
AndCommonwealth Bank of Australia
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:12 May 2022
Place:Melbourne
The Tribunal affirms the decision under review.
..........................[sgd]..............................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – chronic ear infection and tinnitus – anxiety and depression – major depressive disorder – denial of liability – major depressive disorder significantly contributed to by employment – employment caused condition a disease – condition a result of reasonable administrative action taken in a reasonable manner – condition not an injury – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety Rehabilitation and Compensation Act 1988 (Cth)Cases
Australian Industry Development Corporation v Boyd (1990) ALD 729
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Commonwealth of Australia v (KC) Smith (1989) 18 ALD 224
Weigand v Comcare (2002) 72 ALD 795REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
12 May 2022
BACKGROUND
The Applicant, YJHZ, applied to the Tribunal on 22 November 2018 for review of a decision of the Respondent on 25 September 2018 affirming an earlier decision denying liability for her claimed conditions.
YJHZ had a long career with the Respondent bank, and at the relevant time was a relationship manager handling small business client lending.
YJHZ developed tinnitus in her right ear in 2017. This followed from a perforated eardrum arising from a pre-existing chronic middle ear condition. After a period of time off in late 2017, she returned to work and, after experiencing difficulties on an occasion in February 2018 with her tinnitus, raised the issue with her executive manager, ‘J’.
YJHZ was unsatisfied with the response of the bank and did not return to work. She was subsequently diagnosed with a mental health condition and, ultimately, separated from her employment on medical grounds in August 2018.
A claim for compensation dated 11 June 2018 was lodged in respect of ‘intrusive tinnitus and depression’. The form refers to a date of injury and first medical consultation in July 2017. YJHZ nominates J as being responsible for her injury, and states in the form:
I was on a return to work plan and was trying to manage my condition when I was bullied and harassed by the team leaders of the CBA return to work immediately on several occasions despite have a valid medical certificate at all times. These actions have exacerbated my condition immensely and compromised my ability to return to work.
In addition to lodging a Statement of Facts, Issues and Contentions (SFIC), YJHZ introduced into evidence at the hearing her Statement dated 20 January 2020 (Exhibit A1), and the report of Dr Nigel Strauss, psychiatrist, dated 13 June 2019 (Exhibit A2).
The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T documents), a SFIC and a joint Hearing Book (HB) was also provided (numbering 1,663 pages). The report of Professor Andrew Sizeland, surgeon, dated 1 December 2017 was admitted at the hearing (Exhibit R1).
The hearing was conducted over three days. Evidence for the Applicant was given by YJHZ and Dr Strauss. The Respondent called the following witnesses from the Respondent bank: ‘C’, the Applicant’s team leader; ‘M’, an executive manager; and, ‘R’, a workplace relations specialist. Three medical witnesses were also called to give evidence: Dr Joel Aizenstros, psychiatrist; Dr Dush Shan, psychiatrist; and, Professor Sizeland.
LEGISLATION
Liability for injuries arises under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
Injury is defined in specific terms in s 5A of the Act, and can found in the form of a ‘disease’ an ‘injury’, or an aggravation of either a disease or an injury. However, any such injury that was suffered as a result of reasonable administrative action taken in a reasonable manner is excluded under subsection 5A(1). There is a non-exhaustive list of reasonable administrative action set out in subsection 5A(2).
Disease is defined in s 5B by reference to ‘ailment’ (itself defined in broad terms in s 4), or an aggravation thereof, that was contributed to, to a significant degree, by a person’s employment. In determining whether this test of causation is made out, reference may be had to the following matters (subsection 5B(2)):
(a) the duration of the employment;
(b) the nature of the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
Significant degree is specifically defined in subsection 5B(3) to mean a degree that is substantially more than material.
ISSUES
The issues arising in this matter are:
(a)the characterisation of YJHZ’s medical condition in terms of the relevant definitions in the Act, taking into account the particular tests for a causal connection with her employment; and
(b)consideration, where applicable, of the exclusion from liability of any injury suffered as a result of actions that might be found to be reasonable administrative actions taken in a reasonable manner.
EVIDENCE
Medical evidence
YJHZ
In her statement (Exhibit A1), YJHZ states as follows with respect to her medical issues:
(a)she suffered mild depression in March 1999 following brain surgery and recovered after briefly using antidepressants ([5]);
(b)in August 2017 an ear infection developed into a perforated ear drum, and she later developed tinnitus which she learned to manage with the help of her psychologist Dr Aneta Kotevski ([6]-[7]);
(c)she was off work due to the ear infection between August and November 2017, initially returning four hours per day and then back to full time hours in December ([6]);
(d)tinnitus caused her to lose concentration in a work meeting on 15 February 2018 and she reported having flare ups with tinnitus to her executive manager, J, the following day ([9]-[10]);
(e)she was certified unfit for work by her GP after a meeting on 19 February 2018 ([18]) and was medically retired in August 2018 with a total and permanent disability pension ([22]);
(f)she regularly sees both Dr Kotevski and her psychiatrist Dr Arparna Chawla ([24]);
(g)in March, May and July 2019 she was admitted for treatment for depression and alcohol detox ([25]);
(h)at the time of the statement she was not permitted to spend unsupervised time with her children and family law parenting proceedings were underway.
At the hearing YJHZ acknowledged a history of epilepsy which was ‘cured’ by a right temporal lobe procedure in 1999. She maintained her position at the bank throughout this period.
YJHZ further acknowledged requesting a mental health assessment in February 2017 due to relationship issues and anxiety. She accepted that she was reported as being overwhelmed at work and drinking too much. YJHZ described 2017 as ‘a difficult year’ as her husband left home and a marriage counsellor recommended mental health assistance.
Her GP prepared another mental health assessment recommendation in September 2017. YJHZ stated this was related to her perforated eardrum and the onset of tinnitus. She was referred to Dr Kotevsky to cope with the ringing in her ears. YJHZ stated that her tinnitus flared up at work when under stress.
When asked about attendance on her psychologist in October 2017 in relation to rumination and anxiety, YJHZ stated that the consultations were ‘only to overcome the tinnitus’. This assisted her to return to full time work in December 2017. YJHZ stated she informed the bank that she could manage on return to full time work, but asked for flexibility. Her illness was ‘unpredictable’, and when things were particularly stressful she would work from home with the radio on in the background to assist with the tinnitus.
YJHZ acknowledged attending upon Professor Sizeland in late 2017 and Dr Aizentros in early 2018 in relation to fitness for duty assessments. With respect to a reference in a report of Dr Aizentros (HB11) to hypnotic medications, YJHZ stated she had used temazepam and sleeping tablets as the tinnitus flared up if she ‘was thinking about things’. She did not recall reporting to him difficulties in maintaining attendance at meetings.
When asked about referral for a work capacity assessment by Associate Professor Saji Damodaran in mid-2018 (HB14), YJHZ stated that at this time she was ‘completely depressed and sad’. To this point she had continued to see her psychologist and psychiatrist monthly.
YJHZ stated that her partner was ‘fine’ and ‘supportive’ during her time off work, however their relationship changed when she was admitted for mental health treatment. She stated further that her alcohol use increased when she stopped work, and particularly after her termination in August 2018. It escalated over Christmas 2018 to the point that she sought referral to a substance abuse program.
YJHZ stated the admissions for treatment put pressure on her relationship and her children, and her marriage broke down in mid-2019. She acknowledged that her drinking became a problematic issue in this context.
In summary, with respect to her history of alcohol use, YJHZ described it as ‘minimal’ in the months prior to the 15 February 2018 meeting, and that following her admissions in 2019 she no longer drinks alcohol.
YJHZ stated that her current regime of medication involves daily anti-depressant and anxiety medication, medication to assist with sleep every three days, and Valium when needed.
In cross-examination, YJHZ acknowledged that she had voluntarily used an alcohol monitoring device for 18 months, and that she had on one occasion used Valium when giving a presentation at work due to her nerves.
YJHZ acknowledged that her former partner obtained an intervention order against her arising from an incident with one of her children.
YJHZ denied that she had a high level of alcohol use as far back as 2006, stating that medical consultation notes referring to consumption of a bottle a day referred to her use together with her partner. When asked whether she had discussed alcohol use issues with her doctor every year, YJHZ stated she was health conscious and had never had consultations about being an alcoholic. She also denied that alcohol use had affected her relationship prior to her issues at work.
Professor Sizeland
In his report (Exhibit R1) Professor Sizeland summarises as follows:
[YJHZ] has mixed right ear disease resulting in tinnitus and reduced hearing in the right ear. The primary effects of the ear disease (mild reduction in hearing) do not impede [YJHZ] from undertaking normal workplace duties, but the secondary psychological effects of the tinnitus represent the main barrier to her returning to work.
Professor Sizeland adds that the constant tinnitus has increased YJHZ’s anxiety, and that she said she was ‘not able to function in an environment where she is required to communicate intensively and constantly with clients’.
In his evidence, Professor Sizeland stated he was not aware of a history of anxiety prior to YJHZ experiencing tinnitus. He would be ‘quite surprised’ should tinnitus cause ‘extreme anxiety de novo’.
In cross-examination, he was asked whether tinnitus was a subjective experience and Professor Sizeland responded that it is difficult to investigate the condition as there is no objective measure. He accepted that psychological exercises and reliance on white noise were common strategies to manage tinnitus. He also stated that in individuals that suffer anxiety, tinnitus can worsen its effects.
Dr Strauss
In his report (Exhibit A2), Dr Strauss states that YJHZ has been suffering a major depressive illness initiated by her tinnitus and that she remains psychologically decompensated. He states that there is also a possibility she may improve once her claim is resolved, but her prognosis is difficult to predict; ongoing treatment for another year or two was required.
In the Opinion section of this report, Dr Strauss associates what he describes as a ‘significant psychological decompensation’, from a prevailing mild anxiety, with a conversation about employment options offered by the bank. He describes her as now presenting with chronic major depressive illness.
In his evidence, Dr Strauss stated that YJHZ informed him that ceasing employment had made her depressive illness worse. Noting that he had not seen YJHZ for some years, Dr Strauss stated that he was not surprised her alcohol intake had risen for a period as a secondary effect of depression.
In cross examination, Dr Strauss was pressed on aspects of YJHZ’s personal life and alcohol use, but he was unable to add further to his stated opinion. He accepted that such issues arising after her separation from employment may have contributed to ongoing depression, but considered it still linked to her experience at work, where her decompensation occurred. Pressed further, Dr Strauss stated that he ‘would put money’ on YJHZ describing her experience at work as having ruined her life.
Dr Aizenstros
In his report (HB10) Dr Aizentros states his opinion that mild reduction of hearing does not prevent YJHZ from undertaking normal work, ‘but the secondary psychological effects of the tinnitus impact on her … requiring adjustments involving the option of working from home when her tinnitus and secondary anxiety is aggravated by stress and/or noisy work environment’.
Dr Aizentros provides a diagnosis of:
Chronic middle ear disease, high frequency sensorineural hearing loss and probably eustachian tube dysfunction with associated tinnitus, and secondary adjustment disorder with anxious mood, insomnia, and concentration difficulties, in partial remission.
In his evidence, Dr Aizentros stated that YJHZ told him that working in the office led to increased anxiety and so tinnitus, but this was less significant at home where her stress levels were lower. In his experience of patients with tinnitus, those with higher stress levels experience more tinnitus.
Dr Shan
In his report (HB18) Dr Shan provides a diagnosis of Adjustment Disorder with mixed depression and anxiety. He stated that a finding of Major Depression was not warranted when allowance is made for ‘emotions in relation to recent new issues and her condition has not stabilised’. He states that a ‘component of the ongoing Adjustment Disorder is secondary to the non-work related medical condition of tinnitus’.
Dr Shan states that YJHZ’s prior temporal lobe procedure is not relevant to the psychiatric diagnosis but adds that ‘it is known that persons who have had similar neurosurgery tend to have a tendency to become fixated on issues’. He accepts that if her allegations about her treatment at work are substantiated, that employment significantly contributed to her condition.
It was put to Dr Shan in evidence that Dr Chawla had recorded a history of alcohol use that appeared inconsistent with Dr Shan’s description of YJHZ as a ‘social drinker’. Dr Shan did not alter his opinion, noting that he read Dr Chawla’s observations after his consultation with YJHZ.
Dr Shan was asked about descriptions in mental health assessments conducted in 2017 of relationship issues and anxiety, to which he responded that this was ‘not clearly apparent’ to him. He added that from YJHZ’s perspective, marital and alcohol use issues did not play a part in her work performance.
Dr Shan stated that in the absence of the critical work meetings in early 2018, YJHZ would have experienced a worsened condition in the face of ongoing problems with tinnitus.
In cross examination, Dr Shan described the work meetings as an aggravating circumstance after which YJHZ felt unable to do her work.
Other medical material
Dr Kotevsky wrote a report dated 22 April 2018 (Attachment C to T20) stating that YJHZ had been referred to her to address symptoms of stress, anxiety and low mood. Dr Kotevsky states that YJHZ’s psychological and physical wellbeing has been negatively impacted by attempts to have her return to work, and that she observed a ‘significant deterioration’ in the Applicant’s mental health.
In a report dated 28 June 2018, Dr Damodaran (HB14) diagnoses a major depressive disorder and anxiety symptoms secondary to her tinnitus. In his opinion YJHZ was not at that time capable of performing her role. Dr Damodaran states that she suffered from a depressive condition since at least August/September 2017 and that it had worsened in the four months prior to his consultation.
A note of a surgery consultation with Dr Ferguson, YJHZ’ GP, dated 27 October 2017 (HB26, p 559) records YJHZ as seeing her psychologist and, ‘has Anxiety/depression rumination + anxiety’. The reason for consultation is described as ‘Anxiety/Depression’, and at this consultation YJHZ was prescribed anti-depressant medication (Lexapro). This appears to be the only such prescription. There are also prescriptions for Valium on 1 November 2017 and 5 February 2018 (and further prescriptions in 2018 and 2019 (HB, p 670).
Medical consultation notes indicate that YJHZ was continuing to receive treatment for her underlying ear condition in March 2018 (HB26, p 556; ‘on a waiting list to for operation to relieve eustachian blockage’) and in August 2018 (HB26, p 552; ‘blockage a problem on ENT waiting list’).
A note of a medical consultation with Dr Ferguson dated 4 May 2018 (HB26 at p 554) describes the Applicant’s depression as having moved from moderate to severe. YJHZ appears not to have been prescribed medication for her mental health condition again until November 2019.
Evidence concerning employment
YJHZ
YJHZ states in her written statement (Exhibit A1) with respect to employment:
(a)after advising her executive manager about the flare up on 15 February 2018, she was informed that she had three options ([11]):
(i)to continue with normal duties for which she would continue to receive support, so long as the requirements of her role were met;
(ii)to look for another role more suited to her condition;
(iii)consider resigning;
(b)this conversation left her feeling quite upset and she ‘now felt that [J] was not going to support me’ ([13]);
(c)her team leader C stated in a meeting that J had said the Applicant informed him that she was unable to do her job anymore, he was then called in and ‘admitted that he had misinterpreted the phone call … [and] told me that he had always supported me’, a perspective not shared by the Applicant ([16]);
(d)she was not well enough to engage in a return to work discussion with J in March 2018, but the meeting proceeded in April 2018 (following his resignation) and the Applicant was asked for further information relating to her condition, noting she would face disciplinary action if she did not return ([20]-[21]).
For completeness I note that YJHZ provided a statement in support of her claim for compensation, dated 3 July 2018 (T20). The key aspects of her claim (at [98]) can be summarised as follows:
(a)J misrepresented their conversation on 16 February in his discussions with others;
(b)this resulted in a ‘chain of events’ that led to the exacerbation of her tinnitus ‘and the development of anxiety and stress levels that mean I cannot work until the symptoms are again under control’;
(c)the list of options that followed were ‘unnecessary and not correct under the circumstances. I believe these actions were an attempt to bully me into resigning’; and
(d)J, M and R approached her situation with little or no compassion and the demands for more information about her medical condition was upsetting and stressful.
I also note from this statement that YJHZ attended on Dr Aizenstross at the bank’s request on 6 February 2018 and this experience was upsetting and led her to complain (at [71]). This complaint (Attachment B to T20) was made by email to J in which YJHZ explains the impact of her tinnitus, highlights its unpredictability, and seeks the bank’s understanding. She also asserts that her return to work had been met positively by staff and clients.
Attachment C to this statement is a series of emails commencing with an email to YJHZ from J dated 28 March 2018 which contains a directive to return to work on 3 April 2018. Attachment D is a letter to YJHZ from M concerning the scheduling of a formal meeting on 4 April, following failed attempts to contact the Applicant. The purpose of this meeting is said to be to discuss specialist medical opinion, and M states that the bank looks ‘forward to facilitate your return to work to you role’, and instructs a return from 10 April 2018.
Attachment J is a series of emails from May and June 2018 concerning YJHZ’s request to use long service leave. An email from M dated 30 May states that consideration would be given to this request. M declines this request in an email dated 14 June on the basis of resourcing issues in the Applicant’s work group.
In her evidence, YJHZ stated that at the 15 February 2018 meeting she burst into tears and her colleague had to cover for her. She stated that once the tinnitus started and she began to think about it and try to make it stop it became louder, and she was not able to concentrate.
When asked what she proposed to J, YJHZ stated that she sought less face-to-face meetings until her condition settled down. She considered that she could work from home as it was not necessary to meet face-to-face with clients.
YJHZ agreed with the proposition that J advised her he would contact HR, and he stated that the situation was ‘all new to me’. She recorded the subsequent conversation and characterised it as being along the lines of: ‘find another job or I want your resignation … come back or resign’. She found the conversation shocking after thirty years of hard work and service.
YJHZ stated that after the further meeting at which J apologised for the misunderstanding, she felt ‘traumatised’, and she confirmed that she never returned to work after this point.
In cross-examination, when asked whether the performance of her duties was constrained by her ear condition, YJHZ replied that she was doing everything required. She stated that she worked normal hours, was able to travel distances of 5-6 km by car and was able to attend branches. She was not required to attend in person at routine Monday meetings as she could ‘remote in’ if needed. YJHZ accepted that after returning to full-time work in late 2017 she also took a period of annual leave.
YJHZ was asked to think of other examples of instances where J had done something adverse to her interests, and she was unable to nominate any. However, she also denied that the discussions arising from the difficulties experienced on 15 February 2018 were the only such instance.
It was put to YJHZ that it was clear from her referral to Dr Aizenstros that she was not in fact ‘100%’, and the bank was entitled to explore her fitness for work. YJHZ replied that she was back doing her job, was ‘on a high’, and did not understand why she would be sent to a ‘horrible doctor who traumatised me’.
Further, YJHZ stressed that her ear condition had nothing to do with work at the bank, stating that her tinnitus was exacerbated at times. In her opinion she was getting better, but the bank did ‘everything in their power to make sure I didn’t’.
YJHZ agreed that she had initially accepted J’s apology, but then thought the agenda was to ‘get her to resign’. She considered that his successor [M] demonstrated no compassion for her situation and approached the issue as a disciplinary matter.
Witness C
The witness, C, provided a statement dated 22 April 2020 (HB41). From this I note that C states she first had contact with YJHZ in mid-December 2017 via phone, and she may have only ever had three face-to-face meetings with the Applicant ([13]-[15]; [19]). C states she did not know J very well as he had been on leave when she joined the bank in late 2017, and he was seconded elsewhere in January 2018 ([28]).
In her evidence, C stated that she was the manager of the business banking team of which YJHZ was a member. She stated that in the case of an employee with leave of 3 months duration, she would check in with them, ensure medical certificates were in place, and monitor the situation.
C stated that YJHZ was good at her job and effective. She was not aware of any instances in which J remonstrated YJHZ about her performance, albeit she described the portfolio to be underperforming at the time.
Were YJHZ to take her long service leave at half pay as she had proposed, C would allocate her work to other relationship managers.
When asked why YJHZ was given the three options, C stated that the third was included as a ‘last resort’, but only if the other alternatives were not suitable, and only if YJHZ wanted.
C stated that YJHZ described herself as ‘venting’ to J, however C had been told that YJHZ said she felt she could not do the job. She called J into the meeting as he walked past, and he apologised for the misunderstanding.
The planned meeting on the afternoon of Monday 19 February addressed the three options. J apologised once more, but the meeting ‘went downhill’ as the union representative accompanying YJHZ ‘berated’ C. She had limited recollections of the meeting after this point.
Witness M
The witness provided a statement dated 19 May 2020 (HB43), together with a substantial number of attachments. In her evidence, M confirmed that she replaced J after his departure from the bank.
In cross examination M confirmed she was unable to speak to events prior to her stepping into the executive management role in April 2018. She confirmed that she was provided with a ‘script’ for her first meeting with YJHZ by R.
At this meeting she asked YJHZ to come back to work and the purpose of the conversation was to get an understanding how this might happen, with a view to YJHZ’s capacity.
M was unable to recall any directions which would arise in the event that YJHZ failed to return to work. She acknowledged a letter to YJHZ which made reference to possible disciplinary action, and stated that this would be directed by HR.
Witness R
The witness, R, provided a statement dated 15 May 2020 (HB42), together with a substantial number of attachments. R states that she first became aware of YJHZ after her line manager sought assistance with excessive leave balances in the context of the need to support the Applicant; the total sick leave in 2017 was 620 hours or 82 days ([8]-[9]). R also arranged independent medical examinations attended by YJHZ ([12]).
R states further that concerns were raised by J in March 2018 about a medical certificate described as an ‘amended’ certificate that may have been provided without a consultation ([34]). An ill health separation process was initiated on 16 July 2019, following the report of Dr Damodaran ([40]-[41]).
In her evidence, R stated she was a workplace relations specialist with the bank. She did not have a direct conversation with YJHZ and could not recall any conversation regarding retirement for ill health. She denied saying ‘this is what we do to everyone’, and stated this is not language she would use.
In cross examination, R confirmed she had been informed that YJHZ had stated that she felt she could not continue in her current duties. Attachment D to her statement is her notes following a conversation with J about a recommended approach with YJHZ.
When asked about the issues with YJHZ’s medical certificates, R stated that YJHZ provided certificates describing her as ‘unfit’, but given her excessive leave record, further information about her capacity was needed. R stated that she became involved with YJHZ’s case around October 2017.
R was familiar with the contents of the medical reports and YJHZ’s fitness for work. R confirmed that she had described a ‘career break’ as the preferred option, and explained that this would be a period of 1-3 years’ leave without pay. A staff member would first need to exhaust leave entitlements. While long service leave was ‘normally for other purposes’, this was also a possible option.
R acknowledged that she had raised the option of a ‘without prejudice’ discussion about separation from employment with an amount of pay determined by the business unit. She did not consider this to be a redundancy proposal.
CONSIDERATION
Submissions
For YJHZ it was submitted at the hearing that:
(a)her underlying ear condition was not of itself incapacitating, and she returned to work successfully and was on top of her duties;
(b)according to the Respondent’s sole witness, Dr Shan, YJHZ has a continuing incapacity;
(c)there is a powerful inference to be drawn from the evidence that J had chosen to misinterpret YJHZ’s observation;
(d)the erroneous premise drawn by J led to the three employment options, and there was an inference arising from the evidence that choices were withheld;
(e)there was no rational basis for the options provided, and YJHZ found their communication threatening, resulting in her medical decompensation; and
(f)there is no basis in fact for the suggestion that YJHZ’ alcohol use played a part in her condition.
It was submitted for the Applicant that the injury in question is the aggravation of an adjustment disorder. It was further submitted that the evidence supports the view that her employment significantly contributed to this, and that hypotheses as to any eventual deterioration in YJHZ’s condition was not in evidence. Authority supports the view that it is not necessary for incapacity to result solely from a compensable injury (citing in particularly von Doussa J in Commonwealth of Australia v (KC) Smith (1989) 18 ALD 224 (Smith)).
In her SFIC that Applicant contends:
(a)she suffers a Chronic Major Depressive Disorder that was significantly contributed to by her employment;
(b)the Respondent’s actions on 16 and 19 February 2018 do not constitute reasonable administrative action;
(c)her perception of events as upsetting are sufficient, with no objective test required (citing Weigand v Comcare (2002) 72 ALD 795); and
(d)the Tribunal should decide that she suffers Major Depressive Disorder and aggravation of tinnitus.
For the Respondent it was submitted that this claim was centred on a claim of bullying. More particularly:
(a)the claim form identifies the actions of J as critical, however the Applicant had consultations regarding mental health issues prior to the incidents at work;
(b)she accumulated a very substantial sick leave balance, and has sought to understate the effect of her hearing condition;
(c)the Respondent made significant efforts not to move the Applicant out of employment, and the first option proposed was to continue to provide support toher;
(d)‘mala fides’ on the part of the Respondent is required in order to show that administrative action was not reasonable;
(e)the Applicant recorded the critical meeting with J but has not provided it, and this is a grave omission in the record;
(f)fundamentally the cause of YJHZ’s condition was her fear of losing her job and this is not considered an employment-related factor (citing Australian Industry Development Corporation v Boyd (1990) ALD 729 (Boyd));
(g)very little weight should be given to her evidence about the attitude and approach of those present at key meetings, particularly as this is not substantiated; and
(h)the matter was capable of resolution, particularly as J apologised, and C had acted reasonably in attempting to resolve the dilemma.
It was further submitted for the Respondent that the evidence demonstrated that an issue of jurisdiction remains live:
(a)the evidence of Dr Strauss in cross examination was that termination and the fear of termination was a significant concern;
(b)YJHZ experienced substantial personal issues including increased alcohol use associated with the breakdown of her relationship and child custody issues; and
(c)records of her admissions indicate that all identified stressors were in the personal realm.
In its SFIC, the Respondent contends:
(a)there is no evidence that the Applicant’s employment contributed to the onset or aggravation of tinnitus to a significant degree;
(b)the Applicant suffers a mental condition best described as Adjustment Disorder with mixed anxiety and depression;
(c)she was not subjected to bullying, harassment or unreasonable measures by the Respondent; and
(d)should the Tribunal consider her employment contributed to her condition to a significant degree, there are multiple causes, one of which was reasonable administrative action and accordingly liability is excluded under s 5A of the Act.
Findings
There is no dispute in this matter that the medical evidence demonstrates that YJHZ developed tinnitus following a particularly significant phase of infection arising from a pre-existing chronic ear condition. Her tinnitus was problematic, and active at all relevant times.
I accept that the evidence shows that YJHZ’s tinnitus was triggered by stressful situations. Therefore, her mental health treatment in 2017 was directed at managing this situation. However, I do not understand there to be substantive evidence to the effect that her engagement with her employer on issues about her employment exacerbated this condition.
I am satisfied on the basis of the evidence overall that YJHZ developed what might best be described as a mental health condition of a moderate kind as a consequence of her battle with tinnitus. The medical opinions of Dr Damodoran and Dr Ferguson demonstrate that this condition was established through the latter part of 2017.
What was the nature of this condition? Dr Ferguson refers to symptoms, but also prescribed anti-depressant medication. She also described YJHZ as having moderate depression in 2017. Dr Damodaran is of the opinion that YJHZ had a depressive condition in late 2017.
These views contrast somewhat with those of Dr Aizenstross and Dr Shan. Overall, I consider that the opinion of Dr Shan should be distinguished as being against the balance of medical opinion in this matter. That is, at a time when two other specialists diagnosed a major depressive disorder, Dr Shan appears to reduce YJHZ’s diagnosis to an adjustment disorder. I do not consider this to be a sound opinion in the context of all the evidence.
I note that Dr Aizenstross considered that in early 2018 YJHZ had an adjustment disorder in partial remission. His evidence does not address his views on the findings of the other expert witnesses. The timing and context of his examination were substantially different to those of the other witnesses, coming as it did on the eve of the critical incidents at work. For these reasons, I consider that it is appropriate to prefer the diagnosis of a depressive condition.
The further development of YJHZ’s mental health condition is well articulated in the evidence of Dr Strauss. That is, I find that YJHZ’s condition deteriorated significantly following the conversations and meetings at work on 16 and 19 February 2018. I find that is consistent with the description of Dr Ferguson, that at this point YJHZ developed a more severe depressive condition, being a major depressive disorder. I note that Dr Damodaran reached this conclusion in mid-2018, prior to her employment coming to an end.
I accept that based on the report of Dr Strauss, this condition was best described as a chronic mental health condition when he examined YJHZ in mid-2019. I do not understand the evidence to demonstrate conclusively that this chronic condition is a substantively different condition to that diagnosed by Dr Damodaran.
Notwithstanding this, there is evidence, which I accept, that YJHZ experienced substantial emotional trauma in the 12 months following the end of her work relationship with the bank. In this time, she experienced the complete breakdown of her personal relationship, the disruption by family law proceedings to her relationship with her children, issues with high level alcohol use, and ultimately several admissions for treatment.
With reference to the Act, I consider YJHZ’s major depressive condition to be an ailment. More specifically I find that the evidence demonstrates, as I have noted, that her condition is the aggravation of a pre-existing ailment, being the moderate depression that prevailed in late 2017.
However, this ailment can only be compensable if the aggravation was contributed to, to a significant degree, by her employment. This inquiry is informed by the considerations set out in subsection 5B(2), and by the requirement that the contribution be to a degree that is substantially more than material.
I have noted the medical opinion as to the relevance of events in February 2018 with respect to YJHZ ‘decompensating’, that is, experiencing an aggravation of her mental health condition.
I am also satisfied that, in fact, YJHZ’s engagement with J on 16 February and the meetings on 19 February contributed to her condition to a significant degree. I consider this to be the appropriate finding whether or not J misinterpreted the first conversation, and whether or not YJHZ had a strong reaction to these events. These are factual nuances that do not, of themselves, alter the clear causal relationship with her employment. These matters are, however, of more importance to the issue of reasonable administrative action.
There is no unequivocal evidence before me that YJHZ’s prior treatment for epilepsy has a bearing on the development of her mental health conditions (the ailment or its aggravation). I accept that there is evidence of her seeking a mental health care plan early in 2017, however, this is best understood as being overtaken by the development of her moderate depressive condition arising from her tinnitus.
The underlying ear condition is of some relevance, as the wider evidence also demonstrates that YJHZ continued to seek treatment for this condition through the period in which her employment relationship came to an end in mid-2018. However, this condition itself cannot be considered on the evidence to be of greater significance than YJHZ’s evident mental health condition.
As noted, I do not consider YJHZ’s ongoing, chronic condition to be substantially different to her major depressive condition to be considered a separate condition. For this reason, I am not persuaded that evidence with regard to her mental state and indeed, her family circumstances following her departure from the bank, to be pertinent to the resolution of the core issues in this matter.
In summary, I am not satisfied that there is a robust indication of any predisposition or health condition that displaces the finding that it was participation in conversations and meetings at work in February 2018 that aggravated her pre-existing condition to a significant degree.
I do not consider the authority cited on the Applicant’s behalf to have been particularly relevant since Smith was decided when the old ‘material contribution’ test applied.
Given my finding that YJHZ’s condition was contributed to, to a significant degree, by her employment, it comes within the definition of injury in the sense of s 5A. However, an injury that is suffered as a result of a reasonable administrative action is excluded, and therefore not compensable.
I will not dwell, equally, on the authority cited for the Respondent as I note that Boyd was decided prior to the present ‘reasonable administrative action’ test.
More relevantly, I consider Commonwealth Bank of Australia v Reeve(2012) 199 FCR 463 to provide some assistance. This decision, in summary, holds that notwithstanding subsection 5A(2) does not limit the meaning of ‘reasonable administrative action’, it is inherently directed at action of a managerial rather than (merely) operational kind.
The submissions for the Applicant are not misjudged when contending that none of the specific forms of action identified in subsection 5A(2) appear relevant. However, given that the phrase is not limited by these examples, this submission does not substantively advance the Applicant’s case.
The administrative action in question here encompasses a relatively large amount of work by a number of individuals. This is demonstrated by the detail in the statements prepared by YJHZ and the witnesses for the bank, and the large number of attachments to these statements. These actions found their ultimate expression in the three options presented to YJHZ, and it is submitted that they had no rational basis.
For completeness, I note that the SFIC’s of both parties summarise the options in similar terms as: 1) continue with her duties; 2) look for another role in the bank; or 3) resign.
It cannot be disputed, however, that these options arose from J’s understanding of what was said in the conversation with YJHZ on 16 February 2018. Whether or not the Applicant was in a position to clarify from a recording what took place, the evidence of the witnesses at the hearing amply demonstrates that there was a perceived need to formulate options.
As noted above, there is evidence to substantiate the view that J was on notice from YJHZ about her capacity and competency on return to work, and the tolerance she wished to receive. In this context I note her report that J described her challenges as ‘new to him’.
Were this an accurate representation of his reaction it might, equally, explain the consistent interpretation of the witnesses for the bank of the primary conversation, being that YJHZ reported an inability to continue work.
Furthermore, there is consistent evidence that J apologised for any misunderstanding. I also note that YJHZ was presented with three options, which commenced with the option that, in effect, the flexibility she had been extended on return to work could continue.
It is also appropriate to take into account the wider context in which the February conversations took place. I accept that YJHZ had taken a substantial amount of sick leave and the bank arranged medical evaluations to assist in determining her work capacity. While the exact nature and quality of the work relationships among J, C and the Applicant were not fleshed out at the hearing, I also accept that C had very limited engagement with both J and YJHZ.
In this context I find that the formulation of the options was reasonable. The evidence overall demonstrates that there was uncertainty as to YJHZ’s capacity, particularly in light of her experience on 15 February. The proposition that J should not have responded in the way he did in instigating this chain of administrative work remains a mere assertion, in the absence of any other compelling evidence.
Was there unreasonableness in the meetings on Monday 19 February? Again, in the context of the circumstances at the time, I find that it was reasonable for these meetings to take place. The Monday morning meeting was the first such meeting between YJHZ and C, and I understand it to have been a routine management meeting, that is, not one ‘in respect of’ the Applicant’s employment. In any event, this first meeting ultimately incorporated participation by J and was the setting for his initial acknowledgment and apology.
It was also reasonable in the circumstances to proceed with the further meeting to discuss in more detail the options previously provided, given that the Applicant’s line manager appeared to be seeking clarity around YJHZ’s work capacity. On the evidence, this issue appears to have been a prevailing concern, regardless of the specific trigger having been the conversation the previous Friday.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 120 (one-hundred-and-twenty) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member.
...........[sgd]...............................
Associate
Dated: 12 May 2022
Dates of hearing: 13-15 December 2021 Counsel for the Applicant: Mr Mark Carey Solicitors for the Applicant: Slater and Gordon Lawyers Counsel for the Respondent: Mr John Wallace Solicitors for the Respondent: Australian Government Solicitor
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