Michael Ralser and Comcare
[2012] AATA 510
•3 August 2012
[2012] AATA 510
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1574
Re
Michael Ralser
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Mr S. Webb, Presiding Member
Dr B. Hughson, MemberDate 3 August 2012 Place Canberra The decision under review is set aside and in place thereof the Tribunal decides that Mr Ralser suffered a psychological injury for which Comcare is liable. The date of the injury is 9 March 2010.
The matter is remitted to Comcare to determine any compensation to which Mr Ralser may be entitled, subject to claim.
The parties have 7 days in which to make submissions in respect to orders for costs.
..........................[sgd].....................................
Mr S. Webb, Presiding Member
WORKERS COMPENSATION – claim for physical and psychological injuries – differentiation of physical injury and disease – right upper limb contusion – cervical spine injury – act of violence outside the employee’s place of work – no physical injury to cervical spine – meaning of ‘arising out of or in the course of’ – ‘but for’ test – ‘associated with’ test – meaning of ‘the employee’s employment’ – exclusionary proviso ‘voluntarily and unreasonably submitted to an abnormal risk of injury’ – physical injury did not arise out of or in the course of the employment – disease – anxiety, depression and aggravation of cervical spondylosis – employment did not significantly contribute to aggravation of cervical spondylosis – perception of bullying and harassment at work by perpetrator based on actual events – psychological symptoms not sufficient to form a psychiatric diagnosis - ailment employment significantly contributed to ailment – decision set aside
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 7, 14, 67
Comcare v Mooi [1996] FCA 1587
Re Grime and Telstra Corporation Ltd (1994) 20 AAR 43
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473
Re Kemp and K&S Freighters Pty Ltd [2011] AATA 312
Kennedy v Telstra Corporation Limited (1995) 61 FCR 160
Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554
Roncevich v Repatriation Commission [2005] HCA 40
Schmid v Comcare (2003) 77 ALD 782
Taylor v Stapley [1954] HCA 12
Telstra Corporation Limited v Bowden [2012] FCA 576
Weigand v Comcare [2002] FCA 1464
REASONS FOR DECISION
Mr S. Webb, Presiding Member
Dr B. Hughson, Member3 August 2012
Michael Ralser is an employee of the Australian Taxation Office. He and a number of co-workers took morning coffee breaks at a local café, outside their place of employment. One day, during a coffee break, Mr Ralser flicked coffee in the face of a co-worker who then punched his upper right arm. Some months later, Mr Ralser lodged a claim for compensation in respect of a number of injuries[1]. Comcare rejected his claim by primary determination[2] and on reconsideration[3]. Mr Ralser applied for review.
[1] Exhibit A4 and T8.
[2] T34.
[3] T47.
The issue to be decided is whether Mr Ralser suffered an injury under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for which Comcare is liable under s 14 of that Act. In order to address this issue it is necessary to determine whether Mr Ralser sustained a physical or mental injury arising out of or in the course of his employment, or a disease to which his employment contributed to a significant degree.
Physical or mental injury
With regard to the physical injuries claimed, it is not disputed that Dieter Tietz punched Mr Ralser’s upper right arm on 18 December 2009 while they were having coffee with other work colleagues during normal business hours at the Allara Café, outside their place of work. There is agreement that this constitutes an ‘act of violence’ and that Mr Ralser suffered a physical injury in the form of a contusion with associated swelling and pain as a result of being punched. Mr Ralser asserts that he also suffered a physical injury to his cervical spine as a result of jarring or whiplash consequent to the punch.
The following facts are established on the evidence to our reasonable satisfaction. On the morning of 18 December 2009, a Friday, Mr Ralser, Mr Tietz, Tabor Akman, John Alexander and Sonia Teston gathered together and departed from the place of their employment for a coffee break. As a group, they walked from work to the Allara Café, a short distance away. They each placed an order at the Café and seated themselves around a table. Mr Ralser sat to the left of Mr Tietz on one side of the table, and Mr Alexander, Ms Teston and Mr Akman sat on the other side.
There is conflicting evidence concerning the precise sequence of events. Mr Ralser’s assertion that Mr Tietz yelled at him for some minutes[4] is not supported by the evidence of Mr Alexander[5], Ms Teston[6] and Mr Akman[7], or the evidence of Mr Tietz[8].
[4] See Exhibit A1, T14, T22 and T32 for example.
[5] Exhibit R2 and T11.
[6] Exhibit R4 and T12.
[7] Exhibit R3 and T13.
[8] Exhibit R1, Exhibit R5 and T15.
Nonetheless, it appears that there was an interaction between Mr Ralser and Mr Tietz over a mug of black coffee: both had ordered black coffee, but only one black coffee arrived when the waitress delivered drinks and food to the table. Mr Ralser took hold of the mug with his right hand, but Mr Tietz claimed it was his, as he had ordered first. Mr Ralser dipped the fingers of his left hand into the coffee and flicked drops of coffee onto Mr Tietz’s face and shirt. Mr Tietz responded immediately. He leaned forward in his chair, took hold of Mr Ralser’s right arm with his left hand and, moving his right arm across his body, punched Mr Ralser’s right arm with his right fist. Some of the coffee was spilt from the mug Mr Ralser was holding when he was punched. Mr Ralser says that most of the coffee was spilt, but those others present say that very little spillage occurred and at least 80 percent of the coffee remained in the mug. There is no evidence that any clean-up of the spilt coffee occurred or was necessary. On balance, we prefer the evidence of Ms Teston, Mr Alexander, Mr Akman and Mr Tietz on this point.
Even though the punch was across Mr Tietz’s body while seated, in all likelihood, it impacted upon Mr Ralser’s upper right arm with moderate force that was sufficient to cause a bruise, swelling and some pain. We so find.
There is no reliable evidence that Mr Ralser was knocked sideways by the force of the blow. The fact that so little of the coffee was spilt suggests that the blow was not heavy enough or of sufficient force to knock Mr Ralser sideways while seated in his chair. This is consistent with the accounts given by Ms Teston, Mr Akman, Mr Alexander and Mr Tietz. The evidence concerning the size, location and longevity of the bruise to Mr Ralser’s right arm does not disturb this finding. It is very difficult to ascertain the force of the blow from bruising that remained 24 days later[9]. On the evidence of Dr Bentivoglio and Dr Cairns, orthopaedic surgeons, it is common for discolouration resulting from a contusion to persist for a period of weeks, and for the discolouration to yellow and spread down the arm and peripherally during this period as the bruise disperses. We note that when Mr Ralser was examined by Dr Simone, his treating general practitioner, on 22 January 2010, the Doctor did not record any evidence of bruising, swelling or tenderness over the area of impact on Mr Ralser’s upper right arm.
[9] See Exhibits A2, A5 and A6.
On Mr Akman’s evidence, when punched by Mr Tietz, Mr Ralser was momentarily stunned. It appears that he did not wince or cry out in pain, or even rub the point of impact on his right arm. The evidence clearly establishes that Mr Ralser made no response and the conversation quickly resumed. No one left the table until the coffee break came to its natural end and they departed as a group and returned to work. Later that afternoon, Mr Ralser received a line award at a formal ceremony. It appears that he informed his partner, Catherine Barmes[10], about the incident that evening. He returned to work to following Monday and he informed a work colleague, Chris Scheele, about the incident over lunch. It also appears that he made some notes about the incident[11].
[10] T44 folio 178; Exhibit A3.
[11] Exhibit A1, Annexure A.
Mr Scheele was not called to give oral evidence, but his written statement dated 8 December 2010, suggests that he recalled Mr Ralser complaining of right arm pain and numbness[12]. We do not accept Comcare’s submission that an adverse inference should be drawn because Mr Scheele was not called to give oral evidence; his written evidence was before Comcare and it is before us, appearing at T43.
[12] T43 folio 177.
There is no evidence that Mr Ralser complained of neck pain at the time he was punched by Mr Tietz, or subsequently until 9 March 2010. Mr Ralser’s evidence is that he immediately experienced a “dead arm” and right arm pain that persisted and became chronic. He says, additionally, that he suffered right knee pain 2 or 3 days later as a result of being punched. The evidence of Dr Simone and Dr Bentivoglio is that pain of which Mr Ralser complained in his right shoulder and right arm was referred from his neck. That may be so, but it does not follow that the referred pain is attributable to a frank neck injury. Dr Bentivoglio gave oral evidence that the attribution of the referred pain to a neck injury was simply a possibility that lacked objective evidence. We accept Dr Cairns’ evidence that he would expect immediate neck pain to result from a jarring or whiplash neck injury of the kind claimed by Mr Ralser.
Properly considered, the evidence of Dr Cairns, Dr Ruttenberg and Dr Bentivoglio stands contrary to Dr Simone’s assessment that the CT scan taken on 10 March 2010 reveals evidence of traumatic injury. We prefer their expert evidence to that of Dr Simone and we find that the CT scan does not reveal pathology that is consistent with trauma, but rather reveals left side pathology at C5/C6 that is consistent with degenerative change, or cervical spondylosis.
Weighing the evidence, the proposition that Mr Tietz’ punch was of sufficient force to cause a whiplash or jarring kind of injury is not made out. We prefer the evidence of Dr Cairns and Dr Ruttenberg to that of Dr Bentivoglio and Dr Simone on this point for the simple reason that the present evidence does not establish that the punch was of such force to cause a sudden sideways motion and a frank, physical jarring or whiplash injury to Mr Ralser’s neck.
Little was said about right knee pain during the hearing. We understand that Mr Ralser’s case, on this point, is that the right leg symptoms that commenced after the 18 December 2009 incident are attributable to an injury he suffered when moving to avoid, or perhaps because of, Mr Tietz’s punch. This aspect of the case was not fleshed out and there is simply insufficient evidence to establish that any such injury occurred. For these reasons we are reasonably satisfied that Mr Ralser did not suffer an injury that resulted in right knee pain as a result of being punched by Mr Tietz.
With regard to a mental injury, we note that an injury of that kind under s 5A(1) does not include a disease. While there is evidence that Mr Ralser suffers from an ailment in the form of an Adjustment Disorder, this was of gradual onset and it is not properly characterised as a ‘mental injury’. It is not necessary to go further with this point.
When determining whether the physical injury in the form of a contusion (or a frank neck injury, if we are wrong on that point) arose out of or in the course of Mr Ralser’s employment, it is necessary to apply s 5A and s 6 of the Act. Thus, having regard to the matters raised by the parties, we must determine whether Mr Ralser sustained an injury:
(a)arising out of or in the course of his employment – s 5A(1)(b);
(b)as a result of an act of violence that would not have occurred but for his employment – s 6(1)(a);
(c)while temporarily absent from his place of work undertaking an activity associated with his employment – s 6(1)(c); and
(d)because he voluntarily and unreasonably submitted to an abnormal risk of injury while at a place referred to in s 6(1) or during an ordinary recess in his employment – s 6(3).
Arising out of or in the course of the employment
Mr Ralser asserts that the physical injuries he sustained as a result of being hit by Mr Tietz at the Allara Café on 18 December 2009 arose out of his employment. This is so, he says, because the people he was having coffee with were work colleagues. They were members of a team who regularly socialised together during work hours, taking coffee breaks such as this with the tacit support of Mark Bayliss, Director of Fraud Prevention and Intelligence within the Integrity Assurance Branch (Mr Ralser’s direct supervisor). Mr Ralser asserts that he and the other participants (Mr Tietz, Mr Alexander, Ms Teston and Mr Akman) discussed non-confidential work issues over coffee and did not record their absences on time sheets or for leave purposes. Mr Ralser’s evidence is that he used these interactions over coffee for networking and to obtain information or intelligence[13]. His employer, he says, expressly or impliedly required, expected, induced or encouraged employees to participate in activities of this kind in order to network and for team-building purposes.
[13] See T22 folio 65, T33 folio 136 and T41 folio 172 for example
These circumstances, so the argument goes, are sufficient to establish that the injuries Mr Ralser sustained arose out of or in the course of his employment.
Having reviewed the evidence, we can make no such finding.
The circumstances in which a claimed injury is to be treated as arising out or, or in the course of the person’s employment are explained, without limit, and clarified by the provisions of s 6(1). We will address each of the specific matters raised by the parties in relation to that section. But first, in order to thoroughly address the issues agitated before us, it is desirable to say something about s 5A(1)(b).
The section defines ‘injury’ to mean ‘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’. Clearly, the phrase ‘arising out or, or in the course of’ is one of connexion, linking the claimed injury with the employment. ‘Arising out of’ refers to a causal connexion between the claimed injury and the employment, having regard to “the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties”[14]. Whereas, ‘in the course of’ refers to a temporal connexion between the claimed injury and the employment, which is to be taken to include an interval or interlude within an overall period or episode of work “if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way”[15].
[14] Roncevich v Repatriation Commission [2005] HCA 40, per McHugh, Gummow, Callinan AND Heydon JJ at [23].
[15] Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473, per Mason CJ, Deane, Dawson, and McHugh JJ at 484.
Mr Ralser, Mr Tietz, Mr Akman, Mr Alexander and Ms Teston were all employees of the Integrity Assurance Branch of the Tax Office. Their duties involved investigations that were, inevitably, sensitive and highly confidential. Mr Ralser was employed as a data analyst. His duties involved the interrogation and analysis of data relevant to investigations. It can be accepted that these and other employees working in the Integrity Assurance Branch worked singly or in small groups conducting investigations in a collegiate manner as a team. It can also be accepted that work-based friendships developed and employees engaged in social activities outside their employment.
While it may have been common for employees of the Branch to take a morning coffee break, and for different groups of employees to congregate for coffee at coffee shops outside their place of work, the present evidence does not establish that the timing and frequency of such breaks was regular, or that the grouping of employees was determined on the basis of employment duties or functions, although that may have occurred as a matter of convenience. There is no compelling evidence that employees were required, expected, induced or encouraged to take such breaks together, or to spend such breaks discussing work, gathering intelligence, networking or building team spirit, or for any other purposes relating to their employment or their employment duties or functions. We prefer the evidence of Mr Bayliss, Ms Teston, Mr Akman, Mr Alexander and Mr Tietz to that of Mr Ralser on this point.
Nonetheless, it appears probable that it was a common practice for employees in the Fraud Prevention and Intelligence Section of the Branch to gather together and leave their workplace for a morning coffee break, albeit that the persons attending for coffee from the Branch varied from day to day. The present evidence establishes that the participants on 18 December 2009 did not discuss confidential work issues relating to their employment duties and functions during the coffee break, although some administrative work matters may have been discussed from time to time, relating to travel arrangements for example.
The fact of discussing work issues while undertaking a social activity outside work does not render the activity within the protected scope of employment. Many are the places in which employees, socialising together outside their places of work, may discuss work issues; in pubs and clubs, on sporting fields and in their private homes for example. A causal nexus with employment may be established if those social conversations about work or the activities in which they arose were induced or encouraged by the employer. These are matters of fact and degree. The circumstances of each case must be carefully assessed to determine whether a causal connexion is established whereby, as a matter of common sense and practicality[16], it can truly be said that the injury has arisen out of the employment.
[16] Telstra Corporation Limited v Bowden [2012] FCA 576 at [36].
On balance, it appears to us that the coffee break was simply that: a break in the employment during which Mr Ralser and others took their leave for the private purposes of refreshment and socialising together and, perhaps, incidentally, discussing work issues of a non-confidential nature. We note the evidence that some participants in coffee breaks of this kind would record their absence from the work place (Mr Akman, for example, if the absence lasted more than 35 minutes or so) and others would not. There is no evidence that any of the participants in the coffee break on 18 December 2009 recorded their absence from the work place.
We are satisfied that Mr Ralser was not induced, encouraged, expected or required by his employer to take the coffee break on 18 December 2009, or to spend it undertaking any activity at a place outside his place of work; these were simply matters of his private choice. Even if Mr Bayliss knew about the coffee break on that day, and it is not established by the present evidence that he did, it would not compel a different finding. There is no evidence that employees of the Integrity Assurance Branch required authorisation or approval to leave their place of work in order to take a short coffee break.
Even if approval for such absences was required, it does not follow that the express or implied grant of approval for any such absence can be taken as encouragement or authorisation to take a coffee break in connection with the particular employment, thereby rending it within the course of the employment. Were that to be so, it may be argued that any approved absence would be taken to be in the course of the employment, and that is clearly beyond the contemplation and plain meaning of the Act.
For an injury to arise out of the particular employment, “a causal connection which is less proximate than ‘caused by’ or ‘results from’, but not a connection which is fanciful or tenuous” must be established[17]. The circumstances in which Mr Ralser was injured when he was punched by Mr Tietz, having flicked coffee in his face, during a coffee break outside his place of employment do not meet that test. It follows that the injury Mr Ralser experienced on 18 December 2009 did not arise out of his employment.
[17] Ibid at [37].
As to whether Mr Ralser was injured “in the course of” his employment, we are satisfied that the morning coffee break outside his place of work was an interval in an overall period of work, much as a lunch break would fit that description. Having regard to the nature, terms and circumstances of his employment, and to the particular circumstances on 18 December 2009, we are reasonably satisfied that Mr Ralser’s attendance at the Allara Café for a coffee break with colleagues on that day was not an incident of his employment that he was required or expected to attend; nor was it or in any way related to the performance of his duties or functions in that employment. It was simply a matter for him.
It follows that the injury he sustained when punched by Mr Tietz during the coffee break was not an injury that he suffered in the course of his employment.
Act of violence
Mr Ralser asserts that he would not have been punched and injured by Mr Tietz on 18 December 2009 but for his employment. He says that he would not have attended the Allara Café on that day but for his employment – had he not been at work or in that employment on that day, the act of violence would not have occurred. Furthermore, Mr Ralser asserts that he only knew Mr Tietz and those others attending the coffee session at the Café on that day through his employment.
In Mr Ralser’s submission, the words ‘but for’ in s 6(1)(a) must be construed to give the fullest relief which the fair meaning of the language will allow, relying on Military Rehabilitation and Compensation Commission v Roberts[18] per Madgwick J at [60]. Recognising that the ‘but for’ test is to be applied in reference to Mr Ralser’s employment, he says that the causal requirement is satisfied by the employment relationship that exists between he and his co-workers present on that day and the fact that the coffee session was associated with their employment.
[18] (2007) 93 ALD 554.
We do not agree.
The proposition that the ‘but for’ test in s 6(1)(a) must construed beneficially, and that the provision was intended to have a generous application in circumstances where an employee is injured by an act of violence, is correct. Nonetheless, the section requires a causal connection to be established between the act of violence, or the circumstances in which it occurred, and the employee’s employment, or the performance of the duties or functions of that employment[19]. A commonsense or practical application of the ‘but for’ test[20] does not permit the language of the section to be strained beyond its reach in order to “avoid the need for any genuine proximity between the injury and the employment”[21].
[19] Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554 at 565, per Madgwick J at [62].
[20] Kennedy v Telstra Corporation Limited (1995) 61 FCR 160 at 170.
[21] Schmid v Comcare (2003) 77 ALD 782 at 790, per Greenberg J at [100].
We are reasonably satisfied that no causal connection or genuine proximity between the act of violence, or the particular circumstances, and Mr Ralser’s employment, including his performance of the duties and functions of that employment, is established. The probable cause of the act of violence perpetrated by Mr Tietz was the provocative action Mr Ralser took, flicking coffee in Mr Tietz’s face. It occurred outside his place of work during a coffee break with colleagues. These circumstances are at a remove from his employment and the relationship to employment is too remote and too tenuous to satisfy the causal test.
Activity associated with employment
Mr Ralser asserts that he was undertaking activity that was associated with his employment when he was punched and injured by Mr Tietz. The word ‘associated’, he says, is to be given a broad meaning. In his submission, the close-knit team and the collegiate nature of the investigation work Mr Ralser and his colleagues undertook extended to networking and team interactions while on coffee breaks, such as at the Allara Café on 18 December 2009. These activities, so the argument goes, were associated with his employment.
We do not agree.
The proposition that s 6(1)(c) should be generously construed is correct. But it does not follow that the ordinary meaning of the words and phrases expressed can be strained to achieve a result that exceeds their reach having regard to the context and purposes of the statutory setting. The plain words of the section are very clear. The association is between the activity an employee undertakes while temporarily absent for his or her place of work and the employee’s employment.
Presently, the evidence does not establish that the activity Mr Ralser undertook during the coffee break outside his place of work on 18 December 2009, or more generally on such breaks, was associated with his employment. Clearly, those present were work colleagues and the coffee break occurred during a break in their employment on that day. But an association of that kind is not sufficient to meet the causal nexus that is required between the activity and the employment.
It can be accepted that some non-confidential administrative matters relating to work may have arisen in the ebbs and flows of the conversations between Integrity Assurance Branch employees while taking coffee breaks outside their place of work. In all likelihood this may have occurred during the coffee break Mr Ralser attended on the morning of 18 December 2009. While conversations of this kind may be said to be associated with employment, the activity in which they occurred, taking coffee breaks outside work, was not. As we have said, it is not established that Mr Ralser’s employer expressly or impliedly encouraged or induced employees to undertake activities of this kind; nor is it established that Mr Ralser, Ms Teston, Mr Alexander, Mr Akman and Mr Tietz were encouraged or induced to undertake a coffee break outside work on the morning of 18 December 2009.
We are satisfied that the activities Mr Ralser undertook while outside his place of work on a coffee break with colleagues on 18 December 2009 were not associated with his employment. Rather, they were separate and distinct from his employment, albeit that minor work matters may have arisen in conversation from time to time.
Abnormal risk
Comcare asserts that the provisions of s 6(3) apply with exclusionary effect in the present circumstances. Mr Ralser contests this. In his submission, especially in respect to an act of violence, the exclusionary effect of s 6(3) presents a high bar that is not enlivened in trivial circumstances. Mr Ralser asserts that he did not consent to being punched by Mr Tietz and he did not voluntarily or unreasonably submit to an abnormal risk of injury within the meaning of s 6(3).
We do not need to say much about this as we have concluded that the physical injury or injuries Mr Ralser suffered as a result of being punched did not arise out of or in the course of his employment. Our comments, therefore, are simply observations offered in respect of the submissions made by the parties that are not determinative.
Clearly, s 6(3) only applies if the essential preconditioning elements are made out. If so, the provision has exclusionary effect, dis-applying s 6(1), in consequence of which an injured employee may be excluded from obtaining compensation.
The phrase ‘voluntarily subject himself to any abnormal risk of injury’ in NSW compensation legislation (now repealed) was considered by the High Court in Taylor v Stapley[22]. As can be seen, an abnormal risk of injury is simply a risk of unusual degree, but may include a risk “which is ordinarily incidental to the performance of some act which is itself inherently dangerous”[23]. Those remarks are apposite here. It can readily be accepted that a person will ‘voluntarily’ submit to abnormal risk in the context of s 6(3) if he or she freely chooses to undertake an action and intentionally does so, fully appreciating the risks[24]. The additional conjunctive test of ‘unreasonably’ submitting to abnormal risk introduces an element of objectivity. These are matters of fact and degree that require consideration of all the circumstances.
[22] [1954] HCA 12.
[23] Ibid, per Dixon CJ and Taylor J at [4].
[24] Re Kemp and K&S Freighters Pty Ltd [2011] AATA 312 at 91; Re Grime and Telstra Corporation Ltd (1994) 20 AAR 43 at 47.
In the present circumstances, these tests, properly construed, do not turn on whether or not Mr Ralser consented to be punched, but rather whether he voluntarily and unreasonably submitted to abnormal risk of injury when he decided to flick hot coffee into Mr Tietz’s face. It appears to us that Mr Ralser’s actions may well enliven the exclusionary provisions of s 6(3).
Flicking hot coffee in a person’s face is a somewhat trivial and childish but highly provocative act. Arguably, it may constitute an act of violence, albeit of a relatively minor nature. While we hesitate to describe Mr Ralser’s action as inherently dangerous, it is an act that inherently exposed Mr Tietz and Mr Ralser to the risk of injury: Mr Tietz as a result of having hot coffee flicked in his face and Mr Ralser as a result of any injurious response his action may have elicited. These were unusual or abnormal risks in the context of employees of the Tax Office taking a coffee break together.
It is very clear that Mr Ralser knew that his action was likely to elicit a response from Mr Tietz. Even if Dr Farnbach is correct in his opinion that Mr Ralser suffers from elements of Asperger’s Syndrome, although that is not proved, and for this reason may have misread the social cues around the coffee table that day, we have difficulty accepting that Mr Ralser did not know the risk he was taking. This is especially so if one accepts Mr Ralser’s assertion that he and Mr Tietz did not get along. There is no evidence that Mr Ralser behaved irrationally to the extent that he no longer understood the relationship between action and reaction, or cause and effect, even though it may be accepted that he did not expect a work colleague to punch him. His own evidence is that he decided to take this action against Mr Tietz to effect a change in his behaviour. He considered retaliating to Mr Tietz’s punch with a punch of his own but chose not to do so because he knew that this may have an escalatory effect. We are reasonably satisfied that Mr Ralser acted in the full knowledge that flicking hot coffee in Mr Tietz’s face was likely to elicit a response. In this context, we have difficulty accepting the proposition that Mr Ralser truly believed that flicking hot coffee in Mr Tietz’s face would dampen rather than escalate their dispute.
There is some evidence that employees in this Branch of the Tax Office frequently joked around with each other; but Mr Ralser’s evidence does not suggest that he flicked coffee in Mr Tietz’s face in jest, or that he “joked around”[25] or was “clowning around”[26] as other witnesses suggest. By his own account, Mr Ralser was not joking around with Mr Tietz when he flicked coffee in his face: he flicked coffee at Mr Tietz “to shut him up”. Clearly, this was no jape; it was not a silly joke between friends or work colleagues who mutually engaged in such childish behaviour. It was an act that Mr Ralser freely chose and intended to undertake in order to evoke a response in Mr Tietz.
[25] Exhibit R3, page 1.
[26] Exhibit R4, page 2.
Mr Ralser’s action exposed him to an increased and unusual risk of injury. It is probable that he submitted to the increased risk voluntarily, in the full knowledge that his action would elicit a response, and that doing so was objectively unreasonable. The risk of escalating the dispute and, thereby, increasing the risk of injury, was inherent to the action he took.
Whether or not Mr Tietz’s violent response was foreseeable or proportionate, it is reasonably clear to us that when Mr Ralser decided to flick coffee at Mr Tietz, he voluntarily and unreasonably submitted to an abnormal risk of injury. We need go no further on this point, however.
Disease
Mr Ralser asserts that he suffered a number of ailments as a result of being punched, harassed and bullied by Mr Tietz and other factors in his employment. He says that Mr Tietz punched him with sufficient force to render previously asymptomatic degenerative changes in his cervical spine symptomatic. He says that the pain caused by the injuries he sustained on 18 December 2009 caused him to experience distress, anxiety and depression. Mr Ralser’s evidence is that Mr Tietz harassed and bullied him and this behaviour significantly contributed to cause or aggravate symptoms of anxiety and depression. Additionally, he says that the manner in which his employer dealt with the assault on him by Mr Tietz and the way in which he was managed by his employer, thereafter, also significantly contributed to this symptomatology. In his submission, these symptoms were evident from January 2010 and they were later diagnosed by Dr Allnutt, a consultant psychiatrist, as an Adjustment Disorder and by Dr Farnbach, another consultant psychiatrist, as a Major Depressive Disorder.
Mr Ralser’s claims in respect of cervical spondylosis, anxiety, depression and symptoms of pain not associated with a physical injury must be dealt with under the disease provisions of the Act. At this point it is necessary to note the definition of ‘disease’ at s 5B and ‘ailment’ at s 4. As can be seen, a disease is an ailment suffered by an employee, being (relevantly) any mental ailment, disorder, defect or morbid condition, or an aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment. Thus, applying s 5B and having regard to the matters set out in s 5B(2), we must determine whether any of these conditions is an ailment to which his employment contributed to a significant degree.
We note, immediately, that Mr Ralser’s claims in respect of cervical spondylosis, pain and psychological symptoms as a direct result of being punched by Mr Tietz cannot succeed for the simple reason that Mr Tietz punched Mr Ralser in non-compensable circumstances, outside his employment. It follows that any claimed ailments that are directly attributable to the punch were not significantly contributed to by Mr Ralser’s employment.
Even if that was not so, we note that Mr Ralser’s assertion that the degenerative changes in his cervical spine were rendered symptomatic by the punch is not made out. There is clear evidence in Dr Simone’s clinical notes that Mr Ralser complained of and obtained treatment for back, right arm and right shoulder symptoms on 12 June 2009, well prior to 18 December 2009. It appears that Mr Ralser complained of and obtained treatment from Dr Simone for similar symptoms in January and February 2010, although Mr Ralser denies this and strenuously asserts that the symptoms he experienced after being punched by Mr Tietz were quite different that those he experienced previously. That may be so, but, on balance, it appears to us more likely than not that Mr Ralser’s cervical spondylosis was not asymptomatic prior to 18 December 2009, and the back and right shoulder symptoms of which he complained from June 2009 were, in part at least, attributable to this cause. Furthermore, the evidence of Dr Cairns, Dr Ruttenberg and Dr Bentivoglio, in part at least, stands contrary to that of Dr Simone. But this is not determinative and stands beside the point. The direct consequences of the punch are not compensable.
With regard to Mr Ralser’s claims in respect of distress, anxiety and depression, insofar as these are directly attributable to being punched by Mr Tietz, they are not within the meaning of ‘disease’ under s 5B(1) – the punch did not occur in compensable circumstances. It is necessary, however, to determine whether Mr Ralser’s employment contributed, to a significant degree, to any psychological ailment within the terms of his claim.
Mr Ralser’s assertion that the manner in which he was treated in the course of his employment after the incident on 18 December 2009 was a significant stressor that caused symptoms of distress, anxiety and depression has some force.
Comcare says, correctly, that for Mr Ralser to succeed on this point it must be established that he suffered from a condition that was outside the boundaries of normal mental functioning and behaviour[27] to which his employment contributed, to a significant degree, and that the condition must be within the terms of his claim for compensation, lodged on 6 April 2010.
[27] Comcare v Mooi [1996] FCA 1587 at [12].
In Comcare’s submission, none of these propositions are made out.
Comcare says that the contemporaneous medical evidence suggests that Mr Ralser was distressed prior to lodging his claim for compensation on 6 April 2010, but simple distress is not an ailment that is outside the boundaries of normal mental functioning and behaviour.
Furthermore, Comcare asserts that Mr Ralser could not have suffered any amount of distress, anxiety or depression as a result of actual or perceived harassment, bullying or poor treatment in his employment when he consulted Dr Simone on 22 January 2010, for the simple reason that he departed his employment on leave on 21 December 2009 and he did not return until 27 January 2010. Comcare notes that Dr Simone made no clinical note of Mr Ralser being distressed until 9 March 2010. This is correct; although the Doctor gave oral evidence that he recalls that Mr Ralser was distressed when examined on 22 January 2010 and 12 February 2010.
Dr Simone’s evidence and his clinical notes on 9 and 30 March 2010 support the proposition that Mr Ralser complained at that time of some distress in relation to his perceptions of events in his employment, but Comcare makes two points about this. Firstly, Dr Knox reported on 7 April 2010 (the day after Mr Ralser lodged his compensation claim) that “There is no frank psychiatric illness at this point”[28], in consequence of which Comcare says it cannot be found that Mr Ralser suffered a mental ailment that was outside the boundaries of normal mental functioning and behaviour at that time. And secondly, relying on Weigand v Comcare Australia[29], Comcare says that Mr Ralser’s perceptions of harassment, bullying and poor treatment in his employment prior to lodging his claim are not based on incidents or a state of affairs that actually occurred.
[28] Exhibit R8, page 1.
[29] [2002] FCA 1464.
Comcare argues that Mr Ralser was fixated on the incident on 18 December 2009 and it was this fixation and consequent rumination, coupled with any pain he may have been experiencing as a result of being punched, or as a result on non-compensable pre-existing ailments, that were the cause of any distress he may have felt prior to lodging his claim on 6 April 2010. Comcare suggests that it was these matters that caused Mr Ralser, on 18 March 2010, to seek a transfer to a different location within the Tax Office (which occurred in late April 2010). Additionally, Comcare notes Mr Ralser’s evidence that he became very distressed when Dr Simone informed him on or about 9 March 2010 that he had a significant neck injury as a result of being punched that would persist for a number of years, and says that this stressor was clearly a significant cause of distress, but it does not arise in compensable circumstances.
Finally on this point, Comcare says that if Dr Simone truly believed Mr Ralser was suffering from clinical anxiety and depression prior to April 2010, he would have prescribed treatment. Mr Ralser had previously experienced depression which was treated with anti-depressant medication. In his oral evidence, Dr Simone explained that he did, in fact, prescribe Zoloft (an anti-depressant medication) at the rate of 50mg per day and provided cognitive behaviour therapy; but Comcare notes that there is no documentary or reliable evidence that any such treatment was provided until well after Mr Ralser lodged his compensation claim. In Comcare’s submission, even with the most generous interpretation of Mr Ralser’s compensation claim and his preceding notice of injury, his claim cannot be construed to cover something that had not yet then occurred, namely the Major Depressive Disorder, single episode that Dr Farnbach diagnosed on examination of Mr Ralser on 25 June 2010, or the Adjustment Disorder Dr Allnutt diagnosed on examination of Mr Ralser on 12 August 2010.
For these reasons, Comcare says that Mr Ralser’s claim in respect of a psychological disease is not made out.
There are a number of things to say about these submissions. But first we observe that the terms of Mr Ralser’s compensation claim are sufficient to cover a psychological ailment manifest by symptoms of anxiety or depression resulting from perceived bullying at work prior to lodgement.
Mr Ralser returned to work on 27 January 2010 and resumed his usual duties. On Ms Barmes’ evidence, he did so with some trepidation or anticipatory anxiety. The weight of the evidence establishes that following his return to work, he withdrew from his work colleagues and actively avoided any interaction with Mr Tietz. Mr Tietz’s evidence is that he attempted on several occasions to engage with Mr Ralser, but his efforts were not successful and, ultimately, he told Mr Ralser to “Go fuck yourself” and on 17 February 2010 (and subsequently) he made notes about the incident in December 2009 and related matters.
On 3 March 2010, Mr Ralser reported the December 2009 incident to Mr Bayliss, his direct supervisor[30]. Further discussions ensued on 5 March 2010 and subsequently.
[30] See Mr Bayliss’ evidence at T26.
On 9 March 2010, Mr Ralser consulted Dr Simone. The Doctor noted that Mr Ralser was labile and upset, exhibiting symptoms of anxiety and depression, and complaining of workplace bullying and harassment. He referred Mr Ralser to Dr Knox, a psychiatrist, and issued a medical certificate. It appears, too, that Dr Simone referred Mr Ralser for a CT scan of his cervical and thoracic spine. The report of the CT scan, conducted on 10 March 2010, is at T4.
On 12 March 2010, Mr Ralser consulted Charles Foley, a psychologist providing services through the Tax Office Employee Assistance Program. The contents of this consultation are not clear, but on Mr Ralser’s evidence Mr Foley urged him to lodge an Incident Notification Report, which he did[31].
[31] T32 folio 132; the Incident Notification Report is at T5.
On 30 March 2010, Mr Ralser again consulted Dr Simone. A further medical certificate was issued in which Dr Simone recorded diagnoses of “cerivco-thoracic injury, anxiety reaction, depression & workplace bullying”[32].
[32] T6.
In late March 2010, on Mr Bayliss’ evidence, Mr Ralser complained that he felt threatened and uncomfortable working in the same area as Mr Tietz. Mr Ralser says that he requested a transfer to a position outside the Integrity Assurance Branch on 18 March 2010[33]. Mr Bayliss and Assistant Commissioner Paul Malone arranged for Mr Ralser’s relocation in late April 2010 to the Trusted Access area of the Tax Office, in another building.
[33] T32 folio 132.
Following Mr Ralser’s report of the December 2009 incident to Mr Bayliss, the matter was referred to Ernst and Young for independent investigation. We note the records of conversation at T11-T15 inclusive. The resulting report is at T23. It appears that Mr Bayliss was briefed about the contents of the report in draft and he discussed this with Mr Ralser on 27 April 2010. Mr Ralser was not happy with the report, alleging that it was biased against him[34]. The matter was referred to Assistant Commissioner Cathy Cox. On or about 28 May 2010, Mr Ralser was informed that Ms Cox had decided that no further employment action was necessary, although mediation would be offered to Mr Ralser and Mr Tietz. On 4 June 2010, Mr Ralser declined this offer[35]. It appears that Mr Ralser wanted administrative action taken against Mr Tietz[36], but no such action was taken.
[34] T33 folios 136-137.
[35] T32 folio 134.
[36] T33 folio 137.
On 31 May 2010, Mr Ralser was assessed by Todd Lattimer, a psychologist. It appears that, at this time, Mr Ralser was complaining of greater pain and disability in his left arm than in the right. Mr Lattimer also noted that in reference to March 2010 “Mr Ralser indicated that he felt unsafe due to the history of bullying and he would feel more comfortable in a new building, especially since he now had concerns regarding what would happen as a result of lodging the incident report”[37]. The psychological testing Mr Lattimer undertook was reported to reveal scores for depression, anxiety and stress in the severe or extremely severe range[38].
[37] T27 folios 91-92.
[38] T27 folio 94.
Dr Farnbach examined Mr Ralser on 25 June 2010 and diagnosed Major Depressive Disorder with secondary somatoform pain, precipitated by the incident in December 2009[39]. Dr Farnbach noted that Mr Ralser “is sensitised to depression or anxiety in the setting of being ‘ganged up on’ by virtue of his history of being bullied at school”. Dr Allnutt examined Mr Ralser on 12 August 2010 and diagnosed an Adjustment Disorder with depressed and anxious mood which he attributed to a number of stressors arising from the December 2009 incident and to alleged activities in Mr Ralser’s employment. We note that diagnostic differentiation between an adjustment disorder and a major depressive disorder may be a matter of some difficulty, but we accept Dr Allnutt’s assessment that the diagnostic criteria for Major Depressive Disorder were not satisfied in August 2010. Dr Farnbach was not called to give evidence, so we were not in a position to test his diagnosis. We prefer Dr Allnutt’s evidence and find that Mr Ralser suffered from an Adjustment Disorder with depressed and anxious mood that was triggered by the incident in December 2009 and Mr Ralser’s subsequent perceptions.
[39] T31 folio 120.
It is probable that the Adjustment Disorder was not manifest by the onset of symptoms until 9 March 2010 and that the symptoms were not sufficient to constitute a psychiatric diagnosis until after 7 April 2010. Mr Lattimer’s assessment on 31 May 2010 suggests that sufficient symptoms may have been present at that time.
While it is correct that Dr Knox did not diagnose a frank psychiatric illness on 7 April 2010, an ailment for the purposes of the Act is not confined to a diagnosed illness; it is broadly defined, covering a range of major or minor illnesses[40]. Dr Knox’s report of “no frank psychiatric illness”[41], can be understood to mean that Mr Ralser’s evident symptoms of anxiety did not meet the diagnostic criteria of any disorder, applying the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. It does not follow, however, that Mr Ralser was free of symptoms that were outside the boundaries of normal mental functioning and behaviour. Dr Knox reported that Mr Ralser “has become very anxious about his continuing pain and weakness and altered sensation in the right arm” and suggested that he would “see Michael periodically for support in the face of his circumstances”[42]. Dr Knox was not called to give evidence, so we can go no further with his evidence. Dr Allnutt gave evidence that even though Dr Knox was unable to form a diagnosis under the Statistical Manual, something was going on psychiatrically with Mr Ralser in early April that was manifest by anxiety.
[40] Comcare v Mooi [1996] FCA 1587 at [10].
[41] Exhibit R8, page 1.
[42] Exhibit R8, pages 1 and 2.
Importantly, on 9 March 2010, Dr Simone considered Mr Ralser’s psychological symptoms to be of sufficient concern to refer him to a psychiatrist for assessment and to issue medical certificates on 9 and 30 March 2010 identifying an anxiety reaction and depression related to workplace bullying (as recounted by Mr Ralser). A referral of this kind by a treating general practitioner should not be discounted too readily. Clearly, the Doctor formed the opinion that Mr Ralser’s presenting complaints required a medical response. It is not clear whether Dr Simone prescribed anti-depressant medication or provided any other form of treatment for psychological symptoms at these consultations. We note that the medical certificate Dr Simone issued on 30 March 2010 refers to “medication” and that Dr Simone gave oral evidence that he treated Mr Ralser’s anxiety and depression symptoms with Zoloft and cognitive behaviour therapy. There is nothing in Dr Simone’s reports[43] that clarifies this point with any precision, however.
[43] T19, T21, Exhibit A5 and Exhibit A7.
Mr Lattimer reported that Mr Ralser had been taking Panadol for pain but “denied taking any other form of medication for his injury or condition”[44]. Dr Farnbach reported that Mr Ralser “has had no regular psychological treatment and no medication”[45]. Mr Ralser, himself, denied obtaining any treatment for anxiety or depression at this time. Thus, on this evidence, it is probable that Dr Simone did not prescribe anti-depressant medication for Mr Ralser in March 2010, although he may have provided some form of counselling or behaviour therapy.
[44] T27 folio 91.
[45] T31 folio 117.
The clear evidence of Dr Knox, Dr Allnutt and Dr Farnbach is that Mr Ralser is predisposed to anxiety, depression and other psychological symptoms. It appears to us, on balance, that the degree of lability and upset, or distress, Dr Simone noted and reported on 9 March 2010 exceeded simple distress in response to circumstances in Mr Ralser’s employment and indicates the presence of psychological symptomatology that is outside the boundaries of normal functioning and behaviour.
Thus, in sum on this point, we find that the psychological symptoms Mr Ralser experienced on 9 March 2010 meet the description of an ailment for the purposes of the Act.
As we have said, any ailment that is directly attributable to the December 2009 incident is not compensable. The evidence suggests, and Mr Ralser asserts, that his perception of bullying and his co-workers ganging up against him were based on events that actually occurred in his employment after the December 2009 and this significantly contributed to the Adjustment Disorder.
In Weigand’s case, von Doussa J said
If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee's ailment, the requirements of the definition of disease are fulfilled.[46]
[46] Weigand v Comcare [2002] FCA 1464 at [31].
We are reasonably satisfied that Mr Tietz’s actions following Mr Ralser’s return to work on 27 January 2010 may well have been perceived by Mr Ralser as harassment or bullying behaviour, as recorded by Dr Simone on 9 March 2010. It is not correct to say that those perceptions did not arise from events that actually occurred. Mr Tietz’s evidence clearly establishes some factual basis for the perceptions Mr Ralser formed.
On Dr Allnutt’s evidence, perceptions of this kind, coupled with Mr Ralser’s isolation from work colleagues with whom he had previously associated and socialised, were in all likelihood significant stressors that contributed to the Adjustment Disorder he diagnosed in August 2010. Dr Farnbach’s evidence tends to support this assessment –
The cause is not so much the physical injury (I am assuming this was very minor) but Mr Ralser’s perception that people who he had previously considered to be his work colleagues were prepared to lie and “gang up” on him.[47]
[47] T31 folio 120.
As can be seen from Dr Farnbach’s report, Mr Ralser alleges that Mr Alexander, Ms Teston, Mr Akman and Mr Bayliss ganged up with Mr Tietz and colluded to tailor their evidence against him. These are serious allegations against Tax Office employees who hold positions of trust and who are required to uphold the highest standards of integrity. Each of these individuals denied the allegations of lying and ganging up on Mr Ralser. On the present evidence, Mr Ralser’s allegation is not made out. Nevertheless, we note that it appears Mr Tietz discussed details of the December 2009 incident with other witnesses when preparing the notes in Exhibit R5 in February and March 2010. This evidence provides a factual basis for Mr Ralser’s perceptions of collusion or his colleagues ganging up on him, whether or not those perceptions are correct or reasonable.
It is clear that other stressors also contributed to the Disorder. Dr Allnutt considered that chronic pain and the difficulty Mr Ralser experienced coming to terms with being punched by Mr Tietz were contributing factors, as was his dissatisfaction with the manner in which his employer responded to the incident – there were no sanctions against Mr Tietz. Dr Allnutt could not separate the relative significance of each stressor, although in his opinion Mr Ralser’s perception that former colleagues with whom he identified ganged up on him and colluded against him was a significant stressor that he would “put weight on”. We accept his evidence and that of Dr Farnbach on this point and find that Mr Ralser’s perception that Mr Tietz harassed and bullied him and that his former colleagues ganged up on him significantly contributed to the psychological ailment on 9 March 2010 and to the Adjustment Disorder Dr Allnutt subsequently diagnosed.
On this basis, we are reasonably satisfied that Mr Ralser suffered from a disease for the purposes of the Act, being an ailment that was significantly contributed to by perceptions he formed in relation to actual events in his employment from 27 January 2010 to 9 March 2010.
Whether other contributing factors were of greater significance than Mr Ralser’s perceptions of bullying and harassment is beside the point. The disease provisions at s 5B do not impose a sole or greatest cause test, where liability will only be found for an injury in the form of a disease if the employment contributes to a greater extent than any other contributing factor. The legislative test is simply whether the employment contributed to the ailment to a significant degree, having regard to the matters set out in s 5B(2).
We have had regard to those matters, and we particularly note the duration of Mr Ralser’s employment by the Tax Office, his susceptibility to anxiety and depression having been bullied at school, and the multiple stressors that in all likelihood contributed to his psychological symptoms in March 2010 and to the Adjustment Disorder Dr Allnutt subsequently diagnosed. We are nonetheless satisfied that Mr Ralser’s perceptions of bullying and harassment in his employment significantly contributed to his psychological symptoms on 9 March 2010 and that the degree of the contribution was substantially more than material.
We are reasonably satisfied that Dr Farnbach’s reference to somatoform pain secondary to depression is not made out. The evidence of Dr Bentivoglio, Dr Ruttenberg and Dr Cairns suggests that Mr Ralser’s complaints of right and left shoulder and arm pain may be attributable to degenerative changes and related pathology in his cervical spine. Pain from these causes is not properly described as somatoform pain secondary to depression. The cause of Mr Ralser’s right leg and right knee symptoms is less clear. We note Mr Ralser’s account of cramping at the onset of these symptoms some days after the December 2009 incident. We also note that prior to 18 December 2009, Mr Ralser complained of and obtained treatment for whole of back symptoms, which Dr Simone said were primarily in his lower back. Whether his right leg symptoms are attributable to cramping or to a low back condition we cannot say. Nonetheless, the present evidence does not establish to our reasonable satisfaction that Mr Ralser’s right leg and right knee symptoms are properly described as somatoform pain secondary to depression.
Thus, in sum on this point, we are reasonably satisfied that the ailment Mr Ralser suffered on 9 March 2010 was significantly contributed to by his perceptions of bullying and harassment. Those perceptions arose in relation to events that actually occurred in his employment in the period from 27 January 2010. It follows that the disease provisions at s 5B(1) are satisfied. There is nothing to suggest that the resulting injury is excluded under s 5A, and this was not agitated.
Conclusion
Any injury Mr Ralser sustained during or as a direct result of the incident in which he was punched on 18 December 2009 did not arise out of or in the course of his employment for the purposes of s 5A(1).
The psychological symptoms Mr Ralser suffered on 9 March 2010 constitute an ailment. The ailment resulted from stressors including pain, being punched by Mr Tietz, difficulty coming to terms with that occurrence, a perception that Mr Tietz bullied him, a perception that his co-workers ganged up on him and lied about the December incident, and a perception that his managers did not deal with the incident appropriately.
Weighing the various contributing factors and the medical evidence, and having regard to the matters set out in s 5B(2), we find, on the balance of probabilities, that Mr Ralser’s perception of bullying by Mr Tietz contributed to the psychological ailment he suffered on 9 March 2010 to a significant degree, that is, to a degree that is substantially more than material. It follows that the ailment is a disease for the purposes of the Act.
The disease constitutes an injury for the purposes of s 5A(1).
Applying s 7(4), we are satisfied that the date of the injury is 9 March 2010, when Mr Ralser first obtained medical treatment from Dr Simone for the psychological symptoms constituting the ailment.
It is necessary to say something about s 14 and the grounds for liability against Comcare for the injury. As can be seen, liability for an injury will arise if the injury results in incapacity for work or impairment.
Comcare asserts that Mr Ralser’s psychological symptoms in March 2010 and the subsequent Adjustment Disorder did not result in any incapacity for work. Whether or not that is correct is for others to decide; the point of our inquiry is simply in relation to issues of threshold liability without assessing compensation under any particular head of entitlement. We are satisfied that Mr Ralser’s mental functioning and behaviour was sufficient to constitute an impairment, as defined under s 4(1), on 9 March 2010. That being so, Comcare is liable for the injury we have found from that date under s 14(1).
The present evidence is not sufficient to determine whether the injury has come to an end at any point between March 2010 and the present. We note that Mr Ralser was removed from exposure to the stressor that caused his injury at the end of April 2010. One might expect the emerging Adjustment Disorder at that time to resolve within a reasonable period following the removal of the predisposing stressors. Dr Farnbach reported an expectation that the psychological injury would resolve within eight to 12 weeks following his examination of Mr Ralser on 25 June 2010.
Dr Allnutt assessed Mr Ralser on 12 August 2010 and reported that the primary causes of Mr Ralser’s incapacity for work were his physical ailments and that he was psychologically fit to undertake his duties in employment[48]. Nevertheless, Dr Allnutt recommended that Mr Ralser “would benefit from consultation with a psychologist with cognitive behaviour therapy to assist with the issues and coming to terms with what he perceives as a significant event in his life. Whether or not he should be prescribed antidepressant medication is marginal as he does not manifest clear symptoms of a major depressive disorder at this stage although he is at risk”[49]. Following a subsequent examination on 10 February 2011, Dr Allnutt reported that the Adjustment Disorder was ongoing[50], although Mr Ralser was psychologically fit to undertake his duties in employment so long as he was not physically co-located with or exposed to Mr Tietz. Thus, it appears that even though the Adjustment Disorder persisted from August 2010 to February 2011, it did not result in incapacity for work, although Mr Ralser may have benefited from psychological cognitive behaviour therapy treatment.
[48] T36 folio 157.
[49] T36 folio 158.
[50] Exhibit R6.
Nevertheless, as we have said, issues concerning the quantum of compensation that may be payable under particular heads of entitlement are not for us to determine and we can go no further on this point.
There is one final matter that requires comment. Mr Ralser’s partner, Ms Barmes, is a solicitor registered and residing in NSW. She represented Mr Ralser and was the solicitor of record in these proceedings. Ms Barmes swore an affidavit that was provided to Comcare on 8 December 2010[51]. She swore another affidavit for the purposes of these proceedings on 7 March 2012[52]. It appears that Ms Barmes took photographs of Mr Ralser’s right arm on 11 January 2010 that were tendered in evidence[53] and she permitted Ms Beattie, a long-term friend, to swear an affidavit before her for the purposes of these proceedings[54].
[51] T44.
[52] Exhibit A3.
[53] Exhibit A5.
[54] Exhibit A2.
Whether or not there has been a breach of the rules applying to solicitors[55] is not a matter for us to determine. The point to be made is that circumstances such as those concerning Ms Barmes’ role as a solicitor of record and a material witness in these proceedings give rise to significant and obvious difficulties, not least relating to the possible taint of evidence by conflicted interest. As it happens, the evidence given by Ms Barmes and Ms Beattie is not critical to the determination of the issues. Had it been, it would have been necessary to address issues relating to Ms Barmes’ role as a solicitor, acting for Mr Ralser, and as a material witness, giving or obtaining evidence in support of his case, when assessing the weight to be given to her evidence and to that of Ms Beattie.
[55] See Rule 19, Solicitor’s Rules, Law Society of New South Wales; or Rule 12, Legal Profession (Solicitors) Rules 2007 (ACT), for example.
The great risk of a solicitor acting in this manner is that relevant evidence may be tainted and, in consequence, discounted, contrary to the interests of his or her client, thereby rendering it more difficult for the interests of justice to be served in the particular case. Presumably, it is for this reason that the model national rules applying to solicitors in each state and territory preclude a solicitor acting for a client in proceedings in which he or she is a material witness.
Decision
For these reasons the decision under review must be set aside. As of 9 March 2010, Mr Ralser suffered an injury for which Comcare is liable. The date of the injury is 9 March 2010.
The matter will be remitted to Comcare to determine Mr Ralser’s entitlements to compensation, subject to claim.
The parties have not been heard as to orders for costs. Submissions on this point may be lodged within 7 days. If no submissions are received within that period, orders will be made under s 67(8) for Comcare to pay Mr Ralser’s reasonable costs of these proceedings as agreed or taxed in accordance with clause 6.8 of the Tribunal’s March 2007 Guide to the Workers Compensation Jurisdiction.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Presiding Member, Dr B. Hughson, Member .............................[sgd]..................................
Associate
Dated 3 August 2012
Date(s) of hearing 23 to 25 July 2012 Counsel for the Applicant Dr Christopher Ward Solicitors for the Applicant A. L. Wunderlich & Co Counsel for the Respondent Ms Jane Godtschalk Solicitors for the Respondent Australian Government Solicitor
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