Robin Nicoll and Military Rehabilitation and Compensation Commission

[2014] AATA 660

[2014] AATA 660 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4842
Re	Robin Nicoll
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	10 September 2014
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

COMPENSATION – Injury – Whether applicant suffered an injury in the nature of a psychiatric condition being depression – Whether employment contributed to “disease” in a material degree – Decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 14

Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth)

CASES

Comcare v Sahu-Khan (2007) 156 FCR 536

SECONDARY MATERIALS

Air Force Regulations, r. 115 (now repealed)

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

10 September 2014

INTRODUCTION

1. Mr Robin Nicoll (“the applicant”) has claimed that his condition of “depression” has been caused by his discharge from the Royal Australian Air Force (“RAAF”).  I have to determine whether this psychiatric condition is contributed to in a material degree by his employment with the RAAF.

   LEGISLATION

2. The claim of the applicant is made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).

3. As the applicant asserts that his depression condition arose in 1972, there is no issue that his claim has to be determined under the legislative regime which was applicable prior to the amendments to the Act, made by the Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth).

4. Comcare is liable under s 14 of the Act to pay compensation to an employee for an “injury” suffered by an employee if the injury results in incapacity for work or impairment.

5. The expression “injury” is defined in s 4(1), and has meaning given to it by s 5A(1)(a), to include “a disease suffered by an employee”.

6. Section 4 of the Act assists in the understanding of a disease to mean an ailment, or aggravation of any such ailment. that was contributed to in a material degree by the employee’s employment with the Commonwealth. The term “ailment” is defined in that section to include a “mental ailment”. In my opinion, depression is certainly a mental ailment.

   BACKGROUND

7. There is no dispute about the facts which relate to this application. The applicant elected not to give any evidence in support of this application. 

8. The applicant was a member of the RAAF, with the rank of Aircraftsman, from 27 August 1971 until 31 May 1972. He was then discharged under regulation 115 (r) of the former Air Force Regulations on the grounds that his services were no longer required. The documents reveal that it was then alleged that the applicant had indulged in homosexual practices. The applicant was certainly aggrieved with the manner of his discharge: in particular, there was specialist advice that the applicant be not discharged that was ignored. The applicant was never given the opportunity to confront his accuser.  The applicant was not charged with a civil or service offence.

9. On 7 March 2013 the applicant lodged a claim for rehabilitation and compensation for “depression”. The applicant claimed that the “main cause” of his injury was his discharge in 1972 from the RAAF.

   ISSUE FOR CONSIDERATION

10. I have to determine whether the psychiatric condition of the applicant is contributed to in a material degree by his employment with the RAAF.

    DIAGNOSIS OF MEDICAL CONDITION OF APPLICANT     

11. I am satisfied that the applicant suffers from depression. This is confirmed by the report dated 21 March 2013 of Dr Mark Zischke who referred the applicant to Ms Belinda Roche, psychologist, for treatment. Ms Roche in her report dated 2 May 2013 has confirmed that he commended treatment in February 2010. In her report she states:

    Throughout the course of treatment, Mr Nicoll disclosed a history of childhood sexual abuse, for which there is currently legal investigations. Mr Nicoll has also reported concerns regarding an unreasonable dismissal from the Australian Defence Force, for which there are currently ongoing investigations.

12. Dr Ewan Nixon was the general practitioner of the applicant between 2002 and 2011. The statement of the outline of evidence of Dr Nixon and his summonsed records were admitted into evidence.  Dr Nixon in his outline of evidence has provided a summary of the records of the applicant which relate to the psychiatric condition of the applicant. In May 2004 the applicant was observed to have an anxiety state which was associated with workplace stress. In 2008 and 2009 the applicant presented for treatment for psychological conditions at a time when he had difficulties with his marriage along with alcohol and financial problems. On 11 June 2011 the applicant reported that he was a victim of paedophilia: this was the first time that the applicant had mentioned this abuse. Dr Nixon has remarked that he does not recall the applicant ever having mentioned to him the subject of his cessation of employment with the RAAF.

    MATERIAL CONTRIBUTION

13. This application has to be determined by the legislative regime that was in existence prior to the amendments to the Act which were made by the Safety, Rehabilitation Compensation and Other Legislation Act 2007 (Cth).  I therefore have to decide whether the ailment of the applicant was contributed to in a material degree by his employment with the Commonwealth. In coming to a conclusion on this issue, I have been guided by the decision in Comcare v Sahu-Khan[1] where Finn J remarked:

    “ ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question”. 

    Finn J referred to this as “the threshold evaluation”.  The question of whether the employee’s employment did or did not contribute to the ailment is as His Honour remarked “a matter of fact and degree”.

    [1] (2007) 156 FCR 536 at 543.

    CONSIDERATION

14. I have reviewed the medical records of the applicant and have concluded that there is no evidence to support the contention the mental ailment of the applicant (namely, the depression) was contributed to in a material degree by his employment with the Commonwealth. I appreciate that Dr Zischke referred the applicant for treatment to Ms Roche who stated that there are “reported concerns” about his unreasonable discharge from the RAAF: she has not, however, opined that the military employment of the applicant was a cause of the depression suffered by the applicant.

15. In Comcare v Sahu-Khan, Finn J explained that there must be an evaluation of all relevant contributing factors to the condition of the applicant. I have relied upon the evidence of Dr Nixon who has treated the applicant for a long period from 2002 to 2011. The records of Dr Nixon disclosed a number of contributing factors to the psychological condition of the applicant[2]. In his outline of evidence Dr Nixon has stated that to the best of his recollection the applicant had not made any statement to him concerning his discharge from the RAAF. Arrangements had been made for the applicant to question Dr Nixon on his outline of evidence. However, the applicant had decided not to question Dr Nixon whose evidence is unchallenged.

    [2] See above at paragraph 12.

16. In the circumstances, I do not consider that it is plausible that his discharge from the RAAF was a matter of concern if it was never mentioned during a nine year period. I do not consider that there is any evidence that the military employment of the applicant contributed in a material degree to his depression condition.

    DECISION

17. I affirm the decision under review.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member

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Associate

Dated 10 September 2014

Date of hearing	4 September 2014
Applicant	In person
Counsel for the Respondent	Dibbs Barker
Advocate for the Respondent	Military Rehabilitation and Compensation Commission