SRGF and Comcare (Compensation)

Case [2024] AATA 1818

SRGF and Comcare (Compensation) [2024] AATA 1818 (31 May 2024)

Division:GENERAL DIVISION

File Number(s):      2022/9569, 2023/0996

Re:SRGF

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member O'Donovan

Date:31 May 2024

Place:Canberra

The decisions under review are affirmed.

……………[SGD]……………
Senior Member O'Donovan

Catchwords

Workers compensation – claim for anxiety, depression agoraphobia – stress induced psychological symptoms mistaken for neurological symptoms – ethical dilemmas at work contributing to psychological issues – unreasonable contact outside of work hours – stress from supervisory responsibilities – no medical report supporting relationship with work until several years after resignation – validity of data analysis provided without expert support – constitutional condition where work just the setting – deemed work contribution under section 7 – meaning of the phrase ‘in the place where the employee ordinarily employed’ - decision affirmed

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, 5B, 7, 14

Public Service Act 1999 (Cth)

Workmen’s Compensation (Occupational Diseases) Convention (Revised) 1934

Compensation (Commonwealth Employees) Act 1971 (Cth)

Cases

Honchera and Comcare [2016] AATA 33
Abrahams v Comcare [2006] FCA 1829
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Commonwealth v Beattie [1981] FCA 88; (1981) 35 ALR 369
Tippett v Australian Postal Corporation [1998] FCA 335 ('Tippett')
Mellor v Australian Postal Corporation [2009] FCA 504 ('Mellor')
Comcare v Reardon [2015] FCA 1166 at [31]
Military Rehabilitation and Compensation Commission v Katterns [2017] FCA 641 Australian Postal Corporation v Bessey [2001] FCA 266

REASONS FOR DECISION

Senior Member O'Donovan

INTRODUCTION

  1. The applicant was employed in the Australian Public Service (APS) from 2013 until his resignation in late 2021. When he commenced in the APS he was mentally and physically well, but did have a past history of treatment for depression. By the time the applicant submitted his resignation in December 2021 his mental health had declined to the point where he was struggling to leave his room.

  2. Following his resignation, the applicant submitted two claims for workers’ compensation.

  3. The first was submitted on 1 April 2022. The applicant’s injury was identified as ‘major depressive disorder, major anxiety, chronic fatigue’. He stated that he first noticed symptoms on 20 June 2014. In response to the question ‘what happened and how were you injured?’ the applicant responded: ‘I was worn down by stress in the workplace and the ethical shortcomings of the Australian Public Service’.

  4. The second claim was submitted on 11 December 2022. The applicant’s injury was identified as ‘Major Depression and Anxiety’. The applicant advised that he first noticed symptoms on 13 August 2019. In response to the question ‘what happened and how were you injured?’ the applicant identified the following as the causal events:

    (a)Continual out of hours contact by SES personnel; and

    (b)Continual interruption of periods of leave (including medical leave) by SES personnel.

  5. Comcare denied both claims.

  6. In relation to the first claim (2022/9569) Comcare:

    (a)relied upon section 53 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) (a reasonable notice of…

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Details
AGLC
SRGF and Comcare (Compensation) [2024] AATA 1818
Case
[2024] AATA 1818
Decision Date

CaseChat Overview and Summary

This matter concerned a claim for compensation by the applicant, SRGF, against Comcare for anxiety, depression, and agoraphobia. The applicant alleged that stress induced psychological symptoms, stemming from ethical dilemmas at work, unreasonable contact outside of work hours, and supervisory responsibilities, led to his psychological issues. A key point of contention was the timing of medical reports, with no report supporting a link between his condition and work until several years after his resignation. The Senior Member O'Donovan presided over the case.

The court was required to determine whether the applicant's psychological condition was a result of his employment with Comcare. Specifically, the court had to consider the validity of data analysis provided without expert support, and whether the applicant's work merely provided the setting for pre-existing psychological difficulties. The court also had to interpret the meaning of the phrase ‘in the place where the employee ordinarily employed’ in the context of section 7 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), which deals with deemed work contributions.

In reaching its decision, the court carefully considered the applicant's historical accounts of his childhood and adolescence, noting significant discrepancies between his reported experiences and contemporaneous documentary evidence. The court found that the applicant's recall of past events, particularly concerning his psychological state, was unreliable, often appearing reconstructed rather than based on specific memory. This unreliability was magnified by the applicant's conceded poor memory and the impact of his depressive condition on his recall of negative versus positive experiences. The court found that periods of enthusiastic and positive contribution to his work were evident in the documentary record, contradicting the applicant's overwhelmingly negative portrayal of his employment. Consequently, the court was not satisfied that the applicant's current perception of his mental functioning during his employment accurately reflected his actual state at the time.

The court concluded that the applicant did not benefit from the deeming provisions in section 7 of the *SRC Act*. Accordingly, the decisions under review were affirmed.

Orders

Orders of the court

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Background

Background to the litigation

However, where the material the applicant has provided establishes facts which are inconsistent with the facts upon which any expert reports have relied, then I have discounted the conclusions in those reports appropriately. Facts The following are my findings of fact. To the extent that any might be controversial I have identified the evidence on which the conclusion is based. The applicant was born on 30 June 1981. There are two starkly different pictures of his childhood and adolescence which emerge from the evidence. When the applicant gave reports to psychiatrists about his early life, the picture which emerges is one of psychological difficulties being present and developing from an early age. The first recorded account of his childhood I could identify was given to his psychiatrist Dr Lean on 13 August 2019. He recorded:[SRGF] showed me a longitudinal graph of his situation from 2014 although his concerns date back much further – childhood really. He had seen my colleague, Dr Stephen Roseman in 2003. Social Anxiety Disorder/Depression. [SRGF] has struggled with social interaction all his life. Fortunately he had done well academically although he has succeeded best at distance education.In adolescence he had a period of substance use and some aberrant behaviour and had a two year relationship – they remain friends.[SRGF] has a difficult personal story to tell, his mother and many before has suffered MDD [Major Depressive Disorder], his father was emotionally unavailable – scientific statistician. His family broke up when he was seven, he remained with his mother and older sibling, both angry. In reviewing [SRGF]’s diagnosis, he probably has Cluster c personality difficulties – anxious avoidant, with General Anxiety Disorder and secondary Major Depressive Disorder. He also has Chronic Fatigue Syndrome and headaches F.I. [SRGF] has trialled many antidepressants. [SRGF] has not done well with psychology – he feels he knows a lot/understand a lot of CBT [cognitive behavioural therapy]. His report to Comcare’s psychiatrist Dr Ventura was in a similar vein:[The applicant] told me that his father possibly has an Autistic spectrum disorder but he has never been diagnosed. His half-brother and nephew had been diagnosed with ADHD. His mother has been diagnosed and treated for depression. Mr The applicant was born and raised in Canberra. His parents separated when he was 7 years old. He told me that he has had negative views of himself and he has been obsessed with self-control all of his life. He thought that he was impulsive and interrupted others in primary school. He reported that he has very little if no memory of primary school. I asked Mr The applicant if he experienced any childhood trauma. He told me that he could not recall any. When I asked him how he got on with his parents he replied “I made porridge every morning”. Mr The applicant told me that he thought that he had very few friends but after looking at school photos he believes that he may have had some. He said he had limited memories of his high school when he spoke to Dr Lean but now he believes that he has a good memory of school days after looking at photos. He told me that he makes lists of things when he remembers them and that he is “recreating a sense of myself”…Mr The applicant told me that he has never felt the need for friendships or emotional connections. He sees relationships as a list of duties.

Evidence

Evidence Before The Court

In those circumstances I have considered whether the applicant benefits from the deeming provisions in section 7 of the SRC Act. For the reasons set out in the paragraphs from ‎300 to ‎325 below, I am satisfied that he does not. Consequently, the decisions under review are affirmed.Evidence In making my decision I have had regard to the material set out in the exhibits list annexed to this decision. In addition the following witnesses gave evidence at the hearing:(a)The applicant(b)Dr Antonella Ventura. Fact finding principles There are some general comments I wish to make about my approach to the evidence in this matter before I begin the process of specific fact finding. Trying to reconstruct the causes of a psychological ailment when a person’s psychological development might be relevant and where events in the distant past are implicated is an inherently difficult task. If there are insufficient records recording the applicant’s state of mind at the relevant times, then it requires a witness to recall accurately not just events from long ago but also his state of mind at the relevant times. The difficulties in the process are magnified in this case by specific doubts I hold about the reliability of the applicant’s recall. In this case, the applicant has conceded that he has a poor memory of his childhood[1] and, as a consequence, much of his evidence about his social functioning prior to entering the public service is reconstructed from other materials rather than specific recall of events. In addition, as the applicant submits, his depressive condition makes it easier to access more negative memories than positive ones.[2] Consequently, his memories of his time in the public service are overwhelmingly negative (as are the reports of his childhood given to doctors). [1] Hearing Bundle, 505.[2] Applicants closing submissions, 32-33. By contrast, on a fair reading of the documentary material, there appear to be significant periods where the applicant was an enthusiastic, positive contributor to the work of the agencies in which he was employed and periods where he was genuinely engaged with the work at hand. These periods extended well beyond 2013. Given the differences between the documentary record and the applicant’s reporting of his state of mind, I am not satisfied that the applicant now has an accurate perception of how well he was functioning mentally during these periods and how he was responding to the work he was involved in. For example, the applicant gave evidence about his reaction to what was occurring in the Clean Energy Regulator after the government changed in September 2013 and the ‘carbon tax’ was abolished. The evidence was that this event caused him to lose faith in the organisation and had a profound influence on his mental functioning. The contemporaneous documents available, however, paint a different picture. In 2014 the applicant applied for the Departmental Liaison Officer position which would have placed him in the Minister’s office working closely on the new government’s alternative to the ‘carbon tax’.[3] The applicant left the Clean Energy Regulator in 2015 after being unsuccessful in a promotion round. However, he applied for a job in the Clean Energy Regulator in early 2016. His opening statement in that job application was ‘I am seeking the position of Assistant manager in the Business Investment team at the Clean Energy Regulator (CER) due to the strong alignment of my personal values with those of the agency.’ The applicant signed the declaration that the information he provided in the form was true and correct. [3] ST13, 239.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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