Mackoski and Comcare [2008] AATA 1180 (30 May 2008)

Decision

The reviewable decision of Comcare made 3 October 2006 which affirmed a determination that there was no liability to pay compensation to Mr Mackoski under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of “adjustment disorder with anxious mood, panic disorder and depressive disorder” is set aside.
The matter is remitted to Comcare for reconsideration in accordance with the following directions:
- (i). that on 11 March 2005 Mr Mackoski suffered an injury which was contributed to in a material degree by his employment with the Department of Industry, Tourism and Resources;
- (ii). that the injury suffered was a “Generalised Anxiety Disorder, Panic Disorder with Agoraphobia and moderately severe Major Depressive Disorder”;
- (iii). that from 11 March 2005to the date of this decision Mr Mackoski has continued to suffer from the effects of the injury;
- (iv). that from 11 March 2005 to the date of this decision Mr Mackoski has been unfit to work as an employee of the Department of Industry, Tourism and Resources.
The parties have liberty to apply within 21 days in relation to costs; should such an application not be made, Comcare shall pay the costs of the proceedings incurred by Mr Mackoski.

EDITED TRANSCRIPT OF ORAL DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
By MR J. CONSTANCE, Senior Member and DR M. MILLER, Member
Matter No A2006/239
M. MACKOSKI and COMCARE
CANBERRA, FRIDAY, 30 MAY 2008 & 6 JUNE 2008

This is an application for review of a decision made by Comcare on 3 October 2006 that there was no liability to pay compensation to Mr Mackoski under section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of an adjustment disorder with anxious mood, panic disorder and depressive disorder. The reviewable decision affirmed a determination of 15 August 2005 (exhibit A31, document T104) in which it was accepted by Comcare that Mr Mackoski suffered an adjustment disorder causing anxiety, panic attacks and reactive depression.

This condition was diagnosed by Mr Mackoski’s general practitioner, Dr Joseph, on 23 March 2005 (exhibit A23, T14). The date of injury was accepted as 11 March 2005, and having considered the evidence we are satisfied that this is the correct date of the injury. We base this on the clinical notes of Dr Joseph (page 17) and note that his notes of a consultation on that day recorded symptoms which are consistent with the onset of the condition which we have ultimately found was suffered by Mr Mackoski and which was an injury under the Act. We will refer in further detail to that evidence later in these reasons.

Dr Knox, consultant psychiatrist, diagnosed Mr Mackoski as suffering generalised anxiety disorder, panic disorder with agoraphobia, and moderately severe major depressive disorder when he assessed him on 6 September 2005. However, it is clear from the evidence of the general practitioner, Mr Joseph, and the psychologist, Dr Lioulios, that this condition had an onset at an earlier date and we are satisfied it is the date to which we have referred. Counsel for Comcare advised us that Comcare conceded that Mr Mackoski suffered a psychiatric condition that was contributed to in a material degree by his employment, by the Department, and that that condition was a disease within the meaning of section 4 of the Act. On the basis of the evidence from Dr Knox, Dr Joseph and Dr Lioulios to which we shall refer in more detail, we are satisfied that this is a proper concession to be made and that the correct description of the disease is as referred to by Dr Knox.

The issue for determination is whether the disease suffered by Mr Mackoski was suffered as a result of the failure by Mr Mackoski obtain a promotion, transfer or benefit in connection with his employment. If it was the result of any of the factors referred to, the disease is excluded from the definition of injury within the meaning of section 4 of the Act and is not compensable under section 14.

The relevant provisions of the definition of injury are as follows. Injury means a) a disease suffered by the employee but does not include any such disease suffered by the employee as a result of a failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. Comcare has argued that there are three specific events, each of which amounts to a failure to obtain a “promotion, transfer or benefit”.

The events relied upon are 1) failure to be able to resume higher duties in June 2001; 2) failure to obtain a promotion to an ASO6 position in 2003; and 3) failure to obtain an unqualified performance report in August 2004, the qualification alleged being a reference to several tasks which it is alleged Mr Mackoski had failed to complete. Comcare cast the net a little wider than just these three events. It argues that for a long time Mr Mackoski thought that his career was being blocked and that we should therefore look at these particular issues in that context of his work in the department.

We make the following findings of fact based on the evidence of Mr Mackoski unless we specify otherwise. We are satisfied of the facts found on the balance of probabilities. We are satisfied Mr Mackoski was a reliable witness and endeavoured to provide his evidence as accurately and as honestly as he could, bearing in mind that some of these events took place several years ago. Counsel for Comcare argued that Mr Mackoski was not entirely reliable, particularly because his answers relating to what he put in the minute of 1 June 2001 (Exhibit A1) was not entirely correct. Whilst we accept this we are satisfied that that was not sufficient to impugn his credit in any material way. A great deal of time was taken up in evidence as to the motives and reasons for certain actions of Mr Mackoski and those with whom he worked. However, the importance lies in what happened to Mr Mackoski and the effect it had on him. In this jurisdiction it is not a matter of apportioning blame, nor do we need to find any negligence or improper action by anyone.

Much of what follows is taken from the statement of Mr Mackoski which is exhibit A1. Mr Mackoski was born in 1951 and is now 57 years of age. He commenced employment in the Australian Public Service in 1978. Prior to August of 1997 he was working in the Human Resources Management section of the Department of Industry, Tourism and Resources. In August 1997 he joined the records management area of that same department and in that position he was classed APS03.

In 1996 a number of redundancies were offered within the Department by reason of its downsizing. Mr Mackoski said that he did not want a redundancy, that he always wanted to work and that information flowing from the Human Resources area of the Department was that employees would be better placed to both retain their positions and advance within the agency if they developed additional skills through course work. We accept that evidence of Mr Mackoski.

Mr Mackoski undertook course work at the Canberra Institute of Technology and in late 1998 he commenced a Diploma of Business Management at the Institute. He graduated with a Diploma of Business Management in 2003.

In 2000 the records management section of the agency underwent a restructure and by reason of the abolition of the intervening levels Mr Mackoski in his APS03 position reported directly to the APS06. It also meant that he was required to take on duties that had been performed previously by those occupying the APS4 and 5 positions.

In August 2000 Mr Mackoski received highly satisfactory or superior ratings in his performance review. He took over administration of the database and effectively taught himself how to carry out the job that he had inherited with very limited training. Mr Mackoski said in his evidence:

I was passionate about my job in the public service. At all times I strived to do the best job that I could. I believe that the creation of a logical, well-managed, properly ordered database within the agency would be of great assistance to all members who sought to use it. I was focused on achieving the best outcomes for the agency. To my mind the best outcomes would involve creating a database with associated storage in such a way to enable easy and efficient storage and retrieval of files.

In early 2001 Mr Mackoski was required to work with two subordinates to reorganise the storage of files in the Department’s warehouse in Mitchell. The aim of this exercise was to ensure a quick and easy retrieval of files when they were required and to properly link the stored files with the database and lift the integrity of that base. It was Mr Mackoski’s belief, and we accept that he honestly held this belief, that this type of file management was at the heart of proper records management. He had been tasked by Mr Caine and Mr Marson, both superiors of his, to undertake the work. About half way through carrying out the task of reorganising the files in the warehouse, Mr Caine inspected the work and indicated to Mr Mackoski that he was very unhappy with what he had done. We accept Mr Mackoski’s evidence that he could not understand Mr Caine’s reaction.

On 1 June 2001 Mr Mackoski made a written request for a resumption of the higher duties which he had been previously carrying out while Mr Caine was on leave. This request was directed to Mr Marson and is exhibit R1. Suffice to say for the purposes of these proceedings that Mr Mackoski did not obtain what he sought, namely a resumption of higher duties. In July 2001 there was another performance review carried out and again he received a very good assessment. That assessment was prepared by his manager, Mr Marson. Nevertheless, Mr Caine continued to criticise Mr Mackoski, including criticising him in front of fellow workers. Mr Caine would make derogatory comments about him to his face and we accept that Mr Mackoski formed the view that Mr Caine disliked him for some reason. Mr Caine stopped allocating tasks to Mr Mackoski. We accept that Mr Mackoski had formed the view that Mr Caine had set about to undo the work he had done in the warehouse.

From time to time when Mr Mackoski went to the warehouse he observed that files had been randomly deposited rather than put in their proper place, effectively returning the filing system to the situation in which it had been prior to his undertaking its reorganisation. When Mr Mackoski raised these issues with Mr Caine, Mr Caine became angry and on occasions would shout at him. Mr Caine did not discuss the issues rationally with Mr Mackoski and told him that he (Mr Caine) was in charge and that he would do what he wanted and that Mr Mackoski should do it his way. This conduct towards Mr Mackoski continued over a 2 year period. At times Mr Mackoski sought assistance from the senior manager in the area, Mr Marson and despite attempts by Mr Marson to mediate between Mr Mackoski and Mr Caine nothing changed.

In early 2002 Mr Mackoski was removed from his duties in relation to the storage of files. In the second half of 2003 Mr Mackoski spoke to a Mr Beanland, the manager of the area, about his concerns with practices in records management. Mr Beanland advised Mr Mackoski that he should put his concerns in writing. This he did. A copy of the minute dated 23 July 2003 is attachment C to exhibit A1. It is a detailed three-page minute. Mr Mackoski received no feedback from management about the ideas that he had submitted in the minute. When he gave evidence Mr Beanland confirmed that he did not respond to the minute.

In about December 2003 the APS6 position which had been held by Mr Caine. Mr Mackoski applied for the position and was interviewed. He was advised after that interview by Mr Green, Mr Mackoski’s senior manager, that he had been ranked second for the job. The position was not filled.

In February 2004, which was shortly after the APS6 interview was conducted, Mr Mackoski attended a meeting with Ms Foster, the branch manager of Mr Mackoski’s work area. We are satisfied on the basis of the evidence of both Mr Mackoski and Ms Foster that this was an amicable meeting and that nothing was said by Mr Mackoski to warrant any reference to his breaching or possibly breaching the Public Service Code of Conduct. We are satisfied that Mr Mackoski discussed briefly his position within the branch and his prospects following his failure to obtain the ASO6 position. We note that Ms Foster saw no reason to keep a file note of this meeting. In fact she described it in her evidence as “a friendly meeting”. From 24 May to 8 August 2004 Mr Mackoski was on personal leave.

Mr Mackoski returned to work on 9 August 2004. On his return he discovered that a Ms Scarano, who was previously the personal assistant of Ms Foster, was acting in the APS6 position and was his direct supervisor. Mr Mackoski had only been back from leave for a day when he was told by Mr Green that he was to attend a meeting for a performance review. We accept Mr Mackoski’s evidence that he believed that this was strange as he had been on leave for the previous two and a half months and that it would be difficult to conduct any sort of meaningful performance review. Nevertheless he attended the meeting with Mr Green.

When he gave evidence (transcript, pages 30 and 31) Mr Mackoski described that meeting in these terms:

It was just me and Mr Green and we were in a coffee shop that was under the building in Allara Street. It was conducted openly with other people sitting there.

At the beginning of the performance review Alan Green said, “Well, I don’t know what you said to Robyn Foster but she doesn’t like you and she thinks that’s not only you who don’t deserve a job in records management but you don’t deserve a job in public service as well”.

And he continued to say that when he spoke to Robyn Foster there was the breach of the APS code of conduct in question. And I said, “Well can you tell me a bit more about why/how?”

And then a question was asked of Mr Mackoski, “So he said there was a breach of code of conduct?” The answer was:

Yes, there was discussion. There was discussion about you know those things that whatever I said to Robyn Foster that would be, you know breaching the APS code of conduct.

Mr Green also told Mr Mackoski at that meeting that he, Mr Mackoski, had failed to complete tasks. Mr Green produced a document with tasks listed on it. Mr Mackoski asked for specifics of the tasks with reference to his performance review. Mr Green was not able to identify any tasks on the performance review which had not been performed. His response was that the performance review did not have to be followed.

Mr Green said in evidence that he had a list of tasks which he told Mr Mackoski he had not performed. Mr Green agreed that Mr Mackoski had disagreed with him and said that the listed tasks did not match Mr Mackoski’s responsibilities. Mr Green gave evidence and provided a written statement (exhibit R17). Mr Green denied that he told Mr Mackoski that Ms Foster said that he, Mr Mackoski, did not deserve a job in the records management or to be a public servant. However, Mr Green agreed that he did tell Mr Mackoski that the result of statements Mr Mackoski had made to Ms Foster in their earlier meeting had caused her to raise the question of a breach of the public service code of conduct.

Mr Green said in evidence that he told Mr Mackoski that the issue which caused Ms Foster to refer to the code of conduct was the fact that he had walked into her office and said things about other officers within the organisation and that could not be supported. We are satisfied that Mr Green did tell Mr Mackoski that Ms Foster had said that he, Mr Mackoski, did not deserve a job in either records management or the public service. Mr Mackoski impressed us that he had a clear recollection of the events of the meeting whereas Mr Green was less clear. Mr Mackoski had good reason to remember comments such as this and it is consistent with Ms Foster’s reference to the APS code of conduct.

Later Mr Green did make a note of the conversation that he said that he had with Ms Foster. He did not refer in those comments to there being reference to Mr Mackoski’s unsuitability for or lack of deserving of a position in the records management or the public service. However, this note was part of the minutes of a meeting which was made available to Ms Foster and it is not surprising Mr Green did not attribute such inappropriate comments to her.

Mr Mackoski said that he found this allegation of what Ms Foster had said about him concerning and upsetting. In this regard we take into account how Mr Green described what he had said to Mr Mackoski at their meeting in the coffee shop (page 302 of the transcript):

If someone had said what I said to Milco about something that I had done I would take those comments very seriously and I would – well, I would – my interpretation of those comments delivered to me would be that I have obviously overstepped the bounds of what is appropriate conduct and I would need to change my approach to things.

We are satisfied that this was a serious conversation which naturally caused Mr Mackoski very considerable concern.

In view of what he had been told of that meeting, Mr Mackoski sought a meeting with Ms Foster on 12 August 2004. At that meeting Ms Foster denied that she had made the statements alleged by Mr Green. We are satisfied that Ms Foster did raise with Mr Green the issue of Mr Mackoski’s conversations with her at the February meeting and the possible application of the APS code of conduct to him, and that Mr Green’s evidence that this is what she said is correct. Ms Foster continued to deny that she made these statements when she gave evidence before us.

We do not accept Ms Foster’s evidence unless it is corroborated by some other source, and in cases of conflict between Ms Foster and Mr Green we prefer the evidence of Mr Green. In cases of conflict between Ms Foster and Mr Mackoski we prefer the evidence of Mr Mackoski. We have made this assessment on the basis of observing and listening to Ms Foster in the witness box. At times she was reluctant to answer the question asked. She was defensive and preferred to attempt to justify her position rather than answer the questions put to her. Further, we take into account that she denied having met with Mr Green between her meeting with Mr Mackoski in February 2004 and her meeting with him in August 2004. Mr Green gave evidence that he did meet with Ms Foster and others, including Ms Palmer, when Ms Foster informed him that statements made by Mr Mackoski gave rise to questions relating to the APS code of conduct. Ms Palmer was not called to give evidence and there was no file note of the meeting produced. This is surprising. We are satisfied the meeting took place as Mr Green said it did.

When Ms Foster was questioned in relation to the appropriateness or otherwise of Ms Scarano keeping detailed file notes on her dealings with Mr Mackoski, Ms Foster had this to say (page 269 of the transcript):

If there’s any issues at all of performance keep a file note. That’s what you’re required to do in the department.

It is difficult to understand why there was file note of a meeting at which these issues were discussed between Mr Green, Ms Foster and others. Further we cannot accept Ms Foster’s denial of making the code of conduct comment in view of the minutes of the meeting of 12 August 2004. That is the meeting when Mr Mackoski asked Ms Foster why she had made the comments that had been reported to him.

Exhibit R15 is the statement of Ms Foster that was prepared and filed in the Tribunal in relation to these proceedings. It is a statement of 8 February 2008. Ms Foster records in that statement that Ms Palmer drafted a note of the meeting of 12 August 2004 and that Mr Green completed the section relevant to his recollection of Mr Mackoski’s comment, which formed attachment B to the completed record of the meeting. Part of attachment B which records Mr Green’s comments reads as follows:

My conversation with Mr Mackoski was couched in the following terms. I asked Mr Mackoski what he said to Ms Foster because in discussion with Ms Foster about that conversation the issue of the APS code of conduct had been raised, and suggested to Mr Mackoski that this or any public servant, regardless of their position, should be taken seriously. I was attempting to point out to Mr Mackoski that one cannot just make unsubstantiated claims about other members of staff. If one wishes to make a complaint about a member of staff then there is due process to be followed and Ms Foster would expect this to be followed.

Ms Foster was unable to explain satisfactorily to us why she did not ask Mr Green for an explanation of his statement if it was untrue as she now claims it to be. We have dealt with this evidence in some detail. Its importance is not in the motives of those involved but in what it shows of the circumstances in which Mr Mackoski found himself in August 2004, and to help understand the aspects of his employment which had an effect upon him.

We are further satisfied of the following facts. On return from his leave in August 2004, Ms Scarano gave Mr Mackoski a series of simple and menial tasks. These tasks were emailed to him by Ms Scarano and we accept that Mr Mackoski found this a strange practice for two reasons:

(1) that Ms Scarano sat about a metre away from him and could readily have spoken to him to request that the tasks be carried out and:

(2) that he was used to having a range of responsibilities and attending to them as he had been doing so for many years in his employment.

He found it unusual - and we accept that there was good reason for this – to start receiving tasks on a task by task basis. He felt and we accept that he genuinely had this feeling, that he was being, as he described it, micromanaged. Apart from Mr Green’s comments at the review on 10 August that Mr Mackoski had not completed tasks that had been required of him, he had not been advised by Mr Green or anyone else that there were any concern as to his performance or that he was under some form of special management regime.

We accept Mr Mackoski’s evidence that he found that the manner in which he was being treated by his employer was distressing. We accept that he believed that he always gave 100 per cent to the job and that he was keen to improve and advance. He could not understand why his work was being criticised and Mr Green, his senior manager, and he was unable to relate any criticism or failure to perform any of his key tasks. There was no guidance given as to what improvement if any was required of him to meet expectations.

At about this time Mr Mackoski started to feel unwell and consulted his general practitioner. This first consultation took place on 30 August 2004 and from that time through to September, October and part of November, Mr Mackoski was on sick leave. Towards the end of October 2004, while Mr Mackoski was still on sick leave, there was a meeting with department representatives, a union representative and Mr Mackoski. At that meeting Mr Mackoski was informed that he would be moved away from his position in records management to take up a newly created position in a project team.

I was deeply disappointed by that decision to move me away from the area that I had been working in for many years and in which I felt very comfortable. When I returned to work in the project team I discovered it was physically located in a different building from the one I had been working in. I felt isolated, unsupported and alone. I was extremely stressful – I was an extremely stressful – sorry, it was an extremely stressful time for me. I still felt unwell and I believe that I had not fully recovered from the anxiety and depression I was suffering from before my initial sick leave.

During the October 2004 meeting Mr Mackoski said to Mr Byron, the human resources manager of the department, words to the effect that someone needed to investigate Mr Mackoski’s concerns about the way things were being run in the records management area. Mr Mackoski outlined those concerns and asked Mr Byron to initiate an investigation. He told Mr Byron that he had previously raised these concerns in writing with his manager, Mr Beanland and that he did not believe his concerns were treated seriously.

I would have been happy just to have my concerns looked into. I believe that they are and were valid concerns about the way things were being run. I valued my job and was dedicated to doing it efficiently, industriously and well. I’m certain that the inefficiencies I had identified in the records management area were not even looked into. I would have been satisfied if someone from within the agency had had a serious look at the points I raised, even if it was then determined that the existing system was adequate. To have my concerns totally ignored was distressing as I felt my work was not valued by management. Mr Byron advised me that he was not prepared to investigate my concerns.

In early March 2005 Mr Mackoski was advised by Mr Byron that his new position was to become excess to requirements. A diagram was distributed which showed that Mr Mackoski’s position would terminate on 30 June 2005. Mr Mackoski asked about an alternate position in the department and was told that he did not have the skills that the department needed, that he would have difficulty finding employment anywhere else in the agency. Mr Mackoski found this quite extraordinary as he had worked in the agency for many years and there was to be an increase in staff in his former area in records management. Previous to Mr Mackoski’s annual reviews the feedback he had received from his managers had always been good. He had been reviewed regularly since about 1995, 1996. These reviews were in writing from about 1998, 1999. The feedback he received was that his performance was good and that he had the required skill set for the job he was doing.

Having received that sort of feedback for a lengthy period of time I was confused and distressed to be told that I no longer had the skills necessary to continue working in the agency.

We accept this evidence. We accept also that Mr Mackoski felt pressured to make a quick decision in relation to the offer of voluntary redundancy. He still had concerns about the way he had been treated to the extent that he requested and obtained a meeting with the Department Secretary, Mr Patterson, to try and ventilate his concerns. Mr Patterson was not receptive to his concerns and told him there was no need for him, Mr Patterson, to intervene and that the redundancy package that Mr Mackoski had been offered was an attractive one. Mr Mackoski felt that Mr Patterson had implied that he, Mr Mackoski, should simply take the package and leave the department.

I was extremely distressed that after many years of working for the agency I was told that there was absolutely nothing within the agency that I could possibly do.

Mr Mackoski consulted his general practitioner again and was referred by the general practitioner to Dr Lioulios, a Neuropsychologist, and later to Dr Knox, Consultant Psychiatrist. On 11 March 2005, his general practitioner certified Mr Mackoski as unfit for work. Mr Mackoski has not been able to return to work in the public service or in a similar position since that time.

In making a decision as to the effect on Mr Mackoski of the various events in the workplace it is necessary to take into account how he viewed those incidents. At page 13 of the transcript he said:

Work is my life. It is belonging somewhere, being important. And it’s part of being a person you belong to somewhere.

Mr Mackoski said that he joined the public service in his 20s was continuously employed in the public service until he ceased work following the events under consideration.

I started a career and I was always happy to provide the service. I was conscious about my responsibility and it was my responsibility to deliver the newspaper clippings to the Minister’s office by 8.30. That’s what I did. So I always wanted to produce good outcomes. I always wanted to achieve what I was asked for”. Specifically in relation to the events related to the higher duties allowance he, said at page 61, “I questioned the inconsistency. I questioned that if there were additional tasks I was required to do – if that work was higher level before – I only questioned – I only got the response – I got the response that we only upgrade before you can be promoted only if there’s an opportunity there. And then I left that there as it was as I was told.

And at page 64 when he was asked the request for the continuation of the HDA was not accepted, was that he said:

No, I didn’t get a form or any other reply other than an email from Alan Green saying that there is no room for ambition, something along those terms.

In respect of the review in August 2004 Mr Mackoski described his feelings as follows, page 34:

I felt confused about the whole thing, confused why I started the review, why did he have to say – why did he say, if he sent them on behalf of Robyn or somebody else then why the other person said those words. It was inappropriate and I didn’t know what to do and that’s why I asked for you know, a meeting to have Robyn Foster clear this up.

And he was asked, at page 35 of the transcript a question concerning the second meeting with Ms Foster:

You told us you were concerned about what Robyn Foster is alleged to have said. Was there anything else that concerned you?

Well, I was frightened, I was frightened that really, I was frightened that they deliberately wanted to discredit me. The performance review itself didn’t concern me. It’s a good way of managing people’s performance.

He said also (at page 45 of the transcript) that he felt hurt that these people said those things and they got away with it. In relation to his position at the end of August 2004, he said:

When I got the serious panic attack I was standing up, I felt dizzy, I wanted to go to the toilet and hide somewhere until that passes. I got frightened they would find that I had finding these symptoms. All these things were happening one after the other. They created confusion. They created fear, a great fear about why these people are doing this. And then I got panic, a strong panic attack. When I went home that night I couldn’t sleep and I had an anxiety attack.

In relation to his feelings at the time he was transferred to the new position and the subsequent redundancy. He said that at the outset his concern was that it was a job designed with temporary projects, short projects, and that nothing was certain. He was asked:
So as the months went by how were you feeling?

As the months went by I felt slowly that I became isolated by the incidents. (page49)

I was invited to Richard Byron’s office and the first thing he said, “This is not my idea of good news for you”. And he gave me a paper which states the redundancy and when I was told my position would be declared surplus, I said, “I’m surprised”, he said, “You shouldn’t be surprised. We expected this to happen. You knew this was going to happen to you”.

I felt like I was run over by a truck. I felt I got a panic attack. I couldn’t think straight. I never expected it. I expected somewhere within the system that whatever it was that I can go back to normal work like I did before.

Hopeless, confused about who I am or what I am. I have all these things that once they were saying, “Yes, you know you are doing all this good job”. I had performance reviews on the other side I had all this negative saying you’re not so confused.

The evidence as to Mr Mackoski’s reaction is supported by the evidence of his wife, Mrs Mackoska and his daughter, Ms Mackoska.

It was put on behalf of Comcare that there are persistent strands throughout the evidence that provide the context in which certain events occurred and which show that the particular events relied upon are a material cause of the injury. The specific events relied upon by Comcare were: one; the failure to regain the higher duites allowance in 2001; the failure to obtain the APS6 position in 2003, and; the failure to obtain an unqualified performance review in August 2004. It was also put by Comcare that it was important to Mr Mackoski that his contribution at work be recognised. We agree that the evidence establishes this; it is supported by the evidence of his family members, Mr Beanland, Ms Foster and Mr Byron.

It was also argued that the rumination by Mr Mackoski about the various issues arose not only as a result of his mental state in 2004 but as a result of a tendency which went back to 2001 at least. Comcare relied upon Mr Marson as describing Mr Mackoski as being frustrated and always wanting to do more than he could and the evidence of Ms Foster that Mr Mackoski approached her as to his prospects in February 2004 following his failure to obtain the ASO6 position It relied also upon Mr Beanland who described Mr Mackoski as inclined to promote himself, Mr Byron who said that he – being Mr Mackoski – believed he had much to contribute and the evidence of Ms Mackoska who said that her father believed that he would gain more respect if he gained a qualification. Comcare also relied on evidence that Mr Mackoski considered his career had been blocked. There is evidence of this in the testimony of Mr Mercieca, Dr Lioulios, Dr Knox and the letter to the Merit Protection Commission in 2005.

Comcare argued that when one turns to the failure to obtain a return to the higher duties allowance in 2001, this was an event that was very important to Mr Mackoski, more important than he was prepared to acknowledge. In relation to the failure to obtain the ASO6 position it was argued that this caused Mr Mackoski to feel that his employer was not assisting him with his promotion. And again, Comcare referred to the reference to this from both Dr Lioulios and by Mr Mackoski himself in the letter to the Merit Protection Commissioner.

In relation to the performance agreement, Counsel for Comcare described this as the straw which broke the camel’s back. In Mr Mackoski’s view, his failure to obtain an unqualified assessment was particularly important to him. There is no doubt that Mr Mackoski at times referred to all of these incidents and on occasions did refer to those factors amongst others as being factors which made him ill.

However we need to consider the medical evidence in deciding whether the factors relied upon Comcare contributed to Mr Mackoski’s illness. It is not sufficient to rely on Mr Mackoski’s assessment of his own medical condition. Mr Mackoski is not a medical practitioner and is not qualified to diagnose himself. His comments as to what he thought made him ill must be considered in light of the medical evidence. His evidence as to his belief as to what made him ill may be an indication as to his feelings and his reactions and of course these matters are relevant.

In considering the exclusionary provision in the definition of injury we must be satisfied that the provisions relied upon contributed to Mr Mackoski’s illness in a material degree. We refer to the decision of the Federal Court in Weigand v Comcare (No 2) (2007) FCA 237. In this decision the Federal Court applied the:

more demanding requirement of contribution than had conventionally been considered to be the case.

The Court applied this more demanding requirement in relation to the definition of disease in Comcare v Sahu-Khan (2007) FCA 15. In that matter Finn J said:

Bearing in mind that the course of the statutory construction is often not aided by substituting for the words used in an enactment. Another word which is not so used, probably the best that can ultimately be seen that the section for definition:

(1) requires a stronger causal relationship between the employment and the ailment that has been said to be suffered, that exacted by the 1971 Act.

2) In a material degree requires the evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment et cetera in question (the threshold evaluation). 3) whether this will be so in a given case will be a matter of fact and degree.

Dr Lucas assessed Mr Mackoski on 30 August 2006 at the request of his solicitors for the purpose of these proceedings and we note that this examination was over 12 months after Mr Mackoski left work. Dr Lucas gave evidence and provided a report (exhibit A15). The report is dated 19 September 2006. In the report Dr Lucas gave his opinion that:

Mr Mackoski’s diagnosis is a panic disorder first manifested in September 2004, probably preceded by lesser anxiety symptoms and major depressive disorder.

Mr Mackoski perceived that he was discriminated against, bullied by a fellow officer and the department failed to deal with the problems he experienced and reported. Finally, he was informed he no longer had a position and his request for re-deployment was declined.

Counsel for Comcare put to Dr Lucas that the events of 2001, 2003 and 2004 led to Mr Mackoski being sensitised to other events which in turn contributed to his illness. Dr Lucas agreed with this proposition. Counsel argued that therefore those factors must be material. We do not accept this argument. It does not follow that the factors must be material in terms of what was said in the decisions of Sahu-Khan and Weigand to which we have already referred. In evidence Dr Lucas said that Mr Mackoski did not specifically refer to any of the three events as being the cause of his distress.

Dr Lucas did not agree that the events prior to 2004 directly precipitated the panic attacks in 2004 although he did agree they were part of the background picture (transcript page 201). Dr Lucas said that the basis of Mr Mackoski’s complaints to him were not about his failure to be promoted (page 203) but were about his overall way of being managed. Later he was asked:

The proximity of the performance appraisal followed up by somebody saying or at least him believing somebody said that he shouldn’t be employed. The two have to be viewed as principal matters in the anxiety attack that he undertook – sorry, that he suffered I should say in 2004.

We are not satisfied that Dr Lucas’ evidence supports the proposition that all or any of the three events, even viewed in the overall context of Mr Mackoski’s employment, materially contributed to the illness. At most Dr Lucas acknowledged that they were to be considered as factors.

Mr Mercieca was a psychologist and rehabilitation consultant and the case manager for Mr Mackoski appointed by the Department in April 2005. He gave evidence and his reports and a letter are exhibits R18 to 25 inclusive. In a report of 8 June 2005, Mr Mercieca recorded Mr Mackoski’s statement of the difficulties he had experienced as follows:

Mr Mackoski stated during the period 2001 to 2004 had experienced the following difficulties within the workplace: negative and disparaging feedback from his manager, unstructured and unplanned work environment, at times increased responsibility without being given the appropriate increase in level even on an acting basis, ongoing ambiguity regarding his work performance, uncertainty in regard to his role and responsibilities, continual requests for training refused, refusal to be considered for promotion.

As a result of these difficulties Mr Mackoski felt unvalued and unappreciated. Mr Mackoski stated that he was discriminated against and not given an equal opportunity for advancement and that management had another agenda for him. Mr Mackoski advised that he was unsure as to his position in the department since he wasn’t advancing and his career path was continually being blocked. He stated that as a result of this treatment he went into survival mode and began feeling suspicious and anxious at work. Mr Mackoski had stated that his frustrations had precipitated to anger and depression when he was unsuccessful in attaining the APS6 position in records management.

Mr Mercieca said that being blocked was in his opinion a central issue but that the events were perceived by Mr Mackoski as being bullied. It should be noted that Mr Mercieca’s aim was to return Mr Mackoski to the workplace rather than to investigate the causes and complaints in detail.

In addition we have considered Mr Mercieca’s evidence in the light of the following. The Department raised with Mr Mercieca the issue of whether or not Mr Mackoski’s condition was a result of a failure to obtain a promotion, transfer or benefit. We do not suggest for one moment that Mr Mercieca expressed other than his honestly held opinions, but we are concerned that it was thought necessary to raise with a witness such as Mr Mercieca the very question the Tribunal has to decide.

Mr Mercieca did not have a note that Mr Mackoski’s failure to obtain the ASO6 position precipitated anger and depression. He agreed that Mr Mackoski could have just said he experienced anger. He agreed that Mr Mackoski was unhappy with the process and that the dot points to which we have already referred were outlining what was happening rather than being a statement of the factors that made Mr Mackoski ill. As to the question of contribution to the illness Mr Mercieca was asked:

A refusal to be considered for promotion that was put in general terms about his higher duties and about his promotion opportunities being blocked, is that right?

He wasn’t saying that any of those things had been the cause of him getting ill?

I would say they all contributed. I would say that he was saying that essentially these things are happening in the workplace and more and more he was feeling uncomfortable. He was feeling anxious. (page 337)

In terms of what significance should be attached to them in determining what it was that ultimately made him ill, I take it you would defer to Tanya Lioulios?

Dr Knox is the consultant psychiatrist who treated Mr Mackoski on referral by Dr Joseph in 2005 after Mr Mackoski learned his position was to be redundant. In the first of those reports, Dr Knox expressed the following opinions:

From the symptoms reported to me for my appraisal of his mental state as he is highly anxious and a diagnosis of general anxiety disorder and panic disorder with agoraphobia. There is also a moderately severe level of a major depressive disorder.

Present mental state examination show a very anxious, stressed man who said it arises from the workplace situation.

It would seem unlikely that he could go back to his public service work and I think it imperative that he should be able to move onto a safe work where he can rest his trust. (Exhibit A18)

In the second report Dr Knox indicated that he had reviewed Mr Mackoski in October 2005 and reported:

I think he has made some progress in reframing his overall environment and is less helpless and burdened with feelings of persecution. Nonetheless the issue of what he perceives having being unfair treatment looms large in his mind. (Exhibit A19)

Dr Knox said he was seeing a highly anxious rumination and Mr Mackoski’s self-esteem had taken a battering. Dr Knox did not give evidence; we take this into account in assessing his evidence.

Dr Veness treated Mr Mackoski in March and April 2006 after Dr Knox retired. His report is exhibit A20 and is dated 18 May 2006. Dr Veness diagnosed chronic major depressive disorder and panic disorder. He said:

I have no doubt that his perception of mismanagement at work constituted the major factor in the development of this depressive illness and this anxiety disorder. His former capacity for work (and progress) have been shattered.

He doubted that Mr Mackoski could be rehabilitated at all to a position of gainful employment similar to that previously held. Dr Veness did not give evidence, and we have taken this into account.

Dr Skinner examined Mr Mackoski on 14 March 2007 at the request of Comcare. She gave evidence and provided reports (R7, 8 and 9). In the report of 21 March 2007, Dr Skinner expressed the opinion that:

After Mr Mackoski went off work his condition gradually deteriorated. He began to suffer from depressive symptoms. A number of facts contributing to his current psychiatric condition include his perception that management was not supported in providing him a reasonable return to work program and the rejection of his Comcare claim. As a result he is now in a difficult financial position. He is unemployed and uncertain of his future career prospects. All these factors materially contributed to the condition which he suffered. However, he has responded to treatment and is not presently suffering from a psychiatric disorder. Mr Mackoski has recovered from his panic disorder.

Mr Mackoski does have an underlying obsessional personality style and tends to ruminate on the events that have led to his present situation. If he’s able to move forward, putting these matters behind him, he should recover from his symptoms of depression and anxiety.

It is hoped that he will find alternative employment outside of the public service.

We note that in expressing this view Dr Skinner said that despite her opinion that Mr Mackoski had recovered he still suffered from the symptoms of depression and anxiety.

I consider that Mr Mackoski’s psychiatric condition, panic disorder, may have been contributed to in a material degree by his failure to obtain a promotion, transfer or benefit in connection with employment. It would seem from the additional information provided in these documents that Mr Mackoski’s failure to attain a promotion, transfer or benefit was at least one significant factor in the onset of or development of the condition of panic disorder.

The documents to which Dr Skinner was referring were records of REACT. We are concerned that Dr Skinner was asked for her opinion on the very issue before the Tribunal by the letter from the instructing solicitors. In this case we have to consider the value of Dr Skinner’s opinion when it is directed in this manner. In our view it lessens the value of her evidence.

When Dr Skinner was cross-examined in relation to the request for her opinion on the specific issue before the tribunal, page 239 was put to Dr Skinner:

Well, that’s what I was asked to do – to look at – to look at this and answer the question. (page 239)

As we have said care needs to be taken in assessing the value of such opinion evidence but in fairness we note that a similar process was adopted in relation to Dr Lucas and we take his evidence into consideration on the same basis.

Dr Skinner gave evidence that confirmed her reports. In cross-examination it became apparent that she was not aware of some of the incidents in 2004 which, on the evidence before us, did have an effect on Mr Mackoski’s mental condition. Dr Skinner was insistent that Mr Mackoski did not fulfil the diagnostic criteria for panic disorder or psychiatric disorder at the time she saw him. The Act does not require that the applicant meet certain diagnostic criteria. Dr Skinner consulted with Mr Mackoski for two and a half hours on one occasion and that at the time he had been and continued to be taking medication and was receiving treatment. Dr Skinner agreed that Mr Mackoski was probably vulnerable but was able to manage his condition.

Dr Skinner said that the condition may have been contributed to in a material degree by the particular factors. Having considered Dr Skinner’s evidence we are left with being unable to determine what she meant by “material contribution.” We do not have evidence as to the basis of this opinion. Her opinion does not persuade us that all or any of the particular events were in fact a material contribution in the sense required by the Act. There is evidence that the factors upon which Comcare relies, when viewed in the context of the whole period of Mr Mackoski’s employment by the department, contributed in some degree to his illness. However, the evidence does not persuade us that on the balance of probabilities that any of the one or more factors contributed in a material degree.

Where there is conflict of the opinion between the health professionals, we prefer the opinion of those who treated Mr Mackoski. In the case of both Dr Joseph and Dr Lioulios this was for a considerable length of time. They had a much greater opportunity to assess him than did Dr Skinner.

The final issue relates to the date of the injury. As referred to earlier in these reasons we are satisfied Mr Mackoski suffered the injury described on 11 March 2005. While it is clear that Mr Mackoski suffered episodes of depression and panic prior to this date, we are not satisfied he suffered a disease within the meaning of the Act until he consulted Dr Joseph on the day mentioned. On the basis of the evidence of Mr Mackoski, Dr Joseph and Dr Lioulios to which we have already referred, we are satisfied that since the date of the injury until the date of this decision Mr Mackoski has continued to suffer from the effects of the injury.

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MILCO MACKOSKI

Administrative Appeals Tribunal of Australia

Mackoski and Comcare [2008] AATA 1180 (30 May 2008)