Re Whitlock and Comcare

Case [2020] AATA 1353

Whitlock and Comcare (Compensation) [2020] AATA 1353 (18 May 2020)

Division:GENERAL DIVISION

File Number(s):      2018/1138

Re:Jessica Whitlock

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:18 May 2020

Place:Canberra

The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

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Senior Member Linda Kirk

Catchwords

WORKERS’ COMPENSATION – psychological condition – whether the applicant suffered an ‘ailment’ or an ‘aggravation’ of an ailment for the purposes of section 4 of the Safety, Rehabilitation and Compensation Act 1988 – whether the applicant’s employment contributed, to a significant degree, to her ailment or aggravation of an ailment such that she suffered a disease pursuant to section 5A of the Safety, Rehabilitation and Compensation Act – whether that disease is not an injury by reason of section 7(7) of the Safety, Rehabilitation and Compensation Act 1988 – applicant’s employment did not significantly contribute to the applicant’s disease – Tribunal does not need to consider whether section 7(7) is applicable – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 s 43

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 7, 14

Cases

Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Fletcher and Comcare [2015] AATA 430
Havnen and Comcare [2010] AATA 535
Knox and Comcare [2019] AATA 2196
Mellor and Australian Postal Corporation [2009] FCA 504
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Millar and Comcare [2019] AATA 4973
Rutledge and Comcare [2011] AATA 865
Skobelkin-Mulcair and Comcare [2019] AATA 1054
Stefaniak and Comcare [2019] AATA 1866
Tippett v Australian Postal Corporation [1998] FCA 335
Williamson and Comcare [2019] AATA 4774
Wood and Comcare [2019] AATA 981

REASONS FOR DECISION

Senior Member Linda Kirk

18 May 2020

  1. Ms Jessica Whitlock (‘the Applicant’) was born in 1993. She commenced employment as a Security Officer at Parliament House (‘the Position’) with the Department of Parliamentary Services (‘the Department’) on 9 May 2016.

  2. On 1 August 2017, the Applicant lodged a workers’ compensation claim stating that she had sustained ‘depression and anxiety’ as a result of being ‘bullied through rumours, isolated from co-workers and management through rumours, treated differently by management’.[1]  The Applicant reported that she first noticed her symptoms/injury in November/December 2016.

    [1] Exhibit R2, T3, 16-21.

  3. By determination dated 7 December 2017, Comcare (‘the Respondent’) denied liability for ‘aggravation of post-traumatic stress disorder’ and ‘aggravation of major depressive disorder’ sustained on 16 February 2017. The delegate was not satisfied that the Applicant’s psychological condition was contributed to, to a significant degree, by her employment with the Department. The delegate also found that subsection 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) operated to exclude the claim for compensation.

  4. By letter dated 7 February 2018 the Applicant (via…

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AGLC
Re Whitlock and Comcare [2020] AATA 1353
Case
[2020] AATA 1353
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review by the applicant, Ms. Whitlock, against a decision by Comcare. The dispute centred on whether Ms. Whitlock had suffered an "ailment" or an "aggravation" of an ailment, and whether her employment had contributed to a significant degree to this condition, thereby constituting a "disease" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The case was heard by Linda Kirk SM.

The primary legal issues before the Tribunal were: firstly, whether the applicant had suffered an "ailment" or an "aggravation" of an ailment within the meaning of section 4 of the SRC Act; secondly, whether the applicant's employment contributed to a significant degree to any such ailment or aggravation, thus qualifying as a "disease" under section 5B(1) of the SRC Act; and thirdly, if a disease was established, whether it was excluded from being an "injury" by operation of section 7(7) of the SRC Act.

The Tribunal's reasoning focused on the second issue, determining that the applicant's employment did not contribute to a significant degree to her alleged ailment or aggravation. Consequently, the Tribunal found that the applicant had not suffered a "disease" as defined by the SRC Act. As this crucial threshold was not met, the Tribunal concluded that it did not need to consider the applicability of section 7(7) of the Act.

Accordingly, the Reviewable Decision was affirmed, meaning that the applicant did not suffer an "injury" for the purposes of section 5A(1)(a) of the SRC Act for which Comcare was liable to pay compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The issues relevant to the determination of the application for review are as follows:1)Did the Applicant suffer an ‘ailment’ or an ‘aggravation’ of an ailment for the purposes of section 4 of the SRC Act?2)Did the Applicant’s employment contribute, to a significant degree, to her ailment or the aggravation of the ailment such that she has a ‘disease’ under section 5B(1) of the SRC Act?3)If the Applicant suffered a ‘disease’, is this not an ‘injury’ for the purposes of section 5A(1)(a) of the SRC Act, by reason of section 7(7) of the SRC Act?EVIDENCE BEFORE THE TRIBUNALBackground and family history The Applicant’s parents separated in 1997 when she was four years old.[4] Her mother re-partnered in about 2001. The Applicant’s relationship with her stepfather was initially strained. She told Dr Lev Fridgant that she has never accepted him in any parental role.[5] Dr Jocelyn Howe reported that the Applicant has a “difficult relationship” with her stepfather.[6] The Applicant told the Tribunal that she and her stepfather are now ‘really close.’[7][4] Exhibit R9, 7.[5] Exhibit R9, 47.[6] Exhibit R9, 1.[7] Transcript, 9 September 2019, 80. The Applicant’s father moved to Sydney after the breakup and remarried.[8] In 2008 he moved to Wollongong, following which the Applicant’s contact with her father decreased from what were previously monthly visits.[9] She suffered feelings of abandonment from this time.[10] The Applicant told the Tribunal that she cannot remember when her contact with her father decreased. She thinks it was when she was aged about 10 years, ‘at some point in high school.’[11][8] Exhibit R9, 7.[9] Exhibit R9, 7.[10] Exhibit R9, 7.[11] Transcript, 9 September 2019, p 79. The Applicant’s family history includes mental health issues, affecting her mother, maternal grandfather and three of her mother’s siblings.[12] On 20 January 2015, Professor Scott Henderson reported that the Applicant’s mother: ‘is treated for depression and anxiety, having been discharged from the Services for this.’[13] On 18 February 2009 Dr Howe reported that: ‘Jessica has a strong family history of depression and anxiety with her mother requiring medication, frequent hospital admissions and long term psychological counselling’.[14][12] Transcript, 9 September 2019, p 75, 80, 94 and 95.[13] Exhibit R9, 68.[14] Exhibit R9, 1. The Applicant told the Tribunal that she did not know the details of her family members’ illnesses, but knew these included depression and anxiety.[15] She did not know about her mother’s five admissions to Hyson Green,[16] and when her mother stopped working due to depression they were just told she was ‘ill’.[17][15] Transcript, 9 September 2019, p 75.[16] Exhibit R9, 7.[17] Transcript, 9 September 2019, p 80. In about 2004, when the Applicant was ten years old, a man broke into her family’s house. She and her brother were home at the time and were being looked after by their father. She heard something in her mother’s room and she walked in and saw a man going through her mother’s jewellery box. He saw her and grabbed her at the top of her shirt and tried to pull her towards the window. Her father heard the noise and came towards the room. The man grabbed a case with paperwork in it and left.[18][18] Transcript, 9 September 2019, 21.

Decision

Reasons for decision

It follows that the Applicant did not suffer an ‘injury’ for the purposes of section 5A(1)(a) for which the Respondent is liable to pay her compensation under section 14 of the SRC Act.DECISION The Reviewable Decision is affirmed.

Ratio Decidendi

Legal Principle Established

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