Piper and Comcare

[2006] AATA 1007

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 1007

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1224

GENERAL ADMINISTRATIVE DIVISION		)
Re		BRIAN PIPER

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date27 November 2006

PlaceSydney

Decision The decision under review is affirmed.

...................[Sgd]...........................

Ms N Bell  Senior Member  

COMPENSATION – Suffered Injury – Psychiatric Condition Outside the Boundaries of Normal Functioning – Anxiety – Co-Worker – Threat of Violence – Anxiety Disorder – Recognition of Workplace Injury – The Decision Under Review is Affirmed

Safety, Rehabilitation and Compensation Act, 1988

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

Ms N Bell, Senior Member

1.      Mr Piper, after being appointed to the position of Acting Officer in Charge of Armoury (Weapons Warehouse) with the Department of Defence, found himself in conflict with one of his staff.  He found the staff member’s behaviour, which he said included a threat of violence, very difficult to deal with and became distressed and upset.  On 21 October 2004 Mr Piper went to see his General Practitioner, Dr Chiew, who provided medical certificates that stated he had “anxiety” owing to repeated harassment by a co-worker, that he needed “rest – away from work” and certified him unfit for work for, altogether, a period of two weeks.  On 8 November 2004 Mr Piper made a claim for compensation for “anxiety disorder” arising out of “false verbal allegations and lies made to management over the past 12 months”.

2.      An officer of Comcare wrote to Mr Piper advising that a “fact finding process” would be embarked on to clarify or confirm facts relevant to his claim.  That process was abandoned because, Comcare said, the workplace was disbanded and all relevant people, including the person with whom Mr Piper was in conflict, had left the organisation.  Mr Piper was upset by the abandonment of the fact finding process and still maintains that the matter was not investigated thoroughly.

3.      Comcare rejected Mr Piper’s claim for compensation because it considered he had not suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act, 1988.   In particular, Comcare considered Mr Piper did not suffer a psychiatric condition outside the boundaries of normal functioning and behaviour but, rather, that he was simply anxious and unhappy for a time.

4.      The only issue for me to consider in this application is whether Mr Piper suffered an injury.

evidence

5.      Mr Piper described the actions of his staff member over the course of a year, culminating in a threat of violence reported to him by another member of the organisation.  He said he couldn’t eat or sleep and was having nightmares of being shot.  Mr Piper described this against a background of having been “thrown into (his) job at the deep end” and finding his role very stressful because he was dealing with weaponry and there was no tolerance for error.  He said 24 hours after he was transferred to Armoury he applied to be transferred back because he was out of his “comfort zone”.

6.      Mr Piper referred to a complaint made against him by the staff member, its investigation and a report exonerating Mr Piper in September 2004.  He said he thought it was all over but he wanted to see the staff member punished for making the complaint and causing so much trouble.  Following the report, Mr Piper heard of  a threat made by the staff member to kill him.  He said that was the final straw.

7.      When referred to the claim for compensation he had lodged on 21 October 2004, Mr Piper said he had obtained the term “anxiety disorder” from his General Practitioner.  He agreed he had made no mention in his claim of a threat against his life but said he probably wasn’t thinking straight and had been placed under pressure to lodge the claim form quickly.  He said he had told his General Practitioner about the threat on the first morning he saw him.  Dr Chiew gave him two days off so he could “relax”.  He saw him again on the following Monday, when Mr Piper said he had found an anonymous threatening note in his drawer.  He went to the Police but they said there was nothing they could do. 

8.      Mr Piper agreed Dr Chiew had told him not to take medication and had not prescribed any.  By 8 November 2004 he was feeling much better and was prepared to go back to work.

9.      Mr Piper said he doesn’t want any monetary compensation and simply wants recognition that it was work that “did this to me”.

10.     Dr Chiew’s report of 15 January 2005, as well as confirming the comments attributed to him by Mr Piper, described Mr Piper as feeling anxious and sleeping poorly because of complaints that had been made about him by a co-worker.  He confirmed he had been given two days off work to relax.  Mr Piper consulted Dr Chiew again on the day after he found a note in his drawer that read:

“This is not over and I will get you”

11.     He described Mr Piper as feeling happier and more relaxed on 4 November 2004 and he noted that he was keen to return to work, the troublesome co-worker having left.  He described Mr Piper as having recovered without the need to consult a psychiatrist.   Dr Chiew’s clinical notes confirm these comments.

consideration

12.     Section 14 of the Act provides for liability of an employer to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity or impairment.  Injury is defined in section 4 of the Act to include a disease and disease to include an ailment.  Ailment is defined to include any physical or mental ailment, disorder, defect or morbid condition.

13.     In Comcare v Mooi, 69 FCR 439, Drummond J held that, while a worker may be able to show the existence of a mental ailment even though the condition cannot be identified by reference to a recognised medical condition, the person must still be able to show that he or she is in a condition that is “outside the boundaries of normal mental functioning or behaviour”.  His Honour supported the drawing of a distinction between clinically significant or abnormal behaviour in the circumstances of a person and behaviour that, even though unusual, falls within the range of behaviour that people not affected by mental illness could be expected to show in those same circumstances.  I consider that Mr Piper’s “anxiety” fell into the latter category.

14.     In reaching this conclusion I am mindful of the diagnosis of “anxiety”, rather than “anxiety disorder” given by Dr Chiew in the three medical certificates provided by him.  I am also mindful that he considered Mr Piper to have recovered from his anxiety within 14 days of his first consultation and with the departure of the troublesome person.  Dr Chiew recommended “rest – away from work” as a plan of management and did not prescribe medication or refer Mr Piper to a psychiatrist.

15.     I have no doubt that Mr Piper was made anxious by his dealings with his co-worker and, if he considered he was in physical danger, he must have been upset and very worried about that.   It would not be surprising for it to have interfered with his sleep and his appetite.   But there is nothing in his response to indicate mental illness or a condition “outside the boundaries of normal mental functioning and behaviour”.  It follows that Mr Piper did not suffer an ailment, disease or, therefore, an injury within the meaning of the Act.

decision

16.     The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed: ............ [ Sanjiv Shah ]............
  Associate

Date of Hearing  10 October 2006
Date of Decision  27 November 2006

Counsel for the Respondent     Ms R Henderson
Solicitor for the Respondent     Ms D Bennett