Italiano and Commonwealth Bank of Australia (Compensation)

This matter concerned a review of determinations made by the Commonwealth Bank of Australia regarding the entitlement of the applicant, Ms. Italiano, to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The applicant claimed to have suffered a physical injury to her back and shoulder, as well as a psychological injury in the form of depression, as a result of an incident at her workplace on 18 December 2018. The Senior Member, Dr. Damien Cremean, was required to determine whether the applicant had suffered an injury compensable under the SRC Act.

The central legal issues before the Tribunal were whether the applicant had sustained an injury, and if so, whether that injury was contributed to, to a significant degree, by her employment. The definition of "disease" under section 5B of the SRC Act, which includes an ailment or its aggravation contributed to by employment to a "substantially more than material" degree, was central to this determination. The Tribunal also had to consider the applicant's claim for psychological injury, specifically depression.

The Tribunal's reasoning focused on the balance of probabilities. Dr. Cremean accepted the applicant's evidence regarding the physical incident, finding that it was more likely than not that she sustained a musculo-ligamentous strain to her left shoulder and arm when attempting to open a heavy security door at work. The Tribunal found the applicant to be a credible witness, noting that her assertive resistance to cross-examination did not detract from her veracity and, in fact, strengthened it. However, the Tribunal was not satisfied on the evidence that the applicant had suffered depression, and therefore affirmed the decision under review in relation to that claim.

Consequently, in matter 2019/3355, the Tribunal set aside the decision under review and substituted a decision that the Respondent is liable to pay compensation under section 14 of the SRC Act in respect of the applicant’s left shoulder and arm condition, and for lawful expenses. This matter was remitted for reconsideration. In matter 2020/2189, the Tribunal affirmed the decision under review concerning the claim for depression.