Pickering and Linfox Australia Pty Ltd (Compensation) - [2022] AATA 221

Pickering and Linfox Australia Pty Ltd (Compensation) [2022] AATA 221 (14 February 2022)
Division:GENERAL DIVISION
File Number(s): 2020/1214
Re:Eric Pickering
APPLICANT

AndLinfox Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:14 February 2022
Place:Sydney

The correct or preferable decision is that the reviewable decision dated 3 March 2020 is set aside and in substitution, the Tribunal decides:
(a)the Applicant suffered an ailment, appropriately described as an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” (the Injury) which was contributed to, to a significant degree, by his employment with the Respondent and he is entitled to compensation, in accordance with s 14 of the SRC Act, for the Injury; and
(b)the Respondent is to pay the Applicant’s reasonable costs and disbursement of the proceedings (to be agreed or assessed).

...........................[sgd].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – does the Applicant suffer from an ‘ailment’ as defined in the Act - psychiatric condition – whether the Applicant’s ailment was contributed to ‘to a significant degree’ by his employment, such that he had a disease and therefore an injury under the Act – whether the disease was suffered as a result of a ‘reasonable administrative action’ taken in a ‘reasonable manner’ with respect to the Applicant’s employment, such that it is excluded from the definition of ‘injury’ under the Act – decision set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4, 5, 5A, 5B, 14
CASES
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi [1996] FCA 1587
Comcare v Power [2015] FCA 1502
Inco Ships Pty Ltd v Hardman [2007] FCA 1138
Keen v Workers Rehabilitation and Compensation Corporation (1998) SASC 7056
Lim v Comcare [2017] FCAFC 64
Re Robertson and CSR Shipping [2001] AATA 325
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
14 February 2022
NATURE OF APPLICATION

Mr Pickering (the Applicant) has made a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for an “adjustment disorder with anxiety” which he alleges was contributed to, to a significant degree, by his employment with Linfox Australia Pty Ltd (the Respondent). He claims his injury, sustained on 26 August 2019 and he first sought medical treatment for his injury on 27 August 2019, was a consequence of “work pressure” and “bulling/victimisation from the Company and HR Department”.
The Applicant made this claim on 16 December 2019. The Respondent issued a determination dated 22 January 2020 in which it denied liability for the claimed condition. Its delegate decided that she was satisfied that the Applicant had sustained a condition which could be characterised as “outside the boundaries of normal mental functioning and behaviour” namely an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” which was significantly contributed to by his…

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.

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Details

Case: [2022] AATA 221
Decision Date: 14 February 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Pickering against a decision of the Administrative Appeals Tribunal regarding his claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The dispute centred on whether Mr Pickering suffered an "ailment" as defined by the Act, and if so, whether it was contributed to a significant degree by his employment, thereby constituting an injury. A further issue was whether any such ailment arose from reasonable administrative action taken in a reasonable manner, which would exclude it from the definition of injury.

The court was required to determine if Mr Pickering suffered from a psychiatric condition that qualified as an "ailment" under the SRC Act. Specifically, the court had to assess whether this ailment was contributed to "to a significant degree" by his employment, thus establishing a disease and an injury under the Act. Crucially, the court also had to consider whether the ailment was a result of reasonable administrative action taken in a reasonable manner concerning Mr Pickering's employment, which would render it non-compensable.

The court found that Mr Pickering did suffer from an ailment, specifically an "Adjustment Disorder with Mixed Anxiety and Depressed Mood." It was satisfied that this condition was contributed to, to a significant degree, by his employment with the Respondent. The court determined that the actions taken by the Respondent did not constitute misconduct, let alone serious and wilful misconduct. Consequently, the court set aside the reviewable decision and substituted its own, finding that Mr Pickering was entitled to compensation for his injury. The Respondent was also ordered to pay Mr Pickering's reasonable costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

An “ailment” is defined in s 4 of the Act to mean:any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).EVIDENCEThe Applicant Mr Pickering affirmed his statement dated 31 July 2020.[12] He said that he was currently employed by the Respondent after being reinstated by the Fairwork Commission by way of their decision of 11 December 2020. That decision arose out of proceedings conducted on 13 and 20 November 2020 in that body relating to the Respondent’s dismissal of the Applicant on 6 April 2020. The Applicant said that from 1 January 2021 he had returned to his job as a long-distance driver. He worked 5-6 days per week, starting at 4:00AM and usually finishing around 3:00PM. He normally worked 12-13 hours per day. He also had other roles as a union delegate of the Transport Workers Union (TWU), and workplace health and safety representative (HSR). These additional roles had been taken on voluntarily. [12] Applicant’s statement dated 31 July 2020. He said that he had held the role of Union Delegate since about 2006, and in that role his job was to protect employee rights. At the time of his suspension, the Applicant said that he felt unwell, highly stressed, nervous, anxious and was not sleeping. He said that this was directly related to management threats at his workplace. The Applicant recalled that he had notified the Respondent that he was sick on the afternoon of 2 December 2019. He said he felt sick on 3 December but did not go to the doctor until 6 December when he went to his GP and saw Dr Oo in relation to stress. He told Dr Ong that he was stressed, under pressure, not sleeping, and that he felt he should not be in control of a heavy vehicle. He was given a medical certificate and returned to work on 9 December when he was stood down with pay and told that this was related to his “past performance”. After the consultation with Dr Oo, the Applicant was referred to a specialist urologist, but was not referred to specialist psychologist/psychiatrist in relation to his stress. On 11 December 2019, the Applicant had a meeting at the Respondent’s head office. He also attended his GP clinic on that day where he saw Dr Tran.[13] He described feeling stressed and anxious, and said that he had been feeling like this for some weeks. He said at that point his mental health had not been good for about a year, but that things got really bad in September 2019 and he took some time off work. [13] Court Book, p.283. In the Applicant’s view, being stood down in circumstances where he was unaware of the reason for that decision was “the straw that broke the camel’s back”. The clinical notes of the Applicant’s GP, Dr Tran, dated 9 September 2019, provide that the Applicant attended and sought treatment in relation to “stress at work as Union Delegate, work has been shacking (sic) people”.[14][14] Court Book, p.284. The Applicant felt that there was a combination of factors, including his long hours as a driver and his additional commitments, which contributed to his feelings of stress.

Decision

Reasons for decision

On the basis of the above, the Tribunal cannot be satisfied that any action on the part of the Applicant constituted misconduct, and certainly does not meet the threshold for “serious and wilful” misconduct outlined in s 14(3).DECISION The correct or preferable decision is that the reviewable decision dated 3 March 2020 is set aside and in substitution, the Tribunal decides:(a)the Applicant suffered an ailment, appropriately described as an “Adjustment Disorder with Mixed Anxiety and Depressed Mood” (the Injury) which was contributed to, to a significant degree, by his employment with the Respondent and he is entitled to compensation, in accordance with s 14 of the SRC Act, for the Injury; and(b)the Respondent is to pay the Applicant’s reasonable costs and disbursement of the proceedings (to be agreed or assessed).

Ratio Decidendi

Legal Principle Established

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