Iliffe v Comcare

The Tribunal's decision 16 The Tribunal made findings that ultimately led it to conclude that neither the stress claim nor the migraine claim was an injury for the purposes of s 14 of the SRC Act. It dealt with each of the claims in turn, as will I. Dr Murphy gave evidence to the Tribunal, which it accepted, together with the evidence of Ms Iliffe, that on occasion during 2010 she had raised the issue of stress with Dr Murphy and he had advised her that, if she wished to establish that her stress was work related, she would need to make a compensation claim. Ms Iliffe however, did not wish to do so because she feared it would jeopardise the renewal of her contract. She was aware that one of the questions on her employment application forms was whether or not the applicant had made a claim for compensation. 17 The Tribunal considered Dr Murphy's clinical notes, which it found were brief. It found that, as Ms Iliffe's treating doctor since at least 2002, he had been aware that, previously, Ms Iliffe had taken antidepressant medication for about four years and that she had a predisposition to anxiety and depression. Given that history, the Tribunal found to be telling the absence of any reports of stress in Dr Murphy's clinical notes during 2010. It found that that absence indicated that, although the two had discussed stress during Ms Iliffe's consultations in that year, her stress was not at a level to raise a concern as to its impact on her health. The Tribunal found that if Dr Murphy had particular concerns about matters affecting Ms Iliffe's health, his practice was to note the cause, as he did in 2011 when her stress increased. 18 The Tribunal found that Ms Iliffe was under pressure from installers and others during the ordinary course of her work during 2010. It said that she had been managing on the short-term contract arrangements governing her employment, but that these had led to her having to submit her two latest applications for permanent employment. The Tribunal accepted that those were stressful events. However, it found their impact had been ameliorated to a degree because her workload pressure was diminishing in the latter half of 2011 and she was one, among a few, who would remain employed until the end of the program in mid-2011. 19 The Tribunal found that it was not satisfied that Ms Iliffe's employment during 2010, although undoubtedly stressful, had led to her developing a psychological condition that could be described as "outside the boundaries of normal mental functioning and behaviour": see Comcare v Mooi (1996) 69 FCR 439 at 444A. It found that given the brevity of most of Ms Iliffe's absences from work during 2010, it was not satisfied that the stresses she experienced at that time were sufficient to meet the test that the disease she suffered was "contributed to, to a significant degree" by her employment. 20 It then made findings about matters occurring in 2011. Ms Iliffe contended that in doing so, the Tribunal either failed to consider whether she had an injury for the purposes of s 14(1) of the SRC Act prior to her being notified that she had not been given a permanent position in the bulk-recruitment round on 10 or 11 March 2011, or amounted to a failure by it to give reasons or make findings on that matter. 21 The Tribunal said, "That position did change in 2011. Ms Iliffe's absences from work in the first half of 2011 were noticeably longer." It referred to Dr Murphy's certifications for her absences as being unfit for work from 7-11 March 2011, 12-15 April 2011 and 3-20 May 2011, and ongoing after then. It noted that Dr Murphy had prescribed a sleeping tablet for Ms Iliffe on each of 8 March 2011 and 12 April 2011 and had referred her to a psychiatrist on 19 May 2011. The Tribunal found that the consultation Ms Iliffe had with Dr Murphy on 8 March 2011 concerned a longstanding viral condition and that only his medical certificate for 12-15 April 2011 related to her migraines. It found that on 3 May 2011, Dr Murphy's notes first referred to difficulties at work experienced by Ms Iliffe saying that that matter and the prescription of an antidepressant by her psychiatrist on 6 July 2011 were evidence of heightened concern by her general practitioner and treating psychiatrist about her psychological health at least from May 2011. It regarded Dr Murphy's reference to her problems at work as being uncharacteristic. The Tribunal then said: "43. The Tribunal finds accordingly that in the first half of 2011 Ms Iliffe's psychological condition had reached a point where it could be said the condition was 'outside the boundaries of normal mental functioning and behaviour'. That means her psychological condition did worsen in 2011. This could be characterised as an aggravation of her condition [Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537. See also Act s 4(1) - definition of 'aggravation'] and hence a disease for the purposes of the Act [Act section 5A(1)(c)]. 44. The evidence also establishes that work was implicated in the worsening of her condition. In addition, there is evidence that other stressors in Ms Iliffe's life, such as the presence in her house of her daughter, had been removed. So though Ms Iliffe had, in effect, not been at work since 8 April 2011, her working conditions prior to her effective cessation of employment in April 2011 may have been causal of her disease. That means the Tribunal must consider whether her employment had contributed to a significant degree to her condition [Smith v Comcare [2013] FCAFC 65]. The Tribunal also notes that in the alternative to her claim that conditions in the workplace in 2010 contributed to her condition, counsel submitted that her claim related to the period from 3 May 2011 to 28 November 2011, the end date being when Ms Iliffe returned to work with another agency. This alternative claim rests on Ms Iliffe's employment prior to 3 May being causal of her heightened distress during the subsequent period. 45. The Tribunal finds that employment was an operative and effective cause of Ms Iliffe's psychological condition in 2011. In particular, the evidence indicates that her failure to retain employment with the agency, either through the bulk round or through a further renewal of her non-ongoing contract were significant factors causing her psychological distress." (italics in original) 22 The Tribunal observed that its findings that Ms Iliffe's psychological condition had worsened in 2011 and that there were important related factors which had made a significant contribution to her psychological condition, raised the issue whether her claim was not compensable "because the significant events in her employment can be characterised as being a result of 'reasonable administrative action undertaken in a reasonable manner'." The Tribunal found that the circumstances surrounding Ms Iliffe's failures to secure permanent employment in the bulk-recruitment round on 10 or 11 March 2011 and an extension of her contract on 10 May 2011 were excluded by s 5A(2)(f) of the SRC Act from the definition of injury in s 5A(1). There was no issue before the Tribunal or me as to the correctness of those findings. 23 The Tribunal said that in those circumstances, Ms Iliffe's claim that her psychological condition was significantly aggravated by events in her workplace in 2011 was excluded from attracting liability because it fell in the exclusion in s 5A(2)(f). Accordingly, it affirmed Comcare's decision to reject her stress claim. 24 The Tribunal then turned to Ms Iliffe's migraine claim. She had asserted that the date of that injury was April 2010. The Tribunal noted the causes that Ms Iliffe had claimed for that injury referred to above. It found that she had a considerable medical history involving migraines, which it discussed at length in its reasons. It noted that Ms Iliffe had increased absences from work in 2010, some at least being due to migraines. It analysed Dr Murphy's clinical notes and Ms Iliffe's emails during 2010 and found that of the 33 separate occasions when she was not at work in that year, only three appeared to have been attributable to migraines and that on two of those Dr Murphy had prescribed medication. It also found that there were six other occasions on which Ms Iliffe had been recorded as unwell without specifying any condition and for which there was no record of a medical attendance. The Tribunal observed that even if those absences from work were due to migraine, they were isolated, approximately two months apart and did not last for more than one day. It found that there was no indication in the evidence of any workplace event that had triggered those absences. It was not satisfied that, even though Ms Iliffe gave evidence that she took a day off work when she could not handle matters anymore through stress, her absences indicated that she had had migraines on the days in question or that a migraine had been triggered by that cause. 25 The Tribunal then went on to find: "63. Overall, the Tribunal finds that although it is clear that Ms Iliffe's migraines are stress-related, the history is not sufficient to indicate Ms Iliffe's employment was significantly contributing to her migraines and causing her to be absent from work during 2010. The Tribunal also notes that although the medical experts agreed that stress can be a factor in leading to migraine, there is also a view that migraines can occur without a trigger, and even if stress is a trigger, it is not known whether other psycho-social factors outside the workplace may have contributed to a significant extent. In the case of Ms Iliffe, in the absence of evidence of any correlation between stressful events in the workplace and the days she said she took off and on which she had migraines, the Tribunal is not satisfied that these occasional days off were days on which the stressors were work-related and had contributed, to a significant degree, to her migraine condition. 64. Nonetheless, it was contended that at least the migrainous episode on 8 April 2011 was precipitated by her employment. Moreover, that event did appear to have an incapacitating effect since, although she returned to work for a few days after 28 April 2011, Ms Iliffe ceased working at the agency either on 8 April 2011, or at the least, on 3 May 2011. Accordingly the Tribunal must consider whether there was a work-related event which was causal of her severe migraine that day. 65. The contention by Comcare was that the significant work-related factor was either the notification to Ms Iliffe that she had been unsuccessful in the bulk appointment round or that Ms Iliffe was notified that her contract was not going to be renewed. The evidence does indicate that these were significantly stressful events for Ms Iliffe. The Tribunal does not accept that contention. Ms Iliffe was not notified that her contract would not be renewed until 10 May 2011 which is after 8 April 2011. 66. In relation to the appointment round Ms Iliffe was told she had been unsuccessful on 10/11 March 2011, that is, a month prior to her severe migraine on 8 April 2011. Dr Bell indicated that stress could lead to a severe migraine a month later, but the predominant view of the medical specialists, which the Tribunal accepts, is that if stress is implicated in the development of a migraine it is more likely to result in the development of the condition immediately after or at least close in time to the event, not some weeks later. 67. Accordingly, on balance, the Tribunal has been unable to be satisfied that Ms Iliffe's severe migraine on 8 April 2011 was significantly contributed to by Ms Iliffe's employment. That means that Comcare is not liable for her migraines in either 2010 or in 2011. There is no need, accordingly to discuss any of the other issues identified in this matter."

Ms Iliffe's argument 26 Ms Iliffe submitted that in the proceedings before the Tribunal she had contended that she had sustained injuries in three different time periods. First, she had contended that her employment had been a significant contributing factor to her developing in 2010 both conditions the subject of her stress and migraine claims. The Tribunal rejected those claims and Ms Iliffe does not challenge those rejections in these proceedings. Secondly, she contended that, in a general way, the events of 2011 had been significant contributing factors to each of those injuries, and that this was supported by the Tribunal's finding of the development, over the first half of 2011, of her stress or psychological condition. Thirdly, she relied on two specific events, namely her collapse with migraine on 8 April 2011 and, the notification that her contract would not be renewed that she claimed occurred on 3 May 2011, but the Tribunal found was no earlier than 10 May 2011. Ms Iliffe argued that the Tribunal had failed to deal in its reasons with Dr Murphy's oral evidence to it, concerning his prescription of Temaze, a sleeping pill medication, on 8 March 2011. He was asked whether he knew that that prescription had any relationship to Ms Iliffe's complaint of stress at work and replied: "I don't know if it began to do that, but I assume that it was that. Usually I don't prescribe sleeping tablets that freely. If people do need them for short term usage for some sort of stressful situation." 27 She contended that, in effect, the Tribunal had not performed its statutory function of considering whether, prior to either of two events in 2011 in which she learnt of her not achieving further employment, she had nonetheless suffered an injury. She argued that it had reasoned in its findings that those events were reasonable administrative action and thus, a cause of her stress injury. It had not gone on to consider whether she had suffered an anterior cause of that injury that was compensible. In effect, she contended that, because the Tribunal attributed the consequences of her being notified on 10 or 11 March 2011 and about 10 May 2011 of her lack of future employment, it had simply failed to consider whether she suffered any pre-existing injury and it had given no reasons, and made no findings, about her state of psychological health in the period between the beginning of 2011 and, at least, the first of those events. She argued that the Tribunal's general findings in her favour relating to the first half of 2011 supported her contention that she had established that she had suffered an injury before 10 March 2011. Accordingly, she submitted, the Tribunal had, in fact, or could be inferred to have, excluded from its consideration such injuries as she had suffered prior to 10 or 11 March 2011 on the basis of its finding that a cause of subsequent injury or aggravation of the injury was the notification to her of her failure to secure permanent employment at that time. She also argued that the Tribunal had failed to give consideration to, or reasons about, the impact of the workplace events she complained of on the migraine injury, prior to the serious hospitalisation event on 8 April 2011. She contended that [65] of the Tribunal's reasons appeared to involve inconsistent findings by the Tribunal with its earlier findings within that paragraph itself and earlier in relation to her stress claim that there were significant work related factors aggravating her stress injury in the first half of 2011.

Consideration 28 It is important to bear in mind that the Tribunal is an administrative decision-maker. The Tribunal consisted of Professor Creyke, Senior Member, and Dr Hughson, a medical practitioner. The reasons of an administrative decision-maker must be understood in the manner described in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Their purpose is to inform and they should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 29 There are aspects of the way in which the Tribunal expressed itself that could be understood to give rise to Ms Iliffe's concerns. However, as Comcare argued, it is also important, in this regard, to bear in mind the way in which Ms Iliffe propounded her claims to the Tribunal, and her concentration in submissions on relevant facts for the purposes of persuading it that her claims should be upheld. Ms Iliffe, understandably, placed great reliance before the Tribunal on Dr Murphy's prescription of a sleeping tablet on 8 March 2011, a few days prior to her being notified of her first failure to secure employment. That is why the Tribunal spent a considerable portion of its reasoning considering whether Ms Iliffe's attendance on Dr Murphy on 8 March 2011 supported a conclusion that any psychological or stress condition had developed to the point where it could be classed as an aggravation or injury in itself, sufficient to warrant a finding of injury under s 14(1) of the SRC Act. Ms Iliffe had pointed in a generalised way to the ongoing and potentially cumulative impact of her working situation from the beginning of 2010, as sufficient to amount to an injury. 30 However, on a fair reading of its reasons, I am satisfied that the Tribunal sufficiently explained its conclusion that Ms Iliffe's failure to secure further employment on about 10 or 11 March 2011 was an operative and effective cause of her psychological condition. 31 On one reading, it is possible to see in the finding at [45] that, although her failures to secure employment, of which she became aware in March and May 2011 "were significant factors causing her psychological distress ", the Tribunal had not excluded the existence of other significant factors. But, I am not persuaded that that is a correct reading of the Tribunal's reasoning. The Tribunal was alert to identifying what objective manifestations of a sufficient deterioration due to stress had occurred in Ms Iliffe's psychological condition up to the time of each of the two notifications of her failures to secure further employment. But, it was not satisfied that any such deterioration in her condition was sufficient to fall within the meaning of an injury as defined in s 5A(1). That is why the Tribunal placed the weight it did on Dr Murphy's notes, and the absence from them of any references to stress prior to 3 May 2011, as indicative of his assessment about matters affecting her health. In Wu Shan Liang 185 CLR at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said that there were practical restraints on judicial review and continued: "… a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker [Pozzolanic (1993) 43 FCR 280 at 287]. The Court continued [Pozzolanic (1993) 43 FCR 280 at 287]: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." 32 The Tribunal referred to the position changing for Ms Illife during 2011. It said that in the first half of that year Ms Iliffe's psychological condition had reached a point where an injury was perceptible as a result of events occurring in 2011. Nonetheless, reading its decision fairly and as a whole, I think it is clear enough that it said it was not satisfied that prior to the notification to Ms Iliffe of her lack of success in securing further employment on 10 or 11 March 2011, the effects of stress that she had experienced up to then, amounted to, or satisfied, the definition of an injury or aggravation of pre-existing condition to a finding that Comcare was liable to her under s 14. 33 In relation to the migraine claim, the Tribunal's reasoning in [65] appears to have been as follows. First, it set out Comcare's argument that that claim should have been excluded on the basis that each of the two failures of Ms Iliffe to secure further employment, of which she learned in March and May 2011, was sufficient to exclude its liability, because each was reasonable administrative action. The Tribunal rejected that argument because it had made the finding in [63] that there was an absence of a correlation between stressful events in the work place and the days Ms Iliffe had taken off. The Tribunal repeated that it had found that those events, however, were significantly stressful events in her life. Indeed, it found that they were reasonable administrative action and so constituted the reason for its rejection of her stress claim. But, next, the Tribunal did not accept Comcare's contention that those two matters had any relationship at all to the migraine claim. Hence, it concluded at [65] by noting that Ms Iliffe had only been notified on 10 May 2011 that her contract would not be renewed finally, and that was after the most serious migraine she had suffered in recent times on 8 April 2011. 34 Likewise, in [66] the Tribunal considered whether the events of 10 or 11 March 2011 could have contributed to the migraine that Ms Iliffe suffered on 8 April 2011. It rejected that hypothesis after considering Dr Bell's evidence that stressful events up to about a month earlier can trigger migraines. The Tribunal reasoned that it was not satisfied that that migraine was significantly contributed to by Ms Iliffe's employment. It did that, of course, against a background that she had suffered from migraine for many years since adolescence. Ms Iliffe argued that the Tribunal had not made an express finding in [63] that the absence of a correlation between stressful events in the workplace and her time off work had had no impact on her experiences of injury in 2011. However, I am of opinion that it is clear enough that that is just what the Tribunal found. 35 For these reasons I am not satisfied that the Tribunal failed to consider relevant considerations or give adequate reasons, as alleged by Ms Iliffe.

The questions of law 36 Lest I be found to be wrong in concluding that the questions in the notice of appeal did not raise, or raise sufficiently, questions of law, I will briefly explain my conclusions about each of them. Those questions were set out as follows: "1. After determining that the employee's psychological condition was a "disease" and therefore an "injury" under s 5A(1)(c) of the SRC Act in the first half of 2011: (a) Did the Tribunal fail to consider and determine what date or dates the employee suffered a psychological injury under s 5A(1)(c) of the SRC Act in the first half of 2011? (b) Did the Tribunal fail to consider and determine whether the employee's employment contributed to the employee's disease to a significant degree, under s 5B(1) of the SRC Act, satisfying the definition of injury under s 5A(1) of the SRC Act, prior to May 2011? (c) Did the Tribunal err by affirming the decision and determining that the employee was not entitled to compensation under the SRC Act? (d) Did the Tribunal err in law by making a finding that the employee's disease was excluded under ss 5A(2)(f) for two discrete events, considering the finding of the Tribunal that the employee's employment in the first half of 2011 constituted a disease under the SRC Act? 2. Did the Tribunal fail to consider a submission of substance, that is, whether the Appellant's employment contributed to a significant degree to the Appellant's psychological injury in the first half of 2011, prior to May 2011, a submission capable of changing the outcome of the proceedings? Migraine Injury Decision 3. The Tribunal having found that the employees employment in 2010, and the employee's employment on 8 April 2011, did not contribute to a significant degree to the employee's migraine condition, failed to consider and determine whether the employee's employment at other times in 2011 contributed to the employee's migraine condition to a significant degree, under s 5B(1) of the SRC Act. 4. Did the Tribunal fail to consider a submission of substance, that is, whether the Appellant's employment contributed to a significant degree to the Appellant's migraine injury on a date or dates other than in 2010, and on 8 April 2011, a submission capable of changing the outcome of the proceedings." (emphasis in original) 37 Question 1(a): For the reasons I have given the answer to this is no. The Tribunal explained why the stress on Ms Iliffe was not sufficient to amount to an injury before the relevant dates in 2011 when reasonable administrative action affected her medical condition so as to deny it having the status of an injury for the purposes of compensation under the SRC Act. 38 Question 1(b): This question raised a matter that was not developed in the course of oral argument before me. No particular additional stress or event outside the impact of the events of 10 or 11 March 2011 was suggested as being a matter that the Tribunal ought to have taken into account or that it had failed to consider prior to the events of 10 May 2011. The Tribunal gave consideration to what, in its view, were the two significant contributing causes for Ms Iliffe's psychological distress, being her two failures to secure further employment 39 Question 1(c): This is not a question of law but, even if it were, I would answer it, no, for the reasons I have given. 40 Question 1(d): I have sufficiently addressed this matter already and for the reasons above, the answer is also no. 41 Question 2: This was addressed in argument dealing with Ms Iliffe's ground of review under s 5(1)(e) of the ADJR Act. For the reasons above, I do not consider that the Tribunal failed to consider her submissions about the matters that had contributed to a significant degree to her psychological injuries in the first half of 2011 or when relevantly those contributions occurred and what were their operative causes. In her written submissions, Ms Iliffe argued that she had submitted to the Tribunal that the relevant event was that she had suffered an injury on 8 March 2011 by reason of her attendance on Dr Murphy and his prescription of a sleeping tablet. She contended that this attendance had been caused by work stress at least two days prior to her being notified that she had been unsuccessful in relation to the bulk-recruitment round. In my opinion, it is clear beyond argument that the Tribunal addressed that submission and rejected it, by finding that stress was not a significant factor in Ms Iliffe's need to attend on Dr Murphy that day. Rather, it found as a fact that she had a viral infection unrelated to work that had caused her distress on that occasion. 42 Question 3: In my opinion, for the reasons I have already given in relation to the migraine decision, this must be answered no. Ms Iliffe placed considerable reliance on the migraine of 8 April 2011. The Tribunal considered the other generalised evidence about migraines and concluded that there was no sufficient correlation between them and events at work. Accordingly, it dealt with this matter in accordance with law. 43 Question 4 relied on the same arguments as question 2 and must also be answered no.

Conclusion 44 For these reasons, I am of opinion that the appeal must be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.