Stamatopoulos and Linfox Australia Pty Ltd (Compensation)

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Stamatopoulos and Linfox Australia Pty Ltd (Compensation) [2023] AATA 1601 (13 June 2023)

Division:GENERAL DIVISION

File Number(s):      2021/6022

Re:Harry Stamatopoulos

APPLICANT

AndLinfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:13 June 2023

Place:Sydney

1.The reviewable decision dated 20 August 2021 is set aside and substituted with a decision that the Applicant is entitled to incapacity payments of $139,804.88 for the period 25 March 2020 to 3 June 2021, pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

2.Costs are reserved.

...............[SGD].............................................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

Compensation – Whether Applicant entitled to incapacity payments under s 19 – Where employer previously accepted liability for Applicant’s condition – Where Applicant suffered from Major Depressive Disorder – Whether ailment contributed to, to a significant degree, by employment – Test of significant contribution – Whether ailment was as a result of reasonable administrative action taken in the course of employment – Whether incapacity for work a result of the injury – Calculation of incapacity payment under s 19(2) – decision under review set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 34J

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14 and 19

CASES

Bis Industries Limited v Dale [2017] FCA 789

Bortolazzo and Another v Comcare (1997) 75 FCR 385

Civil Aviation Safety Authority v Allan (2001) 114 FCR 14; [2001] FCA 1064

Comcare v Lofts and Another (2013) 217 FCR 220; [2013] FCA 1197

Comcare v Martin (2016) 258 CLR 467

Comcare v Muir (2016) 150 ALD 321; [2016] FCA 346

Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502

Goodricke and Comcare [2010] AATA 410

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281

Johnston v Commonwealth (1982) 150 CLR 331

Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753

Lim v Comcare (2017) 250 FCR 298; [2017] FCAFC

Military, Rehabilitation and Commission v May (2016) 257 CLR 468

Minister for Immigration & Multicultural Affairs v Perth City Mission [2000] FCA 397

Mununggurr v Comcare [2020] FCA 1786

Novosel v Comcare (2017) 72 AAR 269; FCA 722

Portors v Comcare [2018] FCA 914

Prain v Comcare [2017] FCAFC 143; 256 FCR 65

Rodriguez v Telstra Corporation (2002) 66 ALD 579; [2002] FCA 30

Roncevich v Repatriation Commission (2005) 222 CLR 115

Smith v Australian Woollen Mills (1933) 50 CLR 504

Sprice and Comcare (Compensation) [2021] AATA 4564

Stamatopoulos and Linfox Australia Pty Ltd (Compensation) [2021] AATA 1790

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228

CLR 152

Tabro Meat Pty Ltd v Heffernan (2011) 208 IR 101; [2011] FWAFB 10802011

Whitlock and Comcare [2020] AATA 1353

Woodhouse v Comcare (2021) 285 FCR 14; FCAFC 95

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

13 June 2023

INTRODUCTION

  1. Mr Stamatopoulos (the Applicant)…

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Details
Case
[2023] AATA 1601
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision concerning compensation for the applicant, Mr. Stamatopoulos, against his former employer, Linfox Australia Pty Ltd. The dispute centred on the applicant's entitlement to incapacity payments under section 19 of the relevant Act, following a diagnosis of Major Depressive Disorder. The applicant alleged that his condition was contributed to significantly by his employment, including an incident where a truck narrowly missed him and subsequent workplace warnings and dismissal.

The Tribunal was required to determine whether the applicant's Major Depressive Disorder was contributed to, to a significant degree, by his employment. This involved assessing whether the condition arose as a result of reasonable administrative action taken in the course of employment, and whether his incapacity for work was a direct consequence of the injury. Furthermore, the Tribunal had to consider the calculation of incapacity payments under section 19(2) of the Act, taking into account the applicant's earning capacity and any suitable employment.

The Tribunal applied the test of significant contribution, considering factors such as the duration and nature of employment, any predisposition to the ailment, and other matters affecting the employee's health, including his role as a union delegate. It found that the applicant was incapacitated for work as a result of an injury during the relevant period. The Tribunal rejected the employer's argument that the applicant's dismissal for misconduct precluded compensation, referencing legal principles that compensation is intended to address loss of earnings due to incapacity, irrespective of the circumstances of employment termination. The Tribunal also found that an alleged offer of suitable employment was not valid in the circumstances, given the breakdown in the relationship and the applicant's mental state.

The Tribunal set aside the original decision and substituted its own. It was satisfied that the applicant was incapacitated for work as a result of an injury throughout the closed period. The calculation of incapacity payments was to be determined based on the applicant's normal weekly earnings less his assessed working capacity, with specific regard to the commencement of his part-time and full-time employment in May and June 2021 respectively.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant applied to the Tribunal for review of this decision, which was heard on 19 July 2022 and 13 December 2022. The parties were represented by counsel, Mr J. Mrsic for the Applicant, and Ms S. Wright for the Respondent. BACKGROUND On 11 July 2019, the Applicant was operating a forklift in the course of his employment at the Banksmeadow receiving yard when a B-double truck came very close to hitting him. He made an incident report.[3] The incident was recorded by the Respondent as a symptomatic injury, namely, ‘anxiety’.[4] In the days following this incident he had discussions with his team leader regarding banning the driver from the site and asked for a copy of the CCTV footage of the incident. He formed the view that the employer was not responsive to his concerns. [3] Incident report: T7, 52; Linfox record of incident: T9, 58.[4] T8, 53. Between 13 August 2019 and 16 October 2019, the Applicant received three formal workplace warnings.[5] He received a warning on 13 August 2019 for failing to follow a lawful instruction,[6] a second warning on 22 August 2019 for taking a phone call when he was told not to, and subsequently refusing a work instruction.[7] [5] T14, 71-72. [6] T10, 61.[7] T11, 63. On 24 September 2019, he lodged a complaint with Comcare, the statutory authority established under the SRC Act. A safety inspection was conducted on 26 September 2019. The Applicant received a third and final warning on 16 October 2019 for improperly stacking a pallet. He reported that a pallet was misaligned, and a subsequent investigation indicated that he had stacked the pallet in question.[8][8] T12, 65. On 18 October 2019, Comcare released its report on his safety complaint. No changes were recommended to the traffic management plan. The report noted that the employer proposed certain actions including coaching and re-education sessions for drivers. The inspector did not conduct a site visit or interview the Applicant.[9] [9] T13, 68-69. The Applicant was dismissed for misconduct on 5 December 2019, having been suspended on 23 October 2019. His letter of dismissal states:Today, on 5 December 2019, you were given an opportunity to respond to the company’s preliminary decision to terminate your employment for your continual failure to comply with reasonable and lawful instructions of management and with Linfox policies, procedures and rules in operation at the time. No mitigating circumstances were provided by you to alter the company’s decision with respect to this matter. As such, Linfox is terminating your employment effective immediately with notice.[10][10] T14, 71-72. On 28 January 2020, he made a workers’ compensation claim under the SRC Act for ‘work induced anxiety and depression’ relating to the incident of 11 July 2019. He stated that he was ‘initially ignored and then victimised and bullied’.[11] [11] T15, 76. He also instituted proceedings for wrongful dismissal under the Fair Work Act 2009 (Cth), and on 24 March 2020, an agreement was reached with the employer under which he resigned with a notional termination date of 5 December 2019.[12][12] T14, 71-72. Details of this claim have not been provided to the Tribunal.

Evidence

Evidence Before The Court

Counsel provided written submissions, the last of which was received on 13 January 2023.ORAL EVIDENCE The Applicant gave oral evidence and was cross-examined by Ms Wright. The Tribunal also received expert evidence from two psychiatrists. The Applicant I note the Applicant’s statements dated 5 November 2020 and 7 December 2021. In the first statement he provides a detailed account of the incident, his response to the incident, the management’s response, and the various incidents which led to his dismissal. In his second statement he provides an account of the medical treatments he has received over the period, his new job, and social circumstances. His statement of 7 December 2021 records the following: 6. In January 2021 Dr Cooke referred me to Dr Ricky Tsang. Dr Tsang was my GP’s first preference, however in 2020 I couldn't get an appointment for 2 to 3 months. I first saw Dr Tsang on 3 February 2021. Dr Tsang prescribed me with Mirtazapine and continued my Seroquel, but changed it to a slow release capsule. At the time I was still having the ongoing psychological symptoms. I have seen Dr Tsang 5 times in 2021 and I am next due to see him on 27 January 2022. He has advised me to continue taking both my medication (Mirtazapine at 15 mg, Luvox and Seroquel 50 mg daily). I was taking Luvox months prior to Dr Tsang. 7. Around mid-March 2021 I noticed I was doing much better on this medication. I was still having nightmares, but I had managed to gain some weight and my sleep was gradually getting better.8. Throughout April 2021 my insomnia was improving. I still had nightmares, but I believe they occurred less frequently. My general mental health was improving, and I continued to see Dr Tsang and Miss Ucio.9. I continue to see Dr Ricky Tsang who has been incredibly helpful with treating my psychological illness. In oral evidence, he stated that he was totally incapacitated until May 2021. He said that he experienced a marked improvement in mental health in early 2021 which he credited to a change in medication. As a result of his improved mental health, he was able to re-enter the workforce. He received an offer of work from a friend, and on 24 May 2021 commenced part-time employment, and he entered full-time employment on 7 June 2021.[31] [31] Transcript, 19 July 2022, 31. He was cross-examined by the Respondent on an array of topics. Ms Wright cross-examined him on his role as a union delegate, and the extent to which this role brought him into conflict with the Respondent’s management,[32] his disciplinary breaches at work,[33] the near miss incident,[34] the timing of his complaint to Comcare and whether it was triggered by his disciplinary breaches for which he had received two warnings, his first AAT matter regarding incapacity payments,[35] the dates of his suspension and his health condition after being sacked.[36][32] Transcript, 19 July 2022, 30-31.[33] Transcript, 19 July 2022, 55, 65.[34] Transcript, 19 July 2022, 62.[35] Transcript, 19 July 2022, 54.[36] Transcript, 19 July 2022, 69.

Decision

Reasons for decision

The first set of statements are not incompatible with the theory that he had either just started work or was about to. I am satisfied that the file note dated 30 January 2021 does not show that the Applicant was working in early February 2021. It is more likely that the note was written around the time he started working for WholesalePak. CONCLUSION ON WORK CAPACITY I am satisfied that throughout the closed period the Applicant was incapacitated for work as a result of an injury. I turn to consider the amount that the Respondent is liable to pay to the Applicant for each week that he was incapacitated throughout the closed period. This amount is calculated by using the formula NWE – AE where NWE is the amount of the employee's normal weekly earnings, and AE represents his working capacity. AE is the greater of the following amounts:(a) the amount per week (if any) that the employee is able to earn in suitable employment;(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week. I note that in calculating the values of (a) and (b), the Tribunal must have regard to the factors listed in subsection 19(4) set out at [61] above. Paragraph 19(4)(a) does not apply to the Applicant until he commenced part-time employment on 24 May 2021 before entering full-time employment on 7 June 2021.[94] [94] Transcript, 19 July 2022, 31. Paragraphs 19(4)(b), (c) and (d) all assume an offer of ‘suitable’ employment. On 20 August 2021, the Respondent affirmed the decision.[95] The delegate’s Statement of Reasons concluded as follows: 20. In the alternative, I agree with the findings of the Primary Delegate that you were offered suitable employment consistent with section 19(4)(c) of the SRC Act, being your usual truck driving duties, but that on 24 March 2020, you accepted the resignation of your employment with Linfox, effective as of 6 December 2019, which was tantamount to the refusal of this offer of suitable employment.[95] T45, 226. Ms Wright confirmed no such offer was made to the Applicant.[96] [96] Transcript, 13 December 2022, 24. A return to work was not practicable given the Applicant’s mental state and the breakdown of the relationship between the Applicant and the Respondent. An offer under those circumstances would not, in my view, constitute an offer of ‘suitable’ employment. In terms of paragraphs 19(4)(e) and (f), I consider that his failure to seek employment until a few weeks before the end of the closed period was reasonable in all the circumstances. In terms of paragraph 19(4)(g), Ms Wright also argued, on grounds similar to those previously considered by the Tribunal,[97] that no compensation was payable because of his negotiated departure from the company under circumstances in which he had been dismissed for misconduct. [97] Stamatopoulos and Linfox Australia Pty Ltd (Compensation) [2021] AATA 1790. In Bis Industries Limited v Dale (2017) 72 AAR 312; FCA 789, Rangiah J stated at [79]:It must be remembered that the object of s 19(2) of the Act is to provide for compensation for an injured employee’s loss of earnings due to incapacity for work as a result of injury. An injured and incapacitated employee remains injured and incapacitated following the termination of his or her employment. An uninjured employee whose employment is terminated retains his or her full capacity to earn income by obtaining other employment. An injured employee whose employment is terminated for wilful misconduct is not better off than an uninjured employee terminated for wilful misconduct in any relevant sense. The employer is correct to say that termination of an employee’s employment may be a relevant matter. However, the employer’s argument that termination of employment for wilful misconduct must result in the amount the employee is able to earn in suitable employment being taken to be the amount earned in his or her employment before the termination, with the consequence that no compensation is payable under s 19(2), must be rejected.

Ratio Decidendi

Legal Principle Established

In determining whether the Respondent is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee, the Tribunal must be satisfied that the Applicant was, at the relevant time, suffering from an ailment that was contributed to, to a significant degree, by his employment. I note the non-exhaustive list of factors identified in subsection 5B(2) that may be taken into account in determining whether I am so satisfied. These factors are considered below. Duration of employment The Applicant was employed by the Respondent from 2007 to 5 December 2019.[57][57] Transcript, 19 July 2022, 31.The nature of, and particular tasks involved in, the employment The Applicant was employed by the Respondent in various capacities from 2007, and by 2019 was employed as a Grade 5 team leader. He was latterly employed as a loader and drove a forklift. Any predisposition of the employee to the ailment The Applicant’s health record spanning the period 27 April 2014 to 13 July 2020 is before the Tribunal.[58] A persistent and chronic scalp condition was a source of considerable discomfort and distress. The scalp condition was diagnosed as folliculitis decalvans and treated with antibiotics. The record includes entries relating to sinus congestion, asthma, and minor weight fluctuations. In June 2015 he had some stress at work. A file note states:p/w stress from work -accused of poor performance latelyBeen at this work for 8 yearsHas anxiety, getting him down/depressed,states having mental anguishNot sleeping properly, cant eat, not going to gym anymore, affecting personal life.[59][58] Newington Medical Records, T37, 165-187.[59] T37, 170.Any activities of the employee not related to the employment There is no relevant material. Any other matters affecting the employee’s health The Applicant’s role as a union delegate was the subject of cross-examination. He said that he served as a union delegate from about 2009 to about 2015 and then from 2017 to 2019.[60] He agreed that it was fair to say that his role as union delegate sometimes brought him into conflict with management.[61] He was asked whether this occurred in early 2019 but could not remember. [62][60] Transcript, 19 July 2022, 31.[61] Transcript, 19 July 2022, 31.[62] Transcript, 19 July 2022, 62.The timing of his workers’ compensation claim - Reasonable Administrative Action Ms Wright highlights the fact that the Applicant’s workers’ compensation claim occurred after receiving two workplace warnings for misconduct. This has two implications. First, she argues that the major contributor to his MDD was his prior misconduct rather than the near miss incident. Secondly, his mental health condition was not a disease in the statutory sense because it was ‘a result of reasonable administrative action taken in a reasonable manner in respect of his employment’. Her contention is that he had inflated the near miss incident, which she described as relatively minor, to justify his bad behaviour at work and his well-deserved dismissal.