The matter of Department of Education -v- Azmitia  WADC 85 involves an application for leave to appeal from a WorkCover decision, where the arbitrator found that the respondent worker, Ms Azmitia, suffered a stress-related disease in the course of her employment.
The decision demonstrates the influence procedural matters have on stress related claims and their influence on the ability to plead section 5(4) defences.
Ms Azmitia alleged that she was bullied, intimidated and harassed by her supervisor, Mr Edwards, from her first day at Calista Primary School. However, her claim was lodged after Mr Edwards spoke to her at a meeting on 23 March 2012 about her work performance and mental health.
Specifically, the meeting concerned a parent’s letter of complaint directed to Ms Azmitia, in which she alleged Ms Azmitia had “said some startlingly florid and inappropriate things to her”. Mr Edwards was so concerned that he referred the letter to the appellant’s Standards and Integrity Division, which directed him to have Ms Azmitia seen by a doctor.
Ms Azmitia left the meeting in a distressed state, sought immediate medical attention and reported the matter to her union.
The arbitrator did not accept Ms Azmitia’s evidence about any of the alleged stressors in her workplace prior to 23 March 2012. He concluded that Ms Azmitia had a tendency to view relatively innocuous events in a histrionic way and thus exaggerated them in her evidence.
Medical evidence was presented from psychiatrists, Dr Tannenbaum and Dr Terace, and psychologist Dr Sekhon. However, the arbitrator was not persuaded by the majority of this.
Instead, the arbitrator found that Mr Edwards’ actions in not telling Ms Azmitia in advance what the meeting was going to be about, reading the letter to her for the first time in the meeting and referring the matter to the Standards and Integrity Division without her consultation were critical factors. The arbitrator supported his findings in relation to causation by noting that the relevant stressors were not confined to the content or what was said in the meeting, but included the way in which the meeting was conducted.
The arbitrator further held that, even if Ms Azmitia expected an excluded matter such as discipline or loss of a benefit to occur, such was not the whole or predominant cause of the injury and thus the excluded matters were not enlivened.
In the light of these findings, the arbitrator found that it was not necessary to address the proviso to s 5(4), namely whether the appellant’s actions were harsh and unreasonable. However, for completeness the arbitrator said that he “would have found that the department’s action[s] were harsh and unreasonable”.
All three psychiatrists certified that Ms Azmitia was fully fit to return to work, but after considering the evidence ‘overall’, the arbitrator found Ms Azmitia to be totally unfit for work for the closed period.
The arbitrator’s decision was subject to a District Court appeal.
Leave to appeal was granted in respect to 3 out of 5 grounds, which dealt with the factual basis of the medical reports and the arbitrator’s interpretation of these reports however, the appeal was dismissed.
In coming to this decision, his Honour found that the arbitrator was mindful of the principle in Pollock v Wellington. He also accepted that Ms Azmitia gave absolutely no evidence about her symptoms and was satisfied with the arbitrator’s ‘overall’ approach when considering the medical evidence.
For more information on this update or any other workers’ compensation matters please contact Ken Grunder on (08) 9321 3755.
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