Zimin and Comcare [2014] AATA 328 (27 May 2014)

Last Updated: 28 May 2014

[2014] AATA 328

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3791
Re	Sergei Zimin
	APPLICANT
And	Comcare
	RESPONDENT

DECISION

Tribunal	Senior Member A K Britton Dr Williams Isles, Member
Date	27 May 2014
Place	Sydney

The decision under review is affirmed.

..........................[SGD]..............................................
Senior Member A K Britton

CATCHWORDS

COMPENSATION — Commonwealth employees — Psychological injury — Whether the Applicant suffers a mental ailment — Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth — Whether the injury is a result of reasonable administrative action taken in a reasonable manner

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A; 5B; 14;

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Drenth v Comcare [2012] FCAFC 86

Hart v Comcare [2005] FCAFC 16

REASONS FOR DECISION

Senior Member A K Britton
Member, Dr W Isles

27 May 2014

1. Nuclear engineer, Dr Sergei Zimin, seeks review of the decision made by Comcare to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of his claimed injury, “PTSD and major depression”. Dr Zimin was employed by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) between 1999 and 2014. He took leave of absence from ARPANSA between 2004 and January 2011.
2. Comcare contends that Dr Zimin was not suffering from a “mental ailment” when he made his claim for compensation under the Act in February 2012. In the alternative, Comcare contends that any mental ailment that he might have suffered “a result of reasonable administrative action taken in a reasonable manner in respect of [Dr Zimin’s] employment” and therefore, by the operation of s 5A(1) of the Act, Dr Zimin had no entitlement to compensation under that Act. Dr Zimin contends that he was suffering from a mental ailment in the form of an adjustment disorder in February 2012, which was caused by being marginalised by his managers and colleagues on his return to ARPANSA twelve months earlier, not, as contended by Comcare, any alleged reasonable administrative action.

Statutory framework

3. Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Dr Zimin if it results in impairment or incapacity for work (s 14 of the Act).
4. The Act defines “injury” to mean (s 5A(1)):
   • (a) a disease suffered by an employee;

...

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. [Emphasis added]

5. “Disease” is defined to mean: “(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” (s 5B(1)). “Ailment” in turn is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). “Significant degree” means “a degree that is substantially more than material” (s 5B(3)).
6. Section 5A(2) defines “reasonable administrative action” to mean:
   2. For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:

...

(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.

Does or did Dr Zimin suffer a mental ailment?

7. Dr Zimin contends that consistent with the weight of evidence he was suffering from an adjustment disorder in February 2012. Comcare disagrees citing in support the opinion of psychiatrist Dr Selwyn Smith.
8. Dr Zimin commenced employment with ARPANSA in July 1999. He claims that in 2003 his managers pressured him to compromise his professionalism by modifying a critical safety audit of a nuclear reactor. According to Dr Zimin together with the “mysterious disappearance” of a work colleague, this made him anxious and distressed. By March 2003 he was reporting problems with sleeping and frequent headaches. In May 2003 his (then) GP, Dr Desai, certified Dr Zimin unfit for work for a month on account of anxiety. The psychologist treating Dr Zimin at this time, made a diagnosis of an adjustment disorder.
9. Later that year Dr Zimin made a claim for compensation under the Act in respect of an adjustment disorder. Comcare rejected that claim. On learning that he had obtained a position with the International Atomic Energy Agency (IAEA) in Vienna Dr Zimin withdrew his application to the Administrative Appeals Tribunal (AAT) for review of Comcare’s decision.
10. Dr Zimin described his seven years working in Vienna as a “very happy time”. During that time he produced high quality work and commanded the respect of his colleagues within the IAEA.
11. According to Dr Zimin on returning to ARPANSA in January 2011 he was assured by director, Ms Rhonda Evans, that he would not be subject to the poor treatment he had been subject to prior to leaving for Vienna. He claims he soon found little had changed and, with the surprise announcement of Ms Evans’ resignation in April 2011, he became very worried and realised he could not look to her support to stop the “old harassment”. Dr Zimin stated that as the year progressed he began to feel anxious and on edge.
12. Dr Zimin claims that by September 2011 he felt “very ill” following a number of incidents and in particular an altercation with Mr Martin Dwyer, who was appointed a director of ARPANSA in August 2011. On his account over the following months his anxiety worsened and by January 2012 he was too frightened to go to work and was regularly experiencing chest pains. On 4 January 2012 he consulted his (then) GP, Dr Dmitri Tcherkas, who made a diagnosis of major depression, certified him unfit for work and referred him to psychiatrist Dr Masood Khan. Dr Zimin consulted Dr Khan on a weekly basis between January 2012 and his retirement six months later.

History of medical treatment

13. In a report dated 14 March 2012 and prepared at the request of Comcare, Dr Tcherkas wrote that during a consultation on 4 January 2012 Dr Zimin was stressed and reported deteriorating health and being unable to work. Dr Tcherkas concluded that Dr Zimin’s “psychological breakdown” was related to work and made a diagnosis of major depression.
14. In a letter to Dr Tcherkas dated 31 January 2012 Dr Khan advised that in his opinion Dr Zimin was suffering major depression and possibly PTSD. He wrote that when he saw Dr Zimin two weeks earlier he reported the following symptoms, which in his opinion were severe:

Severe sleep disturbance
Waking 5 or 6 times a night in a cold sweat
Nervous at work: whole body shakes
Appetite is fine but weight increasing
Libido and concentration decreasing
Energy levels low
Interest in work and life in general, reduced

15. In a report dated 2 April 2012 Dr Khan wrote that the history of symptoms given by Dr Zimin was that on his return from Vienna in January 2011 he believed he had been mistreated, marginalised and discriminated by his colleagues and superiors and initially felt angry. He wrote that after lodging a formal complaint he began to feel that the situation could not be resolved and this led to “a sense of helplessness with anger that was building up”. Noting a history of depression Dr Khan recorded that with the onset of discrimination, harassment and ill treatment, Dr Zimin once again began to experience symptoms of depression. This feeling intensified in September 2011.
16. Dr Khan wrote that during consultations, Dr Zimin looked down and appeared withdrawn and depressed. According to Dr Khan while Dr Zimin does not have thought disorders or delusions, he shows a “constant preoccupation about the trauma at work”. He concluded that overall Dr Zimin was depressed and had symptoms of PTSD. In his opinion Dr Zimin’s symptoms were severe and prevented him from returning to work in the near future.
17. At the recommendation of Dr Khan, Dr Zimin took the anti-depressant Pristiq® 100 mg daily throughout the first half of 2012.

Opinion held by Drs Dinnen and Smith

18. For the purpose of these proceedings, Dr Zimin was assessed by psychiatrists Dr Anthony Dinnen and Dr Selwyn Smith. Dr Zimin was interviewed by Dr Smith in January 2013 and by Dr Dinnen six months later. Each prepared written reports and gave oral evidence concurrently.
19. Neither Dr Dinnen nor Smith agreed with Dr Khan’s diagnosis of major depression and PTSD. Dr Dinnen was of the opinion that since 2004 Dr Zimin had intermittently been suffering from an adjustment disorder with anxiety and depressed mood. Dr Smith does not share that opinion.
20. Dr Smith thought it possible but “highly doubtful” that Dr Zimin had developed “a formal psychiatric disorder” after his return from Vienna. He thought it more likely that any psychological symptoms he experienced were “normal variants in response to his insecurity, anger and resentments toward his colleagues”. As he saw it, at worst, Dr Zimin was ruminating about his work situation and had experienced “apprehensive expectation of concerns about his job and failure to achieve the position he had applied for”. According to Dr Smith, while Dr Zimin did not suffer from a personality disorder, his reaction to events in the workplace were attributable to aspects of his personality — obsessiveness, stubbornness, inflexibility and difficulty in seeing shades of grey.
21. Dr Dinnen on the other hand considered there was ample evidence that Dr Zimin had been suffering clinically significant symptoms on an intermittent basis since 2004. He pointed to, among other things, the diagnosis of an adjustment disorder made in 2003 and the diagnosis and observations made by Drs Tcherkas and Khan. In his opinion the condition was probably in remission while Dr Zimin was in Vienna but re-emerged after his return to Australia when he became progressively ill and experienced feelings of anxiety, hopelessness, and sleep disturbance.
22. Dr Dinnen was of the opinion that Dr Zimin’s condition had probably eased but was not in remission during the eight months he was off work in 2012. In his opinion the reason symptoms persisted to some degree during this period was because Dr Zimin had not been entirely removed from the stressor, namely the work environment and was aware that at some point he would be returning to work. Dr Dinnen thought that the likely explanation for the opinion held by consultant psychiatrist Dr Himalee Abeya that Dr Zimin was “quite well” and fit to return to work was because his symptoms had eased by that time as a result of treatment and an extended absence from work. (Dr Abeya had assessed Dr Zimin at the request of Comcare. In her opinion Dr Zimin had suffered a major depression, which in her opinion was in remission). Dr Dinnen thought it likely that Dr Zimin had understated his symptoms to Dr Abeya so he would be permitted to return to work.
23. Dr Smith, on the other hand, was of the opinion that Dr Abeya’s assessment was further evidence that Dr Zimin did not suffer from an adjustment disorder pointing out that one of the criteria for diagnosis is that once the stressor or its consequences have terminated, symptoms do not persist beyond six months.

Consideration

24. In 2011 Dr Zimin reported suffering significant symptoms initially of anxiety and later depression. His GP was of the opinion that by January 2012 his symptoms were significant enough to warrant a diagnosis of major depression and referral to a psychiatrist. Dr Khan was of the opinion that when he saw Dr Zimin a week later his symptoms were severe and warranted intensive treatment and medication. His report to Comcare four months later indicates that in his opinion there had been no material improvement in Dr Zimin’s symptoms.
25. As Dr Smith points out there is often no clear line between symptoms that are clinically significant and those that are “normal variants” in a person’s response to external stressors. He explained that an assessment of whether a person’s symptoms can be described as “clinically significant” requires consideration of their intensity and duration but ultimately is a matter of clinical judgement.
26. Dr Smith accepts that Dr Zimin was suffering from the symptoms he reported following his return to ARPANSA in 2011 but disagrees with Dr Dinnen’s opinion that those symptoms could be properly described as clinically significant. Dr Smith was the sole expert to conclude that the symptoms experienced by Dr Zimin in late 2011/early 2012 were not clinically significant.
27. Drs Dinnen and Smith agree that to warrant a diagnosis of an adjustment disorder a person’s symptoms must persist for at least a month. While plain that by August 2012 there had been a significant improvement in Dr Zimin’s condition, the weight of medical opinion is that he was suffering significant psychiatric symptoms in the latter part of 2011 and the first part of 2012.
28. Dr Dinnen’s diagnosis is consistent with the observations and findings made by Dr Zimin’s treating doctors and not inconsistent with the opinion of Dr Abeya. Dr Zimin provided a reasoned explanation for the diagnosis he made. Of the available opinions we prefer that expressed by Dr Dinnen and find that Dr Zimin was suffering from an adjustment disorder with anxiety and depressed mood when he made his claim for compensation in February 2012.

Was Dr Zimin’s condition a result of reasonable administrative action?

29. Comcare concedes that if found that Dr Zimin was suffering from an adjustment disorder it was contributed to, to a significant degree, by his employment with ARPANSA. The point of difference between the parties is whether that disorder was “a result of” one or more of following actions and, if so, whether, as Comcare contends, each constitute “reasonable administrative action taken in a reasonable manner in respect of [Dr Zimin’s] employment”:
    1. Dr Zimin’s failure to obtain two Australian Public Service (APS) Executive Level 2 positions (the EL2 positions)
    2. Dr Zimin’s failure to have his position upgraded to an EL2 position
    3. Dr Zimin's failure to have leave without pay between 2004 and 2011 treated as service for superannuation purposes
    4. Dr Zimin's travel proposal being rejected
    5. Dr Zimin's application to work from home being rejected
    6. Dr Zimin not being chosen to work on the Fukushima project/team
    7. Dr Zimin’s failure to be considered a 'specialist' at the EL2 level.
30. Dr Zimin contends that the primary cause of his condition was not being allocated meaningful work on his return to ARPANSA in 2011 and being marginalised and isolated within the Agency and subjected to mistreatment and harassment by colleagues and managers, Mr Martin Dwyer in particular. He submits that this contention is consistent with the weight of medical opinion, including that of Comcare’s expert, Dr Smith. Comcare on the other hand contends that while there were multiple causes of Dr Zimin’s condition, its primary cause was his failure to: obtain two EL2 positions (RAA 1), have his position upgraded to an EL2 position (RAA 2) and be considered a 'specialist' (RAA 7).
31. Before looking at the role, if any, played by these purported administrative actions we will briefly outline the history to Dr Zimin’s claim for compensation.

Dr Zimin returns to ARPANSA

32. As noted, Dr Zimin described the period he was working in Vienna, 2004 to 2010, as a happy one. According to Dr Zimin despite the (then) director, Ms Evans’ assurance that he would not be subjected to poor treatment on his return, within a short period he found little had changed: he was not even given a name plate on his desk. Of particular concern to Dr Zimin was that he was not formally attached to a position and as a consequence unable to undertake meaningful work, and, to contribute to the work of ARPANSA. He said he was baffled that no one within ARPANSA seemed interested in the recommendations he made on his return from Vienna about improving safety within the organisation. He also said he was surprised not to be included in the ARPANSA team set up to advise on the Fukushima nuclear reactor accident in March 2011, a decision he found perplexing given his significant experience including in the nuclear industry in Japan.

Promotion of Messrs Ward and Scott

33. Shortly after Dr Zimin’s return a restructure of the Agency was implemented. Among other things a Safety Analysis section was created and a number of sections merged to form the Compliance and Enforcement section. In mid-April 2011, staff members were invited to submit expressions of interest to head these two sections on an acting basis. Mr Zimin expressed interest in, and was interviewed for, both positions. In late May 2011 an announcement was made that Messrs John Ward and Jim Scott had been appointed to head the Safety Analysis section and Compliance and Enforcement sections, respectively.
34. Shortly after being notified of these appointments, Dr Zimin emailed ARPANSA’s human resources head, Mr John Nasser, seeking advice about how to challenge Mr Ward’s appointment and was advised that absent a procedural defect it would not be possible to do so. Over the ensuing weeks Mr Nasser and Dr Zimin corresponded over what Dr Zimin asserted was a “serious defect in the selection process”. Dr Zimin claimed among other things that Mr Ward “did not understand basic nuclear safety issues” and was “not [a] nuclear engineer or reactor physicist”. Dr Zimin also pointed to what he believed to be his superior experience gained working overseas.
35. Dr Zimin met with ARPANSA CEO, Dr Carl-Magnus Larsson on 2 June 2011 to discuss his concerns about the selection process (the feedback meeting). Following that meeting Dr Zimin advised Mr Nasser by email that “the discussion was frank and all my concerns were discussed”. Dr Zimin took no further action in relation to the appointment process.

Mr Dwyer commences at ARPANSA

36. In early August 2011, Mr Dwyer commenced as head of operation services within ARPANSA. Messrs Ward and Scott reported to Mr Dwyer. Mr Scott supervised Dr Zimin. On Mr Dwyer’s first day at ARPANSA, Dr Zimin handed Mr Dwyer a submission outlining his concerns about ARPANSA. Among other things, Dr Zimin stated the organisation was under resourced, lacking leadership and existing nuclear safety specialists were not appropriately recognised. He identified a fuel fault in 2007 as evidence of structural problems within the Agency.

The file dispute

37. On 17 August 2011 Mr Ward left a file on Dr Zimin’s desk. Dr Zimin emailed Mr Dwyer and reported that Mr Ward “attempt[ed] to pass to me directly ... work as if I am his subordinate”. Dr Zimin stated that he believed this to be a “serious violation of internal managerial practices” and that the appropriate course would have been for Mr Ward to pass the file to Dr Zimin’s section head, Mr Scott, with “clear directions”. Dr Zimin contended that this was not the first complaint he had made about Mr Ward’s “improper communications” and wrote that he hoped that “Mr Dwyer will discuss this matter with [Mr Ward] and help him to improve his performance in his temporary assignment as acting [section head of] safety analysis”.
38. Shortly after receiving that email Mr Dwyer met with Dr Zimin and told him he needed to improve the manner he communicated with his colleagues and, referring to the incident with Mr Ward, said “both of you are at fault”. According to Dr Zimin, Mr Dwyer accused him of “being evasive”, which he found offensive and unwarranted. Subsequently Mr Dwyer emailed Dr Zimin and urged him to adopt “a more cooperative approach in dealing with requests from other staff” and asked him to “consider the way you interact with other staff”.
39. In a submission to Mr Des Lyons, a consultant engaged by ARPANSA in late 2011 to investigate a complaint made by Dr Zimin about Mr Dywer, Mr Scott stated “from the start” it was clear that Dr Zimin “had no respect for [Mr] Ward’s experience and credentials in nuclear safety, and openly criticised [him] via email and in section meetings” which led to “tension and bad feeling” in the Compliance and Enforcement section.

Altercation between Mr Dwyer and Dr Zimin

40. On 25 August 2011 Dr Zimin approached Mr Dwyer to raise his concern about Mr Dwyer’s criticism of him “when clearly it was me who was being marginalised and Mr Ward had not followed correct procedure”. According to Dr Zimin, Mr Dwyer became “very angry”, started shouting, grabbed a file, slammed it into a desk, yelled at him and accused him of being “a pedant”.
41. Dr Zimin claims he froze, did not know what to say and quietly left the office. He said after months of stress this incident took him “to the edge” and, by September 2011, he was feeling very unwell.
42. In the ensuing months relations between Dr Zimin and Mr Dwyer deteriorated further. On a number of occasions Dr Zimin requested that Mr Dwyer retract his allegation that he was not co-operative and respectful of other members of staff. He also criticised Mr Dwyer for the way he communicated with him.
43. In late August 2011 Dr Zimin requested permission from Mr Dwyer to work from home one day per week. Mr Dwyer refused that request and Dr Zimin saw this as yet a further example of unfair and negative treatment.

Dr Zimin complains about Mr Dwyer

44. Shortly after the 25 August 2011 altercation, Dr Zimin confided with Professor Samir Sarkar, the staff harassment officer and was advised that if he wished to pursue the matter he must lodge a formal complaint. On 19 October 2011 Dr Zimin wrote to Mr Nasser advising that he was being targeted by Mr Dwyer. A month later he made a formal complaint alleging, among other things, that Mr Dwyer had:
    • (i) behaved in an aggressive manner towards him during the 25 August 2011 incident
    • (ii) refused to apologise for that behaviour
    • (iii) refused to “take back his absolutely unfair criticism of my ‘poor’ communication”
    • (iv) rejected his application to work from home because of his “negativism” against him.
45. Dr Zimin also stated that he was “very much concerned” that Mr Dwyer would act to block his promotion to the “promised position” of reactor physicist at EL2 as discussed with the CEO in June 2011.
46. Dr Zimin wrote that he sought:
    • (i) a written apology from Mr Dwyer for calling me “evasive” and “a pendant”
    • (ii) a retraction by Mr Dwyer for his “wrong comment” about my “interaction with colleague problem”
    • (iii) a direction be issued to Mr Dwyer to undertake targeted anti-harassment training
    • (iv) an order that Mr Dwyer be prevented from blocking the “promised” process of advertising internally for expression of interest of specialist in nuclear physicist at EL2 level.
47. In a report submitted to ARPANSA in February 2012, Mr Lyons wrote that he found no evidence of inappropriate conduct by Mr Dwyer and, in his opinion, Mr Dwyer had not breached the APS Code of Conduct (Code of Conduct), specifically, the requirement to treat colleagues with respect and courtesy and without harassment and to behave in a way that upholds APS values. ARPANSA adopted those recommendations. Dr Zimin applied to the Merit Protection Commissioner for review of that decision. The Commissioner affirmed ARPANSA’s decision.

The 2013 Code of Conduct review

48. In early 2013 at Mr Dwyer’s recommendation, ARPANSA commenced proceedings to determine whether Dr Zimin’s alleged “history of unacceptable workplace behaviour” was in breach of the Code of Conduct. ARPANSA appointed consultant Mr Les Bell to conduct that investigation. In May 2013 he reported his finding that Dr Zimin had breached parts of the Code of Conduct.
49. ARPANSA dismissed Dr Zimin in February 2014. Dr Zimin advised the tribunal that he intends to challenge that decision in Fair Work Australia.

Was Dr Zimin’s adjustment disorder a result of reasonable administrative action?

50. For present purposes we will restrict our consideration to whether, as asserted by Comcare, Dr Zimin’s adjustment disorder was “a result of” the decision not to appoint him to head the Compliance and Enforcement and Safety Analysis sections, on an acting basis.
51. Comcare contends that Dr Zimin’s adjustment disorder was the result of, that decision, among other things. Dr Zimin contends that his illness was primarily caused by being marginalised and not given meaningful work on his return to ARPANSA in 2011 and the bullying, harassment and negativity, he was subjected to by Mr Dwyer, later that year.
52. Dr Zimin’s adjustment disorder will be “a result of” RAA 1, if it was an operative cause of the condition, even if there were other unrelated causes. (Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29 at [18] – [26]; Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 125 ALD 181 at [54] – [56]; Drenth v Comcare [2012] FCAFC 86; (2012) 128 ALD 1 at [29]).
53. In a statement prepared for these proceedings, Dr Zimin stated that in May 2011 he had applied for various jobs commensurate with his experience and qualifications but “consistent with my treatment since my return, I missed out and remained in an unattached position”. He wrote he was effectively unsupervised and felt abandoned. He stated that he was particularly upset that Mr Ward, who he believed was “massively underqualified for the role” was appointed to head the Safety Analysis section. He testified that he did not expect to get the role but like others within APRANSA, he expected that his colleague, Professor Sarkar, “an established EL2 manager and the most experienced technical expert” would be the successful candidate.
54. Comcare contends that the account Dr Zimin gave to his treating doctors in January 2012 together with that set out in his claim for compensation made a month later, is a more reliable guide to the factors that caused him to develop an adjustment disorder than those he nominated after being notified that his claim for compensation had been refused. Counsel for Dr Zimin, Mr Mrsic, on the other hand, submits that the timeline is critical and reveals that Dr Zimin’s health started to deteriorate shortly after the appointment of Mr Dwyer, particularly following the incident where he was accused of being a pedant. Mr Mrsic points to the significant passage of time between Dr Zimin being informed of his unsuccessful application to act as section head and taking time off work on account of stress.

Account given by Dr Zimin of stressors experienced

55. In his claim for compensation completed on 14 February 2012 Dr Zimin wrote (answers in bold):

Where were you at the time you contracted your illness?
In the office of newly appointed Director due to his bullying
What were you doing at the time you contracted your illness?
I was discussing with newly-appointed Director his biased attitude against me resulted in verbal abuse and ongoing negativity and ignoring my work results.
What action, exposure or event happened to cause your injury or illness?
my complaint wrong handling of a file by a Manager was turned over against me, instead of resolution of the complaint, in a bullying way (verbal abuses [sic], like ‘you are evasive’, pedant etc.
What actually injured you, or made you unwell?”
1) Bullying from Director 2) Ignoring of my complaints on my work conditions by ARPANSA HR 3) Discrimination against me from Director (promotion withholding, refusal of work from home, etc.).

56. In a file note made shortly after a conversation with Dr Zimin on 31 January 2012, employee services manager, Brad Fowler recorded that in addition to his alleged harassment by Mr Dwyer, Dr Zimin raised with him the issue of the “promise [Dr Zimin] believed the CEO made about reclassifying his current job to an EL2”. Mr Fowler recorded that Dr Zimin believed that the CEO had “reneged on a promise to give Dr Zimin an EL2”. The note contains no mention of RAA 1.
57. On 29 February 2012 in an email to Comcare, Dr Zimin provided additional information he believed relevant to the cause of his condition. He put the date of injury as 1 September 2011 “as my health substantially deteriorated after harassment from Mr Dwyer in late August 2011”. Most of the 11-paragraph email was devoted to events that occurred after Mr Dwyer’s appointment. The only reference to the promotion issue was a single line:

My application[s] for managerial positions were rejected in May.

58. In a letter to Dr Tcherkas dated 31 January 2012 Dr Khan set out the history given to him by Dr Zimin:
    • (i) On commencing with ARPANSA Dr Zimin was initially given a very low position and he felt like a “second hand person”
    • (ii) More recently Dr Zimin’s supervisor began to mistreat Dr Zimin by shouting at him
    • (iii) Dr Zimin then complained to the CEO when he was refused promotion and was harassed
    • (iv) Dr Zimin told the CEO about the harassment and felt very angry about the unresolved situation
    • (v) On his return to Australia in 2011 he applied for a higher position which he did not get, as a result he felt further frustration. He feels he is not referred to higher positions because he is from Russia
    • (vi) Mr Dwyer accused him of being evasive in front of another person. This made Dr Zimin to feel humiliated. At this point he began to experience symptoms of stress and by October/November 2011 he was experiencing symptoms of depression. His complaint to the CEO is being investigated and this does not help with his symptoms
59. In a subsequent report dated 2 April 2012, Dr Khan wrote:

Sergei Zimin discussed with me that he has been mistreated and severely discriminated against at his work at the Nuclear Safety Agency. He gave me many examples of mistreatment and severe discrimination and marginalisation by his superiors and his colleagues, in particular he mentioned his boss who is the section head with lesser knowledge than Sergei. Sergei, being a senior man, knows that he has more experience in his field than his section head. Approximately 6 or 8 months ago his section head ill-treated Sergei by shouting at him for an insignificant issue. He was also refused promotion and simple requests such as a name tag be put on his desk. This issue was trivialised and he was dismissed. This was just one example of how he was treated and Sergei can give many more examples of this type of harassment and mistreatment which resulted in him feeling disrespected, marginalised and discriminated against. He felt initially angry about the treatment he was receiving and he then complained to the CEO, especially about his promotion prospects being refused and the harassment he felt. Sergei then began to feel that he was unable to resolve the situation, leading to a sense of helplessness along with anger that was building up.
...
With the onset of discrimination, harassment and ill-treatment Sergei once again began to experience symptoms of depression. His symptoms intensified in September 2011. His current symptoms of depression include severe sleep disturbance when he is awake 4 or 5 times a night and frequently experiencing nightmares. In spite of his disturbed sleep he initially continued to go to work but then this symptom was followed by other symptom of major depression. He began to experience waking up in cold sweats at night, finding himself nervous at work and beginning to shake at times at work. He then received a medical certificate and stopped going to work because of the severity of his symptoms.

60. In a supplementary report dated 5 June 2012, Dr Khan wrote that he did not consider Dr Zimin’s lack of promotion contributed to his condition:

I wish to clarify that lack of promotion did not clarify or precipitate Sergei Zimin’s PTSD and major depression.
I understand you have refused to accept his [Comcare] claim, thinking that in my statement I said that the lack of promotion was the cause of the PTSD.
This statement is not true. His PTSD and major depression was mainly precipitated by his treatment in the office by his superiors such as the director, especially the new director who arrived in August 2011.

61. Under the heading “Sergei Zimin’s treatment at his office” Dr Khan detailed a number of incidents that he considered contributed to his condition. These included:

Dr Zimin not being given a job description on his return
Dr Zimin not being paid for the first month at ARPANZA
an unpleasant exchange of emails between Dr Zimin and with HR about his position description
Dr Zimin not being nominated for the Fukushima nuclear reactor team
Dr Zimin being refused “basic things” like a name tag for his desk
Dr Zimin’s poor treatment by Mr Dwyer including his refusal to agree to international travel

62. In closing Dr Khan wrote:

A series of traumatic incidences made [Dr Zimin] feel marginalised and not respected in the office. This led to low self-esteem initially, followed by psychological trauma resulting in PTSD and also symptoms of major depression.
I wish to state, mainly to clarify, that the lack of promotion did not cause his PTSD or his major depression. His PTSD and his major depression were precipitated by his treatment at the hands of his superiors at the nuclear reactor facility.

63. In a report dated 14 March 2012 prepared in answer to a request from Comcare, Dr Tcherkas wrote that Dr Zimin’s “depression with signs and symptoms of PTSD” was related to his work. Dr Tcherkas did not specify any particular event or factor that contributed to the condition apart from Dr Zimin’s relationship with his manager with a “Damaging Personality” and Dr Zimin’s feeling that ARPANSA “did not value the people”. In clinical notes made on 4 January 2012 (the day Dr Zimin first consulted with Dr Tcherkas) Dr Tcherkas wrote:

Stressed/work related. Felt he may lose his work and suffers from abuse of his Supervisor
Became irritable and felt that company does not value people
...
2003 –stress at work...

Opinion of Drs Dinnen and Smith

64. As will be recalled Dr Smith was of the opinion that Dr Zimin did not suffer from an adjustment disorder or any other psychiatric condition. He nonetheless stated that each of the reasonable administrative actions nominated by Comcare were significant in the development of Dr Zimin’s condition. He also agreed with the proposition put by Mr Mrsic, that had Dr Zimin been given meaningful work and felt his opinions were valued by the Agency, it was unlikely he would have fallen ill in 2011.
65. Dr Dinnen considered that Dr Zimin became progressively unwell throughout the course of 2011. In his opinion it was caused by what Dr Zimin described as being “marginalised” or “sidelined”, which Dr Dinnen understood to mean being overlooked and not being appreciated within the workplace and not being given work he was capable of performing. According to Dr Dinnen during interview Dr Zimin was preoccupied with not having being given work he was capable of performing and made no mention of RAA 1, or, any of the other reasonable administrative actions nominated by Comcare.

Consideration

66. The task of identifying the factor or factors which cause a person to develop an adjustment disorder does not lend itself to empirical measurement or testing and is seldom an easy task, especially where, as in this case, there are multiple causes. This case is no exception.
67. While uncontroversial that the primary and probably sole cause of Dr Zimin’s adjustment disorder was the stressors he experienced at work on his return to ARPANSA in 2011, the more difficult issue is the identification of those stressors.
68. The weight of evidence is that Dr Zimin was probably suffering some type of anxiety and/or depressive condition before leaving for, but not while he was in, Vienna. His evidence revealed that he was apprehensive about his return. His statement prepared for these proceedings indicates that it was not long after his return to ARPANSA that he “began to feel anxious, always on edge” (see Exhibit A, par [73]). As the year progressed he became increasingly apprehensive about his place and future within ARPANSA. Things started to unravel around the time of his altercation with Mr Dwyer on 25 August 2011, which corresponded with Dr Zimin reporting problems sleeping, “feeling very ill” and starting to take time off work. When he finally sought medical treatment in early January 2012, an investigation into his complaint about Mr Dwyer was underway and not irrationally he was concerned about his future within ARPANSA.
69. Comcare contends that the accounts given by Dr Zimin prior to being notified that his claim for compensation had been refused indicate that despite the passage of time he continued to ruminate about the failed promotion. Careful examination of those records indicates that Dr Zimin did not consider the failed promotion as significant as Comcare submissions might suggest. It was one of, but by no means the, main factor nominated by Dr Zimin as causing his illness. While some variation in the accounts Dr Zimin gave in the early part of 2012, he consistently nominated bullying and harassment as the cause of his condition. In the claim form he nominated three things that made him unwell: bullying, ignoring his complaints about his conditions at work and discrimination, which include “promotion withholding”. In the follow-up email sent in late February 2012, Dr Zimin mentioned the promotion but as one of a number of factors that put him under “substantial pressure since March - April 2012”. Similarly in the accounts given to Dr Khan in the early part of 2012, the promotion, while mentioned, was not the focus of the history given by Dr Zimin about his “troubles at work”.
70. Dr Dinnen is of the opinion that Dr Zimin became progressively unwell throughout the course of 2011 and the main cause of his condition was his perception that he was marginalised and isolated within ARPANSA. He considered it relevant that during interview Dr Zimin made no mention of the promotion issue. In his final report Dr Khan was at pains to emphasise that despite having referred to the failed promotion in previous reports, in his opinion it was not the cause of Dr Zimin’s condition. He wrote that a series of traumatic incidents made Dr Zimin “feel marginalised and not respected”.
71. We find that the primary cause of Dr Zimin’s condition was his feeling that he was marginalised and isolated within ARPANSA and the breakdown of his relationship with Mr Dwyer. We agree with Drs Smith and Dinnen that had Dr Zimin been given what he believed to be meaningful work his condition might not have developed.
72. However the issue we are required to decide is whether given the events that transpired whether RAA 1 was an operative cause of his condition. Of the many slights and injustices, real and perceived, Dr Zimin was subjected to throughout 2011, that decision was neither pivotal nor the most significant. We are unable however to accept the claim made by Dr Zimin in these proceedings that it was no more than a disappointment, which he quickly put behind him. Nor do we accept that he had no expectation of being appointed to one of the two positions. The series of emails, which commenced shortly after the decision was announced, indicate that at that time Dr Zimin considered the matter serious enough to warrant corresponding at length with Mr Nasser and notifying him that he was considering making a formal complaint. At that time Dr Zimin apparently believed that the only plausible explanation for the decision to appoint people he believed were less able and qualified than himself and in the case of Mr Ward, “massively underqualified for the job” was a defect in the process and possibly race discrimination. He considered the fact that none of the members of the interview panel or the appointees were from a non-English speaking background “to be highly suspicious”.
73. The history indicates that following the feedback meeting with the CEO in June 2011 matters settled for a period. Dr Zimin wrote to the CEO that after their discussion about the composition of the panel he was satisfied that race had not infected the decision-making process. It seems that Dr Zimin left that meeting with the understanding that it was only a matter of time before he would be appointed to an EL2 specialist position. When that did not eventuate, Dr Zimin’s feelings of disquiet and agitation with the decision resurfaced. As Dr Khan’s first report reveals by January 2012, Dr Zimin had returned to his original belief that “com[ing] from Russia” might have been a factor in the decision not to appoint him.
74. It was argued for Dr Zimin that his decision to apply for promotion was in effect a “cry for help” and an attempt to have his position within ARPANSA recognised and be given meaningful work. This might be so. However the motivation for applying for the position is irrelevant to the assessment of whether the failed promotion was a stressor and a further example of what Dr Zimin perceived to be his marginalisation within ARPANSA.
75. We agree with Dr Khan that the series of incidents listed in his final report left Dr Zimin feeling marginalised and not respected in the office and taken together these contributed to his condition. We do not however share his opinion expressed in his most recent report that the promotion decision did not contribute to those feelings. Among other things it is inconsistent with Dr Khan’s earlier reports.
76. We find it more probable than not Dr Zimin’s condition was a result of the decision not to appoint him to the position of acting head of the Safety Analysis or Compliance and Enforcement sections.

Was the decision not to appoint Dr Zimin “reasonable” administrative action?

77. Dr Zimin contends that RAA 1 was not reasonable because he was the most qualified and experienced candidate and the most suited to the role(s). Comcare disagrees.
78. Determining whether RAA 1 was reasonable involves an objective assessment, taking into account the decision itself, the appointment process, and the circumstances surrounding the process.
79. As we understand the submission put for Dr Zimin, it is contended that the decision was unreasonable because he was more qualified than Messrs Scott and Ward. As evident from his CV, Dr Zimin holds impressive qualifications. He has extensive experience in the nuclear industry in both Australia and overseas. He has written extensively on nuclear safety and associated topics; his work has been published in reputable scientific journals. It can be inferred from this that his written work is highly regarded by his peers.
80. There is little material before us about the appointment exercise. We have not been provided with the selection criteria, the report of the selection panel or the details of the qualifications and experience of Messrs Ward and Scott, or indeed any of the other candidates who applied for the positions. Minds might differ on which candidate was the most suited for the advertised positions. That Dr Zimin is highly qualified and has significant experience does not mean he was the most meritorious candidate as measured against the selection criteria, or that the offending decision was unreasonable.
81. We are satisfied that the decision not to appoint Dr Zimin was a reasonable one.

Was the decision not to appoint Dr Zimin taken in a reasonable manner?

82. We understand Dr Zimin to contend that the impugned decision was not taken in a reasonable manner. Apart from the unsupported allegations made by Dr Zimin in the course of corresponding with Mr Nasser about the “serious defect in the selection process” and references to racial discrimination we have not been taken to any evidence to suggest that the decision was not taken in a reasonable manner.
83. We are satisfied that the decision not to appoint Dr Zimin was taken in a reasonable manner.

Summary

84. Employment was a substantial contributing factor to Dr Zimin’s adjustment disorder. That disorder was a result of multiple factors, including the decision made in May 2011 not to appoint him to head the Safety Analysis section and Compliance and Enforcement on an acting basis. That decision constitutes reasonable administrative action in respect of Dr Zimin’s employment and was taken in a reasonable manner. It follows that Dr Zimin did not suffer an injury within the meaning of the Act and therefore the decision under review must be affirmed.

I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton

..................[SGD]......................................................
Associate

Dated 27 May 2014

Date(s) of hearing	1, 2 and 3 April 2014
Counsel for the Applicant	John Mrsic
Solicitors for the Applicant	T D Kelly & Co Solicitors
Counsel for the Respondent	Ben Dube
Solicitors for the Respondent	Sparke Helmore