NELSON and COMCARE

[2010] AATA 614

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 614

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N 2006/1488 and 2007/1962

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL NELSON

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms Naida Isenberg, Senior Member and Dr I Alexander, Member

Date19 August 2010

PlaceSydney

Decision

The Tribunal sets aside the decision dated 8 November 2006 and substitutes its decision that the Respondent is liable, under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988, for a temporary aggravation of a non work-related stress condition, and that from 27 March 2003 the injury no longer resulted, in accordance with s 14(1) of the Act, in incapacity for work or impairment.

The Tribunal sets aside the decision dated 2 May 2007 in relation to ss 16 and 19 and substitutes its decision that Mr Nelson has entitlements under those sections in respect of the two days he had off work immediately following the co-worker incident of 24 March 2003.

In the absence of agreement between the parties in respect to costs, written submissions may be made by the Applicant within 21 days of this decision, and by the Respondent, in response, within 28 days of this decision.

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

Ms Naida Isenberg
  Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – aggravation – decisions under review are set aside

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 20, 21, 21A, 24, 27

Bowman v ComcareAustralia [2000] FCA 88

Casarotto v Australian Postal Commission (1989) 17 ALD 321

Comcare v Mooi (1996) 69 FCR 439

Commonwealth v Beattie (1981) 35 ALR 369

Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19

Lees v Comcare (1999) 56 ALD 84

Martin v Australian Postal Corporation (1999) 29 AAR 420

Nelson v Comcare [2009] FCA 1149

Re Broadbent and Australian Telecommunications Corporation (AAT 7181, 25 July 1991)

Tippett v Australian Postal Corporation (1998) 27 AAR 40

REASONS FOR DECISION

19 August 2010 Ms Naida Isenberg, Senior Member and
Dr I Alexander, Member

Background

1. Mr Nelson claimed compensation for psychological injury pursuant to ss 14, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). A further claim was made for compensation for medical treatment and incapacity, pursuant to ss 16 and 19 of the Act. Both were refused.

2.      On 19 March 2008 the Tribunal decided to affirm the decisions of the Respondent that are the subject of the applications for review.  The Applicant appealed the Tribunal’s decisions and in a judgment by Foster J of the Federal Court on 8 October 2009, the Tribunal’s decisions were set aside and remitted to the Tribunal to be determined according to the law: Nelson v Comcare [2009] FCA 1149.

3.      The Applicant had sought in the Federal Court proceedings a direction that the matters be remitted to a differently constituted Tribunal, however, Foster J declined to make such an order because the application was not supported by any particular submissions.  Before the matter was listed, the Tribunal formally invited the Applicant to make an objection to the constitution of the Tribunal, but the Applicant’s representative responded that he had no objections to the matter being referred back to the same Tribunal.  The President of the Tribunal determined that the Tribunal for the purpose of determining these applications should be constituted by the same members who had previously heard the matter.

4.      Prior to the hearing the parties agreed that the remittal hearing should proceed by way of oral submissions only.

Issue to be considered at the remittal hearing

5. Foster J held that the Applicant had argued before the Tribunal “that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act.” His Honour found “[t]he argument was not developed much … The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation”, but had not done so, stating at [51]:

In order to meet its obligations in this regard, it was incumbent upon the Tribunal to turn its mind by a rational process of reasoning to the question of aggravation and to come to a view as to whether or not the applicant’s argument should be acceded to. In order to meet those requirements in the present case, the Tribunal was obliged to make reference to the relevant medical evidence, to come to a view about that evidence and to explain its reasons for doing so. It was then obliged to relate that evidence to the notion of aggravation by reference to the relevant statutory provisions and authorities. The Tribunal did none of those things.

6.      It was agreed that the issue of whether the Applicant’s underlying condition had been aggravated by his employment was the only issue for us to consider.  In that regard, we observed the remarks of Wilcox J in Bowman v ComcareAustralia [2000] FCA 88 that:

Remittal does not re-open the primary case … The only matter for further consideration is whether temporary aggravation of his nonwork-related chronic condition led to any incapacity or loss compensable under the Act.

Submissions

7.      It was the Applicant’s submission that because of the findings of fact that the Tribunal had already made in its original decision, it was unnecessary to canvass the evidence in detail and, on the basis of those findings, should have found that the Applicant’s underlying condition had been aggravated by his employment.  Counsel for the Applicant referred us to the following which, he submitted, were findings we had made in our original decision which would lead us to the view that the Applicant’s condition had been aggravated:

·there was a verbal altercation between the Applicant and the co-worker (“the co-worker incident”), who sat nearby;

·the co-worker incident resulted in two days off work;

·the Applicant went to see his doctor on 25 March 2003 because he was continually crying and unable to sleep;

·the Applicant suffered a condition which was outside the boundaries of normal mental functioning and behaviour;

·the Applicant satisfied the definition of impairment under s 4;

·the Applicant was incapacitated from work under s 4 at the times he was certified unfit for work on 25 March 2003.

8. These findings of fact in relation to the incident of 24 March 2003, it was submitted, would necessarily lead us to a finding that the Applicant suffered an “aggravation” under the Act. Other workplace issues, about which evidence had been given in the context of possible workplace stressors, were not pressed.

9.      The Respondent submitted that, while it accepted that the Applicant had a premorbid personality, his work did not materially contribute to any aggravation of that premorbid personality.

Consideration

10.     There was some discussion at the hearing as to the condition suffered by the Applicant which was said to have been aggravated by his work.

11.     It was clear to us, from all the available evidence, that Mr Nelson had been psychologically unwell prior to the altercation of 24 March 2003.  What was unclear though was precisely how this might be described.  Mr Nelson had, in 1991, apparently been diagnosed with post traumatic stress disorder but claimed he was symptom free between 1993 and 2000.  He dated his increasing inability to cope to 2001 when his wife was ill or, even possibly, September 2000 when he became fully operational at Centrelink.  Dr Butler, his current treating psychiatrist, considered he had a “chronic Adjustment Disorder with Mixed Emotions of Depression and Anger” and “personality problems”.  Dr Sagar, consultant psychiatrist, described Mr Nelson as being in a “melancholic depressive state” and that he had an obsessional or defensive narcissistic personality.  Dr Akkerman, consultant psychiatrist, thought Mr Nelson had “Abnormal Personality Traits”. 

12.     We observe that in relation to a claim for a condition, the claim is not to be rejected simply because the employee’s condition cannot be identified as a recognised medical condition, provided it can be demonstrated that, “having regard to [the employee’s] circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behavior: Comcare v Mooi (1996) 69 FCR 439. The definition of disease formerly contained in s 4 of the SRC Act however refers to an employee suffering from an “ailment” or “aggravation of any such ailment”.  Drummond J made it clear in Mooi (at 443) that the use of the word “ailment” signals a legislative intention “to cover the whole range of physical and mental illnesses from major to minor ones.” It follows, in our view, that an ailment which is aggravated, similarly, need only be one which is outside the boundaries of normal mental functioning and behavior. To that end, it does not matter how the various doctors might variously have labelled Mr Nelson’s pre-March 2003 condition, only that – as it appears to us – his mental functioning and behavior was not normal. The medical evidence, on balance, is to the effect that his underlying condition was associated with what might broadly be described as his personality problems. In the original decision we described that in a short-hand fashion as Mr Nelson’s “stress condition”.

13.     In the original decision we found that the co-worker incident of 24 March 2003 “produced only an episodic increase in [Mr Nelson’s] pre-morbid stress condition.”  This finding is consistent with the approach of Finkelstein J in Tippett v Australian Postal Corporation (1998) 27 AAR 40.

14.     Mr Nelson’s evidence was of a build up of stress from the time he became fully operational at work.  As well as this, there was some on-going tension between him and the co-worker who, prior to the events of 24 March 2003, he had worked with for some 18 months.  In relation to the incident, Mr Nelson said it caused him to be “emotionally turned over”.  He said that on his return to work after two days’ sick leave the incident was still on his mind, and he felt the co-worker to be “with him” every waking hour.  To him this seemed to go on for months.  He developed a coping strategy of writing the co-worker’s name on a piece of paper, screwing up the piece of paper and throwing it in the bin so as to leave “it” at work.  On several occasions, driving home, he would pull over, open the car door and let ‘him’ out.  He continued to do this he said for some months and it seemed to work on a short term basis, but he continued to experience anger when at home.  He attended three or four sessions with a psychologist at the Employee Assistance Program, in relation to the incident, in either late March or early April.

15.     On his return to work he said he “blocked … out” the co-worker by imaging a brick wall between them – which took one to three months to “build” - and things improved somewhat.  Nonetheless, Mr Nelson continued to perform his duties, apparently satisfactorily, and had no more time off work because of the incident.

16. We accept that the incident made a material contribution to an aggravation of his “stress condition”: the evidence was that he took two days off work, he had difficulty sleeping; he was crying at home; he couldn’t concentrate; he was constantly thinking about the co-worker and Centrelink. To that extent, there was evidence of incapacity for work or impairment: s 14, per Lees v Comcare (1999) 56 ALD 84. It was the work incident which caused an intensifying of his symptoms: Commonwealth v Beattie (1981) 35 ALR 369.

17.     As to whether that aggravation endured, we observe that the contemporaneous medical evidence was that after his initial attendance on his general practitioner until October 2003, he did not raise any on-going concerns about the March incident, despite multiple attendances in which he received treatment for a number of other conditions. 

18.     We therefore have come to the view that Mr Nelson suffered, as a result of the co-worker incident, an aggravation of a non-work related stress condition, the effects of which had resolved by 27 March 2003, when he returned to work.

19.     Counsel for the Applicant also submitted that the evidence supported a finding that there had been either an acceleration of Mr Nelson’s underlying condition: Casarotto v Australian Postal Commission (1989) 17 ALD 321. We were referred to Martin v Australian Postal Corporation (1999) 29 AAR 420, where Burchett J cited Barwick CJ in Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 at [24]:

An acceleration by work in an employment of a pre-existing disease not itself arising out of or received in the course of employment becomes in itself an injury [under the Act].

20.     We do not find there to have been an acceleration of what we had described as Mr Nelson’s “stress condition”.  We have come to that view on the basis that, on balance, the medical evidence is to the effect that his underlying condition was associated with his personality problems and that his condition was temporarily aggravated.  We acknowledge that it is an irrelevant consideration whether the underlying personality problems would have led to incapacity in any event: Re Broadbent and Australian Telecommunications Corporation (AAT 7181, 25 July 1991); Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (1967) 117 CLR 19.

Conclusion

21.     We are satisfied that on 24 March 2003 Mr Nelson suffered, in the course of his employment, an aggravation of a non-work related stress condition, the effects of which had resolved by 27 March 2003.  After that date, any symptoms experienced by Mr Nelson are related to the underlying non-work related stress condition and not to his employment.

22. Mr Nelson is entitled to payments under ss 16 and 19 in respect of the two days he had off work.

Decisions

23. The Tribunal sets aside the decision dated 8 November 2006 and substitutes its decision that the Respondent is liable, under s 14(1) of the Act, for a temporary aggravation of a non work-related stress condition, and that from 27 March 2003 the injury no longer resulted, in accordance with s 14(1) of the Act, in incapacity for work or impairment.

24. The Tribunal sets aside the decision dated 2 May 2007 in relation to s 16 and s 19 and substitutes its decision that Mr Nelson has entitlements under those sections in respect of the two days he had off work immediately following the co-worker incident of 24 March 2003.

25.     In the absence of agreement between the parties in respect to costs, written submissions may be made by the Applicant within 21 days of this decision, and by the Respondent, in response, within 28 days of this decision.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Naida Isenberg, Senior Member, and Dr I Alexander, Member.

Signed:........[sgd]...........................................................................
           Associate

Date of Hearing  21 June 2010
Date of Decision  19 August 2010
Counsel for the Applicant         Mr D Richards
Solicitor for the Applicant          Slater & Gordon Lawyers
Counsel for the Respondent     Mr M Gollan
Solicitor for the Respondent     Dibbs Barker