McEwan and Comcare (Compensation) - [2022] AATA 1586

McEwan and Comcare (Compensation) [2022] AATA 1586 (10 June 2022)
Division:GENERAL DIVISION
File Number(s): 2021/1612
Re:James McEwan
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr I Alexander, Senior Member
Date:10 June 2022
Place:Sydney

The decision under review is affirmed.
.................................[SGD].......................................
Dr I Alexander, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – anxiety/stress disorder – whether Comcare is liable to pay compensation for psychological injury – whether Applicant suffered a psychological ailment for the purposes of section 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether the Applicant’s ailment was contributed to, to a significant degree, by his employment with NBN Co – whether the Applicant’s ailment constitutes a disease under section 5B – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Dr I Alexander, Senior Member
10 June 2022

Mr McEwan was employed as a Project Officer NSW/ACT[1] and Project Manager NSW/ACT[2] by NBN Co Ltd (NBN) until he accepted a redundancy as of 28 June 2019.
[1] Appointed on 23 September 2013
[2] Promoted on 26 February 2018
On 17 January 2020 Mr McEwan lodged a worker’s compensation claim for ‘depression caused by systemic bullying that lead me to try suicide’.
Mr McEwan claimed that he first noticed symptoms on ‘17/08/2017 11:00 AM’ and first sought treatment on 30 August 2017. He also claimed that he was ‘subjected to bullying and harassment by several people over 5 years’ and that this led to ‘two suicide attempts and a hospitalised in a mental ward’ [sic]
By determination dated 23 March 2020, Comcare denied liability pursuant to section of the of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) on the basis that Mr McEwan’s ‘employment did not significantly contribute’ to his psychological condition.
In a reviewable decision dated 8 February 2021, a Review Officer decided to affirm the 23 March 2020 determination and declined liability for ‘depressive disorder and generalised anxiety disorder’ under section 14 of the SRC Act.
In these proceedings Mr McEwan, who was represented by counsel, seeks review of the reviewable decision dated 8 February 2021.
In view of the temporary changes regarding the suspension of face-to-face Tribunal hearings during the COVID-19 pandemic, all parties attended the hearing by video conference.
RELEVANT STATUTORY PROVISIONS
A Section 14 of the SRC Act relevantly provides as follows.
14 Compensation for injuries
(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.
A Section 5A of the SRC Act provides as follows.
5A Definition of injury
(1)       In this Act:
injury means:
(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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading McEwan and Comcare (Compensation)

Details

AGLC: McEwan and Comcare (Compensation) [2022] AATA 1586
Case: [2022] AATA 1586
Decision Date: 10 June 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr. McEwan against a decision by Comcare regarding his claim for compensation for a psychological injury allegedly sustained during his employment with NBN Co. The Administrative Appeals Tribunal was required to determine whether Mr. McEwan suffered an "ailment" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) and, if so, whether his employment contributed to that ailment to a significant degree.

The primary legal issues before the Tribunal were whether Mr. McEwan's condition constituted an "ailment" as defined by the Act, and whether his employment with NBN Co was a significant contributing factor to this ailment. The Tribunal also considered whether the ailment constituted a "disease" under section 5B of the Act.

The Tribunal found that while Mr. McEwan claimed to suffer from major depressive disorder and generalised anxiety disorder, the evidence supporting this diagnosis, particularly the psychiatric assessments conducted retrospectively and via telehealth, was problematic and inconsistent with other evidence. The Tribunal preferred the contemporaneous records from the Mater Hospital Mental Health Unit and the evidence of Dr. Lee, concluding that Mr. McEwan suffered from an "adjustment disorder" in November 2018, which qualified as an "ailment" under the Act. However, the Tribunal was not persuaded that Mr. McEwan's employment contributed to this ailment to a significant degree, finding that his own narrative of bullying and harassment was largely uncorroborated, self-serving, and exaggerated, and that his recollections lacked the detail present in his diary entries. The Tribunal concluded that the evidence suggested differences of opinion and disagreements rather than bullying or harassment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

If so, the second issue is whether Mr McEwan’s ‘ailment‘ was contributed to, to a significant degree, by his employment with NBN and, therefore, a ‘disease’ for the purposes of section 5B of the SRC Act.MR MCEWAN’S EVIDENCE Written Statements In an initial eighteen-page statement, dated 19 February 2020, Mr McEwan amended his date of injury to 24 November 2015 and recorded a very detailed account of various incidents that he alleges occurred during his employment between October 2015 and June 2019. Relevant extracts are noted as follows with emphasis added:In 2015 Chris Smith hired Craig Malloy as Senior Field Supervisor and dropped him in Newcastle. To begin with I tried to mediating [sic] between him and the delivery partner, mentor and coach him but I was getting nowhere, why had they hired him, he’s got no idea and doesn’t want to learn it. After a month of this, I called Chris Smith and said I can’t do anything with him, has very hard to work with, you need coach him. This was about August, 2015. The situation changed, not for the better, I found out that Chris and Craig wanted to stop my access to the physical work sites,…Next are two incidents from 2015/2016. It was from these two points; I was fearful my safety at work.November 24, 2015: I arrived at work around 8:00am to be greeted … by Craig Malloy aggressive and intimidating, to be yelled at ‘give me the key to the new vehicle, we’re taking it back’ and ‘I’ve got the spares from your drawers as well”. I was confronted physically, abused and told that he’d been through my personal stuff. … I spoke to my manager and told him I felt physically sick and that I was going to work from home for a week to get some space … When I arrived back at the new Lambton office, I found that I was the subject of ridicule as Craig had had fun of me at my expense…May 24 2016: After a prolonged argument about a technical and safety issue … I arranged to met [sic] Craig onsite to have a discussion around his continued aggression towards me … He insulted cyclists randomly which after the prolonged comments around my appearance and smell after riding to work for the last few months, I stood up to him. I explained I couldn’t stand his aggression … Craig’s response was … this is who I am and I’m not going to change … At this point I caught that I had physically started to loose [sic] my shit and we had escalated to just before physical contact … decided instead of hitting him, I’d hug him … I removed myself from the situation, called my manager to advise him of the physical contact and went and worked from home. From that day, I awoke every day scared to go to work … I mean when in the office, I had to sit 1.2 m away from him for hours a day and on really intense days, I could hear his breathing. This was enough to have me on edge all day. Early in 2017 … I got a new Deployment Manager, Steven Hasselbach, a different style to my last manager who liked a lot more detail …August 2017: Greg Thornton became GM and the relationship between my two managers became apparent. Greg did not like Steven and barely hid the contempt he felt towards him. As an isolated worker, I didn’t need my managers above me not aligned as the games that that they played killed me …January 2018: after months of discussions … I was given the chance to act up to PM[3] and became permanent. The program I inherited was a disaster … I was going into this under resourced and it seemed that this was intentional by Greg … This was a disgrace … it appeared that I had been thrown under the bus due to personality conflict that Greg had not been able to resolve … Two weeks after this date, my mother passed away. This was a mixed blessing as she had Alzheimer’s … from NBN I got nothing, for some reason, no one was advised that I was on bereavement leave leading to people hunting me down and harassing me … I was even called on the morning of her funeral … During this time, it seemed my personal life was being used as an excuse to exclude me from things …June 2018: I called Greg Thornton … at the end of the program, he congratulated himself on the numbers and advised me he had decided to bring forward the 2018/2019 program. To which I suggested he may be delirious considering what had to be done to get the numbers for 17/18 … I was told that I was too close to delivery and had no resilience … I hung up, and thought about driving straight into a tree. That was it, I gave up.Within the next week, I had been pulled off my program and dumped in Aerial. I was sold this is a great move, but within the first week it became apparent this was payback for challenging Greg … From this point I was a dead man walking and with it my mood, grip on reality was gone … I was moved sideways and demoted and refused any leave for 4 months despite management knowing I was emotionally exhausted. … I was informed … that I was being made redundant and that there was no future. … It seems, as I called out major concerns with Greg’s plan as per my duty as a project Manager, he had decided to manage me out to have his own reputation, by isolating and degrading me. …In October 2018, I started planning suicide … firstly, particularly after being reminded ‘how was my mate Malloy’ by Chris Smith every time I saw him at Pennant Hills, firstly by contemplating jumping in front of the fast train to Brisbane ... This incident was reported to NBN via Steven Hasslebach and I was talked out of reporting it in iSafe, NBN HSE database due to fear of the repercussions on Steve from Greg. On November 24, 2018, after a month of planning how and when, I was stopped for taking the next step on my life by police officers from Newcastle LAC called to our family home and was sectioned for my own protection in Mater Mental Health Unit in Newcastle. On 17 January 2019, I approached NBN to see what could be done to resolve the bullying and was immediately shut down. HR demanded access to medical records … Donna Carrol from HSE stepped in then disappeared as Greg Thornton, didn’t want this dealt with as per process, and bullied my manager … For many weeks I tried to ascertain what was the process NBN had for dealing with this and was refused a copy of the process or even have anything mediated. This was directed by Greg Thornton … So I hung on, looked after myself … developed a plan with my Psychologist to survive until the end … Despite my mental condition, I was begged to take on the full program load to help out Imitaz … I was told by Steven Hasselbach that Greg had kicked out HR and HSE from my complaint and direct Steve to lead and resolve this issue … At this point I could see I was being scapegoated due to issues that should have been resolved earlier, stigmatised because of my mental health and bullied at every turn by the GM.For four years I was afraid to go to work out of physical fear of abuse! And did this stay confined to the boundaries of my work, no it spread its insidious fingers into every facet of my life, both awake and asleep. It affected my relationships with my partner and children, estranged me from extended family. Isolated me from old friends and stopped me making new ones in the town I moved to.[emphasis added][3] Program Manager

Decision

Reasons for decision

In his oral evidence Dr Lee did not resile from the opinions he expressed in his written reports and in response to questions from the Tribunal confirmed his opinion during 2017/2018 and in February 2020 Mr McEwan did not suffer a ‘major depressive and generalised anxiety disorder’Conclusion On consideration of the evidence set out above I am not persuaded that, during his employment with NBN and in in January 20, Mr McEwan suffered from a major depressive and generalised anxiety disorder’ However, I am satisfied that, in November 2018, Mr McEwan suffered an ‘adjustment disorder’ which can be considered to be an ‘ailment’ for the purposes of the SRC Act. In reaching in my decision, I have preferred the evidence of the Mater Hospital Mental unit records and Dr Lee. In my view the hospital records represent the first and only reliable assessment of Mr McEwan’s mental health during his employment with NBN. Dr Lee, in his written and oral evidence, in my view, provided a comprehensive and persuasive assessment of Mr McEwan’s mental health issues which was consistent with the contemporaneous documentary evidence. Contribution by employment? The next issue to consider is whether Mr McEwan’s ‘ailment‘ was contributed to, to a significant, degree by his employment with NBN. Initially, Mr McEwan claimed that since 2015 he was subjected to persistent bullying and harassment during employment with NBN and that this had significantly contributed to his mental health issues. Mr McEwan has supported his claim with his own retrospective narrative that included a detailed recollection of specific incidents and conversations which he alleges occurred in the workplace. These incidents and conversations are set out in some detail in Mr McEwan’s written statements with relevant extracts set out above. The common theme in his written statements and oral evidence is that the behaviour of some of his work colleagues caused him to suffer so much stress that he was afraid to go to work. The difficulty for Mr McEwan is that, apart from his own assertions, his allegations and recollections are not corroborated by other evidence. In describing the specific incidents and conversations Mr McEwan provides a remarkable level of detail which he claims is supported by his diary entries. However, perusal of copies of the relevant pages of his diary reveals only sparse entries with nothing approaching the level of detail that he has reported in the statements. In their written and oral evidence, the NBN employees named by Mr McEwan as the cause of the bullying acknowledged the various incidents and conversations but unanimously disagreed with the specifics of Mr McEwan’s versions. The tenor of much of Mr McEwan’s evidence, in my view, was self-serving, exaggerated, and more suggestive of differences of opinion and disagreement rather than bullying or harassment. The evidence suggests that he considers himself as more capable than some of his colleagues, tends to get angry when his opinions are not followed and also does not acknowledge his own contribution to the incidents.

Ratio Decidendi

Legal Principle Established

After the Tribunal raised various issues, in Mr McEwan’s medical history, that had not been considered by Dr Saker, he agreed that the contribution of McEwan’s employment to his psychiatric condition was ‘a much more complex issue’.CONSIDERATION‘Ailment’? The first issue to consider is whether Mr McEwan suffered an ‘ailment’ for the purpose of the SRC Act. Section 4 of the SRC Act defines an ‘ailment’ as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). Mr McEwan submits that he has suffered an ‘injury’ for the purposes of the SRC Act and that the ‘injury’ described as ‘major depressive disorder and generalised anxiety disorder’ (MDDA). Mr McEwan submits that his ‘injury’ is a ‘mental disorder of gradual development’ that began in 2015 but became symptomatic in April 2017 when he first attended his general practitioner for treatment of ‘low mood anxiety’. Alternatively, he submits that the ‘date of injury’ is 25 November 2018 when he was admitted to the Mater Hospital Mental Health Unit. Notwithstanding the uncertainty about the onset of his injury, Mr McEwan, as a matter of fact, claims that he has suffered from MDDA since April 2017. In support of his claim, he relies on the assessments and opinions of Drs Takyar and Saker. The difficulty for Mr McEwan is that the written and oral evidence provided by the two psychiatrists is, in my view, problematic in that it is not consistent with other evidence before the Tribunal. Both psychiatric assessments were performed by telehealth interview more than twelve months after Mr McEwan had accepted a redundancy from NBN and about six or more months after Comcare had denied liability for compensation. Both psychiatrists had concluded that Mr McEwan’s MDDA was causally related to persistent bullying and harassment he had experienced during his employment. These conclusions assumed, that the self-reported retrospective history, provided by Mr McEwan, was accurate and reliable. On my reading of the available evidence, that assumption was unsound. Notwithstanding the issue with respect of causation, it is possible that Mr McEwan’s clinical presentation at the time of the assessments was consistent with a diagnosis of MDDA for other reasons. However, given the concerns about the reliability of Mr McEwan’s reported history and the fact that, neither psychiatrist fully addressed alternative causal factors, the validity of the diagnosis of MDDA caused by his employment is, in my view, uncertain. In the Mayfield Medical Centre clinical records, between January 2017 and October 2018 there are sporadic references to symptoms such as ‘depression, low mood, anxiety, stress at work, insomnia’, however, there is no evidence of a formal psychiatric assessment and no evidence of significant impairment of social or occupational functioning. Between January 2017 and February 2020, the first and only formal assessment of Mr McEwan’s mental health, by a psychiatrist, was during his 3-day admission to the Mater Hospital Mental Health Unit in November 2018.