Karalenko and Comcare [2010] AATA 49 (25 January 2010)

Last Updated: 25 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/4717

GENERAL ADMINISTRATIVE DIVISION		)
	Re		TERESA KARALENKO

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Ms Naida Isenberg, Senior Member

Date 25 January 2010

Place Sydney

Decision

The decision under review is affirmed.

.................[sgd].............................
Ms Naida Isenberg
Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – adjustment disorder contributed to by employment – condition materially contributed to by reasonable administrative action – definition of “injury” not satisfied – decision under review affirmed

WORDS AND PHRASES – “reasonable administrative action”

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, 14

Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29

Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42

Mitsubishi Motors Australia Ltd v Lupul [2004] SAWCT 130

REASONS FOR DECISION

25 January 2010

Ms Naida Isenberg, Senior Member

1. The application concerns a reviewable decision made on 13 August 2008 which affirmed a determination dated 18 April 2008 which found that Ms Karalenko was not entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of an “adjustment disorder with anxious and depressed mood”.

BACKGROUND

2. Ms Karalenko is employed as a Customer Service Assistant at Centrelink.
3. On 29 January 2008, Ms Karalenko completed a claim for workers' compensation in which she indicated that she first noticed she was ill on 4 January 2008. She alleged that she was suffering “anxiety, stress, depression - suicidal tendencies”. She alleged that her injury arose as a result of:

(1) read derogatory TL [team leader] report prepared for Comcare doctor
(2) not f/u Comcare doctor recommendation
(3) pushed to change RTW3 to RTW Plan 4 even [though] 3 plan was current till 1.02.08
(4) in RTW4 TL was the one whom I was terrified to have as I was under her supervision [a] few months ago and found her v. pushy. Former Centrelink co-worker adv me how he was treated by her.

4. Further, in a statement dated 21 February 2008 she articulated her claim further, contending:

On the 4th January 08, I obtained and read the Work Performance Report for previous Comcare claim prepared by Team Leader, Daniela Markoska, I started to have strong pain in my forehead. TL report contained a lot of lies, for most of them I made my comment in red pen on the report. The report caused me a lot of anxiety and I found that from that time I woke up at nigh[t] at hourly intervals. After a few days I had lost a few kilos and later I was thinking to end my life.

ISSUES FOR DETERMINATION

5. Comcare conceded that Ms Karalenko suffers from a disease, being an “adjustment disorder with anxious and depressed mood” and that 16 January 2008 is the date of injury as this was the date when she first sought medical treatment for the condition: section 7(4) of the Act.
6. It also conceded that the condition was contributed to, in a significant degree, by Ms Karalenko’s employment with Centrelink.
7. It remains for me to decide, whether, as Comcare contends, Ms Karalenko suffered the condition as a result of reasonable administrative action taken in a reasonable manner in respect of her employment with Centrelink, pursuant to section 5A(2) of the Act. If so, her claim must fail.

LEGISLATIVE FRAMEWORK

8. The liability of Comcare to pay compensation is dependant upon there being an “injury”. The term is defined in s 5A of the Act as meaning:

5A  Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

9. For the purposes of the Act, disease is defined as:

5B  Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, 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.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.

MEDICAL EVIDENCE

10. In view of the Respondent’s concession - see [5] above - the medical evidence need not be canvassed in detail.
11. In summary, on 16 January 2008 Ms Karalenko presented to Dr Harris, GP “in a very distressed state.” She told him that the cause of her distress had been meetings with managers at Centrelink. He later diagnosed Ms Karalenko as suffering “stress, anxiety, depression and suicidal tendencies”. He noted that “she was in perfect mental health till problems at work from 04/01/2008 which got worse at a work meeting on 15/01/2008.” He considered her condition to be “totally” work related. In a report dated 3 March 2008 Dr Puru Sagar, consultant physician in psychiatry, advised that she had diagnosed Ms Karalenko as suffering from a somatisation disorder “against a background of a sticky, pedantic, circumstantial, and obsessional personality.” In a report dated 4 March 2008, Stephen Whyte, consultant psychologist, diagnosed Ms Karalenko as suffering from an adjustment disorder with anxiety and depression and attributed the onset of her condition to her employment. On 14 March 2008 Ms Karalenko was examined by Dr Anne-Marie Rees, consultant psychiatrist. Dr Rees diagnosed Ms Karalenko as suffering from an adjustment disorder with anxious and depressed mood.

CONSIDERATION

12. The medical evidence, in particular the reports of Mr Whyte and Dr Rees support a finding that Ms Karalenko suffers from a disease, being an “adjustment disorder with anxious and depressed mood”. Also, from examination of Dr Harris’ clinical notes, 16 January 2008 is the date of injury as this was the date when she first sought medical treatment for the condition: section 7(4) of the Act.
13. Ms Karalenko’s evidence and the medical evidence also support a finding that the condition was contributed to, in a significant degree, by Ms Karalenko’s employment with Centrelink.
14. Comcare contends that section 5A of the Act applies to exclude Ms Karalenko’s claim for compensation because a contributing factor to the development of her condition was reasonable administrative action taken in a reasonable manner by the employer, in particular, the preparation of the Work Performance Report and return to work plans, the appointment of Ms McKenzie as Ms Karalenko’s team leader, and that meetings were held on 9 and 15 January 2008 to discuss her return to work plans.
15. Each of the matters articulated by Ms Karalenko as a cause of her condition was considered, because, if any one was found to be reasonable administrative action taken in a reasonable manner her claim must fail.
16. Evidence was given by Ms Karalenko. In addition, evidence regarding the specific matters raised by Ms Karalenko was given by the following Centrelink employees:

• Joanne Rodrigues, Call Centre Manager, who has known Ms Karalenko for 17 years,
• Patricia Aurisch, Deputy Manager,
• Niki Meris, Ms Karalenko’s Rehabilitation Case Manager,
• Daniela Markoska, Team Leader, and
• Frances McKenzie, Customer Service Advisor.

THE “WORK PERFORMANCE REPORT”

17. Ms Karalenko had previously injured her right forearm at work and was on a return to work program. Her fitness for work was reviewed by Dr Pascall. Dr Pascall was provided with a “work performance report” dated 2 November 2007 which, the Respondent conceded, was more appropriately described as a “fitness for work” assessment, which was completed by Ms Karalenko’s Team Leader, Ms Markoska.
18. In her statement of 21 February 2008 Ms Karalenko wrote that on 4 January 2008 she obtained and read the work performance report. Ms Karalenko said in her evidence that she had not seen the report beforehand and, was not aware of it when she saw Dr Pascall on 12 November 2007. She said she only came across it in her file by accident.
19. On reading it she immediately started to have “strong pain in [her] forehead”. She thought the report “contained a lot of lies”, and she marked her copy of the report with comments written in red pen. The report caused her a lot of anxiety and she woke up at night at hourly intervals. She lost weight. Ms Karalenko stated that she had suicidal thoughts “since the process began and this escalated when she saw Daniela’s work performance report.” She said that it was only the thought that her daughter was soon to give birth that deterred her from suicide. She told me she “kept quiet” about the report when she returned to work on 7 January 2008.
20. Ms Karalenko said she found the report to be “derogatory”. In her evidence she said that her team leader “deliberately twisted the situation to give [a] negative impression about me.” She was of the view that her supervisors wanted her to retire or to look for work elsewhere. She thought that Ms Markoska had been her team leader for only 6-8 weeks, whereas Ms Markoska said that she had authored the report because, at the time, she had been Ms Karalenko’s team leader for some months.
21. Ms Karalenko complained that the report contained a number of inaccuracies. Ms Markoska said that the report was based on her observations, discussions and interactions with Ms Karalenko. In her evidence she elaborated upon the problems Ms Karalenko had in the workplace in the performance of her duties.
22. Ms Rodrigues explained that the report is provided to the doctor to assist in assessing the employee’s fitness for work and also in relation to compensation. It is to provide a holistic view of the worker about aspects of the person’s fitness and how they behave in the workplace. The report sent to Dr Pascall had been prepared in accordance with Centrelink policy. She thought a copy would have been sent to Ms Karalenko’s home address, although Ms Meris thought it was possible it wasn’t given to Ms Karalenko until after the assessment.
23. Ms Aurisch thought she signed off on the report. It was sent to Human Resources who sent it on to the doctor and presumably, sent a copy to Ms Karalenko.
24. A copy of the Centrelink policy in respect of fitness for duty assessments was tendered. There is no requirement that the employee is to be given a copy of the fitness for work report which is provided to the doctor prior to a health assessment.

PROPOSED CHANGE OF DUTIES/RETURN TO WORK PLANS

25. Ms Karalenko’s claim for compensation refers to her being “pushed to change RTW3 to RTW Plan 4”. The Return to Work Plan No.3 specified that suitable duties for Ms Karalenko were “self paced typing” and “making phone calls” in the Compliance area with her daily hours gradually increasing with no anticipated change in suitable duties until March 2008. The plan notes monitoring arrangements and review dates, the latter being fortnightly after 19 December 2007.
26. Meetings were held on 9 and 15 January 2008 with Ms Karalenko to discuss her return to work plans, that is, her duties. Ms Rodrigues attached notes she made at each of these meetings to her statement. On each occasion Ms Rodrigues has noted the participation of a union representative who acted on Ms Karalenko’s behalf and who according to Ms Karalenko “saved her life”. The other attendees at the first meeting were noted as Ms Meris, Ms Aurisch, Ms McKenzie, and a rehabilitation consultant. Ms Meris also attended the meeting on 15 January 2008 according to Ms Rodrigues’s notes.
27. At the time of the meetings Return to Work Plan No.3 was current. However, Return to Work Plan No.4 had been prepared and following the first meeting an amended version was prepared. The Return to Work Plan No.4 dated 8 January 2008 listed suitable duties as:

Reception area (1 hour)
- taking phone calls and transferring to appropriate sections
- after 30 minutes, have a 5 minute stretch break
Voice recognition training (2 hours)
- self paced workload
- after 45 minutes, have a 5 minute stretch break at workstation
Compliance area (3 hours)
- self paced typing
- making phone calls
- after 45 minutes, have a 5 minute stretch break at workstation

28. Ms Rodrigues said that because Ms Karalenko’s customer service role entailed keyboard and mouse work, she had suggested the use of voice computer typing (“Dragon”). Ms Karalenko said she did not want to use Dragon because she thought it would not work with her accent. Ms Rodrigues said Ms Karalenko was encouraged to trial it. Ms Aurisch agreed that Ms Karalenko had been hesitant about the use of Dragon because of her accent, and that they, as managers, considered it satisfactory that it just be trialed. Ms Meris, as Rehabilitation Case Manager, also agreed to the trial.
29. Ms Karalenko said she strongly objected to the change in her duties. Ms Karalenko told me she was happy to do reception duties, but did not want to work on the phone because of her emotional state.
30. Ms Markoska said in her statement that, over the months she had been Ms Karalenko’s team leader, she found her very difficult to manage and that she didn’t like change and would question every change, and needed to be supervised closely. She liked doing simple things; but as she had a high pay rate she needed to be doing more substantive tasks.
31. Ms Karalenko also objected on the basis that Centrelink changed her return to work plan without her treating doctor’s approval. She said her doctor made no reference to the use of Dragon and recommended when she took breaks she should do so away from her workstation. As a result, Ms Rodrigues arranged for Ms Karalenko to be placed in a team pending approval from her general practitioner.
32. Ms Karalenko said that she “felt very stressed and was feeling suicidal after this situation,” which I understood to mean the proposed change to her work.

MS KARALENKO INFORMED MS MCKENZIE WAS GOING TO BE HER NEW TEAM LEADER

33. Ms Karalenko learnt that Ms McKenzie was to become her Team Leader at the meeting held on 9 January 2008. She said she strongly objected.
34. Ms Karalenko indicated that her feelings of anxiety “intensified” when she was told Ms McKenzie was going to be her new team leader. Ms Karalenko was “terrified” because Ms McKenzie had previously been her team leader for a short time about six months beforehand and found her to be “pushy, sarcastic, bullying and nit-picking.” She said that at that time Ms McKenzie had breached a confidence and directed her to do work she had not received sufficient training to do.
35. Ms Aurisch who was present at the meeting on 9 January 2008, along with Ms McKenzie, said that she had felt “embarrassed” and “shocked” by Ms Karalenko’s objection. She had had no previous indication that Ms Karalenko and Ms McKenzie did not get on.
36. A few days later Ms Karalenko asked Ms Rodrigues if Ms McKenzie could be removed as her team leader. Ms Karalenko indicated that she had an issue with Ms McKenzie originating from a training session delivered in June 2007. Ms Karalenko also made reference to negative comments she had heard made by other employees at the call centre about Ms McKenzie. Ms Rodrigues told Ms Karalenko that she would not remove Ms McKenzie from her position.
37. Because Ms Karalenko had been upset during their conversation Ms Rodrigues made arrangements for Ms Karalenko to meet with a social worker and she was referred to Lifeline and the Employee Assistance Program.
38. Ms Rodrigues said that Ms McKenzie had been ranked as suitable for the position of team leader as a result of a merit selection process and when, in January 2008, there was a vacancy at that level which required backfilling, she was been selected to fill it.

MANNER OF BEING CALLED TO A MEETING

39. Ms Karalenko recounted arriving at work on 15 January 2008 and proceeding to the call centre where she inquired where she was to work. She was told to go to the Compliance area. A few minutes later she was told to go upstairs to a meeting. She did not immediately attend and somebody came to get her. She described the experience as being “horrible”.
40. In my view, Ms Karalenko was unable to adequately articulate what conduct by others had caused her to feel upset.

OTHER EVIDENCE

41. In support of Ms Karalenko, evidence was also given by Maryanne Orszulak and Degeufe Hailu (“Oddy”).
42. Ms Orszulak said she had been treated badly while working at Centrelink. However, as she had left in 2005 or 2006 little weight can be attached to her evidence.
43. Mr Hailu provided two statements dated 18 February 2008 and 16 December 2008 which essentially were character evidence for Ms Karalenko.
44. On 22 February 2008 Vicky Koukoulas provided a statement in which she noted that Ms Karalenko was “very professional at her job and knows how to control difficult calls that we all sometime may come across.” Ms Koukoulas also noted that “I have spoken to Theresa and she feels quite stressed and not appreciated, she feels not part of her team as she sits away from them.”
45. On 2 March 2008 Maryse Parisi provided a statement in which she noted that Ms Karalenko was highly motivated and had “excellent work ethics” and that “she has received numerous compliments from grateful customers from her invaluable assistance.”

REASONABLE ADMINISTRATIVE ACTION

46. Section 5A of the Act an injury includes a disease suffered by an employee, except when a disease is suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Subsection 5A(2) provides a non-exhaustive definition of reasonable administrative action.
47. Without intending any disrespect to Ms Karalenko, it would appear from both her evidence and that given by her colleagues and supervisors that she may have had a somewhat uncooperative manner in the workplace. I found her evidence to be confusing and it was difficult to understand precisely what her concerns were in relation to the claim she brought because she endeavoured to canvass long-standing concerns with her employer.
48. There was no dispute that Ms Karalenko had injured her right forearm and was on a return to work program. As part of that process she underwent a medical review, and the reviewing doctor was provided with a copy of a fitness for work assessment, completed candidly, I accept, by Ms Markoska, Ms Karalenko’s supervisor. I accept that Ms Karalenko was unaware of its content before she had the medical review, although a copy may have been sent to her. A copy of the Centrelink policy in respect of fitness for duty assessments was tendered. It contains no requirement that the employee be given a copy of the fitness for work report prior to a health assessment.
49. It appeared to me that Ms Karalenko was a good worker, providing she worked on her own terms. Tellingly, I thought, was Ms Markoska‘s evidence that she had found Ms Karalenko very difficult to manage and she needed to supervise her closely. She found Ms Karalenko to be resistant to change and liked doing simple things but should be doing tasks commensurate with her pay rate. The return to work program that was discussed with her was in consultation with her rehabilitation case manager and her union representative. Suggestions were made to assist Ms Karalenko in her resumption of duties. But Ms Karalenko did not want to work with Ms McKenzie as her team leader. She did not want to use Dragon. She wanted to work on reception. There was no evidence that the proposal was anything other than reasonable.
50. As discussed above, Ms Karalenko was unable to adequately articulate her concerns about the way in which she was called to the meeting on 15 January 2008.
51. From her evidence it was clear that she was critical of some aspects of the practices of her workplace and decisions made by management and supervisors. However, I found each of Ms Rodrigues, Ms Aurisch, Ms Meris, Ms Markoska and Ms McKenzie to be both rational and objective in their accounts of their dealings with Ms Karalenko. From the manner in which they gave their evidence I was satisfied that they have had to be very patient in dealing with Ms Karalenko in circumstances which could only be described as challenging. I reject Ms Karalenko’s evidence of the manner in which her supervisors spoke to her and that the report was derogatory. I am well satisfied that what was said to and written about Ms Karalenko was objectively reasonable.
52. I reviewed a number of cases concerning the expression “reasonable administrative action” in other jurisdictions, for example, Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42 and Mitsubishi Motors Australia Ltd v Lupul [2004] SAWCT 130, but it was not necessary to resort to those decisions. The matters of which Ms Karalenko complains quite clearly amount to one or more of: a reasonable appraisal of performance, a reasonable counselling action or was reasonably done in connection with her failure to retain a benefit (not to change her return to work program or her supervisor).
53. It follows that I am satisfied that one of the major factors contributing to Ms Karalenko’s condition amounted to reasonable administrative action. Accordingly, and having regard to the conclusions in Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 the condition suffered by Ms Karalenko does not answer the description of injury in section 5A of the Act.

DECISION

54. The decision under review is affirmed.
    

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member

Signed: ...............[sgd].................................................................

Associate

Dates of Hearing 10 and 11 November 2009

Date of Decision 25 January 2010

Appearance for the Applicant Self-represented

Counsel for the Respondent Mr D Richards

Solicitor for the Respondent Dibbs Barker