Secretary, Department of Employment and Workplace Relations and Comcare and Anor
[2006] AATA 854
•4 October 2006
|
DECISION AND REASONS FOR DECISION [2006] AATA 854
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/197
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS | ||
Applicant
| And | COMCARE |
First Respondent
| And | WENDY CAIRE |
Second Respondent
DECISION
| Tribunal | J.W. Constance, Senior Member |
Date 4 October 2006
Place Canberra
| Decision | The decision of Comcare made 6 June 2005 is affirmed. |
..............................................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – Overuse injury – Aggravation – Adjustment disorder – Whether material contribution by employment – Whether excluded by reason of wilful and false representation.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 7, 14
Re Waterford & Director General of Social Services (1980) 3 ALD 63
Estex Clothing Manufacturers Pty Limited v Ellis and Goldstein Limited (1967) 116 CLR 254; [1966] HCA 81
Wiegand v Comcare Australia (2002) 72 ALD 795; [2002] FCA 1464
REASONS FOR DECISION
| 4 October 2006 | J.W. Constance, Senior Member |
INTRODUCTION
In 2004 Ms Caire was employed within the Australian Public Service by the Department of Family and Community Services. Ms Caire claimed that about the middle of that year she suffered an aggravation of an earlier overuse injury to her neck and arms and also an adjustment disorder by reason of the manner in which her supervisors managed the team in which she worked. Comcare accepted liability for these injuries under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The Department of Employment and Workplace Relations, in which Ms Caire is now employed, applied to the Tribunal for a review of Comcare’s decision. The Department is seeking to have Comcare’s decision set aside and a decision denying liability to Ms Caire substituted.
For the reasons which follow, I have decided that the decision of Comcare should be affirmed.
FACTS
I am satisfied of the following facts on the balance of probabilities. Unless otherwise stated these findings are based on the evidence of Ms Caire.
Ms Caire has held a permanent position in the Australian Public Service since 1987. She commenced her employment with the Department of Defence and transferred to the Department of Family and Community Services in 1999. In this position she worked as a member of the Internet Team which was part of the E-Communications Team.
By August 2004 there were two members of the Internet Team, Ms Caire and her immediate supervisor Ms Tenkate. The supervisor of the E-Communications Team was Mr Mahony who had held that position for about six months.
The relationship between Ms Caire and Mr Mahony was “quite strained” and Ms Caire felt intimidated and bullied by Mr Mahony on occasions. As a result Ms Caire had discussed her concerns with a member of the Personnel Department in about June 2004 and subsequently there had been some form of mediation between Ms Caire and Mr Mahony. So far as Ms Caire was concerned this did not improve the relationship.
In early August 2004 Ms Caire attended a meeting between the members of the E-Communications Team and the Branch Head, Ms Chambers. At this meeting Ms Caire learned that there was to be a restructure of the Internet Team and she would be working in the Community Area with a new supervisor, Ms Shelley. This meant that Ms Caire would no longer be subject to the supervision of Mr Mahony. Ms Caire was told that this restructure would take effect in early September 2004.
On 17 August 2004 there was a meeting between Ms Caire, Ms Shelley and Mr Mahony. At this meeting it was agreed that from that time Ms Caire would be supervised by Ms Shelley and that if Mr Mahony had any urgent work for Ms Caire he would first speak to Ms Shelley to ascertain if Ms Caire had the capacity to do the work.
During the morning of 19 August 2004 Mr Mahony spoke to Ms Caire and told her he had an urgent job for her and that it to be done by the end of the day. Ms Caire said to Mr Mahony that this was not work in the area in which she was supposed to be working and due to the change in work arrangements she was now working for Ms Shelley. Mr Mahony said words to the effect of "you will do as you're told". Following this conversation Ms Caire felt frustrated as she felt that the mediation process had been a waste of time and that she was being bullied by Mr Mahoney.
During the conversation between Ms Caire and Mr Mahony, Ms Tenkate interrupted and said that she had been assisting Ms Caire with her work. Ms Caire disagreed. After Mr Mahony had walked away Ms Caire became upset and spoke to her supervisor, Ms Shelley. Ms Shelley confirmed to Ms Caire that she was now working directly for Ms Shelley and that her understanding of the arrangements for the allocation of work was correct. Ms Caire and Ms Tenkate disagree as to the events which followed.
Ms Caire gave the following evidence. After speaking to Ms Shelley, Ms Caire was still upset and was being comforted by fellow workers. Ms Tenkate approached Ms Caire and said in a raised voice "I want to talk to you personally". Ms Caire reluctantly followed Ms Tenkate. As Ms Tenkate could not locate a vacant interview room, she opened the door to the first aid room and she and Ms Caire entered the room. Ms Tenkate closed the door behind them. Ms Caire said that when they were in the room, Ms Tenkate became visibly angry and was very red in the face. She told Ms Caire that she was behaving "like a silly little child". Ms Caire became scared and concerned about getting out of the room. When Ms Caire attempted to open the door Ms Tenkate stood with her back to the door and took hold of the handle. Ms Caire repeatedly said "let me go". She said that to the best of her knowledge she repeated this for at least one minute. Ms Caire then said words to the effect of "this is harassment, let me go." Ms Caire says that Ms Tenkate was abusive towards her and told her that she was not coping with the changes in her workplace. Ms Caire started to cry and at this point Ms Tenkate opened the door and Ms Caire moved past Ms Tenkate and into the doorway. The conversation between the two continued for a short period during which Ms Tenkate repeated that Ms Caire was not handling the changes well. Ms Caire was concerned that she had work which had to be done for Ms Shelley within the next half hour and told Ms Tenkate this. Ms Caire walked back to her work area and was followed by Ms Tenkate who said words to the effect ‘you should be proud of yourself, you were so brave.” [1] Ms Caire said that by this time she did not feel she was a valued member of the team and felt very upset. She felt bullied and intimidated and did not want to be at work.
[1] Transcript of Proceedings, 10 August 2006, p. 19.
Later that day Ms Caire spoke to the Department’s Harassment Officer, Ms Minall, and told her of the incident and how upsetting it had been for her. This meeting lasted about an hour.
In her statement made 18 October 2005 [2] Ms Tenkate gave a very different version of events. She said that while Mr Mahony was talking to Ms Caire, Ms Caire stated that “everyone expects me to do everything”. When Ms Tenkate said that this was not true Ms Caire screamed at her, threw papers onto her desk and “stormed off”. Ms Tenkate then discussed the incident with Mr Mahony and told him that she was concerned for Ms Caire as she was obviously upset. She then found Ms Caire talking to a group of her new team members.
[2] Ex. A3.
Ms Tenkate’s statement continued:
“I approached Wendy in a calm, professional manner and asked her if it would be possible to speak to her in private. Wendy agreed and so we went looking for somewhere private to talk. We walked past several offices and meeting rooms on TOP AW3 but they were not available, so we then went to the tearoom. It was also occupied, so I suggested to Wendy that we chat in the first aid room. Wendy agreed and led the way from the tea room to the first aid room.
I followed Wendy into the first aid room and turned to close the door to give us some privacy - it was lunchtime and the corridor was starting to get busy with people using the bathrooms, tea room etc.
Suddenly, Wendy threatened me, saying something along the lines of ‘You can't lock me in here and make me talk to you - that’s bullying and harassment! I won't stand for it! I'll report you!’.
I was taken aback, a little frightened, and shocked, because Wendy had changed from seemingly normal mood to enraged in such a short period of time.
I responded at once to defuse the situation. Though the door had never been closed, I immediately pushed the door to the first aid room wide open, pressed my back flat against the wall just inside the door so that I was out of her way, and replied that she was free to leave, but that I would really appreciate it if we could talk because she was obviously upset and as her friend I was concerned about her.
Wendy moved past me, stopped in the doorway just before exiting the room, then turned to face me and began to talk about how upset she was by the changes in the Internet Team. I was now inside the room and could not exit as Wendy was blocking my way. Her back was to the corridor and people were walking past, but they did not pay attention – there were no raised voices or anything that would draw their attention to our conversation.
As Wendy and I started to talk Julie Flux appeared in the hallway behind Wendy. Julie saw the situation was tense, but certainly not hostile, and so left us to continue talking. I am not sure whether Wendy knows Julie was there, but I suspect not because her back was to the corridor.
Wendy and I continued to talk about the changes. I repeated the content of previous conversations we had held about how the changes were inevitable, and how it was now up to us to make the best of these changes and to find the positive in it for each of us.
Rather than keeping the conversation focused on Wendy and myself and what we could do, Wendy kept trying to turn it into a ‘well he said/she said’ and ‘well he/she does this/that’ session. I tried to keep the conversation focused on finding a positive outcome and practical steps to help Wendy through the changes to the team.
There was one point in the conversation where I felt Wendy really did not like what I said. I had responded to one of her comments, saying that ‘you don't have to like people you work with, but we are expected to be professional and polite’. She then said something along the lines that Neil didn't behave professional and polite to her. I replied that we can only be responsible for our own behaviour and if we make sure we are doing the right thing, then that’s all we are required to do.
Eventually Wendy calmed down and I was able to discover that she felt that Neil had ‘broken the rules’, therefore leading to her outburst at him. Wendy felt that Neil had ignored the Interim Procedures agreed earlier in the week, and said that he should have spoken to Skye about Wendy doing Web work, and not spoken directly to Wendy. Wendy was adamant that Neil should not speak to her, but only to Skye.
I said to Wendy that I could understand that she may have felt the ground rules had changed without consultation. I asked her whether it would help if I reconfirmed the Interim Procedures with Skye and Neill, and that I would take over the In Box from now on. Wendy said she would appreciate that.
And at the end of our conversation, I said to Wendy that I thought it was difficult to have conversations to resolve conflict and confusion, and that I really appreciated her honesty and friendship. I thanked Wendy for making the effort to have this discussion with me. Wendy appeared to reciprocate my feelings.”
The Department tendered a statement of Mr Mahony made 13 October 2005.[3] This statement did not set out his recollection of the events of 19 August 2004 despite the fact that on the evidence of Ms Tenkate he would have been able to verify that Ms Caire screamed at her, threw papers onto a desk and “stormed off”. The Department did not call Mr Mahony to give evidence.
[3] Ex. A7.
Ms Flux gave evidence and confirmed her statement made 17 October 2005.[4] She described Ms Caire as having “stormed off” during the conversation with Mr Mahony and Ms Tenkate. She stated that both Ms Tenkate and Ms Caire appeared to be upset after this conversation so much so that about fifteen minutes after the conversation took place she went in search of both of them. When Ms Flux located them Ms Tenkate was inside the first aid room and Ms Caire was standing in the doorway facing into the room. On the evidence of both Ms Tenkate and Ms Caire, this was towards the end of their conversation. Ms Flux said in her statement that Ms Caire was “very upset” and that Ms Tenkate’s voice was calm. In evidence Ms Flux said that Ms Caire appeared to be more upset than when she was having the conversation with Mr Mahony earlier and although Ms Tenkate’s voice was calm she too appeared upset.[5]
[4] Ex. A5.
[5] Transcript of Proceedings, 11 August 2006, p. 10.
Ms Shelley gave evidence. She confirmed the arrangement with Mr Mahony that Ms Caire would commence work for her prior to the reorganization taking place and that Mr Mahony would speak to Ms Shelley concerning any urgent work he required done by Ms Caire. She also gave evidence that on 20 August 2004 Ms Caire complained to her that Ms Tenkate had held her in the first aid room against her will and had berated her.[6]
[6] Ex. A8, Statement of Skye Shelley made14 October 2005.
After carefully considering all of the above evidence I am satisfied on the balance of probabilities that the events of 19 August 2004 were as described by Ms Caire. As a result of her untimely death Ms Tenkate was not able to be cross-examined on her statement and I was unable to assess her credibility in the witness box. As a general rule when the Tribunal has before it the sworn evidence of a witness who has been subject to cross-examination and a written statement of a person who has not, it will give lesser weight to the latter: Re Waterford & Director General of Social Services (1980) 49 FLR 98. This approach is consistent with the statement of the High Court in Estex Clothing Manufacturers Pty Limited v Ellis and Goldstein Limited (1967) 116 CLR 254 in relation to untested affidavit evidence of a deceased person.[7]
[7] At p. 263.
In reaching this decision I have taken into account that the Department did not call either Mr Mahony or Ms Minall. I regard it as significant that Mr Mahony did not give evidence in support of Ms Tenake’s version of the initial conversation in which he was involved. It is also of significance that very shortly after the incident involving Ms Tenake, Ms Caire spent about one hour telling Ms Minall what had happened. Ms Caire was not challenged as to this evidence and as Ms Minall was not called, I conclude that what Ms Caire told Ms Minall was entirely consistent with what she has told me.
It was also put to me by Counsel for the Department that the timing of the various incidents of the morning of 19 August 2004 supported Ms Tenkate’s version. I am not satisfied that the recollection of any of the witnesses was sufficiently accurate to make any finding based on the alleged timing of events, particularly given the whole incident took place in a relatively short period of time.
On 20 August 2004 Ms Caire consulted her general practitioner, Dr Watson, concerning the effect on her of the events of the previous day. On Dr Watson’s advice Ms Caire did not return to work until 30 August 2004. On her return Ms Caire was required to meet with Ms Tenake on a weekly basis as part of the duties of her position. This caused her to feel anxious and depressed. She was having nightmares about the incident of 19 August 2004 and about being trapped.
By 28 September 2004 Ms Caire was experiencing difficulty sleeping and was concerned that she was not doing her job properly. She felt that she had “let down” her supervisor, Ms Shelley. She suffered stiffness in her neck, could not turn her head to look over her shoulder and suffered pain down her right arm.
Medical evidence
Dr Watson has been Ms Caire’s general practitioner since 1995. He gave evidence and confirmed the contents of his report of 14 December 2004.[8]
[8] Ex. A1, p. 57.
In the opinion of Dr Watson the injury suffered by Ms Caire on 30 April 1997, when she was working for the Department of Defence, was a significant occupational overuse injury which was permanent and which would fluctuate in intensity depending on triggers. On 10 June 2004 Ms Caire consulted Dr Watson complaining of a significant worsening of her condition. He reported that :
“She indicated that she had been given unrealistic work targets by her supervisors resulting in very long hours with substantial amounts of unpaid overtime. Much of the work was at the workstation where typing and mouse work consisted of greater than 90% of her work.” [9]
As to her medical condition at that time Dr Watson reported:
“She started to suffer the aching and burning to her neck and upper back, neuropathic pain down the upper limbs, aching elbows and forearms with reduced grip strength. Her levels of agitation dramatically increased, as did other psychological parameters. Importantly her sleep was severely affected which is well recognised as a critical factor in the development of the condition both initially and in flare-ups.”
In his opinion Ms Caire’s work was the cause of the aggravation of her pre-existing condition on this occasion.
[9] Ex. A1, p. 57.
Dr Watson confirmed that Ms Caire consulted him on 20 August 2004. Dr Watson expressed the following opinion as to the effects of the incident of 19 August 2004:
“The consequence of the [events of 19 August 2004] has resulted in magnification of her OOS [Occupational Overuse Syndrome] and resulted in definitive psychiatric illness. The pain suffered as the result of the OOS has become quite intense requiring regular analgesia and passive therapy with the Chiropractor. Psychological symptoms such as low moods, fleeting suicidal thoughts, irritability, fatigue, low self-esteem, interpersonal withdrawal, anhedonia, insomnia, decreased libido, constipation, reduced appetite have all become focal since the incident 19th August 2004."
In December 2004 Dr Watson diagnosed Ms Caire as suffering:
“1. Cervicobrachial neuralgia syndrome.
2. Bilateral epicondylitis medial and lateral.
3. Inflamed extensor and flexor forearm structures.
4. Adjustment disorder with depressed mood (DSM 4 p301.309.00.)”
Dr Mickelburgh, Consultant Psychiatrist, examined Ms Caire on 1 August 2005 at the request of Comcare. His diagnosis of her condition was:
“Adjustment Disorder with mixed anxiety and depressed mood, chronic, that is, lasting more than six months. A reaction to occupational stress improving but not yet in full remission.” [10]
[10] First Respondent, Ex. 1.
In the opinion of Dr Mickelburgh: “there is a direct cause and effect relationship between the work stress and the psychological reactions of anxiety and depression” and that Ms Caire experienced “marked distress that is in excess of what would be expected from exposure to the stressor.” Dr Mickelburgh gave evidence and confirmed these opinions.
In June 2005 the Department referred Ms Caire to Dr Warfe, Public Health Physician, to assess her medical suitability to increase her work hours. Dr Warfe gave evidence that in undertaking this assessment he focussed on her condition at the time of assessment. In his report of that assessment[11] Dr Warfe stated his diagnosis of Ms Caire’s condition as “right upper limb chronic regional pain syndrome and anxiety/depression, possibly occupationally related.”
[11] First Respondent, Ex. 2.
In December 2005 Ms Caire was assessed by Ms Crichton, Clinical Psychologist. This assessment was carried out at the request of the Department for the specific purpose of assessing Ms Caire’s capacity to return to work. In a report of 16 January 2006 [12] Ms Crichton stated:
“ I have found this client to be sincere in her belief that she has been maligned by her employer and that the latter is responsible for all her misfortunes......
Irrespective of the objective nature of any treatment meted out to Ms Caire, whether fair or otherwise, she nevertheless believes with considerable conviction that she has been treated unfairly and is the victim of the process in which she has been involved."
Ms Crichton also stated that the historical psychometric and observational data is consistent with the diagnosis of Adjustment Disorder with Depressed Mood, Chronic.[13]
[12] Second Respondent, Ex. 3.
[13] Diagnostic and Statistical Manual of Mental Disorders, Revised Edition, Code: F43.20.
LEGISLATIVE BACKGROUND
Section 14 relevantly provides:
“Compensation for injuries
(1) Subject to this Part, Comcare 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 section 4 to include a "disease". Section 4 defines “disease” as:
“(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a
material degree by the employee’s employment by the
Commonwealth or a licensed corporation.”
The Department conceded that it is appropriate to treat the condition from which Ms Caire suffers as a disease. I am satisfied that this is a proper concession.
Subsection 7(7) provides:
“A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease."
ISSUES FOR DETERMINATION
The first issue raised by the Department is that pursuant to subsection 7(7) the Adjustment Disorder is not to be taken to be injury because Ms Caire made a wilful and false representation to Dr Mickelburgh and to Dr Warfe that she had not previously suffered a mental illness or disorder.
The Department concedes that at least from 1999 Ms Caire has suffered from ongoing physical symptoms of an overuse injury but contends that these symptoms have been appropriately managed and do not give rise to any fresh liability. This gives rise to an issue as to whether Ms Caire suffered an aggravation of a condition of cervicobrachial neuralgia syndrome.
If Ms Caire did suffer an aggravation of the cervicobrachial neuralgia syndrome, the second issue for decision is whether this aggravation was “contributed to in a material degree” by her employment.
There is no dispute on the evidence that Ms Caire suffers an adjustment disorder with depressed mood. The issue which arises for determination is whether this condition was "contributed to in a material degree" by her employment.
In summary the issues for determination are:
(1) does subsection 7(7) exclude the adjustment disorder from being taken as an injury?
(2) has Ms Caire suffered an aggravation of a condition of cervicobrachial neuralgia syndrome?
(3) if so, was the aggravation contributed to in a material degree by her employment?
(4) was the condition of adjustment disorder with depressed mood suffered by Ms Caire contributed to in a material degree by her employment?
DETERMINATION OF THE ISSUES
Does subsection 7(7) exclude the adjustment disorder from being taken as an injury?
I am not satisfied that subsection 7(7) applies. It is not clear from the evidence of either Dr Mickelburgh or Dr Warfe exactly what questions were asked of Ms Caire as to her previous mental history. In the absence of such evidence I cannot make a finding that the answers given by Ms Caire, even if incorrect, were "wilful and false". The Department's submission in this regard was based largely on answers given to Dr Mickelburgh, yet the doctor was unclear as to exactly the question which he put to Ms Caire. At one stage of his evidence, Dr Mickelburgh said that the question he asked was whether Ms Caire ever suffered from "a serious nervous disorder". It is arguable that when Ms Caire responded "no" to this question the answer was entirely correct.
Has Ms Caire suffered an aggravation of the condition of cervicobrachial neuralgia syndrome?
The evidence of Dr Watson was not challenged by the Department and I accept his evidence. His opinion was supported by Dr Warfe. Dr Watson has the advantage of having had many consultations with Ms Caire over a number of years and is well-placed to asses her state of health. I am satisfied on the balance of probabilities that in June 2004 Ms Caire suffered an aggravation of the condition of cervicobrachial neuralgia syndrome.
Was the aggravation of the condition of cervicobrachial neuralgia syndrome contributed to in a material degree by Ms Caire’s employment?
Again the evidence of Dr Watson that there was a contribution to a material degree was unchallenged. Dr Warfe was of the opinion that there was a “possible” occupational relationship. For the reasons already stated I accept the evidence of Dr Watson. I am satisfied on the balance of probabilities that Ms Caire’s employment with the Department contributed in a material degree to the aggravation of the condition of cervicobrachial neuralgia syndrome.
Was the condition of adjustment disorder with depressed mood contributed to in a material degree by Ms Caire’s employment?
Most of the argument at the hearing was directed to this issue.
The Contentions of the Department
It was the primary contention of the Department that I could not be satisfied that Ms Caire was subjected to an excessive workload nor could I be satisfied that the events of 19 August 2004 occurred as described by her. The Department then argued that, in accordance with the decision of the Federal Court in Wiegand v Comcare Australia (2002) 72 ALD 795, unless I was satisfied the events occurred, any injury resulting from Ms Caire’s perception of what occurred, was not compensable. Counsel for the Department stressed that there must be a positive finding that Ms Caire was subject to an excessive workload and that to the events of 19 August 2004 happened as she described.
As I have already indicated, I am satisfied on the balance of probabilities that the events of 19 August 2004 did in fact occur as described by Ms Caire. As to the issue of whether or not Ms Caire was subject to an excessive workload I do not accept the argument that it is critical to the success of Ms Caire’s claim that I be satisfied that her workload was in fact excessive. Nowhere in the claim form does Ms Caire allege that her injuries were caused by excessive workload. What she does refer to is:
"worker deadlines, work pressure, harassment by supervisor and director...... verbal abuse, intimidation and harassment, when reported were inadequately managed. Recommendations by Personnel were not acted upon ie still had to meet with officer who harassed. Typing and using a mouse exacerbated by stress and work deadlines." [14]
[14] Ex. A1, T5.
In statements to her employer and in giving evidence, Ms Caire did refer to her workload as excessive. On one occasion in 2004 in response to Ms Caire’s complaints, the Department reduced her workload. Should a finding have been necessary, I am satisfied that from time to time Ms Caire experienced a heavy workload. Whether that workload at the time was excessive is a subjective judgement.
On the basis of the evidence of Ms Caire and Dr Watson I am satisfied on the balance of probabilities that the work required of Ms Caire as an employee of the Department contributed in a material degree to the aggravation of her pre-existing overuse injury and to her adjustment disorder with depressed mood. Whether or not the work required was excessive is immaterial. There is no need for a finding of fault by an employer for liability to be established under section 14 of the Act. Both Ms Caire and Dr Watson gave evidence that it was the nature of the work itself which gave rise to the injuries and I have accepted that evidence.
In Wiegand v Comcare Australia the Court said:
“The relevant question which arises from the definition of disease is whether a stressor or stressors to which Mr Wiegand is vulnerable happened, and whether the happening was contributed to in a material degree by his employment….
In relation to the concept of employment as a contributing factor, the respondent concedes that the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable:
"Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition."….
It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to "employment" which would require some qualitative assessment of the incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee.”
Counsel for the Department also argued that I should not follow the decision in Wiegand v Comcare Australia. I reject this argument as clearly it is a decision which is binding on this Tribunal.
DECISION
The decision of Comcare made 6 June 2005 is affirmed.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member
Signed: .........................................
Joe Meagher, Associate
Date of Hearing 10 & 11 August 2006
Date of Decision 4 October 2006
Counsel for the Applicant Mr C Ward
Solicitor for the Applicant Clayton Utz
Counsel for the First Respondent Ms C Dowsett
Solicitor for the First Respondent Australian Government Solicitor
Counsel for the Second Respondent Mr R Livingston
Solicitor for the Second Respondent Lander & Co
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