Kelly and Comcare (Compensation)
[2021] AATA 2575
•29 July 2021
Kelly and Comcare (Compensation) [2021] AATA 2575 (29 July 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4966
Re:Peter Kelly
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:29 July 2021
Place:Sydney
The reviewable decision made 19 June 2019, being the decision of Comcare to affirm its earlier determination denying liability to compensate Mr Kelly in respect of the claimed injury, is affirmed.
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Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – liability to pay compensation – whether the Applicant suffered an ailment – reasoning in Comcare v Mooi – whether Applicant suffered a condition outside the boundaries of normal mental functioning and behaviour – Tribunal not satisfied on the balance of probabilities that the Applicant suffered an ailment – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Comcare v Mooi [1996] FCA 1587
Richardson and Comcare [2010] AATA 245
REASONS FOR DECISION
Deputy President J W Constance
29 July 2021
A: INTRODUCTION
Mr Kelly was employed as a Media Adviser to former Senator Brian Burston from November 2016 until March 2018. On 7 March 2018, Mr Kelly’s employment was terminated by email.
In December 2018, Mr Kelly lodged a claim for compensation[1] in respect of a psychological injury caused by the termination of his employment. He described the injury as:
Damage caused by the false accusation of my employer (later withdrawn), which has caused me great distress, psychological issues and associated upset.[2]
His claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”).
[1] Exhibit R1 at 118.
[2] Exhibit R1 at 119.
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Mr Kelly requested this be reconsidered. On 19 June 2019 Comcare decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In August 2019, Mr Kelly applied to the Tribunal to review the reviewable decision.
[3] Exhibit R1 at 176.
For the reasons which follow, the reviewable decision will be affirmed.
B: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act 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) to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
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.
“Disease” is defined in section 5B:
(1) In this Act:
disease means:
(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 or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
C: THE ISSUES
The following issues require determination.
(1)Did Mr Kelly suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by his employment by Mr Burston, and therefore a “disease” within the meaning of the Act?
At the end of the first day of the hearing of this application, Counsel for Comcare advised that the contention that any mental condition suffered by Mr Kelly was suffered as a result of reasonable administrative action was no longer relied upon. For this reason I will not consider this argument. Counsel advised further that if both the issues referred to in the preceding paragraph were decided in favour of Mr Kelly, Comcare would be liable to pay him compensation in accordance with the Act.[4]
D: ISSUE 1: DID MR KELLY SUFFER A RELEVANT “AILMENT” OR “AN AGGRAVATION OF SUCH AN AILMENT” WITHIN THE MEANING OF THE ACT?
[4] Transcript, 19 May 2021 at 79.
Evidence of Mr Kelly
Mr Kelly provided a statement dated 11 October 2018[5] and gave evidence at the hearing.
[5] Exhibit A1.
Mr Kelly is 66 years old. At present he is studying at a tertiary institution.
Prior to his employment by Mr Burston, Mr Kelly had been engaged in service in the Australian Army in intelligence areas and subsequently in various Federal intelligence organisations. These were positions which involved a high level of trust being placed in Mr Kelly and his being required to treat information obtained by him as confidential.
Mr Kelly described receiving the email terminating his employment as being a “substantial shock” as he did not do what he was accused of having done.[6] He felt “a combination of being both shocked and angry”.[7] The email was withdrawn on 21 June 2018.
[6] Transcript, 19 May 2021 at 10.
[7] Transcript, 19 May 2021 at 40.
On receipt of the email Mr Kelly immediately felt distressed and upset in a way he had never previously experienced. He said that he suffered a “moral injury”[8] as a result of the absolute extreme affront he suffered on receipt of the notice. In his statement Mr Kelly said that the outcome of the work environment in Mr Burston’s office was that he was dismissed from his role and that he has experienced “depression and associated symptoms.”[9]
[8] Transcript, 19 May 2021 at 11-12.
[9] Exhibit A1 at para.9.
The feeling experienced by Mr Kelly immediately upon receiving the notice recurs on occasions such as when he talks about his dismissal. He receives treatment from Ms Pauncz, a Psychologist, on a weekly or fortnightly basis.
I am satisfied that Mr Kelly was an honest witness who gave his evidence to the best of his recollection. I accept that he experienced the feelings that he described.
Clinical Notes of Ms Walters, Psychologist[10]
[10] Exhibit R1, ST4 at 18.
Mr Kelly first consulted Ms Walters on 16 April 2018. She treated him until June 2018.
Ms Walters noted Mr Kelly’s presenting problem as being the recent ending of a personal relationship. While she noted that Mr Kelly had “left his job”[11] and that he was “fired”,[12] she did not record any emotional reaction to this event. Notes of subsequent consultations do not indicate that Mr Kelly received treatment for any response to the termination of his employment.
Patient Health Summary kept by Gordon 7 Day Medical Centre[13]
[11] Ibid at 18.
[12] Ibid at 19.
[13] Exhibit R1, ST1 at 1.
On 16 April 2018 it is recorded that Mr Kelly attended Dr Trinidad for a referral letter to Dr Altman.[14] The reason for this referral is not recorded.
[14] Exhibit R1, ST1 at 3.
The next record is of a consultation by Mr Kelly with Dr Pinto on 18 December 2018.[15] Dr Pinto’s clinical notes include:
Presenting complaint:
Currently going through Workcover related to unfair dismissal and depressive/anxiety symptoms related to this. Multiple follow through effects of this including ending of relationship and multiple further stressors – unfair dismissal was the triggering event.
Issues started on 7/04/18
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Diagnosis
Depression/Anxiety
[15] Exhibit R1, ST1 at 3.
Dr Pinto recorded a further consultation with Mr Kelly on 19 February 2019. He noted recent increased stress with Mr Kelly’s former employer making comments in the media which were frustrating for Mr Kelly but that he was coping.[16]
[16] Exhibit R1, ST1 at 4.
In a referral letter to Ms Pauncz dated 18 December 2018,[17] Dr Pinto noted that Mr Kelly had reported symptoms of depression on that day.
Report of Dr Altman, Consultant Psychiatrist[18]
[17] Exhibit R1 at 114.
[18] Exhibit A2.
Mr Kelly was referred to Dr Altman by his General Practitioner.
On 25 May 2018 Dr Altman reported to Ms Pauncz, who shortly thereafter commenced treating Mr Kelly, in part as follows:
I have seen Mr Kelly on two occasions. I cannot see that Mr Kelly suffers from any psychiatric condition – there is no psychiatric diagnosis. Mr Kelly has served in the military from 1972 to 1987 and was exposed to trauma. However he does not have the features of PTSD or Major depression.
Dr Altman stated that Mr Kelly’s main problem related to his personal relationship and that he was very upset. Dr Altman made no reference to Mr Kelly’s employment having been terminated.
Case Notes of Ms Pauncz, Counselling Psychologist[19]
[19] Exhibit R1, ST7 at 28.
Ms Pauncz commenced treating Mr Kelly on 13 June 2018. Her notes of the first session refer to the presenting problems as:
PTSD
3 month relationship with [redacted][20]
There is no mention in the notes of the termination of Mr Kelly’s employment.
[20] Ibid at 28.
In the note of the second session, held on 18 June 2018 it is recorded that Mr Kelly was “Going through an unfair dismissal case from Fed Parlt.”[21]
[21] Ibid at 29.
Ms Pauncz’s note of 27 June 2018 includes:
Discussed unfair dismissal case & other unfair issues. Wants correction of employment record & compensation. Stressful.[22]
[22] Ibid at 30.
In the note of the session of 16 August 2018, Ms Pauncz recorded, in part:
Initially (P) thought his distress was triggered by relationship breakup. But now he thinks his relationship breakup was triggered by workplace issues including dismissal. Says he was unfairly dismissed. Now applying for workers compensation due to psychological injury as a result of the above (SRC Act).
Seeing Dr Altman.[23]
[23] Ibid at 35.
In her notes of 22 August 2018 Ms Pauncz refers to having discussed with Mr Kelly his PTSD symptoms. The trauma noted by Ms Pauncz in respect of this condition did not include any reference to the termination of his employment.[24]
[24] Ibid at 37.
Evidence of Dr Ventura, Consultant Psychiatrist
Dr Ventura assessed Mr Kelly on 1 February 2021 at the request of Comcare’s Solicitors. She provided a report dated 4 February 2021[25] and gave evidence at the hearing.
[25] Exhibit R3.
Under the heading Summary and Assessment, Dr Ventura reported:
Mr Kelly is a 65-year-old man who presented with a long history of interpersonal difficulties and psychosocial stressors. He reported disappointment and a sense of injustice when discussing the events around his dismissal from his position of parliamentary advisor in 2018. He does not however report symptoms which are outside the realm of a normal reaction to stress. In my opinion, which is confirmed by a contemporaneous psychiatric report, Mr Kelly did not develop a psychiatric injury following the 2018 dismissal. He has received psychological treatment, however a review of the psychologist notes revealed that the therapy was to help him deal with non-work-related issues.[26]
[26] Ibid at 10.
When she gave evidence Dr Ventura expressed the opinion that “in order to have a psychiatric disorder rather than stress and symptoms, the symptoms need to be pervasive.”[27]There is a need for symptoms, impairment and for a person to come within a certain clinical class before a diagnosis of a psychiatric disorder can be made.
[27] Transcript, 19 May 2021 at 70.
When asked if there was anything she would have looked for that may have indicated that Mr Kelly had developed a diagnosable condition outside the ordinary bounds of human behaviour, Dr Ventura responded:
Yes, look absolutely ………. So the main thing is that there was no real change in his psychiatric symptom - in his symptoms. He did not report any change in sleep, appetite, energy or anything that really affected his capacity to conduct his life, so his energy was good, he was studying law, he was active with his grandchildren, he was active bushwalking, so there's just nothing there that would indicate that he had a pervasive anxiety disorder. He did not report pervasively depressed mood, he was quite specific about that. There was no evidence that he had psychological anxiety and I would struggle to sort of try to work out, you know, I certainly did not examine him for psychosis but certainly his mental state examination was such that he did not appear psychotic.
……….
If you are going to lose your job and you don't expect that I would expect the person to feel angry and humiliated. However in order to actually have what we call a "pathological response" to that, you know, they would be feeling depressed all the time or anxious all the time to the point where their activities of daily living and, you know, ability to function would change from the normal base line.[28]
[28] Transcript, 19 May 2021 at 71.
Reasoning
To be satisfied that Mr Kelly has suffered a relevant ailment, I must be satisfied on the balance of probabilities that at the time of the termination of his employment, or since, he has suffered a condition which is outside the boundaries of normal mental functioning and behaviour.
This was explained by Drummond J in Comcare v Mooi:[29]
12. ………….But in my opinion, the expressions used in the Safety Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to "injuries" compensible under s 14(1) do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, 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, I think, 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. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and 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, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).
13. Not to require such a feature to be present in the employee's condition would, I think, be to ignore that the Act makes compensible only injuries which are defined to comprise diseases and physical or mental injuries (other than diseases). Elements of the definition of "ailment", the term by which the Act defines "disease", such as "disorder", may, in ordinary speech, be apt to refer to bodily and mental functions not being in their ordinary state, even though no form of illness or disease is present.
………………..
20. I am satisfied that the Tribunal's decision was erroneous in law in so far as it held that the respondent had suffered an "injury" within the meaning of that term in s 14(1) of the Act: having found that the respondent was not mentally ill or mentally disturbed or suffering from any psychological disorder, it was not open to the Tribunal, on the proper construction of s 14, to hold that the condition the respondent developed in response to conditions in his workplace amounted to an "injury" within s 14(1). This is sufficient to entitle the appellant to an order setting aside the Tribunal's determination and restoring the decision overturned by the Tribunal.
[Emphasis added]
[29] [1996] FCA 1587 at [12], [13] and [20].
I agree with the statement of the Tribunal in Richardson and Comcare[30] that implicit in the reasons of Drummond J is that “there are circumstances where the work environment can generate “debilitating stress” without giving rise to as “disease”.
[30] [2010] AATA 245 at [37].
I accept Mr Kelly’s evidence that he felt humiliated and angry when he received the email notifying him of his dismissal and that he continues to experience such feelings from time to time. His evidence in this regard is consistent with the history taken by Dr Ventura that he reported “disappointment and a sense of injustice when discussing the events around his dismissal…”[31] However, based on the evidence to which I have referred, I am not satisfied on the balance of probabilities that Mr Kelly suffered an ailment within the meaning of the Act.
[31] See paragraph 32 of these reasons.
In reaching this conclusion I accept the opinion of Dr Ventura that Mr Kelly did not report any symptoms which were outside the realm of a normal reaction to stress. Dr Ventura impressed me as having considered all the information available to her and as an expert who gave a carefully considered opinion. She explained that the basis of her opinion was that Mr Kelly did not exhibit a real change in his psychiatric symptoms and did not report a pervasively depressed mood.
The opinions expressed by Dr Ventura are supported by the opinion of Dr Altman that Mr Kelly did not suffer from any psychiatric condition in May 2018, two months after he was dismissed. I take into account also that the clinical notes of Ms Walters record that Mr Kelly’s presenting problem in April 2018 was the recent ending of a personal relationship. Although, in August 2018, Mr Kelly thought that this was related to his losing his employment, there is insufficient evidence to enable me to make a finding to this effect on the balance of probabilities.
There is a reference in the clinical notes of Dr Pinto, Mr Kelly’s General Practitioner, to Mr Kelly suffering depression/anxiety in December 2018 and that “issues” started on 7 April 2018. Dr Pinto did not give evidence at the hearing and the basis of his diagnosis is unclear. For the reasons stated I prefer the evidence of Dr Ventura.
There is evidence that Mr Kelly suffered a mental condition some time prior to his dismissal, but there is no evidence that that condition was aggravated by his employment by Mr Burston.
E: ISSUE 2: WAS THE AILMENT OR THE AGGRAVATION “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY MR KELLY’S EMPLOYMENT AND THEREFORE A “DISEASE” WITHIN THE MEANING OF THE ACT?
As I have found that Mr Kelly did not suffer an ailment within the meaning of the Act, this issue does not arise.
F: CONCLUSION
The reviewable decision made 19 June 2019, being the decision of Comcare to affirm its earlier determination denying liability to compensate Mr Kelly in respect of the claimed injury, will be affirmed.
I certify that the preceding 44 (forty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
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Associate
Dated: 29 July 2021
Date(s) of hearing: 19 and 20 May 2021 Applicant: In person Counsel for the Respondent: S Wright Solicitors for the Respondent: G Wilson, Comcare
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Expert Evidence
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Remedies
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Statutory Construction