Jones and Comcare (Compensation)
[2023] AATA 2476
•30 June 2023
Jones and Comcare (Compensation) [2023] AATA 2476 (30 June 2023)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2019/1961 General Division ) Re: Philip Jones
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Senior Member Damien O’Donovan
DATE OF CORRIGENDUM: 10 July 2023
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
1.Delete ‘During August 2017’ from paragraph 3 and replace with ‘During October 2017’.
2.Delete ‘September 2017’ from paragraph 60 and replace with ‘October 2017’.
3.Delete ‘March 2017’ from paragraph 75 and replace with ‘March 2018’.
4.Delete ‘In her report’ from paragraph 87 and replace with ‘In his report’.
5.Delete the references to Dr Adesanya as ‘She’ from paragraph 90 and replace with ‘He’.
6.Delete the references to Dr Adesanya as ‘She’, ‘she’ and ‘her’ from paragraph 108 and replace with ‘He’, ‘he’ and ‘his’.
……………………[sgd]…………………
Senior Member Damien O’DonovanAdministrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2019/1961 General Division ) Re: Philip Jones
Applicant
And: Comcare
RespondentDIRECTION
TRIBUNAL: Senior Member Damien O’Donovan
DATE OF CORRIGENDUM: 3 July 2023
PLACE: Canberra
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.
1.The reference to ‘The respondent answered…’ in paragraph 153 be deleted and replaced with ‘The applicant answered…’.
..................................[sgd].................................
Senior Member Damien O’Donovan
Division:GENERAL DIVISION
File Number(s): 2019/1961
Re:Philip Jones
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member O'Donovan
Date:30 June 2023
Place:Canberra
The decision under review dated 26 February 2019 is set aside and in substitution it is decided that the respondent is liable to pay compensation in accordance with the SRC Act in respect of the psychological ailment suffered by the applicant – being an adjustment disorder with features of anxiety and depression – which resulted in incapacity for work and the need for medical treatment in the period from 15 August 2017 to approximately 1 August 2018.
....................................[sgd]....................................
Senior Member O'Donovan
CATCHWORDS
WORKERS' COMPENSATION - initial liability - employee suffered stress reaction to new work system - whether reaction outside bounds of normal mental functioning - whether precipitating events constitute employment - whether employment contributed to a significant degree - whether liability excluded by a wilful and false representation - whether any of the precipitating events reasonable administrative action - denial of liability set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 s 4(1), 5B, 7(7)
CASES
Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219
Comcare v Mooi (1996) 69 FCR 439
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Linfox Australia Pty Ltd v O'Loughlin [2018] FCAFC 173National Australia Bank Limited v Georgoulas [2013] FCA 1412
REASONS FOR DECISION
Senior Member O'Donovan
30 June 2023
Towards the end of 2016 the Department of Human Services (DHS) changed its help desk arrangements for dealing with IT problems. The changes had an impact on the work of the Mainframe Infrastructure Team of which the applicant, Mr Jones, was a member. At the time, management did not consider that it was making a significant change to the work that it expected of Mr Jones or his team. However, as the system was rolled out during 2017 the applicant developed serious concerns about the safety and efficacy of the system and began to campaign against it.
Initially this resulted in him being advised by his supervisor that he was not expected to participate in the new system and could return to exclusively performing the system management and advice role which he had been performing prior to the change to help desk arrangements. Through the second half of 2017, despite not having to perform the new duties himself, the applicant continued to be troubled by the ongoing implementation of the system and was particularly disturbed when he heard colleagues in his team taking telephone calls in accordance with the new system. This prompted Mr Jones to raise further complaints with management and eventually resulted in the applicant becoming a union delegate and beginning a campaign against the new system and taking on the role of health and safety officer in his branch.
During August 2017, management took Mr Jones’ team off the help desk roster. This happened because it became apparent that they were the only team fielding calls under the new system, which was not what had been intended. By this time Mr Jones had already submitted a Notice of Injury (which he had done on 29 August 2017) in relation to his psychological reaction to the new system.[1]
[1] T11 p 43.
Again, this further action by management did not resolve Mr Jones’ concerns and his interactions with management only served to aggravate him. Mr Jones became convinced that management were being dishonest in their dealings with him and the union, and by the start of 2018 he earnestly believed he was performing the role of a whistle blower.
On 19 January 2018 the applicant submitted a claim for compensation. He identified 9 August 2017 as the last straw which led him to suffer a ‘work related stress illness’.
Throughout the course of 2018 the applicant’s mental health deteriorated culminating in an attendance at Canberra Hospital with ‘dizziness and palpitations’.
Comcare rejected the claim on 26 September 2018 and made a reviewable decision affirming that decision on 26 February 2019.
The respondent applied to the Tribunal 9 April 2019. The matter progressed slowly through the Tribunal and Mr Jones ended up representing himself. Mr Jones was very keen to use the Tribunal processes to test and potentially vindicate his suspicions about the level of candour which management at DHS had displayed in their dealings with him. Given that the Commonwealth compensation scheme does not require an applicant to establish fault or wrongdoing on the part of their employer, this meant that Mr Jones was often focussing attention on matters which were not relevant to the questions which the Tribunal has to consider. At hearing though it became reasonably clear that at some point Mr Jones became very angry with his employer and eventually became unwell. There was a connection between that unwellness and what was happening in the workplace. However, it was less clear whether it was Mr Jones’ employment that was causal in the deterioration of his health or the other roles which he had assumed in the workplace which led to him suffering psychologically. Determining the claim thus requires a close analysis of what was occurring in the workplace at various times, what role Mr Jones was performing at the time and what the evidence establishes was happening to Mr Jones’ health.
There are number of issues to be determined.
First, whether Mr Jones suffered a condition outside the boundaries of normal mental functioning and behaviour such as to constitute an 'ailment' for the purposes of s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). If he did, it is necessary to identify when this occurred and what was the cause of it.
If the applicant's condition did amount to an ailment, the next question which arises is whether any ailment was contributed to, to a significant degree, by Mr Jones' employment with the Commonwealth so as to constitute a 'disease' for the purposes of section 5B of the SRC Act. The determination of this question requires a close analysis of whether the causative incidents formed part of the applicant's employment or are outside of his employment because of the weak or non-existent relationship between the applicant's duties and the activities in which he engaged.
If the applicant's condition did satisfy the primary criteria for a disease, the next question is whether the disease is nonetheless not compensable because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment.
Finally, if all of those questions are answered favourably to the applicant, I must consider whether section 7(7) of the SRC Act operates to exclude liability for any injury. The 7(7) exclusion operates when a person has at any time for purposes connected with their employment made a wilful and false representation that they did not suffer or had not previously suffered from a disease.
Evidence
The following material was taken into evidence:
(a)The ‘T-Docs’, paginated 1-350 (Exhibit 1);
(b)The ‘ST-Docs’, paginated 1-228 (Exhibit 2);
(c)The parties’ agreed Tender Bundle, pages 1-179 (Exhibit 3);
(d)The applicant’s bundle of relevant documents, pages 1-459 (Exhibit 4);
(e)The applicant’s supplementary bundle of documents, pages 1-13 (Exhibit 5);
(f)The applicant’s bundle of additional documents filed 31 July 2022 (Exhibit 6);
(g)A witness statement of Ms Peta Hawkesbury dated (Exhibit 7);
(h)The relevant summonsed documents from Services Australia (Exhibit 8);
(i)The relevant summonsed documents from Carfi (Exhibit 9); and
(j)The report of Ms Kym Robinson dated 27 July 2022 (Exhibit 10).
The following witnesses were called to give evidence and were cross-examined:
(k)Phil Jones;
(l)Peter Cottrell;
(m)Dr Luke Murphy;
(n)Dr Thanh Trinh; and
(o)Peta Hawkesby.
On the medical side, psychiatrist Dr Murphy appeared and was cross examined at length by Mr Jones. Mr Jones’ GP Dr Trinh also appeared and was cross examined.
Mr Jones gave evidence about the development of his psychological condition. He did his best to give an account of his subjective state of mind at various points in time during 2017 and 2018. While I do not doubt he was doing his very best to tell the truth, it is not an easy thing to recall the exact nature of one’s emotional state several years prior at a particular point in time. For that reason, to the extent that there is variation in the description given about Mr Jones’ emotional state in contemporaneous medical records and Mr Jones’ evidence on the subject, I have generally preferred the contemporaneous medical records.
Facts
The following represent my findings of fact. To the extent that they are controversial I have referenced the evidence on which they are based.
Mr Jones was born on 4 July 1952 and grew up in Australia.
He has worked most of his adult life in mainframe computing.
In terms of his mental health, he had sporadic history of depression associated with the ending of his marriage and a difficult period of employment, but prior to his work for the Commonwealth had never been referred to a psychiatrist.
In 2011 the applicant accepted a job in Canberra working for the Department of Human Services. From February 2015 the applicant worked in the Mainframe Infrastructure Team.
The work required the applicant to be on an on-call roster which was disruptive to the applicant’s sleep. Eventually the applicant was prescribed temazepam to help with this sleep disturbance.[2] However, over time the applicant felt that the on-call roster was not working fairly. The roster moved from an on-call group of more than 15 with 3 or 4 staff available at a time, to only one person being on-call. The applicant decided that he was ‘not going to do it’ when the roster moved to him being on it one week in four. In his evidence Mr Jones said that he ‘removed himself from the roster’ although strictly speaking that is not what occurred.[3] The applicant actually attended his GP and obtained a medical certificate indicating that he was unfit for the work, and it was on this basis that he was removed from the roster. His supervisor Peter Cottrell was supplied with a medical certificate which stated that Mr Jones was not fit to engage in on call duties for the following 12 months.[4] Mr Jones however is adamant that he was exasperated with the roster and staffing levels rather than psychologically unfit for work.[5]
[2] ST25 p 136.
[3] Transcript p 25.
[4] See T46 p 179 and ST1 p 20.
[5] See applicant’s Submission on Reasonable Administrative Action (RAA) and the Carfi EIAP Report at paragraph 14.
This reveals that Mr Jones was both willing and able to obtain medical certificates to deal with issues which were not strictly speaking medical.
The events which led to the applicant’s workers compensation claim have their origin in decisions made prior to the start of 2016. At the end of November 2016, the Department began a trial of the system for handling queries from internal users of its IT system. It was called the Infrastructure Urgent Escalation Channel (IUEC). In broad terms the new system altered what had previously been a help desk model where staff could ring in and have their IT problems solved, to a system whereby problems were logged and triaged. The effect of the introduction of the system was that senior people in the Service Operations Branch, like the applicant, were required to answer help desk type calls and log them rather than solve them. This was new work for people like the applicant who was a technical expert who worked on bigger problems which required deeper concentration.
After announcing the start of a trial of the system in November 2016 the system was withdrawn in mid-December 2016.[6] There is no suggestion that at this point in time Mr Jones’ became unwell (although he did have significant concerns about the system).
[6] T17 p 55.
In the first quarter of 2017 the applicant’s mental health appears to have been unremarkable. However, in April 2017 the applicant became concerned about erectile disfunction which did not have an organic cause. In April 2017 the applicant’s GP prepared a mental health care plan and he began seeing a therapist Kym Robinson. There is nothing to suggest at this point that Mr Jones was suffering from any other mental health problems.
In late June 2017 the IUEC system was re-introduced.
The perceived issues with the system are set out in statements by Mr Jones’ co-workers. One of Mr Jones’ co-workers, David Savage recalls the system in this way:
My team (Scheduling) had been directed to monitor and take incoming calls through the Infrastructure Urgent Escalation channel (IUEC). I remember being instructed by Peter Cottrell to do so…We were given access to the relevant systems and head phones, but no training or documentation. I myself had never really worked on a help desk previously and found it quite intimidating.
I would dread coming in and logging on and wait for the inevitable calls from generally unhappy people. They expected that I would be able to rectify their problems. The problem was, we were told, you only have to log their problems, not solve them.[7]
[7] Exhibit 3 p 1.
Soon after the re-launch of the system the applicant identified specific problems with the system and complained to Rojith Mendoza with his direct supervisor, Mr Cottrell. The problem identified was fixed but Mr Jones’ more general concern about the system ultimately being a system for logging problems rather than solving problems remained, as did his concerns about the adequacy of training and management’s approach to documenting the calls.
Unfortunately, Mr Jones’ complaints were understood by management to be about aggressive phone calls and so the recommended response from management was to instruct the people answering the calls to advise angry callers about the risk of a breach of the Code of Conduct. This did not address the more fundamental issues raised by Mr Jones.
Between July and August 2017, the applicant took quite a few calls using the new system and he could hear other team members taking the calls. He assisted people as best he could, but he found the calls draining and outside his expertise.[8]
[8] Transcript p 33.
He and others had complaints about the system. The applicant claims that he was instructed not to put his complaints in writing. This is denied by his supervisor, but for present purposes I am prepared to accept that management was unreceptive to the applicant’s complaints and had a preference that complaints be dealt with informally.
On 9 August 2017 the applicant had to deal with a call from a Department of Veterans Affairs employee who needed IT support for a prison visit to assist a veteran.[9] She was hopeful of getting her remote connection system fixed before the visit. The applicant, to use his words, had to 'bullshit' her and say that it would be looked after when he had no confidence that it would. The applicant found this particularly distasteful as he strongly identified with veterans who had ended up in prison.[10]
[9] Exhibit 4 p 45.
[10] His emotional attachment arose from the applicant’s involvement in his youth with motorcycle riding and associating with Vietnam veterans in that context.
Between 9 August 2016 and 15 August 2016, the applicant got angrier and angrier about the system. He had dental work done on 14 August 2016 and attended his GP on 15 August 2017.
The GP note records the following:
Reason for contact:
Depression
The notes also record that the applicant was prescribed Effexor, an anti-depressant.
Dr Trinh prepared a GP Management Plan. That document records:
65 year old man with depression on the background of HT [hypertension], hypercholesterolaemia and haemochromatosis with heterozygous mutation. He requires ongoing counselling/CBT in addition with Effexor. He may require psychiatric review if his depression does not improve with current treatment.[11]
[11] ST8 p 92.
On the same day the applicant filled a script for venlafaxine (also known as Effexor).[12] He continued to fill scripts until 21 December 2017.[13]
[12] ST36 p 184.
[13] ST36 p 185.
Dr Trinh also took the unusual step of providing the applicant with two medical certificates. One that certified him unfit for work for two days,[14] the other which certified him unfit for two weeks.[15]
[14] ST37 p 189.
[15] ST37 p 188.
The applicant in his evidence says he told his GP that he ‘thought he was heading for trouble’ and said to him he thought he needed anti-depressants. He received two medical certificates for varying periods. His explanation for receiving the two certificates was that he wanted to start on his medication and see what time off work he needed after that.[16] After the consultation he commenced taking the anti-depressants.
[16] Transcript p 37.
The respondent points out that there is nothing in Dr Trinh’s notes to connect the depression which was diagnosed with the applicant’s work. The applicant’s evidence on this question is however clear and is corroborated by contemporaneous documents. What disturbed him was the introduction of the IUEC system. He has a diary entry which refers to the DVA prison visit call, a diary entry which records ‘recommendation for anti-depressants, because of stress related primarily to GENESYS (an alternative term for the IUEC system)’,[17] and a record of a discussion with his supervisor Peter Cottrell which states:[18]
“boiling live frog” with phone support supplying heat, especially problematic last week before I was off, script for anti-depressants and unexpected service/certificate, permission to temporarily avoid phone support (else risk of further time off).
[17] Exhibit 4 p 46.
[18] Exhibit 4 p 48.
It has not been suggested that any of this material was fabricated.
The applicant stayed away from work for 2 weeks. He used the time to work out what to do about the new system. When asked by the Tribunal about his mental state at the time, the applicant described his mental state as ‘incandescent rage’. He used the same phrase when describing his symptoms to his medico-legal psychiatrist Dr Smith.[19]
[19] T64 p 259.
When asked by the Tribunal whether he had symptoms of a depressive illness he described his emotional state in 2017 as quite different from the episode of depression he had had previously when his marriage broke down. He described his mental state in August 2017 as ‘ropable – angry’. He was worried that if he returned to work, he would blow his top with more senior management.
During this period of leave the applicant contacted the CPSU and discussed the problems with the new system with Alison Sexton-Green.
On 30 October 2017, when reporting on his mental health as at August 2017 for the purposes of an Early Intervention Rehabilitation Assessment, the applicant described himself as commencing ‘antidepressant medication to reduce symptoms of insomnia, tension and anger’.[20] I am satisfied that the applicant in August 2017 was experiencing symptoms of inappropriate rage, insomnia and anxiety.[21]
[20] ST11 p 100.
[21] See also reports of Dr Smith and Dr Adesanya as well as Transcript p 38.
When he returned to work the applicant submitted an incident report on 29 August 2017. The report describes a psychological injury suffered on 15 August 2017 (presumably when he first sought medical treatment).[22] The incident report states that the injury sustained was ‘work related stress’ and that the applicant’s ‘emotional health’ was affected. In the section asking about the mechanism the applicant wrote:
By being instructed to take calls from Infrastructure Urgent Escalation Channel without adequate training or support.
[22] T11 p 42.
The applicant indicated that he had taken 9 days off work as a result and had informed his occupational health and safety representative.
There was around this time some discussion between the applicant’s supervisor, Peter Cottrell, and the applicant. Mr Cottrell decided that Mr Jones should not undertake phone duties and he and Mr Jones agreed that he would cease performing those duties.
The Department’s Human Resources Team subsequently recorded on the incident report that:
… EMP is currently not undertaking phone duties as per an agreement between themselves [sic]. EMP also not undertaking on call duties due to previous medical evidence supplied in 2016 related to stress. EMP contacted who advised that he had lodged a Notice of Dispute through the CPSU and he would like to follow this path of action in relation to this issue rather than through the workplace health channel. I advised EMP that I understood he had accessed 2 weks [sic] leave related to Stress and that he was now undertaking modified duties, not undertaking phone duties.
Accordingly, by the end of August 2017 the applicant ceased to perform duties related to the IUEC.
The applicant’s anger at the introduction of the IUEC however did not dissipate. Hearing calls being taken by others in his team became a source of irritation.
By 29 August 2017 the applicant had already determined to become a CPSU representative and pursue a formal dispute with his employer.
On 4 September 2017 the CPSU notified DHS of a formal dispute concerning the rollout of the IUEC. Mr Jones forwarded the CPSU’s email and advised colleagues that ‘it’s on’.
On the same day the applicant was contacted by Peta Hawkesby from HR Support in relation to his injury report. The applicant advised that:
…the HR Incident is directly related to a Notice of Dispute that has just been sent by the CPSU to my NM [National Manager] (Brynten Taylor).
In response Ms Hawkesby responded:
…I spoke to Peter Cotterill who advised it was in relation to phone duties and the recent medical certificate you have supplied for the personal leave recently accessed. I understand that you are now on modified duties, not undertaking phone duties. My involvement would be working with you and your Dr in regards to this. Should this be a permanent restriction we may need to obtain further and detailed medical evidence to support this reasonable adjustment. Please let me know if you would like to discuss further support and I can give you a call.[23]
[23] T12 p 44.
The applicant responded saying ‘I think that we’re taking the most appropriate action by raising the formal dispute with CPSU involvement. Can you just hold on for a moment?’
Ms Hawkesby responded indicating that she would finalise the incident report at her end and asked the applicant that if he needed any support in the future, he should not hesitate to contact her team.
In early September 2017 all members of the applicant’s team and those within the immediate vicinity of Mr Jones were told they no longer needed to participate in the IUEC system.
On 29 September 2017 the applicant attended Dr Trinh in relation to a sinus infection.[24] He also is recorded as reporting ‘stress – work-related – meeting with Director of HR next Tuesday, poor sleep- counselling’.
[24] ST1 p16.
On 3 October 2017 the applicant attended a meeting with the Division Head, Brynten Taylor, Ms Sexton-Green from the CPSU and Mr Williamson. At this point in time the applicant was a member of the CPSU. The notes of the meeting make it clear that the applicant attended the meeting as a staff delegate rather than in his capacity as an employee.[25] The issues raised with management at the meeting were specifically industrial - in particular, whether there had been a breach of the Enterprise Agreement as a consequence of the introduction of the IUEC system without consultation.[26]
[25] Exhibit 4 p 138.
[26] Exhibit 4 p 138 and p 379 and following, read with T15 p 49.
The following day the applicant attended Dr Trinh again who recorded ‘Stress – persist, escalation of work issues not fit for work counselling encourage more formal counselling’. The applicant obtained a medical certificate,[27] and ceased attending work.[28]
[27] ST37 p 192.
[28] T8 p 37.
On 23 October 2017 the applicant was referred for an early intervention assessment by an organisation called Carfi. He met with Workplace Rehabilitation Consultant Ashleigh Schweinsberg on 30 October 2017 following a phone call on 26 October 2017. The applicant reported that he considered the introduction of the IUEC had been mishandled and poorly implemented due to lack of employee consultation, provision of training and lack of department wide education on the purpose of IUEC.[29]
[29] ST11 p 99.
Mr Jones reported experiencing psychological symptoms including:
·Inability to maintain sleep, resulting in a fatigue wall daily between 3.00pm and 4.00pm;
·Early hours rumination of workplace issues;
·Fixation on the situation of the workplace;
·Feeling shaky and unable to continue to ride his motorcycle to work; and
·Seeking confrontation with individuals involved in the change process.
Ms Schweinsberg also met with the applicant and Dr Trinh on 31 October 2017. She noted that Dr Trinh felt that Mr Jones was currently symptomatic with acute anxiety and stress, however had not provided a formal diagnosis due to the limited timeframe of symptom presentation. He felt that Mr Jones had ongoing symptoms of insomnia, elevated blood pressure, general anxiety and situational specific anger. He felt that the symptoms were caused by Mr Jones’ dispute with the workplace regarding the proposed extra duties. In Dr Trinh’s opinion, resolving the workplace issues relating to the extra duties would assist Mr Jones’ anxiety symptom to abate.
Mr Jones was certified unfit for work by Dr Trinh in the period 4 October 2017 to 13 October 2017.
He was certified medically fit to return to normal duty on Thursday 19 October 2017 with restrictions that he not take service desk calls or be in an audible distance of people taking these calls.
He was certified as fit to perform normal duties in normal working hours for the period 23 October 2017 to 23 November 2017.[30]
[30] ST 37 p 194.
On or about 30 October 2017 Mr Jones was elected as Health and Safety Representative (HSR) for the DHS Canberra Work Group 8.
On 2 November 2017 Ms Schweinsberg provided her report which noted that the duties concerning the IUEC had been removed from Mr Jones’ section until July 2018. I am satisfied that reflected the state of affairs at the time.[31]
[31] T17 p 60; Statement of David Savage, paragraph 5, Exhibit 3 p 2; Exhibit 4, p 157.
The applicant in his evidence described receiving this report as ‘devastating’.[32] However I am not satisfied that accurately describes his emotional reaction at the time. There is no evidence of deterioration of his condition or increased reports of symptoms to Dr Trinh. Dr Trinh’s notes of 24 November 2017 record ‘stable mood, not able to sleep thinking about work, tired and stressed – not happy with Carfi – the main issue is the faulty system – lack of training and structural support, not personal’.[33] Nor did his initial interactions with DHS staff such as Ms Hawkesby suggest any significant deterioration in the applicant’s mental state upon receipt of the report.[34]
[32] Transcript p 44.
[33] ST1 p 15.
[34] See for example email correspondence at Annexure A to Ms Hawkesby’s statement.
However, it is clear that the applicant became obsessed about the content of the report. When Ms Hawkesby contacted Mr Jones by way of Skype message on 11 December 2017, he indicated that he would not allow further contact with his GP until the ‘faults in the original report’ were addressed to his satisfaction.[35]
[35] T23.
He was certified unfit from Wednesday 15 November 2017 to Tuesday 21 November 2017 inclusive, then Monday 27 November 2017 to Friday 1 December 2017, then Monday 4 December to Friday 8 December 2017 inclusive.
He was certified fit to return to duties 4 hours a day, 3 days per week from 11 December 2017 to 21 December 2017. He remained on those restrictions until March 2017[36] and increased his hours to 4 hours per day, 5 days per week from 8 March 2018.
[36] ST 37 p 200.
The applicant ceased use of Effexor on 5 January 2018. Effexor was ceased following a visit to Dr Trinh where the applicant reported that he was ‘psychologically stable’ but had side effects from Effexor.[37]
[37] ST1 p 14.
On 12 January 2018, in the context of making a public interest disclosure under the Public Interest Disclosure Act 2013 (PID Act) on behalf of Mr Jones, BAL lawyers wrote to DHS indicating that Mr Jones’ symptoms were unlikely to dissipate until the IUEC problems were honestly addressed. The letter also included a number of complaints about Ms Schweinsberg’s report.
On 12 January 2018 the applicant lodged a claim for workers’ compensation. The claim identified 15 August 2017 as the date on which he first noticed that he was ill. The claim was for a “Work-related stress illness”. The event which led to the applicant’s illness was described as:
Instructions to take calls on the Infrastructure Urgent Escalation Channel without adequate training or support. Compounded by verbal directions to the effect that “Brynten (Taylor) doesn’t want to hear complaints, just shut up and get on with it”.
The ‘last straw’ was described as the call on 9 August 2017 where it was necessary to ‘explain why we#re not a Help Desk…no action after 6 hours!’.
The applicant also attended his therapist in January 2018 and advised her that he was ‘prepared for a fight’.[38]
[38] Tender bundle p 159.
On 22 January 2018 Dr Trinh referred Mr Jones to psychiatrist Dr Adesanya.
The referral letter described the reason for referral as follows:
Thank you for seeking Mr Philip Jones, a 65 year old gentleman with probably adjustment issues with depressive features due to work conflicts. I would be very grateful for your review and advice on further management.
Although the applicant said in his evidence that at this point he was at ‘crisis point’ and at that point ‘there was no let up of anger’ the documents are not consistent with that characterisation.[39] When attending his therapist in relation to erectile disfunction on 12 January 2018, the applicant gave a full account of developments at work including his Comcare claim, dealings with the union and his absence from work full time and part time. The therapist records:
Ball in their court w/ stringent legislation on response and time frame. Enjoying although stressful, prepared for fight. 20 days for response 1st + 90 days for resolution…Highly stressed at the moment. Half hour doing something then needs to lay down to rest…sleep much worse
[39] Transcript p 47.
On 30 January 2018 the applicant reported to Dr Trinh that he had sleep difficulty, was anxious and was unable to switch off due to an escalation of work issues.[40]
[40] ST1 p 13.
On 7 February 2018 the applicant reported to Dr Trinh that he had a high level of stress and was not able to sleep. He advised Dr Trinh that there were issues with his security clearance and releasing of confidential departmental information mixed up with medical issues.[41]
[41] ST1 p 12.
On 9 March 2018 the applicant attended psychiatrist Dr Adesanya. He is described in the consultation record as presenting:
…with about 12 months history of stress in the context of concerns about some health & safety and administration issues at work. Since 2017, Phil has been experiencing insomnia and reduced his work hours to part-time since around November 2017. Phil has compensated for the loss of income from his reduced work hours by using his accumulated sick leave. He has now run out of sick leave but increased his work hours to 20hrs per week to reduce the impact on his financial wellbeing – Phil has commenced the process of making a public interest disclosure about workplace issues of concern to him, and has employed a lawyer to assist with the process. He stopped feeling depressed since he chose to confront/fight the workplace issues from around November 2017…Phil presented as a middle-aged man of stated age who was not clinically anxious or depressed…He experiences anxiety in relation to the [health & safety] concerns, is not sleeping well at night and plans to pursue a workers compensation/Comcare claim regarding his work stress at a later date. Diagnosis: Adjustment disorder with anxiety.[42]
[42] ST 21 p 127.
In her report Dr Adesanya noted that ‘Phil presented as a middle-aged man of stated age who was not clinically anxious or depressed.[43] In the title line of the report the diagnosis is noted as “Adjustment disorder with anxiety’.[44]
[43] ST 22 p 129.
[44] ST 22 p 128.
On 22 March 2018 Mr Jones contacted Comcare’s work health and safety area to report an issue (AT119) regarding lack of consultation on the rollout of the IUEC. Following an investigation, the Comcare inspector was satisfied that the decision to implement the IUEC did not trigger a requirement to consult.
Dr Trinh certified Mr Jones as medically fit to return to work 4 hours per day 5 days per week from 11 April 2018.
On 10 April 2018 the applicant saw Dr Adesanya a second time. She noted that he continues to be stressed by his PID concerns and the delayed response to this by the Department of Human Services (DOH) internal processes. She noted that ‘Phil presented as anxious but not clinically depressed’.[45] Again, the noted diagnosis was ‘adjustment disorder with anxiety’. [46] The report issued on 10 April 2018 reflects this.[47]
[45] ST24 p 135.
[46] ST25 p 136.
[47] ST 25 p 136.
For May 2018 Dr Trinh certified Mr Jones fit for work on the basis of 4 hours per day 5 days per week.[48]
[48] T70 p 326.
On 11 May 2018 the public interest disclosure delegate wrote to Mr Jones advising that he had decided not to investigate his disclosure, because the information provided did not to any extent concern serious disclosable conduct.
Within an hour of hearing that news the applicant met with his local member of Parliament Gai Brodtman. Meeting with Ms Brodtman led to a panic attack about overstepping the boundary.[49]
[49] Transcript p 124.
On 12 May 2018 the applicant presented to the Emergency Department at the Canberra Hospital, stating that he was experiencing stress and anxiety. He was diagnosed with an ‘acute stress reaction’, and it was noted that this ‘on a background of recent stressors and anxiety’.[50] Two days later the applicant went to Dr Trinh and told him that he had an acute stress reaction in response to the refusal to investigate his Public Interest Disclosure and presented at the emergency department. Dr Trinh certified the applicant to work 4 hours per day 5 days per week during June 2018.[51]
[50] ST27 p 140.
[51] ST1 p 10.
On 26 June 2018 the applicant submitted a further claim for compensation. The date of injury was again identified as 15 August 2017, but more detail was given about the subsequent events which caused the applicant to suffer stress.[52]
[52] See T42 p 165-166.
Following this claim, Comcare booked the applicant in with psychiatrist Dr Murphy for assessment.
In correspondence with the Department the applicant stated:[53]
For the record: I continue to object to this ongoing apparent characterisation/treatment of me as someone in need of psychiatric evaluation when the fundamental problem is that I am trying to report potential misconduct via the Public Interest Disclosure Act. If my disclosure(s) could be addressed properly then the Comcare claim issues could well become moot.
[53] T43 p 167.
The applicant was assessed by Dr Murphy who prepared a report dated 13 September 2018 and found that the applicant did not meet the DSM criteria for any diagnosis including adjustment disorder. His view was that the applicant was locked in an industrial dispute which was causing him some mental health symptoms.[54]
[54] T54 p 222.
To this point the applicant remained employed 4 hours per day 5 days per week. His performance was assessed as fully effective. However, when the applicant received Dr Murphy’s report his symptoms worsened. He was distressed, emotional, not able to sleep and unable to switch off thinking about work issues. He was certified medically unfit for work and received more frequent and intense counselling from Dr Trinh. Dr Trinh however continued to certify him fit for 4 hours of work, 5 days per week.[55]
[55] T63.
His compensation claim was declined on 26 September 2018.
On 27 November 2018 the applicant saw psychiatrist Dr Glen Smith at the instigation of his then lawyers. Dr Smith diagnosed adjustment disorder with mixed anxiety and depressed mood.
Following a further submission from the applicant’s lawyers a reviewable decision affirmed the earlier determination to refuse liability on 26 February 2019.
Medical evidence
The medical evidence available to the Tribunal comes from four doctors – the applicant’s general practitioner Dr Trinh, and three psychiatrists, Dr Adesanya, Dr Smith and Dr Murphy.
Dr Trinh and Dr Murphy gave oral evidence and were the subject of cross-examination.
Dr Trinh was satisfied that by the time he saw the applicant in August 2017, he was suffering from a psychiatric condition, outside the bounds of normal functioning. His records indicate that he considered that the applicant was depressed and prescribed the anti-depressant Effexor.[56] Effexor is also used to treat anxiety. When Dr Trinh spoke to Ashleigh Schweinsberg from Carfi in November of 2017, it was the applicant’s anxiety symptoms and anger which were more prominent, and he identified the work dispute as the specific cause.
[56] ST1 p 17 and ST8 p 92 – noting that he was uncertain he had diagnosed depression when he gave his oral evidence.
In his oral evidence Dr Trinh suggested that he did not make a formal diagnosis, but both his consultation notes and the GP Management Plan that he prepared on the day indicate a firm diagnosis of depression. The fact he prescribed Effexor indicates he had a concluded view that the applicant had a psychiatric condition which needed to be treated.
No other doctor saw the applicant in this period.
Dr Adesanya did not see the applicant until 9 March 2018. When she did, she was satisfied that the applicant at that point was ‘not clinically anxious or depressed’.[57] She was satisfied that he experienced anxiety in relation to his workplace concerns, and was not sleeping well at night. She trialled medication for insomnia, advised his GP to consider referring him to a Clinical Psychologist for ongoing counselling and support. Both her notes and her letter state:[58]
Diagnosis: Adjustment disorder with anxiety.
[57] ST22 p 129.
[58] ST21 p 127; ST22 p 128.
Dr Murphy saw the applicant on 4 September 2018 at Comcare’s request. Dr Murphy was not convinced that the applicant was suffering from a medical condition outside the bounds of normal functioning, when he saw him. It is quite possible that is the case. However, in his oral evidence Dr Murphy accepted that the applicant’s presentation to the Canberra Hospital emergency department in May 2018 was indicative of a condition outside of the bounds of normal human functioning. In Dr Murphy’s mind, the fundamental cause of this disturbance was not the applicant’s employment. Dr Murphy speculated that the applicant’s condition may best be described as post-traumatic stress disorder related to childhood trauma, rather than an adjustment disorder.[59]
[59] Transcript p 214-215.
The applicant was seen by Dr Smith at his lawyer’s request on 27 November 2018. Dr Smith diagnosed the applicant as suffering from an ‘adjustment disorder with mixed anxiety and depressed mood’.[60] Dr Smith justified the diagnosis on the basis that the applicant described a development of marked anger and anxiety with associated panic symptoms and insomnia in the context of workplace difficulties throughout 2017, continuing through 2018. The symptoms were significant as evidenced by his occupational impairment, his presentation to the Canberra Hospital with panic symptoms, his need for a referral to a psychiatrist and his persistent anger and distress. He indicated that based on his examination, the preferable diagnosis was adjustment disorder with mixed anxiety and depressed mood, although major depressive disorder was a differential diagnosis.
[60] T64 p 265.
Consideration
As noted at the outset there are four issues to be determined in this matter.
First, whether Mr Jones suffered a condition outside the boundaries of normal mental functioning and behaviour such as to constitute an 'ailment' for the purposes of s 4(1) of the SRC Act. If he did, it is necessary to identify when this occurred and what was the cause of it.
If the applicant's condition did amount to an ailment, the next question which arises is whether any ailment was contributed to, to a significant degree, by Mr Jones' employment with the Commonwealth so as to constitute a 'disease' for the purposes of section 5B of the SRC Act. The determination of this question requires a close analysis of whether the causative incidents formed part of the applicant's employment or are outside of his employment because of the weak or non-existent relationship between the applicant's duties and the activities in which he engaged.
If the applicant's condition did satisfy the primary criteria for a disease, the next question is whether the disease is nonetheless not compensable because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment.
Finally, if all of those questions are answered favourably to the applicant, I must consider whether section 7(7) of the SRC Act operates to exclude liability for any injury. The 7(7) exclusion operates when a person has at any time for purposes connected with their employment made a wilful and false representation that they did not suffer or had not previously suffered from that disease.
Outside the boundaries of normal mental functioning
In Comcare v Mooi the Federal Court accepted that to establish the presence of an ailment where the condition complained of is a psychological one: [61]
…so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is…essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.
[61] (1996) 69 FCR 439.
In particular, behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, does not amount to a psychological ailment.
The respondent contends that the applicant never reached that threshold which is essential for any award of compensation.
I do not accept that contention. I am satisfied that the applicant, at least for a period from August 2017 was affected by a condition which was outside the boundaries of normal mental functioning.
Having seen the applicant give evidence he was clearly deeply affected by the introduction of the IUEC system. The degree to which he was affected is completely out of proportion to the significance of the change in work practices. As the evidence of Peter Cottrell made clear, the introduction of the system was not burdensome although it was undoubtedly irritating. From his perspective, no training was necessary. Mr Jones’ team was not required to provide a service. All that was required was that they answer the phone, take details, log the call and thank the person.
That was not Mr Jones’ experience of the calls. On his evidence, which I accept, he found it extremely distressing that he was forced to interact with people who he could not help personally, in circumstances where he knew that the service they were utilising was unlikely to provide solutions to them in a reasonable period.
Some dissatisfaction or disappointment in those circumstances is understandable. The incendiary rage that Mr Jones describes, and which resulted in him attending his GP, taking two weeks off work and commencing the use of an anti-depressant is not within the normal boundaries of mental functioning. It is not surprising that the applicant’s GP Dr Trinh diagnosed him as suffering from a mental illness and as a consequence, prepared a management plan and prescribed Effexor.
In those circumstances I am satisfied that the applicant was suffering from a mental ailment. Whether Dr Trinh was correct in his initial diagnosis of depression is unclear, but whether the applicant was suffering from depression or an adjustment disorder is unnecessary to determine. What is important is that he passed the threshold at that point and met the statutory definition of an ailment.
It would appear that the applicant’s use of Effexor managed his depressive symptoms for some of the period in which he was using it.
By November 2017, the applicant’s mood significantly improved and as Dr Adesanya records, ‘he stopped feeling depressed since he chose to confront/fight the workplace issues’.[62] However, he continued to report to Dr Trinh that he was suffering symptoms including anxiety. In late October 2017 Dr Trinh felt that Mr Jones had ongoing symptoms of insomnia, elevated blood pressure, general anxiety and situational specific anger.
[62] ST22 p 128.
Those symptoms remained acute enough to justify a referral to Dr Adesanya in January 2018. However, by March 2018 Dr Adesanya noted that the applicant presented as a man ‘who was not clinically anxious or depressed’. [63]
[63] ST22 p 129.
The applicant’s symptoms were subsequently aggravated when he approached his local member about the IUEC system and the work situation more generally, resulting in a visit to the emergency department with acute anxiety.
By the time the applicant saw Dr Murphy in September 2018 I am satisfied that the applicant’s symptoms had substantially resolved.[64] This is not to suggest that he did not remain angry about how the issues he had brought forward were handled, but it is difficult to conclude that his functioning was outside the bounds of normal mental functioning.
[64] T54 p 221.
There was clearly a subsequent aggravation of his symptoms as a result of receiving the report of Dr Murphy, which explains the conclusions reached by Dr Smith later that year. I do not need to resolve the question of whether that aggravation could be regarded as significantly contributed to by the applicant’s employment, for the purposes of determining the applicant’s current claim.
I am satisfied that from 15 August 2017 when the applicant saw Dr Trinh and was prescribed Effexor, until approximately the start of August 2018 when the applicant himself considered it inappropriate to treat him as suffering a psychological illness,[65] the applicant was suffering from an ailment outside the bounds of normal mental functioning.
[65] T43 p 167.
I am satisfied he was not exhibiting symptoms of a psychiatric illness by the time he was seen by Dr Murphy.
At that point in time the applicant was functioning very much in the range one would expect for a person in a serious dispute with their employer. He was very angry with the system that was being implemented and with the constant misunderstanding of his complaint about it by both management and his rehabilitation provider, and he was upset by what he regarded as dishonest behaviour by management. In the circumstances, there is nothing about the emotions he was displaying that could be regarded as abnormal.
Was Mr Jones’ ailment contributed to, to a significant degree, by his employment
Having reached the conclusion that the applicant’s psychological condition was triggered in August 2017 and did not resolve fully until June 2018, the question is whether Mr Jones’ ailment contributed to it, to a significant degree.
The High Court’s decision in Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626 (Federal Broom) remains the leading authority for determining the scope of the concept of employment in the workers’ compensation context. Although the size of the necessary contribution has been increased by the Parliament over time from employment being a mere ‘contributing factor’ to contributing to a ‘material degree’, and since 2007 to a ‘significant degree’, what workplace events and conditions can be characterised as within the concept of ‘employment’ has not changed.
The most commonly cited passages from Federal Broom are from Justice Kitto and Justice Windeyer. Justice Kitto in responding to a view expressed by Justice Else-Mitchell in the Court below, who had suggested that the expression ‘employment’ should be cast in very narrow terms said:
The second ground [advanced by Justice Else-Mitchell] treats the word “employment” in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.
On the concept of ‘employment’, Justice Windeyer had the following to say:
When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.
In Mr Jones’ case the implementation of the IUEC was part of his duties as an employee. In the period where he was required to implement the system there cannot be any doubt that implementation formed part of his employment. In the period where he was removed from the roster but members of his team continued to perform duties involving the IUEC, I am satisfied that it was a state of affairs to which he was exposed in the performance of his duties. It is these events which triggered his psychological illness and I am satisfied that they fall within the concept of employment, as that phrase is used in section 5B of the SRC Act.
The respondent’s contention is that the events and issues which were causative of the disturbance in the applicant’s emotional state are best classified as industrial issues which the applicant engaged with and which were outside of the scope of the term ‘employment’ as it is used in the SRC Act.[66]
[66] For example, see paragraph 33 of the respondent’s supplementary Statement of Facts, Issues and Contentions dated 1 April 2022.
That is certainly arguable in relation the meetings which the applicant attended as a union representative and the severe aggravation of the applicant’s anxiety following his meeting with his local member in 2018. But such a proposition is not sustainable in relation to the period when the applicant was performing duties associated with the IUEC and when others around him continued to perform those duties.
It is in some senses remarkable that a comparatively small change in work practices provoked such a profound and irrational response within the applicant. His reaction to the IUEC, which does not appear to have been shared by anyone else (in the sense that it did not induce mental illness) suggests a very powerful predisposition to an adjustment disorder or depressive illness on the part of the applicant. I took this into account when considering whether it truly could be said that employment contributed to his ailment to a significant degree.[67] In the end I concluded that as the applicant had been symptom free prior to the introduction of the system and the clear triggering incident was the introduction of the IUEC, it was not possible to characterise the contribution from it as anything other than significant.
[67] See section 5B(2)(c).
Prior to August 2017 the applicant was largely able to cope with the work that he was required to perform. Despite the death of his partner in 2016, anxiety about his financial affairs and dealing with concerns about erectile dysfunction I am satisfied that his mental functioning remained within the bounds of what could be described as normal. I am satisfied that the removal of the applicant from the on-call roster the previous year was not done because of any significant disturbance in his mental functioning, but the result of a sense of grievance combined with difficulties returning to sleep after work calls. In August 2017 however his mental condition deteriorated in direct response to the introduction of the IUEC. His attendance at his GP and the prescribing of an anti-depressant indicates that the applicant’s functioning was outside of what his GP regarded as normal. I am also satisfied that the applicant’s evidence that the ‘last straw’ was the logging of a call from a person who needed IT support to facilitate a visit to a veteran in a prison is credible and should be accepted.
Accordingly, I am satisfied that the applicant’s employment significantly contributed to the applicant’s psychological illness.
Reasonable Administrative Action
The only contention pressed by the respondent in relation to reasonable administrative action concerned his reaction to receipt of the Early Intervention Assessment report provided by Carfi to him on 2 November 2017.[68] While I am satisfied that the contents of this report became a focus of obsessive attention for Mr Jones, I am not satisfied that receipt of the report resulted in an ailment. The applicant was already suffering a psychological illness which was being treated with Effexor at that time. The contemporaneous evidence, particularly Dr Trinh’s notes suggest that the applicant was unhappy about the report, but there is limited evidence that it prompted a reaction outside of the range of normal mental functioning. I don’t doubt that Mr Jones was angered by the report and was determined to correct what he perceived as significant errors in the report, but the report did not cause, significantly contribute to, or amount to an aggravation of the psychological illness which the applicant was already suffering from.
[68] See respondent’s Statement of Facts, Issues and Contentions at paragraph 44.
In these circumstances it is unnecessary to consider the question of whether supply of the report and the circumstances surrounding it constituted reasonable administrative action.
Section 7(7) exclusion
The respondent contends that if the Tribunal were to conclude that Mr Jones suffered an ailment significantly contributed to by his employment, the condition is excluded from liability because Mr Jones made a wilful and false representation that he did not previously suffer from mental health conditions.
In Mr Jones’ workers’ compensation claim form, he indicated that he ‘had never had a previous similar symptom, injury or illness work-related or otherwise’.
The respondent notes that Mr Jones had:
(p)A previous history of depression due to his divorce in 1995 and as a teenager (ST1, ST24, T64);
(q)Suffered from sexual abuse as a teenager (T64, ST22). He had reported this to Drs Smith and Adesanya. Dr Smith wrote that Mr Jones had ‘buried’ the sexual abuse until the time of his divorce in the mid-1990’s and received counselling on the issue around this time (T64);
(r)Suffered psychological symptoms following the death of his partner at the time in March 2016 (ST1, ST21);
(s)His PBS/MBS records indicate Mr Jones may have also experienced depressive symptoms in 1997 and between 2001-2003.
(t)In his oral evidence, Mr Jones accepted that he had suffered from some depressive conditions prior to 2017 but said these were explained to him by his general practitioner as being an event, not a condition, being a mid-life crisis. Mr Jones denied having any anxiety symptoms before 2017 (Transcript 20211213 p 56). However, his explanations are not sufficient to demonstrate that his responses which were false, were not made wilfully.
Subsection 7(7) provides as follows:
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
The subsection has the potential to exclude a disease from compensability. However there has been a lack of consensus as to the breadth of its capacity to exclude when a person has a history of episodes of a similar condition.
Before considering that aspect of the subsection, it is worth pointing out that subsection 7(7) can be read as a provision which excludes from consideration the deeming provisions set out above it. It provides that ‘a disease…shall not be taken to be an injury…’ if a particular false representation is made wilfully. The subsection follows six subsections which lower or clarify the threshold for meeting the disease provisions, using the words ‘is taken’ to bring about the lower or clearer threshold. Structurally it is not very different from section 6 which has been the subject of relatively recent consideration by the Federal Court. In Linfox Australia Pty Ltd v O’Loughlin the court made it clear that the last subsection in section 6, which operates to exclude liability when an employee submits to a risk of injury, only operated to deprive an employee of the benefit of the advantageous treatment provided for in section 6 and did not operate as a general exclusion on liability if the primary tests provided for compensation in section 14 were met. [69]
[69] [2018] FCAFC 173.
While the language of section 7 is less clear than the language in section 6, there are textual and contextual arguments which may suggest subsection (7) plays a role confined to the operation of section 7 rather than as a general exclusion on liability. It is certainly an odd place to find a provision which has the potential to exclude a person entirely from receiving any compensation.
In the present matter however it is not necessary to resolve that question.
To invoke the exclusion in subsection 7(7), the respondent relies on the applicant’s answer to Question 14 in the claim which he submitted. The question he was asked was ‘have you ever had a previous similar symptom, injury or illness work-related or otherwise?’[70] The respondent answered ‘no’.
[70] T30 p 132.
In relation to the question ‘for what injury or illness are you claiming workers’ compensation?’ the applicant answered ‘work related stress illness’.[71]
[71] T30 p 131.
There is a question whether a false answer to question 14 as framed could ever lead to subsection 7(7) being invoked. For the provision to apply the applicant must make ‘a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease’ – i.e., the claimed disease.
This raises immediately the question of whether the word ‘disease’ is being used in its statutory sense or in its ordinary sense. In the decision of Bailey v Broadsword Marine Contractors Pty Ltd,[72] the Full Federal Court determined that in the context of the Seafarers Rehabilitation and Compensation Act 1992, the word ‘disease’ in the provision which performs the same function as subsection 7(7) in the SRC Act, was used in its ordinary sense. However, I note that in that statute, the word disease is defined in a provision which commences with the words ‘unless the contrary intention appears’. In the SRC Act, the section which defines ‘disease’ simply says ‘[i]n this Act…disease means’ which may limit the scope for reading the word otherwise than as defined.
[72] [2017] FCAFC 219.
If subsection 7(7) uses the word ‘disease’ as defined in the SRC Act, then any excluding representation would need to be very specific indeed – going to the specific ailment from which the applicant suffers and requiring that it was contributed to, to a significant degree, by the employee’s employment with the Commonwealth. This would give subsection 7(7) very little scope to operate.[73]
[73] Although perhaps one could see it as working appropriately if it was determined that the only scope for subsection 7(7) was to deprive an applicant of the benefit of the deeming provisions.
In these circumstances, it is not surprising that the weight of authority favours the view that the word ‘disease’ in the subsection should be given its non-statutory meaning, and the word disease directs attention to the same or substantially the same condition as that for which compensation is being sought.[74] Thus there is some scope for the provision to operate in relation to similar psychological conditions which have not been disclosed. However, the Federal Court has also noted that subsection 7(7) deals with circumstances where the employee has made a wilful and false representation that he or she did not suffer, or had not previously suffered, from the ‘disease’ which is the subject of the claim. The provision does not ask whether the employee has failed to disclose that he or she had previously suffered from a ‘symptom’. [75] Accordingly, similar symptoms in the past will not suffice to trigger subsection 7(7) if there is a failure to disclose them.
[74] National Australia Bank Limited v Georgoulas [2013] FCA 1412.
[75] Ibid [77].
In the applicant’s case, I am satisfied that he has suffered from psychological conditions in the past. However, I would not describe him as having suffered from the same disease as the one from which he suffered in 2017/18, or a disease which could be described as substantially similar. In the applicant’s case he has clearly had episodes of psychological illness in the past. He required psychological treatment following his divorce and following a termination of his employment, and as a result of suffering erectile dysfunction shortly before issues arose at work.
However, the applicant’s evidence was that the symptoms he was experiencing as a result of the introduction of the IUEC were quite unlike the symptoms he had suffered in those past episodes. I accept that evidence. I don’t consider his earlier episodes of psychological illness as substantially similar to the condition which he developed in 2017.
I am satisfied therefore that his answer to Question 14 was not false, and certainly not wilfully false. I am not satisfied that the provision should be applied to disentitle the applicant.
Decision
In light of these findings, I set aside the decision under review and find that the respondent is liable to pay compensation in accordance with the SRC Act in respect of the psychological ailment suffered by the applicant – being an adjustment disorder with features of anxiety and depression – which resulted in incapacity for work and the need for medical treatment in the period from 15 August 2017 to approximately 1 August 2018.
If the applicant wishes to make an application for costs, he should do so within 28 days of the date of this decision.
I certify that the preceding 162 (one hundred and sixty -two) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan
………………………[sgd]…………………………
AssociateDated: 30 June 2023
Date(s) of hearing: 13, 14 December 2021 and 1, 2, 3 August 2022 Date final submissions received: 9 August 2022 Applicant: In person Counsel for the Respondent: Mr Charles Clark Solicitors for the Respondent: HBA Legal
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