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LGJM and Comcare [2011] AATA 919 (21 December 2011)

Last Updated: 21 December 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 919

ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION )
No 2007/2897

Re

LGJM
Applicant

And

COMCARE
Respondent

DECISION

Tribunal
F. D. O’Loughlin (Senior Member) and Dr K. Breen (Member)
Date
21 December 2011
Place
Melbourne
Decision
The decision under review is affirmed.

.................[sgd]............

Senior Member

COMPENSATION - psychological injury - whether injury - whether ailment was an injury or the result of a failure to obtain a transfer or a benefit in connection with employment

Safety, Rehabilitation and Compensation Act 1988 (C’th) s 4

Australian Industry Development Corporation v Boyd (1990) 95 ALR 149

Trewin v Comcare (1998) 84 FCR 171

Golds v Comcare [1999] FCA 1481

REASONS FOR DECISION

21 December 2011 F. D. O’Loughlin (Senior Member)

Dr K. Breen (Member)

  1. The Applicant was a long term employee of a Commonwealth Agency, who had had a successful career, having been promoted to a position at the APS6 level undertaking complex financial and analytical work. He developed a debilitating medical condition that was diagnosed in 1995 or 1996 and led to termination of his employment of 21 years in August 1999 on medical grounds. His condition subsequently improved to the extent that he could return to work for the Agency in 2001; which he did, in a call centre position at the APS3 level.
  2. In 2003 the medical condition re-established. By December 2003 the Agency was undertaking a process of medical assessments of the Applicant’s condition and investigating suitable employment options for him. The Applicant’s medical condition worsened and by early 2006 its effects limited the type of work the Applicant could do, the number of hours per week that he could work, and the amount of time that the Applicant could take to travel to work. The travel time limitation affected the range of Agency locations at which the Applicant could work. The Agency had a number of locations at which it conducted its operations: a CBD edge facility located a short walk from the Parliament railway station, a central CBD facility, a CBD fringe facility located a slightly longer but still a relatively short walk from the Southern Cross railway station and a suburban facility. The CBD edge facility was the closest to the Applicant’s home and was his preferred work location.
  3. The limitations caused by the Applicant’s medical condition led to difficulties in performing the duties required of the position he held and in securing an alternate position. Attempts to find the Applicant suitable work in a position at the APS3 level, at the Applicant’s preferred CBD edge location and which addressed the other limitations caused by the Applicant’s medical condition were unsuccessful. Following those attempts, the Applicant developed an adjustment disorder condition.
  4. The Applicant claimed compensation for incapacity for two periods, from 3 May 2006 to 4 August 2006 and from 20 October 2006 to 20 April 2007. The Applicant also claimed compensation for medical expenses.

ISSUE FOR DETERMINATION

  1. The issue for determination is whether the Applicant’s adjustment disorder condition is compensable under the Safety, Rehabilitation and Compensation Act 1988 (C’th). That determination depends on whether the Applicant’s adjustment disorder condition is a result of a failure to obtain a transfer or a benefit in connection with employment.

THE LEGISLATION

  1. The relevant law can be summarised as follows. For the adjustment disorder to be compensable it is necessary for it to be an injury within the meaning of section 4(1) of the Act. For there to be such an injury there must be a disease which in turn requires an ailment to exist and for that ailment to have been contributed to in a material degree by the Applicant’s employment but not be a result of a failure to obtain a transfer or a benefit in connection with employment.[1]
  2. Some events which contribute to an ailment are connected with an employment relationship but not in the sense required to be compensable. An example of such an event is termination of employment within the terms of the contract of employment.[2] For policy reasons, the legislative scheme does not provide for compensation to be paid for ailments or diseases such as thoroughly understandable stresses which might flow from career disappointments.[3]

THE CONTENTIONS

  1. The Respondent accepts that the Applicant’s adjustment disorder is an ailment but contends that it is not compensable because it arose from the Applicant’s failure to obtain a transfer or benefit in connection with the Applicant’s employment and is therefore not an injury as defined.
  2. The Applicant contends that pivotal in the development of his adjustment disorder condition were:

and as a consequence the condition is compensable. The direction complained of in (a) above was an email sent to the Applicant by his case manager on 31 March 2006.

THE 31 MARCH 2006 COMMUNICATION

  1. It is necessary to pay particular regard to the communication of 31 March 2006 and what preceded it.
  2. The communication in question was contained in a lengthy email from an Agency, People and Place Officer who had responsibility for managing the Applicant’s case. The email followed confirmation that the Applicant would not be required to relocate to the Agency’s suburban facility. It detailed the steps which had been taken in an attempt to find the Applicant a position which accommodated his special needs, noted the lack of success in finding a suitable position, indicated that a medical assessment review was to be brought forward and remarked:
... Until that assessment is made and the report received, the limitations of your medical condition prevent us from placing you in a new position. As advised, sick leave without pay (or with pay, depending on your credits), leave without pay or annual leave will be approved for you from Monday 3 April 2006. ...
  1. To describe this as a direction to be placed on sick leave without pay places an interpretation on the communication that it does not reasonably bear. It came at the end of a lengthy communication that set out the attempts to find a satisfactory solution that had proved to be fruitless and was more of an expression of the remaining options.
  2. In any event, the possibility of sick leave without pay was promptly dismissed on the same day. It is unlikely that the communication could have been a material contributor to any adjustment disorder condition that the Applicant suffered. The correct conclusion to be reached is that the cause of the Applicant’s condition lay elsewhere.
  3. The Applicant’s overstatement of the nature of this communication was consistent with a tendency throughout his evidence to understate or overstate aspects, when it suited his case. For example, he was keen to emphasise that the surgery he had undergone was three times the magnitude of what his treating specialists described, he positioned his sister’s unfortunate death as due to an operation when medically she died of infection, a known serious risk of the intensive immuno-suppression required for the transplant she underwent, he possibly overstated one of the effects of his medical condition as these are not mentioned in the main report of Dr Debinski, and he told at least two doctors that the travel time to the Agency’s CBD edge facility was 15 minutes and he claimed that the travel time to the Agency’s CBD fringe facility was 48 minutes. He used the term massive to describe his dose of steroid when large might have been more appropriate. He spoke of a powerful new drug when the records showed it was a drug he had been given some years earlier.
  4. The Tribunal understands the Applicant’s reluctance to have further surgery, and does not criticise him for that, however, it is not to his credit that, as a person with his condition who claimed to be very keen to continue working, he frequently changed treating specialists and did not attend them as regularly and as frequently as might be expected, and has thus been undertreated. It is also not to his credit that he tried to suggest that any doctor who wrote in support of his travel limitations was giving such support based solely on the doctor’s medical expertise. When asked to comment on how his treating doctors might have decided upon what was the recommended travel time to work, the Applicant was reluctant to admit that each doctor’s recommendations would be likely to be very dependent on what information the Applicant provided to them.

ALLEGED DISREGARD FOR THE APPLICANT’S MEDICAL CONDITION AND RELATED COMPLAINTS

  1. The second pivotal event (or sequence of events) that the Applicant contends led to his condition was that ... proper account was not taken of (his) disability ... and his health needs were largely ignored by (the Agency).
  2. The third and fourth pivotal events that the Applicant contends lead to his condition were:
[T]he ongoing and sustained attempts for placement in a call centre which had previously been deemed inappropriate ... by (the Applicant’s) ... treating doctors and specialists.
[T]he attempts and failed trials of placement at the World Trade Centre which was both outside the CBD and outside the maximum travelling times as recommended by both (the Applicant’s) medical team and the (Agency’s) own medical adviser ...
  1. The third and fourth complaints are merely particularised forms of the second complaint, or are subsets of that complaint. The three will be dealt with together.
  2. Whether the Agency neglected the Applicant’s medical condition such that the adjustment disorder is compensable requires a more detailed examination of the facts.
  3. The Applicant was first employed by the Agency in 1978 and worked until August 1999 when he took a voluntary redundancy termination. At that time he held an APS6 position. The termination was the result of a difficult medical condition which prevented him from performing his duties.
  4. In January 2001 the Applicant’s condition improved and he recommenced employment with the Agency at the APS3 level in a call centre in Queensland. In August 2001 he requested a transfer to a similar call centre in Melbourne for family reasons and secured a position at the Agency’s central CBD facility. The Applicant was unable to work from October 2001 to August 2002 because he sustained a physical injury. From August 2002 to January 2003 the Applicant returned to the call centre, with keyboard restrictions to accommodate his injury.
  5. From January 2003 to July 2003 the Applicant was on a continuous period of leave that was unrelated to his injury.
  6. In November 2003 Health Services Australia conducted an assessment of the Applicant. HSA advised that the medical condition had taken over from the physical injury and that any position that he might hold needed to accommodate restrictions placed on the Applicant by his medical condition.
  7. In December 2003 a case meeting with the Applicant, the HSA doctor, a rehabilitation provider, work area managers and the Applicant’s case manager was conducted to determine what duties the Applicant could perform given his medical restrictions.
  8. From February 2004 through April 2004 the Applicant’s condition worsened so that the Applicant’s attendance became less than regular. During this period he was unable to work for a full week in any of the weeks. By 21 April 2004 medical recommendations for the Applicant were that his work hours be reduced to 6 hours per day, on alternate days, for a three-month trial period. By 29 June 2004 the Applicant was diagnosed as permanently but partially incapacitated and capable of only working 18 hours per week to be undertaken under arrangements that allowed a considerable degree of flexibility as to when those hours of work would be performed.
  9. In June 2004 a permanent APS3 position was found for the Applicant at the Agency’s CBD fringe facility. A HSA assessment and a worksite visit were conducted. This position was deemed suitable in light of the Applicant’s medical conditions but the Applicant did not wish to take it up as he did not want to do processing work given his previous experience with the Agency.
  10. In November 2004 another HSA worksite visit was conducted to assess proposed new duties for the Applicant in his own work area. The duties required of the Applicant were deemed suitable in light of his medical condition.
  11. By early 2005 the Applicant was working in a work unit located at the Agency’s CBD fringe facility and he was unable to work the 18 hours per week under his then current arrangements, in a predictable way. Until the end of March 2005 the Applicant’s wife drove him to work but her work place was to change and that mode of transport was not to continue much longer.
  12. In March 2005 the Applicant underwent a further HSA assessment. He was assessed as fit for 18 hours’ work per week and his partial invalidity pension was continued.
  13. In April 2005, following a deterioration in the Applicant’s medical condition, another HSA assessment was conducted.
  14. In June 2005 and July 2005 the Applicant was unable to work and had a continuous period of sick leave due to his medical condition. He indicated then that he was unable to manage the type of work that had been created for him as his condition made his attendance unpredictable. His manager advised that his work area could not sustain his placement in these circumstances. At this time, the prospect of full invalidity retirement was raised with the Applicant but he advised that he wished to keep working for as long as he could as he had children to support and financial commitments.
  15. From August 2005 to October 2005, the Applicant was transferred to a new work area at the Agency’s CBD fringe facility. His previous work area was having difficulties assigning him duties as they did not have APS3 positions in their structure and needed to create duties for him. These difficulties were coupled with his erratic attendance patterns. The new work area had APS3 positions in its structure and, more importantly, could provide meaningful work for the Applicant. However, after two and a half months in this new area, the Applicant’s manager advised that the area was unable to keep the Applicant due to his erratic attendance pattern.
  16. From October through December 2005 the Applicant was on sick leave.
  17. By 3 November 2005 the Agency reported that the Applicant had been unable to attend work regularly and reliably for the 18 hours per week. The Agency advised HSA and the Applicant that while the Agency had been extremely flexible in accommodating the Applicant’s needs since July 2003, it was difficult to continue to sustain the employment of someone whose medical condition was so tenuous that his ability to attend work was assessed on a daily basis. The letter added that if the Applicant could not predictably attend work the Agency would be unable to find duties for him.
  18. In November 2005 a further HSA assessment was conducted. HSA advised the Agency that the Applicant’s attendance at work could not be improved by undertaking specific tasks or ergonomic job design. Rather the attendance was solely the product of his medical condition and its effects and job modification was not a remedy. Given the prospective treatments then under consideration by the Applicant, a decision on total and permanent incapacity was to be deferred until February 2006.
  19. On 23 December 2005 a marked improvement in the Applicant’s condition was reported and a three-month continuation of work with a further review in April 2006 was recommended. In a report dated 4 April 2006, Dr Trifiletti concurred that the Applicant would be best placed to continue to work in the Melbourne CBD area or an area which is within 30 minutes travel by public transport. It is not clear whether this was a medical assessment or an agreement with a suggestion from the Applicant.
  20. In December 2005 the Applicant returned to work. He was temporarily placed in a human relations group pending his next HSA review and was given project work as this kind of work had the least amount of impact on his work area if his attendance continued to be erratic.
  21. The human relations group was scheduled to relocate to the Agency’s suburban facility at the end of 2006. This move was brought forward to March 2006. The Applicant was advised of this relocation in February 2006. He advised the Agency that he would be unable to relocate due to his medical condition and needed to remain in the Melbourne CBD area. The first communication of the Applicant’s work unit’s proposed move to the suburban facility occurred in mid-February 2006. Another occurred in the last week of February 2006. At that time the Applicant was informed that, at least in the interim, he could continue to work out of the Agency’s CBD edge facility and that the Agency said it would provide the necessary support to assist him to relocate, including parking or changes to his work hours.
  22. The Applicant was also advised that he need not be worried if he felt he could not move, that he should outline his situation in writing once he was notified in writing of the relocation and that if his medical condition prevented him taking up duties at the suburban facility then he would not have to move on the grounds of hardship. The Applicant was advised that these steps were required as part of the Agency’s formal notifications and processes.
  23. On 6 March 2006 the Applicant was advised that the contemplated written notification of relocation would be provided later in the week and that he could commence preparation of an application to remain in the CBD if he wished.
  24. At this time the case officer working to find the Applicant a position in the Agency had reached a dead end and sent the 31 March 2006 communication, dealt with above.
  25. The Applicant invites the conclusion that his needs were ignored and that the only reason that he was able to avoid the relocation to the suburban facility was by making an application for special consideration on grounds of hardship. Such a conclusion is not borne out by the facts as set out above. The reality was that the Applicant was aware at all times that there was no real prospect that he would be required to relocate to the suburban facility in circumstances where his medical condition made that undesirable. The fact that the Applicant invites the Tribunal to arrive at a conclusion not supported by the facts is consistent with, and another example of, the observations set out in paragraphs 14 and 15 above.
  26. The HSA assessment due for 26 April 2006 was brought forward to 4 April 2006. By then there were reported improvements in the Applicant’s medical condition and HSA was asked to assess the Applicant’s suitability for call centre duties, as most APS3 positions located in the CBD area were such positions. This had been discussed with the Applicant and he had advised that he was willing to consider a call centre position.
  27. The Applicant remained in the Agency’s CBD edge facility until the HSA report was received.
  28. In a report dated 24 April 2006 HSA advised that the Applicant could be placed in a call centre on an initial three-month trial basis with clearly defined arrangements for duties and monitoring in order to determine whether this was a long term viable solution and that these recommendations had been discussed with the Applicant at the 4 April 2006 assessment..
  29. In May 2006 a permanent, non-call centre placement was secured for the Applicant in an operations position at the Agency’s CBD fringe facility where he had been working from August 2005 to October 2005. Arrangements were made for the Applicant to start on 8 May 2006. However, he went on sick leave and lodged a compensation claim. At a date after May 2006 the Applicant commenced in the operations position in the CBD fringe facility but the Applicant was subsequently unable to sustain the placement due to erratic attendance.
  30. From July 2003 to April 2006:
  31. In light of the efforts of the Agency to find suitable work for the Applicant and to tailor jobs to suit the Applicant, as set out above, it is difficult to conclude that the Agency ignored the Applicant’s medical condition.

MEDICAL OPINIONS

  1. Whether the events that occurred during the Applicant’s employment were the cause of his adjustment disorder and therefore compensable also requires an analysis of what the medical and related experts reported.

DR TRIFILETTI - OCCUPATIONAL PHYSICIAN WITH HSA

  1. Dr Trifiletti had been involved in reviewing the Applicant’s condition from as early as January 2002.
  2. In a report dated 23 November 2005, Dr Trifiletti noted that the Applicant acknowledges and the documents confirm that predictable work attendance has not been possible even within these limited hours. Dr Trifiletti also wrote What requires clarity is expert advice as to what extent his [medical] condition could be treated such that work attendance is likely to be improved. She suggested deferring a final decision regarding his partial invalidity until decisions were made regarding treatment options and asked to review him in February 2006.
  3. In a report (based on reports from Dr Debinski and Mr Polglase) dated 23 December 2005, Dr Trifiletti quoted Mr Polglase as saying the situation remained unstable and that the Applicant was likely to continue to have symptoms. She quoted Dr Debinski as stating that there had been a marked improvement in the Applicant’s condition with prednisolone treatment and that 18 hours of work per week was feasible. Dr Trifiletti suggested a further 3 month trial at work. She asked to review him in April 2006 and that she be provided with a detailed report on his work performance and his attendance at that time.
  4. Following an examination of the Applicant on 4 April 2006, in a letter dated 24 April 2006, Dr Trifiletti indicated the extent to which she had been involved in assessing the Applicant. She indicated that she had assisted the Applicant on numerous occasions since the first assessment on 23 January 2002. Her work had included worksite visits and serial medical assessments, in addition to obtaining updated specialist information to ensure that her recommendations were comprehensive. Following the 4 April 2006 assessment, Dr Trifiletti noted that:

DR HARRY DEBINSKI - GASTROENTEROLOGIST

  1. Dr Debinski had been caring for the Applicant since August 2005. In a letter dated 15 December 2005, he indicated the Applicant was able to work 18 hours per week but made no reference to travelling time limitations. In a letter dated 24 April 2006 he supported the Applicant continuing his work in the CBD area, which would allow him to deal with his chronic medical conditions more effectively. In a letter dated 4 September 2006, he indicated that a move to a call service position would put undue pressure on the Applicant in managing his medical condition and that the Applicant had noted that it took him 40 minutes to travel to work.

MS CHERIE DALTON - PSYCHOLOGIST

  1. In a report dated 30 June 2006, Ms Cherie Dalton, psychologist, indicated that she had seen the Applicant on 26 May 2006. Ms Dalton indicated that the Applicant had given her a history that:
  2. In her evaluation Ms Dalton assessed that the Applicant was experiencing symptoms of depression within the moderate range of functioning, and anxiety symptoms within the moderate to severe range. Ms Dalton diagnosed that, based on the history taken in the assessment, the Applicant’s condition was reactive to the concerns he had reported relating to his employment with the Agency. The prognosis was that the Applicant’s mental state would gradually improve once he had more clarity about his employment status.

DR ROBERT HOFFMAN - GENERAL PRACTITIONER

  1. In a letter dated 8 July 2006, Dr Robert Hoffman indicated that the Applicant consulted him on 3 May 2006 about his stress and anxiety. Dr Hoffman concluded, based on the Applicant’s statements to him (which are not included in the material before the Tribunal) that the cause of the Applicant’s stress and anxiety was a disregard by the Agency of his disability.

DR SHAN LI - GENERAL PRACTITIONER

  1. Although not stated in his letter, it appears that Dr Li is a general practitioner. In a letter dated 20 August 2006 Dr Shan Li indicated that he saw the Applicant on 23 May 2006 where the Applicant informed him that the proposed move to the Agency’s suburban facility had caused great changes and that he became increasingly anxious, agitated, unable to sleep, unable to function normally at work with excessive worrying about these changes. Dr Shan Li diagnosed adjustment disorder with anxious mood caused by a proposed change to his work location and daily routine.
  2. If Dr Shan Li took a detailed history from the Applicant, it is not apparent from his letter.

DR YVONNE GREENBERG - PSYCHIATRIST

  1. In a report dated 29 August 2006, Dr Yvonne Greenberg, reported on a psychiatric examination of the Applicant that she conducted in her office on 21 August 2006. The history taken indicated that the Applicant:
  2. Dr Greenberg diagnosed that the Applicant was not currently suffering from a psychiatric illness but had earlier that year had an adjustment disorder with depressed and anxious mood from which he had recovered or virtually recovered. In Dr Greenberg’s opinion, the episode was directly related to work and what sounded like a misunderstanding about the extent of the Applicant’s work restrictions. Dr Greenberg’s opinion was that the Applicant’s condition was caused or aggravated by factors and circumstances at work.

DR JUDI BERNSHAW - PSYCHIATRIST

  1. In a brief report dated 15 January 2007, Dr Judi Bernshaw, consultant psychiatrist, reported that she first saw the Applicant on 21 November 2006. The history the Applicant gave to Dr Bernshaw included that:
  2. Dr Bernshaw concluded that the Applicant had been unfit for work since October 2006, secondary to his symptoms of anxiety and depression, which appeared to be clearly related to his work situation and that with relocation in July 2006 the Applicant’s medical condition was not able to be accommodated reasonably and he developed progressively severe anxiety and depression which appeared clearly related to the Applicant’s work situation.

DR DUSH SHAN - PSYCHIATRIST

  1. In a reported dated 22 February 2007, Dr Dush Shan reported that he had seen the Applicant that day. He gave a history that:
  2. Dr Shan’s diagnosis was that the Applicant had a mild adjustment disorder with anxiety, that the condition was related to his employment with the Agency, particularly in respect of his not obtaining a position that enabled him to continue working at the Agency’s CBD edge facility and that the Applicant’s not being able to obtain the desired work under the conditions stipulated by him would prevent or hinder full restoration of his health and that the prognosis would largely depend on resolution of the dispute.

CONCLUSIONS

  1. Having regard to all the evidence, the Tribunal concludes that the Agency:
  2. The correct conclusion to reach is that the Applicant’s emotional condition was the result of not being able to secure a transfer or benefit within the meaning of the definition of injury in s 4 of the Act.
  3. Moreover, the evidence does not demonstrate, on the balance of probability, that the Applicant suffered a compensable injury.
  4. Therefore, the Tribunal affirms the decision under review.

I certify that the sixty-nine [69] preceding paragraphs are a true copy of the reasons for the decision herein of

Senior Member Frank O’Loughlin and

Dr K Breen, Member AM

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

Clerk

Dates of Hearing 10 & 24 May 2010,15 June 2010, 23 August 2010, 11 & 27 October 2010, 16 & 28 February 2011

Date of Decision 21 December 2011

Advocate for the Applicant Self Represented

Counsel for the Respondent Mr J Lenczner

Solicitor for the Respondent Ms N Nicoloau, Australian Government Solicitor

[1] See s 4(1) definitions of injury and disease.

[2] Australian Industry Development Corporation v Boyd (1990) 95 ALR 149, 171.

[3] Trewin v Comcare (1998) 84 FCR 171, 177 (Heerey J) endorsed in Golds v Comcare [1999] FCA 1481, [40]-[42] (Cooper J).

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