Michael Ralser and Comcare

Case [2012] AATA 510

[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, Member
Date 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, Member

3 August 2012

  1. 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.

  2. 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…

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Michael Ralser and Comcare [2012] AATA 510
Case
[2012] AATA 510
Decision Date

CaseChat Overview and Summary

Michael Ralser and Comcare involved a dispute regarding the compensation entitlement of Mr Ralser for a psychological ailment he suffered. The case was heard by the Federal Circuit and Family Court of Australia. Mr Ralser claimed compensation for an injury arising from a workplace incident where he was punched by a colleague. He alleged that the psychological symptoms he experienced were due to the stress caused by the incident, which included feelings of being bullied and harassed.

The legal issues in the case centred on whether the psychological ailment Mr Ralser suffered constituted an injury under the relevant workers' compensation legislation. Specifically, the court needed to determine whether the ailment arose from events occurring in the course of his employment and whether it qualified as a disease under the Act. The court also had to decide the date on which the injury arose and whether Comcare, as the respondent, was liable for the injury under the statutory provisions.

The court concluded that the psychological ailment Mr Ralser experienced was significantly contributed to by his perception of bullying and harassment in the workplace, which arose from events occurring during his employment. The court found that the ailment constituted a disease under the Act, and therefore an injury for which Comcare was liable. The court determined that the injury arose on 9 March 2010, the date when Mr Ralser first sought medical treatment for his symptoms. The court found that Comcare was liable for the injury from that date, regardless of whether the psychological symptoms resulted in incapacity for work or impairment.

The court ordered that Comcare was liable for the injury Mr Ralser sustained from 9 March 2010. The court noted that the evidence did not sufficiently establish whether the injury had resolved at any point between March 2010 and the present. However, the court highlighted that Mr Ralser was removed from exposure to the stressor that caused his injury at the end of April 2010, and it was expected that the psychological injury would resolve within a reasonable period following the removal of the stressors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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