Marina Tsiamis and Comcare

Case [2013] AATA 319

[2013] AATA 319 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/5508

Re

Marina Tsiamis

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Senior Member J F Toohey
Dr S Toh
Date 20 May 2013
Place Sydney

The Tribunal affirms the decision under review.

.....[sgd]...................................................................

Senior Member J F Toohey
Dr S Toh

CATCHWORDS

COMPENSATION – claim for bi-polar disorder, paranoid schizophrenia, post-traumatic stress disorder as a result of witnessing accident at work – whether applicant witnessed accident – claim lodged 30 years after incident at work – whether notice given as soon as practicable – whether applicant suffered from claimed conditions – whether any causal connection between applicant’s condition and her employment – whether injury in the course of employment – whether claim excluded because applicant engaged in serious and wilful misconduct – Tribunal satisfied applicant suffered psychological conditions – not satisfied of causal connection to employment - decision under review affirmed 

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 4, 7(4), 14, 53

Administrative Appeals Tribunal Act 1975 s 62(4)

CASES

Comcare v Sahu-Khan (2007) 156 FCR 536

von Stieglitz and Comcare AATA [2010] 263

REASONS FOR DECISION

Senior Member J F Toohey
Dr S Toh

20 May 2013

BACKGROUND

  1. In December 1981, a young technician was killed while working on top of a lift in the building where a Commonwealth Government Office was located.  Marina Tsiamis, who was an employee of the Office at the time, claims she was riding on top of the lift with the young man and another technician at the time of the accident.

  2. In November 2011, Ms Tsiamis claimed compensation for bipolar disorder, paranoid schizophrenia and post-traumatic stress disorder which she said resulted from witnessing the young man’s death. 

  3. Comcare does not dispute that Ms Tsiamis has suffered from a serious psychiatric illness for many years.  Comcare contends, however, that there is no causal connection between her employment and her illness, and that it is not liable to compensate her.

    THE ISSUES

  4. Ms Tsiamis’ claim raises the following questions:

    (i)was she present when the accident occurred and, if so, what did she witness?

    (ii)what is the nature of her illness?

    (iii)did she suffer an ‘injury’ and, if so, was it a ‘mental injury’ or a ‘disease’?

    (iv)if it is a disease, what is the date of her injury?

    (v)did she lodge her claim for compensation as soon as practicable after she became aware of her injury?

    (vi)is there a causal connection between her employment and her injury?

    (vii)did her employment contribute in a material degree to her injury?

    (viii)if her injury is a ‘mental injury’, did her injury arise in the course of her employment?

    (ix)is her claim excluded from compensation because it was caused by serious and wilful misconduct on her part?

    RELEVANT LEGISLATION

  5. By s 14 of the Safety, Rehabilitation and Compensation Act1988 (the Act), Comcare is liable to pay compensation to an employee who suffers an injury that results in incapacity for work, or impairment.  Comcare’s liability is subject to certain exclusions…

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AGLC
Marina Tsiamis and Comcare [2013] AATA 319
Case
[2013] AATA 319
Decision Date

CaseChat Overview and Summary

Marina Tsiamis, a former clerical assistant, sought compensation from Comcare for a psychological injury she claims resulted from witnessing a fatal accident involving a lift mechanic at her workplace in 1981. The Federal Court was tasked with determining whether Tsiamis' psychological injury was causally connected to her employment, as required for a successful compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court also needed to decide if Tsiamis was indeed present at the time of the accident, given the inconsistencies in her account and the lack of corroborating evidence.

The court examined the evidence surrounding Tsiamis' presence at the accident, including her inconsistent statements and the discrepancies with the Coroner's findings. The court noted that Tsiamis' account varied significantly, with her initially stating that the lift moved downwards and screeched to a halt, while the Coroner found it moved upwards. Additionally, Tsiamis' description of the incident changed over time, from hearing the mechanic fall down the lift shaft to later accounts of him being decapitated. Despite Mr O's testimony that he had invited Tsiamis to ride on top of the lift multiple times, the court found no reason to doubt his evidence, but the inconsistencies in Tsiamis' statements and the lack of corroborating evidence led the court to conclude that it could not be satisfied that she was present at the time of the accident.

Based on the evidence, the court found that Tsiamis could not establish that she was present at the time of the accident with a reasonable degree of satisfaction. Even if she had been present, the court held that there was no causal connection between her employment and the psychological injury she developed many years later. Consequently, the court affirmed the decision under review, dismissing Tsiamis' claim for compensation. The court's reasoning focused on the inconsistencies in Tsiamis' evidence, the absence of corroborating evidence, and the long delay between the accident and her claim, all of which undermined her assertion of a causal link between her employment and the psychological injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no reference in the evidence before the Coroner to Ms Tsiamis’ presence at the time of the accident. Ms Tsiamis’ evidence At the time of the accident, Ms Tsiamis was aged 21 and had been working as a clerical assistant at the Office for four years. Her duties included correcting and amending documents submitted for approval, typing letters for her supervisor, and delivering documents between the four floors of the Office. Ms Tsiamis told us that she befriended the two lift technicians some months before the accident, while she was working on the switchboard. She would see them sometimes when she was delivering documents, and they had invited her to ride between floors on top of the lift with them five or six times in the months before the accident, and she and Mr O would occasionally see each other outside work. Ms Tsiamis gave evidence that, on the day of the accident, she told her supervisor she was going upstairs to talk to the lift mechanics. Her evidence about whether her supervisor knew she would sometimes ride on top of the lift with them is considered below. She says she found the two men working on an upper floor, and Mr O invited her on top of the lift with them. There are discrepancies in Ms Tsiamis’ account of what happened next. There are also discrepancies between her account and the undisputed evidence before the Coroner. Contrary to the Coroner’s finding that the lift moved unexpectedly upwards between floors, Ms Tsiamis told us it was travelling downwards when, all of a sudden, it came to “a screeching halt” between floors. The next thing she remembers, Mr O opened the door, told her to get out, pushed her out of the elevator, and the doors closed behind her suddenly. She went back to her desk and thought “something's gone terribly wrong here”. When she heard sirens and alarms a short time later, “all sorts of things were going through [her] mind” until, a short time later, another receptionist told her one of the lift technicians had died. In her claim for compensation in November 2011, Ms Tsiamis wrote that “the mechanic at the back pulled a lever and fell off, consequently dying”. (Emphasis added.) Giving oral evidence, she said she realised, as soon as the young man fell down the shaft, that she was “in big trouble psychologically” and, the minute she heard him fall, she went into shock. In closing submissions, Ms Tsiamis again referred to hearing the young man “fall down the lift shaft” (emphasis added), and she “immediately went into shock at that very second, and [she] would be lucky if she could even get five words out”. In written reports, Dr Stephen Allnutt and Dr Jeffrey Bertucen, psychiatrists who assessed Ms Tsiamis for these proceedings, recorded that she told them that the young man fell to his death. In a letter to Comcare’s solicitors in July 2012, Ms Tsiamis referred to the transcript of the Coroner’s inquiry and, apparently for the first time, to the young man being decapitated. Although she told us that the young man fell to his death, in response to further questioning, Ms Tsiamis said she was standing next to him when he was decapitated; she did not see him decapitated but she heard “like, rushing water … which was obviously blood”, before he “fell down the lift shaft, presumably”.

Decision

Reasons for decision

By today’s standards, riding on top of a lift in the workplace would almost certainly be regarded as serious and wilful misconduct. It may well have been regarded in the same way 30 years ago. However, in the absence of further evidence, such as from Ms Tsiamis’ employer at the time about workplace safety policies and directions to employees, we have decided against reaching any conclusion about this question.CONCLUSION For the reasons set out, we cannot be satisfied, on the evidence before us, that Ms Tsiamis was present on top of the lift at the time of the accident. Even if we were satisfied that she was, we are not satisfied that there was a causal connection between her employment and the serious illness that she developed many years later. We affirm the decision under review.

Ratio Decidendi

Legal Principle Established

Mr O was represented when he appeared before us. He declined to answer questions about what happened on the day of the accident, on advice that doing so might incriminate him. On that basis, we found he had a reasonable excuse (see s 62(4) of the Administrative Appeals Tribunal Act1975) and did not require him to answer questions about the accident itself. However, he gave evidence frankly about events before and after that day. In response to questions from the Tribunal, he said he had invited Ms Tsiamis to ride on top of the lift with him four or five times before the accident.Consideration Were it not for Mr O’s evidence, which we have no reason to doubt, we would think it improbable that an employee would repeatedly ride on top of a lift during work hours. Certainly, it is hard to imagine it happening in a government workplace today. Plainly, however, it was something Ms Tsiamis did at least four or five times. (Ms Tsiamis gave evidence that sometimes she was on her lunch break but nothing turns on that.) That said, the inconsistencies in Ms Tsiamis’ account, and between her account and the Coroner’s findings, together with the length of time before she made her claim for compensation and her intervening mental illness, raise real doubts that she was present on top of the lift at the time of the accident. As we have said, she may have reconstructed important details from the transcript of the Coroner’s inquiry. Alternatively, it is possible that she has come to believe she was present. Given the inconsistencies in her evidence, and the lack of any corroborating evidence, we cannot conclude with any reasonable degree of satisfaction that Ms Tsiamis was present on top of the lift at the time of the accident. However, even if we were satisfied that she was present, for the reasons that follow, we would not be satisfied that the respondent is liable to compensate her.AFTER THE ACCIDENT1982 – 1984 Ms Tsiamis gave evidence that she was in shock and could hardly speak immediately after the accident; she closed down and there was “no way [she] could continue employment”. Apart from going back to the office “once or twice, two days, just to get [her] things”, she did not return to work. She took 12 months leave without pay and told her boss she was going to Sydney to do an art course. She went for an initial interview with an art school in Sydney but she could not cope. At the end of 12 months, she went back to the office but she could not bear to look at the lift and, after completing paperwork and saying goodbye to people, she resigned. She moved to Sydney in about March 1982. Ms Tsiamis’ leave records suggest a different story, at least in the period immediately following the accident. They show that Ms Tsiamis took sick leave on the afternoon of 15 December 1981 with a toothache, and from 14 January to 25 January for extraction of her wisdom teeth. Records also show that, on 6 January 1982, Ms Tsiamis advised her employer in writing that she intended taking her annual recreation leave commencing 1 March 1982 and wished to apply for 12 months leave without pay “commencing approximately 1 April 1982” as she had applied to study at art college in Sydney. On 3 February 1982, her application for leave without pay was granted.