Ronaldo Salazar and John Holland Pty Ltd
[2014] AATA 770
•24 October 2014
[2014] AATA 770
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3009
Re
Ronaldo Salazar
APPLICANT
And
John Holland Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President J W Constance Date 24 October 2014 Place Melbourne The reviewable decision made on 1 May 2013 denying liability to compensate Mr Salazar in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is affirmed.
.............[sgd]...........................................................
Deputy President J W Constance
Catchwords
COMPENSATION – whether the applicant suffered from a disease – whether the applicant suffered from a condition outside the boundaries of normal mental functioning and behaviour – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A(1), 5B, 14(1)
Cases
Comcare v Mooi (1996) FCR 439
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION
Mr Salazar was employed by John Holland Aviation Services Pty Ltd (“the Company”) as a Licensed Aircraft Maintenance Engineer from 2010 to December 2013.
Following an incident in January 2013, Mr Salazar lodged a claim for compensation for what he described as “acute mental stress”. He stated in his claim form that he was “harassed, bullied and … already under great stress”.
In a decision dated 26 February 2013, the Respondent denied liability to pay Mr Salazar compensation. This was partly on the basis of a finding that Mr Salazar’s condition was contributed to by reasonable administrative action carried out in a reasonable manner. The decision was affirmed by the Respondent in May 2013. Mr Salazar has applied to the Tribunal for a review of the latter decision.
For the reasons which follow, the decision under review will be affirmed.
BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of Mr Salazar. I am satisfied of the facts found on the balance of probabilities.
I am satisfied that at all times Mr Salazar was an honest witness who gave his evidence to the best of his recollection.
Mr Salazar commenced employment with the Company in 2010. Until he ceased employment in late December 2013 his role was that of a Licensed Aircraft Maintenance Engineer (“LAME”) at Tullamarine Airport. Mr Salazar described his duties as follows:
(a)Certifying that work has been done competently and in accordance with the approved maintenance manual and standards. This involves certifying the release of the aircraft to be used for service. I am only licensed to certify certain aircraft and engine types;
(b)Assisting other LAME with working on aircraft performing service checks.[1]
[1] Exhibit A1
Mr Salazar regularly worked on domestic aircraft but, from time to time was directed by the Company to inspect and certify international aircraft.
On 31 December 2012, Mr Salazar was rostered to supervise unlicensed Aircraft Maintenance Engineers in a hangar at the airport. His role was to supervise work being performed on a domestic A320 aircraft and to certify that the aircraft was able to be released for service. During that shift, Mr Salazar was asked by his Duty Manager to stop working on the aircraft. He was asked to go to the International Terminal and assist the international line maintenance staff as no one was available to sign off the aircraft on which they were working. Mr Salazar refused to do this as he believed that he was not qualified to certify the particular aircraft involved, because of the engine type fitted to it. Also he did not wish to leave the hangar in which he was working as he would then have been required to certify work on the domestic aircraft even though he had not fully supervised the work as it was done. Following this incident, Mr Salazar raised his concerns with the Human Resources Department of his employer. He believed that his concerns were being dealt with by the Department.
On the evening of 18 January 2013, Mr Salazar was rostered to work in Hangar 145. His task was to assist a qualified LAME to perform service checks on a domestic A330 aircraft, which was to arrive at approximately 11pm.
At approximately 8:45pm that evening, Mr Salazar was approached by his Duty Manager, Mr Boyle, to assist with line maintenance at the International Terminal. Mr Salazar believed that if he agreed to this request he would be required to certify as fit for service an international aircraft with a Trent 700 engine. He honestly believed that he was not authorised to certify such an aircraft.
Mr Salazar attempted to show Mr Boyle some documents relating to issues he had raised with the Human Resources Department, however Mr Boyle indicated that he did not wish to see them. Mr Salazar informed Mr Boyle that the question of his authority to certify certain aircraft was being considered by the Human Resources Department. Mr Boyle told Mr Salazar that his problem was with that department and not with him.
Mr Salazar informed Mr Boyle that he could not certify the aircraft at the International Terminal. Mr Boyle said that if he did not do this he would be required to leave the premises and go home. Mr Boyle repeated his request that Mr Salazar go to the International Terminal and Mr Salazar again refused. Mr Boyle then directed Mr Salazar to leave the premises which, after a short delay, he did.
Mr Salazar claims that as a result of the manner in which he was treated on the evening of 18 January 2013, he suffered an acute stress reaction and was unable to return to work for several weeks.
On 3 February 2013, Mr Salazar made a claim for compensation in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act”). The Company has denied liability to compensate Mr Salazar who now seeks a review of this decision.
ISSUES FOR DETERMINATION
An employee who is subject to the provisions of the Act is entitled to compensation if he or she suffers an injury, as defined by the Act, if the injury results in incapacity for work. Subject to an exception to which I will refer, an employee suffers an injury if he or she suffers a disease. The employee is not entitled to compensation in respect of a disease “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”[2]
[2] Safety, Rehabilitation and Compensation Act 1988 (CthH), section 5A.
The issues which arise for determination in this application are as follows.
(1) Has Mr Salazar suffered a disease within the meaning of the Act?
(2) If so, has Mr Salazar suffered an injury within the meaning of the Act?
LEGISLATION
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
(1)Subject to this Part, Comcare [in this case the Company] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in subsection 5A(1) of the Act. The relevant part of the definition reads:
injury means:
(a) a disease suffered by an employee …
…
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B to mean:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
In subsection 4(1) ailment is defined:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
DETERMINATION OF THE ISSUES
Issue 1: Has Mr Salazar suffered a disease within the meaning of the Act?
To determine this issue it is necessary to decide whether Mr Salazar has suffered an ailment and, if so, whether that ailment was contributed to, to a significant degree, by his employment by the Company.
The condition must be “outside the boundaries of normal mental functioning and behaviour”
In Comcare v Mooi [3] Drummond J. in the Federal Court said:
… in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to “injuries” compensible under s 14(1), do not appear to be used in any technical medical sense, and have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of the mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is can compensible under s 14(1).
[3] (1996) FCR 439 at 443-444.
Mr Salazar’s evidence as to his condition
In his Claim for Compensation Form dated 3 February 2013, Mr Salazar described the circumstances which led to his claimed injury as follows:
I was harassed, bullied and was ordered to leave my working place that night without any escort as I was already under great stress. The manager refuse [sic] to accept my reasons for not certifying the AAX A 330 aircraft. My contract did not cover this aircraft.[4]
[4] Exhibit R1 p.74.
In his statement dated 13 May 2014,[5] Mr Salazar said that when he was asked to work on the aircraft at the International Terminal, he started panicking and could feel his heartbeat increase. He felt under tremendous pressure and was very distressed; he felt uncomfortable, shocked and “bad” that he was not getting any support. His hands were trembling. He felt angry and humiliated by the way he had been spoken to in front of his colleagues. As Mr Salazar drove home from his workplace he felt extremely stressed and upset. His hands were still trembling and his heart was beating very fast. He felt upset that he had been blamed at a time that he was just trying to do the right thing. On returning to his home he was unable to sleep that night. Mr Salazar confirmed the contents of his statement when he gave evidence.
[5] Exhibit A1.
Notes of consultations with General Practitioner
Mr Salazar consulted his General Practitioner, Dr Loo, the day following his being stood down at work. Dr Loo’s note of the consultation on 19 January 2013 includes the following:
low mood
stressed
……
felt discriminated
low mood
helpless
……
low self-esteem not suicidal
long talk
active listening.
On 22 January 2013, Mr Salazar again consulted Dr Loo. His notes of that consultation include:
comes with wife
upset
anxious++
work has affected her
feels not respected
poor sleep
long talk
active listening
A further consultation with Dr Loo took place on 6 February 2013. The record of that consultation includes:
still upset poor sleep
work case not resolved
seeing the management to resolve issues on Tuesday long talk
active listening
counselled.
Mr Salazar again consulted Dr Loo on 12 February 2013. Dr Loo’s note of that consultation he is as follows:
Depression
Stressed++
work not resolved yet
his concern – certifying A333 aircraft not his job description
job does not want to listen
counselled
active listening
not suicidal
long talk ---
Reason for contact:
Depression
After a further consultation with Dr Loo on 16 February 2013 Dr Loo recorded:
depression
poor sleep
stressed
advised to consider looking for another job
counselled
On that day Dr Loo created a Mental Health Plan for Mr Salazar.
A further consultation took place on 26 February 2013. It was noted by Dr Loo that work was not resolving the issues, his sleep was “OK” and that Mr Salazar saw a psychologist that day. The reasons for Mr Salazar’s attendance on his doctor were noted to include depression.
Another consultation took place on 27 February 2013 at which it was noted that Mr Salazar was “not happy”.
Dr Loo’s note of a consultation on 28 February 2013 includes:
low mood
his normal life is upset
teary
rumination++
long talk
active listening
Reason for contact:
Depression,
At a consultation on 21 March 2013 Dr Loo recorded Mr Salazar as:
stressed++
low mood.
On 28 March 2013 Mr Salazar informed Dr Loo that he wanted to return to work on night shift.
Dr Loo noted Mr Salazar as being “depressed” and “very helpless” on 4 April 2013. He also recorded that Mr Salazar wished to return to night shift rather than day shift which had earlier been proposed by the Human Resources Department.
Assessment by Ms Mishra, treating Psychologist
On 16 February 2013, Dr Loo referred Mr Salazar to Ms Mishra, Psychologist. In the letter of referral Dr Loo stated that Mr Salazar had “severe depressive symptoms of insomnia, low mood, negative cognition, low self-esteem.”[6] He further advised that “if the stress goes on, he will have high risk of burnout and exhaustion”.
[6] Exhibit R1 p.98.
In a Psychology Treatment Notification Form dated 26 February 2013, Ms Mishra reported that the psychological condition for which she was treating Mr Salazar was “depressive symptoms, insomnia, low mood, low self-esteem”.[7]
[7] Exhibit R1 p.100.
The Report of Dr Loo
In May this year I adjourned this matter part-heard. Part of my reason for doing this was to allow Mr Salazar to obtain a report from Dr Loo. In response Dr Loo provided a report dated 3 July 2014,[8] which reproduced a letter dated 28 August 2013 addressed to the Company.
[8] Exhibit R15.
Dr Loo reported that as at 28 August 2013, Mr Salazar’s current symptoms were depression, poor sleep, poor self-esteem and anger. His initial diagnosis was acute stress reaction. However, as the symptoms persisted, Dr Loo revised his diagnosis to adjustment disorder with depression and anxiety symptoms. In his opinion, as Mr Salazar’s depressive symptoms worsened and Mr Salazar spent more time absent from work, the more difficult it was for him to adjust.
The differing opinions of Dr Epstein, Consultant Psychiatrist, and Professor Mendelson, Consultant Psychiatrist.
Both Dr Epstein and Professor Mendelson examined Mr Salazar for the purpose of providing reports to assist in the determination of this application by the Tribunal.
Mr Salazar was examined by Dr Epstein on 28 January 2014. In addition to the information provided by Mr Salazar, Dr Epstein had available to him substantial documentation regarding Mr Salazar’s claim. Dr Epstein provided a report dated 30 January 2014.[9]
[9] Exhibit A5.
Dr Epstein reported, in part:
Renaldo Salazar appears to have developed a mild acute Adjustment Disorder with mixed anxiety and depressed mood that has resolved. He has no diagnosable psychiatric disorder at the moment. This situation appears to have been much the same over the last month or two.
……
He appears to have made a full recovery and is now enthusiastic about finding other work and staying in the same field and increasing his qualifications. It is not require any medical, psychiatric or psychological treatment. He is not incapacitated for work in any manner.[10]
[10] At p.12.
Professor Mendelson examined Mr Salazar on 30 October 2013. He provided a report dated 28 November 2013 and gave evidence.
Professor Mendelson reported that Mr Salazar “presented as being angry, aggrieved and resentful” and described to Professor Mendelson anxiety symptoms related to his situation at work. He stated that:
I have stated that in my opinion Mr Salazar described manifestations of anxiousness that have been, and continue to be, due to an understandable psychological reaction to his dispute with his employer and to his current situation, but that in my view he does not have any diagnosable mental disorder.
In reply to your specific question, it is my opinion that Mr Salazar has not experienced “a condition outside the boundaries of normal mental functioning and behaviour”. There is no loss of work capacity due to any psychiatric illness or psychiatric impairment.
……
Mr Salazar’s claim form referred to “acute mental stress”. There is no such diagnosis on [sic] medicine or psychiatry. While I accept that his dispute with his employer has been and continues to be a stress or that has led to manifestations of anxiousness, in my opinion this does not constitute a diagnosable mental disorder or psychiatric “condition” in the sense of a psychiatric disorder or psychiatric illness.
…… I am not aware of any indications that Mr Salazar is voluntarily or involuntarily exaggerating his current symptoms.[11]
[11] At pp13-14.
When he gave evidence Professor Mendelson confirmed the opinions he had expressed in his report. He said that Mr Salazar was understandably upset by the incident in his workplace and that manifestations of anxiousness, particularly insomnia, followed. In the opinion of Professor Mendelson, given the context of what happened and the nature of the emotional response which Mr Salazar described to him, at no time was Mr Salazar mentally ill. Professor Mendelson had access to extensive documentation in relation to this application when preparing his report.
Professor Mendelson did not agree with the diagnosis made by Dr Epstein. In his view, this was a retrospective diagnosis. Dr Epstein reported that at the time he saw Mr Salazar his condition had resolved. In Professor Mendelson’s opinion, the diagnosis was based on an account of events which had occurred sometime earlier.
In relation to the diagnosis of depression recorded by Dr Loo, Professor Mendelson said that insomnia is not necessarily a depressive symptom in the context of what had happened to Mr Salazar, but rather an understandable emotional reaction more related to anxiousness than depression. The references to “low mood” did not indicate to Professor Mendelson that Mr Salazar’s low mood was clinically significant in terms of making a diagnosis of a mental disorder. The various symptoms referred to by Dr Loo were such that Professor Mendelson needed to know more about their nature, how they were elicited and what lay behind them before he would conclude that they represented an actual depressive response to what had happened.
Professor Mendelson also noted that no consideration had been given to the prescription of either anti-depressant or anxiety medication. Only a sleeping tablet had been prescribed. In his view this is indicative of a “certain incongruity” between a definite diagnosis of severe depression and lack of what, in his opinion, would have been the appropriate treatment.
Professor Mendelson was recalled to give evidence after he had the opportunity of perusing Dr Loo’s clinical notes. In the opinion of Professor Mendelson, the fact that there had been no reported emotional symptoms suffered by Mr Salazar before 19 January 2013 indicates that there was an emotional response to the incident on the previous day. Further, Professor Mendelson expressed the view that Dr Loo’s notes indicate that he referred Mr Salazar to the psychologist, Ms Mishra, with the aim of having her challenge Mr Salazar’s anxiety-provoking negative thoughts and to view his problems from a different perspective. In the opinion of Professor Mendelson this indicates that the problem was Mr Salazar’s attitude and sense of having suffered an injustice rather than his having developed a diagnosable medical or psychiatric disorder that would have been amenable to treatment with anti-anxiety or anti-depressant medication.
Consideration of the various opinions
In cases such as this the opinions of treating health professionals must always be given very careful consideration. Dr Loo had the opportunity to assess Mr Salazar's condition on many occasions, including immediately after the incident. His diagnosis of adjustment disorder with depression and anxiety symptoms is supported by Dr Epstein and, to some extent, by Ms Mishra.
However, after considering the various reports and the evidence given, I prefer the views of Professor Mendelson. He gave a detailed report which considered the various opinions which had been expressed.
As noted by Professor Mendelson, and reflected in the clinical notes, no medication was prescribed that corresponds with a diagnosis of depression. I also note that Dr Loo’s letter addressed to Mind Health Care, which referred Mr Salazar for psychological treatment,[12] emphasised the significance of stress in Mr Salazar’s condition. As noted by Dr Mendelson, this suggests that the aim of treatment was to address Mr Salazar’s anxiousness, and improve his capacity to deal with stressful work situations.
[12] Exhibit R1 p.98.
Based on Dr Mendelson’s report and evidence, I am satisfied that Mr Salazar suffered severe stress as a result of the incident on 18 January 2013, but that at no time did his condition go “outside the boundaries of normal mental functioning and behaviour.”
Dr Epstein did not explain why he concluded that Mr Salazar suffered an adjustment disorder up until “a month or two” before he assessed him in late January 2014. Further, he does not explain why he made this diagnosis in view of Mr Salazar's expressed desire to return to night shift as early as 28 March 2013.
As I have decided that Mr Salazar did not suffer a condition outside the boundaries of normal mental functioning and behaviour, I am not satisfied that he has suffered an ailment as defined in section 4 of the Act. It follows that Mr Salazar has not suffered a disease as defined in section 5B. He has therefore failed to establish that he has suffered an injury which is compensable in accordance with section 14 of the Act.
The remaining issues
In view of this conclusion, it is unnecessary that I consider the further issues in dispute.
CONCLUSION
The reviewable decision made on 1 May 2013 denying liability to compensate Mr Salazar in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) will be affirmed.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of ......[sgd]..................................................................
Associate
Dated 24 October 2014
Date(s) of hearing 13-15 May 2014 and 27 August 2014 Date final submissions received 27 August 2014 Applicant In person Counsel for the Respondent J Lenczner Solicitors for the Respondent Sparke Helmore
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