Trewin, Rosalie v Comcare [1998] FCA 713

FEDERAL COURT OF AUSTRALIA WORKERS COMPENSATION - Commonwealth government employees' compensation - stress related nervous condition caused by frequent transfers and failure to be appointed to permanent position - whether injury suffered as a result of "failure by the employee to obtain a promotion, transfer or benefit in connection with her employment" within the meaning of s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) - whether entitlement as of right can be "benefit" WORDS AND PHRASES - "benefit" Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4 Comcare v Mooi (1996) 69 FCR 439 discussed ROSELIE TREWIN v COMCARE NO. VG 292 OF 1997 JUDGE: HEEREY J DATE: 19 JUNE 1998 PLACE: MELBOURNE (HEARD IN HOBART)

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 292 of 1997

BETWEEN: ROSELIE TREWIN

Applicant

AND: COMCARE

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 19 JUNE 1998

WHERE MADE: MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs of the application, including reserved costs.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 292 of 1997

BETWEEN: ROSELIE TREWIN

Applicant

AND: COMCARE

Respondent

JUDGE: HEEREY J

DATE: 19 JUNE 1998

PLACE: MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT This appeal from the Administrative Appeals Tribunal constituted by Mr B H Pascoe, Senior Member, and Brigadier C Ermert, Member challenges a finding that the applicant's injury was suffered "as a result of ... failure by the employee to obtain a promotion, transfer or benefit in connection with ... her employment" within the meaning of s 4 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Evidence before the Tribunal At the time of the hearing in March 1997 the applicant was aged 38. She was a single parent with a daughter aged nine years. Since 1986 she has been employed as a clerk by the Commonwealth in the Department of Defence. Her classification was ASO1. After the birth of her child she returned to work full time in February 1988. After some three years in one position she was transferred to several different sections within the Air Force. She was then transferred to a new section in St Kilda Road. In this section she had no regular duties. There were constant moves and changes of supervisors, all of which she found very stressful. In May 1993 her general practitioner referred her to Dr Peter Drysdale, a psychiatrist. He provided counselling but no medication. She ceased visits after a year because she found the travelling difficult. In February 1993 the applicant was transferred to a publications unit in Spencer Street and worked there for four months. She was then transferred to a transport section in Albert Road for 18 months. Her next move was to St Kilda Road but the section in which she worked was relocated to Laverton. A position at Laverton was offered to her but she declined. She could not manage the travel time because of the constraints of care for her child. As a result she was classified as "potentially excess". In this capacity she was placed in temporary positions until a permanent position could be found. In June 1995 the applicant undertook a three month work trial with the Directorate of Procurement Melbourne (DCPM) with a view to obtaining a permanent position. She believed she performed well and understood that she would be offered the permanent position. But on 26 September 1995 the redeployment co-ordination officer told her that she would not be offered a permanent position and she could either finish immediately or at the end of the week. She became very upset. She went home, could not stop crying, vomited, and lay in the foetal position on her loungeroom floor. For a period she was unable to eat and suffered major weight loss. An aunt cared for her daughter. After some leave she undertook graduated return to work. Since September 1996 she has had a full time position which is now permanent. She lodged a claim for compensation on 17 October 1995. In that claim she described her condition as "work related stress, including vomiting, unable to eat, (major loss of weight), palpitations, unable to sleep, unable to concentrate, distressed state". Her claim stated that the first medical treatment for the injury/illness was on 27 September 1995. In answer to the question on the claim form "When did your injury happen or when did you first notice the illness"? she said in an attachment to the form: "In reference to Q 14 the following information is supplied: 1. I am sole parent of a child with a chronic medical condition. 2. I have not had a permanent position for a 12 month period. 3. Work trials since January 1995 have not resulted in an offer. 4. I was not able to relocate to Laverton, HQLC - RAAF, due to the distances involved and travelling time (refer item 1). Child care restraints made the relocation impossible. In summary these are the reasons for the application for the work related stress claim. The stresses related to the unsuccessful work trials triggered the illness." A written report on the applicant's work performance stated that she "took more than a reasonable time to get organised", "was easily distracted", "struggled where requirements were more complex" and "in addition to numerous absences ... spent twenty of her sixty day trial period on sick leave which led to her being counselled during her trial". The applicant denied there had been any dissatisfaction expressed about her work with DCPM. She did not accept those comments. She maintained that no criticism had been directed at her and that she had not been counselled at any time. Her attendance diary was in evidence and showed that of 64 days at DCPM she was in fact absent for all or part of 16 days. The applicant's case was that the DCPM had not wanted to offer her the position and had fabricated the reasons for regarding her as unsuitable. The applicant said that being told on 26 September 1995 that again she was not successful in obtaining a permanent position was "the final straw in a long saga of stress". Dr Timothy Entwisle examined the applicant on 14 June 1996. His report noted a history of stress over the previous four or five years where the applicant had difficulty with the uncertainty of her job future, the regular shifting about, and the need to adjust to a new section every few months. In his report Dr Entwisle noted the applicant's difficult upbringing, her financial and emotional strain and being particularly sensitive to the needs of her mother. He said: "She impressed at interview as someone who was recovering from an emotional collapse, and whilst still fragile, that she would, given some undertaking of some certainty within the work place, I feel make a good recovery. In the absence of this she is likely to go on experiencing symptoms of anxiety which I feel the workplace has definitely contributed to with its uncertainty and high level of change, aggravating earlier anxieties and insecurities in Miss Trewin." He thought that her current and future capacity for pre-injury work was "excellent, on the basis that if some certainty can be granted her in regard to security of tenure (that she would do extremely well)". He thought that the "culture of change within the workplace ... contributed to her current clinical presentation". Ms Jennifer Hartman, a psychologist who had treated the applicant, was of the opinion that the primary factor in her condition was instability at work. She felt that the failure of the applicant to achieve the appointment at DCPM may well have been coped with had there not been the prior buildup of uncertainty with several different positions and the regular need to learn new duties. Dr Drysdale said that he was unsurprised at the apparent severity of the relapse in September 1995. He considered that it had been brought about as a result of pre-morbid personality and a history of instability at work. Dr Barrie Kenny, a psychiatrist, examined the applicant on 10 September 1996 and provided a report to the respondent. He assessed the applicant as a "rather vulnerable person" who had had difficult periods through her childhood and adolescence and also with her daughter and the lack of support from the daughter's father. He thought her present condition was certainly clinically significant and that it was quite clear "that her condition has arisen from the failure to obtain the permanent position on a background of prior concerns about frequent moves through several different positions". Legislation Section 14(1) of the Act provides: "14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment." "Injury" is defined in section 4 of the Act as follows: "'injury' means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment; but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;". The Tribunal reviewed the evidence and concluded that it could not be satisfied that there was, as alleged, "a deliberate matrix of mistruths in order to get rid of" the applicant. The Tribunal's conclusions are expressed in the following paragraphs: "18. The medical evidence is clear that a strong emphasis in Ms Trewin's personality was the need for permanence and stability. Her own evidence also made this clear. In the period up to, and since, September 1995 she was seeking a permanent position within the Defence Department in a location which suited her personal situation. The terms of her employment gave her an entitlement to apply and be considered for a position without going through the normal merit competition process but subject to suitability. These terms provided no entitlement to a permanent position as such. The primary cause of Ms Trewin's condition for which she seeks compensation was the failure to be offered the permanent position on which she placed considerable reliance. If we are to accept Mr Ingram's [counsel for the applicant] submission that the September 1995 incident was only a final stressor and the stressors of job changes in the preceding period were equally relevant stressors we take the view that the dominant cause of that stress was the failure to achieve the goal of a secure permanent position. This is the theme throughout all of the evidence. The obtaining of such a permanent position would, in our view, be a benefit in connection with Ms Trewin's employment. It is not a right. Equally, it could be said that her condition arose from a failure to obtain a transfer. The evidence was that she was in constant search for a suitable permanent position by transfer to a section within the Department which might have such a position. Again her condition arose because of a failure to obtain such a transfer. 19. Whilst we accept that Ms Trewin suffered an injury which arose out of, or in the course of, her employment, we also find that her condition was the result of a failure to obtain a transfer or benefit in connection with her employment. As such it is excluded from the definition of a compensable injury. Whilst we sympathise with her difficulties, it follows that the decision under review must be affirmed." Conclusion on the Appeal There was argument as to whether the exceptions to the definition of "injury" only apply where the injury etc is suffered solely as a result of the exclusionary causes (reasonable disciplinary action, failure to obtain promotion, transfer or benefit). Counsel for the applicant argued that this was so. He contrasted the definition of "disease" in s 4 which makes it sufficient for an ailment to be one which was "contributed to in a material degree" by employment. Comcare v Mooi (1996) 69 FCR 439 supports the applicant's argument. Drummond J held there that the Tribunal erred because, having found the employee was not mentally disturbed or suffering from any psychological disorder, it nevertheless concluded that the condition he developed in response to occurrences in the workplace was a "disease" and hence an "injury" for the purposes of s 14. However his Honour considered an alternative argument by Comcare that the employee's condition was the result of failure to obtain a promotion or benefit. Three factors had been advanced by the employee as causative of his condition: not being given the opportunity to demonstrate his fitness for a better paid position, being deprived of the opportunity of training for such a position, and refusal of his application for payment of a higher duties allowance. Drummond J said (at 448): "If the respondent did suffer from what could be called a 'disease' and if that resulted from these three factors, that disease seems to me to fall within the description of a disease resulting from 'failure by the employee to obtain a promotion ... or benefit in connection with his ... employment' within the meaning of that expression in the definition of 'injury' in the Act. In so far as any one of these three factors may have contributed to the condition he contends is a compensible injury, the statute requires them to be ignored. If there are only three circumstances of an employee's employment that can have led to his debilitated condition and each one of them is an event of the kind covered by this exclusionary provision, it would not, I think, be open to the Tribunal to say that, while it is not permitted to take into account each individual factor in determining whether the applicant for compensation has suffered an injury contributed to by his employment, it can still have regard to the concatenation of those three circumstances. But the respondent's case was that there was a fourth factor that contributed, with the other three, to bring him to the condition for which he sought compensation. He referred to his uncertainty about the security of his employment. It was submitted that, in so far as it may have led to him suffering any injury, this circumstance could not enable that injury to be characterised as one arising out of or in the course of his employment. Federal Broom Co Pty Ltd v Semlitch [(1964) 110 CLR 626] at 632-633 and 641 is authority that it is not enough for the employee to show that if he had not been employed at all, he would not have suffered that injury or disease. Windeyer J said (at 641): '... was this aggravation or deterioration contributed to by her employment? This requirement of the Act is not satisfied by showing only that a worker suffering from some disease would or might have suffered less severely if he had not been employed at all. When the Act speaks of "the employment" as a contributing factor, it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.' I am not at all sure that if a worker is employed in circumstances in which his employer allows a state of uncertainty to exist as to whether the worker's employment, which is longstanding or which the worker can fairly regard as permanent, might nevertheless be terminated and if the employee develops a mental illness as a result of that uncertainty, that illness could not be said to have been 'contributed to in a material degree by the employee's employment'. Even if the Tribunal was in error in having regard to the other three factors on which the respondent relied, it may well have been entitled to find that the uncertainty to which the applicant was exposed was capable, by itself, of amounting to the circumstance of his employment that contributed to the condition in respect of which the respondent claimed compensation. If that were the only error in the Tribunal's decision, it would therefore be appropriate to remit the matter for further consideration." However that course was not open because his Honour held the employee failed to make out one of the essential elements of his claim, viz that he had suffered an "injury". It is implicit in Drummond J's reasoning that if there were four contributing and employment-related factors, of which three were exclusionary and one was not, and if the requirement of "injury" were satisfied, the claim would succeed. However the Tribunal in the present case dealt with the matter on the basis that the applicant's condition was caused not only by the incident in September 1995 but also by all the earlier uncertainty and stress over her failure to obtain permanency. All of those stressors were related to her employment. Of course non-employment factors such as her upbringing and financial and emotional stress relating to the care of her child have to be disregarded for compensation purposes. Thus all the employment-related factors in the case were treated by the Tribunal as being caused by the failure by the applicant to obtain permanency. This conclusion was plainly open on the evidence. The question then arises whether the Tribunal erred in treating permanency as a "benefit" in connection with her employment. Obviously permanency was something desirable, good or beneficial from the applicant's point of view. But it was argued that permanency for her was not a benefit but a right arising from a memorandum of understanding between the Department of Defence and the Public Sector Union made in April 1993 in relation to the management of excess staffing situations. Clause 8(o) of that Agreement states: "The Department will ensure that excess and potentially excess officers receive priority for placement in vacant positions; that is, on the basis of suitability to perform the duties of a position within a reasonable period of time rather than through the normal merit competition process. Excess and potentially excess officers will be considered for vacancies in anticipation and isolation from other non-excess and non-potentially excess officers." In my opinion the term "benefit " in s 4 is not restricted to something which is a matter of charity or gratuity. The Macquarie Dictionary gives two relevant meanings for the noun "benefit": "1. an act of kindness. 2. anything that is for the good of a person or thing." To some extent the meanings overlap, with the latter being broader. I think that the word is used in s 4 in the latter sense, which does not necessarily exclude something obtained as a matter of right. An example of this usage is in the term "medical benefit", which means a payment to which an insured person is entitled as a matter of contractual right. Moreover the concept of "failure ... to obtain a promotion, transfer or benefit in connection with ... employment" has to be applied in the context of Commonwealth employment where there is a complex regime of industrial regulation with Awards, workplace agreements and appeal systems. Sometimes employees might have career-related legal rights, at other times no more than understandings and expectations. I think the intention to be deduced from the exception to the definition of "injury" in s 4 is that Parliament recognised that injury, and particularly stress, might arise out of (sometimes no doubt quite justified) disappointment in Commonwealth careers but concluded that injuries so arising were, for policy reasons, not to be compensable. In the passage already quoted the Tribunal held that the exception applied because the obtaining of a permanent position was "not a right". But the question whether permanency, in the circumstances of the applicant's employment in September 1995, could be characterised as a right, was not relevant. For the reasons mentioned, a benefit (or promotion or transfer) to which an employee is entitled as a matter of right - in the sense of something being legally or administratively enforceable - is nonetheless within the exception. Finally, there was a complaint as to the Tribunal's rejection of the attack on the validity or good faith of the decision in 1995 not to give the applicant permanency. However, this is plainly a question of fact and on the evidence the Tribunal's finding was open to it. Orders The application will be dismissed with costs, including reserved costs.