WORKERS’ COMPENSATION – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – where liability denied – psychological injury – Adjustment Disorder – where evidence of one expert more compelling – where prior history not taken into account – no ‘injury’ or ‘disease’ suffered – decision under review affirmed
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision, Washington, DC, American Psychiatric Association, 2022.
REASONS FOR DECISION
Member W Frost
9 October 2023
INTRODUCTION
The Applicant, Ms Anne McNaught, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by her employer, the Respondent, K & S Freighters Pty Ltd (K & S Freighters), affirming its determination denying liability to pay her compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for what was described as an ‘Adjustment Disorder’.[1]
[1] Exhibit 1, pages 33 and 177-179.
Ms McNaught claimed to have suffered an ‘Adjustment Disorder – alleged stressors at work, anxiety disorder, shingles, Cronic [sic] fatigue’ due to, among other things, an extensive workload, a lack of clarity and communication, discrimination, denial of access to work documents, unreasonable work demands, intimidating and belittling conduct and harassing and aggressive conduct.[2] In an initial determination, and following a subsequent reconsideration, K & S Freighters declined liability under the SRC Act, because it found that Ms McNaught did not suffer an ‘injury’ for the purposes of the SRC Act; it was not satisfied that the condition was contributed to, to a significant degree, by her employment.[3]
[2] Ibid., pages 33 and 36.
[3] Ibid., pages 165-170 and 177-179.
The Tribunal has considered all documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and those additional documents taken into evidence in this proceeding, together with the parties’ submissions.[4] For the following reasons, the Tribunal affirms K & S Freighters’ reviewable decision because Ms McNaught’s application fails to meet the requirements of the SRC Act. K & S Freighters is therefore not liable to pay compensation to Ms McNaught under section 14 of the SRC Act.
[4] Exhibits 1 to 7.
ISSUES
To establish whether Ms McNaught suffered an ‘injury’ giving rise to…
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.
Keep reading for free
Create a free CaseChat account to read McNaught and K & S Freighters Pty Ltd (Compensation) and more:
This matter concerned an appeal by Ms McNaught against a decision by K & S Freighters Pty Ltd to deny her claim for compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). Ms McNaught alleged she had suffered a psychological injury, specifically Adjustment Disorder, as a result of her employment.
The Tribunal was required to determine several key issues. Firstly, whether Ms McNaught suffered an 'ailment' or an 'aggravation of an ailment' as defined by the SRC Act. Secondly, if such an ailment existed, whether her employment contributed to it to a significant degree, thereby constituting a 'disease' under section 5B of the Act. Thirdly, the Tribunal had to consider whether any contributing employment factors constituted 'reasonable administrative action taken in a reasonable manner' under section 5A of the SRC Act. Finally, the Tribunal was to assess whether Ms McNaught had made a 'wilful and false representation' under subsection 7(7) of the SRC Act regarding any prior history of such a disease.
The Tribunal's reasoning focused on the evidence presented, particularly the medical history and expert opinions. It found that Ms McNaught's prior history of anxiety and depression, including the use of Sertraline (Zoloft) and Diazepam (Valium) for stress and personal issues dating back to at least 2002, was significant. The Tribunal concluded that the evidence did not establish that Ms McNaught suffered a 'disease' as defined by section 5B of the SRC Act, nor an 'injury' under section 5A. Consequently, K & S Freighters was not liable to pay compensation. The Tribunal affirmed the decision under review.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
To establish whether Ms McNaught suffered an ‘injury’ giving rise to K & S Freighters being liable to pay her compensation pursuant to section 14 of the SRC Act, the issues for the Tribunal to decide in this proceeding were:(a)did Ms McNaught suffer an ‘ailment’ or an ‘aggravation of an ailment’ within the meaning of those terms under the SRC Act?;(b)was any such ailment or aggravation ‘contributed to, to a significant degree’, by Ms McNaught’s employment so as to constitute a ‘disease’ under section 5B of the SRC Act?;(c)if so, were any such contributing employment factors ‘reasonable administrative action taken in a reasonable manner’ in respect of Ms McNaught’s employment, pursuant to section 5A of the SRC Act?; and(d)did Ms McNaught make a ‘wilful and false representation’, pursuant to subsection 7(7) of the SRC Act, that she had not previously suffered from such a ‘disease’, so that it shall not be taken to be an ‘injury’ for the purposes of the SRC Act?BACKGROUND Ms McNaught is 66 years old.[5] [5] Exhibit 2. On 30 April 2002, Ms McNaught was prescribed and supplied Sertraline (also known as Zoloft) and Diazepam (also known as Valium), with no repeats.[6] [6] Exhibit 7, page 74. The terms ‘Sertraline’ and ‘Zoloft’ are used interchangeably throughout the documentary evidence and therefore are also referred to in both terms in the Tribunal’s written reasons. In May 2003, Ms McNaught was prescribed and supplied Sertraline with five repeats, which were filled in June, July, August, September and October 2003.[7] [7] Exhibit 7, page 74. In July 2003, Dr Rosie Brewer, General Practitioner, recorded that Ms McNaught ‘had lost quite a bit of weight…followed by stress and marital split…was on zoloft – off for 6/12’.[8][8] Exhibit 7, page 21. In 2004, Dr Angela Ramsay, General Practitioner, recorded that Ms McNaught took ‘2mg’ of Valium for ‘6/12 [severe stress]’ and ceased this medication in 2002.[9][9] Ibid., page 23. In March 2006, Dr Ramsay recorded that Ms McNaught had ‘many personal stresses’, she has ‘needed zoloft in the past’ and ‘[w]ill restsrt [sic]’ on ‘Zoloft 50 mg and increase to 100 mg in 1/12 if needed’.[10] Dr Ramsay prescribed one 50 milligram Zoloft tablet daily to be reviewed in two months.[11] In March and April 2006, Ms McNaught was supplied Sertraline from this prescription.[12][10] Ibid., page 25. [11] Ibid. [12] Ibid., page 74. In May 2006, Ms McNaught was prescribed and supplied Sertraline.[13][13] Ibid. On 30 June 2006, Dr Ramsay prescribed Ms McNaught one 100 milligram Zoloft tablet daily.[14] [14] Ibid., page 26. For each month from July to November 2006, Ms McNaught was supplied Sertraline.[15][15] Ibid., page 74. In October 2006, Dr Ramsay printed Ms McNaught a prescription for one 100 milligram Zoloft tablet daily.[16][16] Ibid., page 27. In May 2007, Dr Ruth Mitchell, General Practitioner, prescribed Ms McNaught one 100 milligram Zoloft tablet daily.[17][17] Ibid., pages 27-28.
Evidence
Evidence Before The Court
Subsection 7(7) of the SRC Act provides that: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. EVIDENCELay evidenceMs McNaught The Tribunal has considered the written statement dated 20 October 2022 made by Ms McNaught in this proceeding, which relevantly stated that:[182] [182] Exhibit 2. Prior to suffering my condition, I had never suffered from adjustment disorder. I suffered from Anxiety/Depression in 2019 and was on Sertraline 100mg.…In September 2020…I was assigned to handle the bulk fuel invoicing and balancing of all trucks as I had developed a full understanding of the requirements during the audit.…On 17 February 2022, I had a meeting with Ms Szakal in the office. I had just returned to work after 3 days of sick leave. I explained that I am suffering from chronic fatigue with my illness and it would be helpful if I could come in a little later on days that I was not feeling as well. She agreed to this. I came in later on 2 occasions, once at 10:00am and another on 24 February 2022 when I arrived at 8:55am. My normal start time is 8:30am. Ms Szakal suggested that due to my health, I may consider working 4 days a week and asked if I could manage my workload in the 4 days. I was confused why she thought I could do 5 days work in 4 when all of my days are already extremely busy. She also suggested that I could work the difference of time with my daughter in her new store ‘Feather & Drum Hat Co’ and use my creativity skills. I was also asked if there was any of my work, I could give to another staff member. I suggested that maybe Ms Linda Knight could do the log checker entries which are done once a week; however, Ms Szakal did not think that was suitable. On Thursday, 24 February 2022, Ms Szakal approached me regarding a Credit note for a return of fuel from Jet A1 truck. Ms Szakal stated that she received the Jet A1 credit but had not received one for Avgas. I informed her that I knew nothing about this and had not received paperwork from the Operations manager, Mr Paul Lefoe. Ms Szakal raised her voice, and whilst standing over me stated that it was my job to find out and that I need to be proactive. I stated that it was not my job to ‘find out’, it was the Operations Manager’s job as I had no record of this truck ever as it had been in Ballarat for years prior to me commencing with Aero Refuellers with no hire fees. Ms Szakal kept repeating the same questions. I asked her to stop and listen, however, she continued. I asked her again to stop. She asked me to come into her office to discuss the matter and I refused as I knew that she would close the door and repeat the same conversation. I said words to the effect of ‘No I will not go into your office, if I go anywhere it will be into the Division Managers office.’ This discussion was witnessed by Ms Narelle Murray and Ms Linda Knight. Ms Szakal and I walked to Mr Goddard’s office and stood in the doorway and said words to the effect of ‘We need to see you now, apparently I am not good enough.’ Ms Szakal reiterated the conversation we had, and he agreed with her without hesitation. I was shocked as he repeated the exact same lines and would not listen to my explanation. The issue with the truck remained unresolved. Mr Goddard raised that I had come in late that day, and Ms Szakal did not mention our agreement which made be me feel confused and disappointed about the lack of support. Ms Szakal stated that I had a negative attitude towards her and asked what I had against her. I said something to the effect of I could not answer that question as I was not aware there was an issue. She then stated that one day when I was leaving her room one day, she heard me say under my breath ‘that was a waste of time’. I felt intimidated by both her and Mr Goddard’s attitude and felt very uncomfortable. It was as though it had all been rehearsed. This was the precipitating event and what made me feel unwell. When I arrived home that afternoon, I was completely devasted and was a ‘total mess’ and visibly distraught. On 25 February 2022, I attended the office for an Administration meeting but have not returned to the office since this date. On 28 February 2022, I saw Dr Michael Thomas, General Practitioner. It is noted that I had a rather horrific day at work on Thursday. My anxiety was extremely high, mood was low and had panic attacks. This occurred as I felt my future was at stake and I had worked so hard for the business. I was provided a medical certificate which stated that I would be unfit for work from 28 February 2022 until 2 March 2022. …On 25 March 2022, I submitted a Claim for Workers’ Compensation form for my conditions of , anxiety, depression, stress, shingles, chronic fatigue, panic attacks and migraines. I noted that I first noticed I was ill when I had shingles in early November 2021 and sought medical treatment on 5 November 2021. On the same day, Dr Thomas provided a medical certificate stating that I am medically able to undertake investigator review.
Decision
Reasons for decision
As a result, the Tribunal has found that Ms McNaught has not suffered a ‘disease’ under section 5B of the SRC Act and therefore has not suffered an ‘injury’ pursuant to section 5A of the SRC Act. For these reasons, Ms McNaught’s claim for compensation under the SRC Act is unsuccessful. Accordingly, K & S Freighters is not liable to pay compensation to Ms McNaught pursuant to section 14 of the SRC Act. DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.
