De Tarle and Comcare (Compensation) - [2021] AATA 94

De Tarle and Comcare (Compensation) [2021] AATA 94 (3 February 2021)
Division:GENERAL DIVISION
File Number(s): 2015/0316
Re:Benoit De Tarle
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Dr I Alexander, Senior Member
Date:3 February 2021
Place:Sydney

The decision under review is affirmed.
...................................[sgd].....................................
Dr I Alexander, Senior Member
Catchwords
WORKERS’ COMPENSATION – whether the Applicant’s employment contributed to, to a significant degree, to the aggravation of the Applicant’s pre-existing psychiatric condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7 and 14
Cases
Canute v Comcare (2006) 226 CLR 535
Military Rehabilitation and Compensation Commission v May [2016] 257 CLR 468
Re Whitlock and Comcare [2020] AATA 1353
Secondary Materials
AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Ed, 2014 (AMA Guides) at 18
REASONS FOR DECISION
Dr I Alexander, Senior Member
3 February 2021

Mr De Tarle was employed by the Australian Securities and Investment Commission (ASIC) from 10 May 2010 to 29 April 2013 as an ASIC 4 Analyst.
In an unsigned claim for compensation, dated 23 August 2013, Mr De Tarle claimed compensation for “[s]evere anxiety and depression” which was first noticed in April 2012. In the claim form, he noted that he had received medical treatment for a similar illness “[o]ngoing since 2006”. He alleged that claimed condition was due to “[b]ullying and harassment.”
In an unsigned covering letter, Mr De Tarle stated that:
“I have not as yet signed the claim form and do not authorise or consent to Comcare disclosing (or to ASIC and ASIC staff accessing) the information in this form until a satisfactory undertaking is made by ASIC and ASIC staff that they will not reveal any of my personal information or seek to force me to reveal any of my personal information in public, or to unrelated third parties.”
On 24 April 2014, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), Comcare denied liability for “aggravation of depressive disorder” and “aggravation of anxiety state”. In the letter to Mr De Tarle, the Comcare Delegate stated that “having regard to the available evidence, I am not satisfied your employment contributed to your condition to a significant degree.”
In a reviewable decision dated 24 November 2014, the Review Officer affirmed the determination dated 24 April 2014.
In these proceedings, Mr De Tarle who was represented by counsel, seeks review of this reviewable decision.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, the parties attended the hearing by video conference.
RELEVANT STATUTORY PROVISIONS
Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) provides that Comcare is liable to pay compensation in respect of an ‘injury suffered by an employee if the injury results in death, incapacity for work, or impairment’.
‘Injury’ is defined in subsection 5A(1) of the SRC Act to mean:
(a) a disease suffered by an employee;…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Tarle and Comcare (Compensation)

Details

AGLC: De Tarle and Comcare (Compensation) [2021] AATA 94
Case: [2021] AATA 94
Decision Date: 3 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr De Tarle against a decision by Comcare regarding his claim for workers' compensation. The central dispute revolved around whether Mr De Tarle's employment with ASIC had contributed to a significant degree to the aggravation of his pre-existing psychiatric condition. The Administrative Appeals Tribunal (AAT) was tasked with determining the definitive issues in the case.

The Tribunal was required to determine three key questions: first, whether Mr De Tarle suffered an aggravation of his pre-existing psychiatric condition during his employment with ASIC; second, if so, whether this aggravation was contributed to, to a significant degree, by his employment; and third, if both the preceding questions were answered affirmatively, whether the aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment.

In its reasoning, the Tribunal considered the evidence presented, including Mr De Tarle's own statements and medical records, as well as expert opinions. The Tribunal noted that Mr De Tarle believed he was "problem free" prior to his ASIC employment and that his condition worsened due to his work. However, the Tribunal also acknowledged evidence suggesting Mr De Tarle had suffered from severe chronic major depression and a comorbid personality disorder for over fourteen years, with recurrent episodes and antidepressant medication use predating his ASIC employment. The Tribunal found that while Mr De Tarle did experience an increase in depressive symptoms during his employment, and that his personality disorder significantly impacted his work performance and relationships, it was not satisfied that his employment contributed to a significant degree to the aggravation of his pre-existing psychiatric condition. The Tribunal applied principles from cases such as *Military Rehabilitation and Compensation Commission v May* and *Re Whitlock and Comcare*, emphasizing the need for evidence of a discernible or diagnosable physiological or psychiatric change to constitute an "aggravation" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).

The Tribunal concluded that while there was evidence of a change in Mr De Tarle's mental health, specifically an increase in depressive symptoms, it was not satisfied that this change constituted an aggravation of his pre-existing psychiatric condition that was contributed to, to a significant degree, by his employment. Consequently, the decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Therefore, the definitive issues before the Tribunal are: i)during the period of his employment with ASIC, did Mr De Tarle suffer an aggravation of his pre-existing psychiatric condition; and, if so ii)was the aggravation of his pre-existing psychiatric condition contributed to, to a significant degree, by Mr De Tarle’s employment; and, if soiii)was the aggravation of his pre-existing psychiatric condition suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mr De Tarle’s employment with ASIC. DOCUMETARY EVIDENCEMr De Tarle’s written statement In a written statement, dated 21 February 2019, Mr De Tarle stated, inter alia, as follows with emphasis added:Prior to my beginning employment at ASIC I was free of any medical condition which could impact my work at ASIC. This was confirmed to my former employer on 30 April 2010 in response to the question on the Commencement Form “Do you have any pre-existing injuries /medical condition(s) that may impact on the work you do at ASIC?” A copy of this form was provided to the respondent on 24 July 2014 as part of my request for review and detailed in a letter… which however was not included in the T documents[1] and which seems to have also been missed by the respondent… Prior to my employment at ASIC and for a period of time at ASIC I was fully functional, organised, reactive and confident… As the regulator, I believed ASIC would contain and offer an environment which was principled, hardworking, and progressive, and because it was a regulator highly ethical. While sometimes this was true, it was also sometimes untrue. Whilst at ASIC I also heard employees swearing and intimidating other employees, stories of sexual harassment, absenteeism, bragging of drug taking, bragging of undermining colleagues… ridiculing areas of finance which was considered inferior…There were certainly many problems in the team I was in and have provided much evidence to the respondent …My medical records also show a clear and direct correlation between issues of concern I raised and escalated, was subjected to, or for which I sought help, during my time at ASIC. Prior to starting, I was on a very low dose of anti-depressant[2], a fully functioning person, and in the early months of my time at ASIC had even discussed my coming off medication completely. This is referenced… It seems however the respondent seems unsatisfied… Several psychiatrists however have attested to my employment at ASIC being the cause of my illness which unfortunately continues. What is clear that my attempts to resolve these issues either personally and informally or through the different processes and procedures available could not be successful. As it turns out such procedures were simply tokenistic. As time and events progressed I was subjected to a deliberate, repetitive and prolonged bullying, coercion and even threats of loss of employment for unspecific matters… My requests for evidence of the alleged claims of poor performance were ignored or described in very vague assertions.I was told all I had to do to improve my performance was to adhere to performance improvement plan. Part of that adherence was signing the plan so that I would recognise the areas I needed to improve…I was concerned that if I signed the plan then ASIC would use this as some sort of confession that my complaints of bullying and unreasonable behaviour were baseless…The more I tried to reason with ASIC the more the agency became aggressive in its demands and assertions. I was treated with distain [sic], and painted as being a troublemaker for not “cooperating”. In the last few months I was subject to almost daily coercion by instant messaging, phone calls and in meetings… Throughout this time I attempted to maintain an appearance of normality, a professional attitude and continue my work diligently despite constant humiliation, offence, intimidation and distress these events were causing . For days, weeks and months I resisted the completely unreasonable behaviour of the agency. However, I also started taking regular time off work from December 2012 something which had been extremely rare for me to do during my entire working life… [1] Section 37 Documents (T-Documents) Vol.1 – T8 page 25 – Commencement form dated 3/4 /10 – Do you have any pre-existing injuries / medical condition(s) - NO.[2] Summons Documents (Sydney Medical & Dental Care): Dr Choy -17 August 2010 - prescription for Aropax (tablets) 20mg take 2 tablets, 1 times a day – Aropax (paroxetine) is an SSRI antidepressant, maximum dose 40 mg per day.

Decision

Reasons for decision

Dr McClure’s opinions appear to have been influenced by unreliable information and an unsound process of reasoning which is often referred to as the post hoc ergo propter hoc (after this, therefore because of this) or post hoc logical fallacy. In that respect, it is a fallacy to conclude that one event followed by a second necessarily demonstrates a causal relationship between the events.[58] Therefore, I have placed less weight on his evidence in respect of the contribution that Mr De Tarle’s change in his mental health arose because of his employment with ASIC. [58] AMA Guides to the Evaluation of Disease and Injury Causation, 2nd Ed, 2014 (AMA Guides) at 18.CONCLUSION I am satisfied that the evidence before the Tribunal points to a conclusion that during his employment with ASIC, Mr De Tarle did suffer a change in his mental health, in that he suffered an increase in his depressive symptoms. The issue for the Tribunal is, whether this change in Mr De Tarle’s mental health was an aggravation of his pre-existing psychiatric condition and, if so, whether the aggravation was contributed to, to a significant degree, by his employment. In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), the High Court noted the Full Court’s conclusion that “the inquiry demanded by the statutory definition of "injury" was "whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind". The High Court further noted in May, however, that this conclusion should be rejected to the extent that such a conclusion suggests that symptoms subjectively experienced by an individual, without “accompanying physiological or psychiatric change” will not engage section 14 of the SRC Act. In Re Whitlock and Comcare [2020] AATA 1353, the Tribunal took into consideration the High Court’s judgments in May and Canute v Comcare (2006) 226 CLR 535, and applied them to the “aggravation” provisions within sections 5A and 5B of the SRC Act. The Tribunal concluded as follows at [196]-[197]: The evidence must demonstrate that, in addition to symptoms or pain experienced by the employee, there is a discernible or diagnosable physiological or psychiatric change to the employee’s body or psyche. Accordingly, in the circumstances of this case, in the circumstances of this case, the Tribunal must be satisfied that there is evidence that there was a physiological or psychiatric change to the Applicant’s pre-existing condition in order for there to have been an ‘aggravation’ of an ailment for the purposes of the SRC Act. The available evidence, in my view, supports a conclusion that Mr De Tarle’s co-morbid personality disorder had a significant impact on his performance issues at work and the difficult relationships he had with his senior managers. I accept that this may have contributed to some degree to an increase in his depressive symptoms during 2012 and 2013.

Ratio Decidendi

Legal Principle Established

When Dr McClure was asked whether he had any basis for asserting that Mr De Tarle’s supervisors observed his increasingly fragile mental state, he conceded that “I don’t have evidence that they did, no, and I don’t have evidence that his behaviour or his manner changed over time.” CONSIDERATION It is clear from the evidence before the Tribunal that Mr De Tarle has suffered severe chronic major depression complicated by a comorbid personality disorder for more than fourteen years. During that time, he appears to have suffered recurrent episodes with increased symptoms of depression including two aborted suicide attempts and one episode of threatened suicide. Mr De Tarle has been on various doses of antidepressant medication since 2004 and currently continues on a maximum dose of sertraline. However, during this time he has had limited psychotherapy. Mr De Tarle contends that, during his employment with ASIC, he suffered an aggravation of his pre-existing psychiatric condition that was contributed to, to a significant degree by his employment. This contention appears to be based on a firm belief that, prior to his employment at ASIC, he was “problem free” and that the circumstances he experienced at ASIC caused his psychiatric condition to get worse. This belief is demonstrated in his written statement, dated 21 February 2019, where Mr De Tarle stated that “prior to my beginning employment at ASIC I was free of any medical condition which could impact my work at ASIC”. He supports his claim by his own response, of ticking “no” to the question as to whether he had any “pre-existing injuries or medical condition(s)” in the ASIC Commencement Form. Arguably, his failure to declare that he suffered from depression and was on, and had been for some time, on antidepressant medication, could be seen as “wilful and false representation” as per Section 7(7) of the SRC Act. However, as this has not been addressed by either party, for present purposes, I will not consider this any further. Mr De Tarle’s belief was also demonstrated by Dr Bell. In his review of 5 August 2019, where he noted Mr De Tarle “does not believe he has any pre workplace issues”. During his employment at ASIC, it appears that Mr De Tarle was having problems with his managers and his work performance from the probation period until his dismissal and resignation. It appears that he had a perception of his own abilities and performance which was not always shared by others. This pattern of difficulty was similar to his described experience with previous employers. It is clear from the available evidence that Mr De Tarle was unhappy with his performance ratings and disputed the need for performance management, despite considerable effort by ASIC senior management to provide support and assistance. Mr De Tarle’s method of dealings with his problems was to complain, make allegations and find fault with the approach taken by ASIC senior management which resulted in a large amount time and effort being spent with email correspondence, reports and investigations, with an overall disappointing outcome.