Solomon and Comcare (Compensation)

[2015] AATA 648

Solomon and Comcare (Compensation) [2015] AATA 648 (28 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/1974
Re	Carol Solomon
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr P McDermott RFD, Senior Member
Date	28 August 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Dr P McDermott RFD, Senior Member

CATCHWORDS

COMPENSATION – claim for acute stress condition – serious developmental adversity – whether work related condition – whether incapacity for work – decision under review affirmed.

LEGISLATION

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

Administrative Appeals Tribunal Act 1975 (Cth) s 35

REASONS FOR DECISION

Dr P McDermott RFD, Senior Member

28 August 2015

INTRODUCTION

1. The applicant has made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). She has made an application for the review of a decision made by the respondent on 27 March 2014 which affirmed a determination made on 16 January 2014 to deny liability for an acute stress injury.

   CLAIM OF WORKPLACE INJURY

2. The claim form of the applicant contains a claim for an “acute stress injury”. The applicant asserts that it was at 8:45am on 2 October 2013 as when she was first injured or first noticed that she was ill. The claim form also indicates that on 2 October 2013 she first sought medical treatment for the injury or illness at the Algester Medical Centre.

3. A document tendered by the applicant at the hearing of the application[1] details what the applicant has claimed to be the actual facts of the injury. The applicant remarked that on 2 October 2013 she had walked up behind the desk of one employee (who in these reasons I will refer to as “J.”) to talk about a phone conference. The applicant stated that there was:

   a large bag of small white, scored pills (about 500 or so) sitting on her desk. I have less than zero tolerance to illicit drugs following an incident when my girlfriend overdosed and died in 1980 in Sydney. I was shocked and horrified by what I saw on [J.]’s desk.[2]

   [1] Exhibit B.

   [2] Exhibit B.

4. The applicant also asserted that while she was upset she went to see a supportive work colleague (who in these reasons I will refer to as “E.”) who took her into a conference room. The applicant then asserted that J. yelled at E. to leave and that E. refused to leave a number of times. The applicant then stated that eventually E. asked if it was “OK for a minute while he went to get another team coach”: the applicant then replied “yes” and E. then left the conference room.

5. The applicant then asserted that as soon as E. left the room, J.  “put a chair up against the door to stop anyone else from coming into the room and proceeded to abuse me by telling me I was incapable of doing my job and that I was a liability… in general”.

6. The applicant also stated: “I don’t remember much what happened after J. barricaded the conference room door with a chair. The next clear memory I have is from about four days later when I was having dinner with my son… and I told him that I didn’t want to go back to work that night, because I knew [J.] would be there and I was anxious about the possibility that she may abuse me again. I decided not to go to work (Saturday night shift) for this reason”.

   LEGISLATION

7. Section 14 of the Act provides that the respondent is liable to pay the applicant compensation in respect of an injury suffered by her if it results in death, incapacity or impairment. Under s 5A(1) of the Act:

   "injury" means:

   (a)  a disease suffered by an employee; or

   (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

   (c)  an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

8. Under s 5B(1) of the Act:

   "disease" means:

   (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. The term “significant degree” is defined in s 5B (3) of the Act to mean a degree that is substantially more than material.

   CONSIDERATION

9. At the outset of my consideration of the claim of the applicant I should record that I raised for the consideration of the parties whether there was any need for a confidentiality order. The only request for confidentiality that was made by the applicant was that she did not want the name of her employer to be referred to in the published reasons. It is for this reason that I have not referred to the name of the employer or the names of witnesses who are employed at the applicant’s workplace. However, having regard to the requirements of s 35(5) of the Administrative Appeals Tribunal Act 1975 (Cth), I have in these reasons referred to such evidence as is necessary to explain why I have decided that the correct and preferable decision is to affirm the decision under review.

10. I mentioned that the applicant has in a document which was tendered at the hearing of the application detailed what she has asserted to be the actual facts of the injury. However the applicant did not give evidence on oath or affirmation in support of her claim of the incident. I also asked the applicant whether she would make herself available for cross-examination and she stated that she would not agree to be cross-examined.  

11. A number of witnesses from the workplace gave evidence and I will discuss the evidence which is relevant to my deliberations. The witness J. gave evidence on oath. J. denied having about 500 small, white, scored pills on her desk. She also denied having yelled at the employee E. to leave. She also denied putting a chair up against the door to stop anyone else from coming into the room and proceeding to abuse the applicant by telling the applicant she was incapable of doing her job and that she was a liability to the organisation. At the hearing the applicant stated that she did not wish to ask any questions of the witness. I then informed the applicant that if there was any aspect of the evidence of the witness that she wanted to challenge that it was her opportunity to do so. The applicant informed me that she understood my comments and that she had no questions to ask.

12. I have previously mentioned that the applicant asserted that the witness J. had yelled at the employee E. That employee was not called as a witness to give evidence in support of the assertions of the applicant.

13. Another employee who I will refer to as witness C. was called to give evidence. That witness was present at the workplace at the time. C. confirmed that both the applicant and witness J. were quite upset and that she was able to open and close the door to the meeting room and that there was no obstruction to the meeting room. While witness C. was questioned by the applicant about her duties on that day and whether there was a rectangular or square table in the room, the applicant did not challenge her account that she was able freely to open the door of the meeting room and that there was no obstruction to her entry to that room.

14. I accept the evidence of witness J. which is unchallenged evidence. The evidence of witness J. that there were no pills on her desk, that she did not yell at and abuse the applicant and that there was no obstruction to the meeting room was not challenged. I consider that the allegations made by the applicant concerning witness J. are not plausible on the evidence before me. The respondent has led evidence to rebut the assertions of the applicant. While the applicant does not bear any onus of proof, I do not accept the account of the events of the day which are set out in the statement of the applicant. I do, however, accept that the applicant was upset on 2 October 2013; this is because witness C. has indicated that this was indeed the case. 

15. I also have considered the medical evidence before me. I accept the submission of the applicant that the evidence of Dr Ng, Dr Gray and Dr Jeknakov[3] are fitness for duty assessments. I do not place weight upon those reports which are not considered statements of the diagnosis of the condition of the applicant. However, I have placed some weight upon the report of Dr Varghese, consultant psychiatrist.  The applicant in a submission that was filed before the hearing asked for the report of Dr Varghese to be disregarded on the ground that the report contains “fallacious and fabricated information”.[4] However, the report of Dr Varghese was later admitted without any objection by the applicant. The applicant had been advised that she had the right to challenge what is in the report and she has not at any time exercised her right to challenge this witness.

    [3] Each report is contained in Exhibit G.

    [4] Exhibit B.

16. Arrangements had been made for Dr Varghese to personally attend the hearing of this application. Prior to the time when Dr Varghese was to give evidence the applicant had attended her workplace and reported that she had hallucinations.  On the second day of the hearing of the application it was evident that the applicant was indisposed and unable to continue to participate in the hearing. The applicant agreed with the comments of the respondent that she had been hallucinating. At my direction arrangements were made to provide copies of transcripts of the evidence that had been heard and to give her an opportunity to make submissions. My associate at my direction informed the applicant of an agency that may have been able to provide legal assistance to the applicant.

17. I consider that the report of Dr Varghese is a considered and comprehensive assessment of the condition of the applicant. The conclusion of Dr Varghese is that the applicant is deeply suffering because of a serious developmental adversity. I accept the conclusion of Dr Varghese who considers that the applicant does not have a work related condition and does not suffer from any incapacity for employment. 

18. Dr Varghese considers that the applicant needs to be examined by a general physician who is a consultant in internal medicine for a thorough medical history so as to rule out any medically treatable condition that may be affecting her symptoms and overall health. I consider that this recommendation of Dr Varghese is reasonable and should be followed. I consider that the applicant should be afforded any reasonable assistance.

    DECISION

19. I affirm the decision under review.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

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Associate

Dated 28 August 2015

Date(s) of hearing	30 & 31 March 2015
Date final submissions received	17 June 2015
Applicant	In person
Solicitors for the Respondent	Sparke Helmore Lawyers