Stamatopoulos and Linfox Australia Pty Ltd (Compensation)
[2023] AATA 1601
•13 June 2023
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
Mr Stamatopoulos (the Applicant) was born in 1971 and is 51 years old.[1] He has an accepted claim for a workplace injury, being ‘major depressive disorder’ (MDD) under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).[2]
[1] T37, 165.
[2] T32, 138-144.
On 20 August 2021, Linfox Australia Pty Ltd (the Respondent) determined that he was not entitled to incapacity payments pursuant to section 19 of the SRC Act for the period commencing 25 March 2020.
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.
On 26 March 2020, the Respondent issued two Determinations under the SRC Act.
The First Determination
The Respondent accepted liability under section 14 of the SRC Act for the injury sustained on 11 July 2019, being ‘Major Depressive Disorder’.[13] The Respondent was therefore liable to pay compensation for reasonable medical treatment expenses and incapacity benefits ‘as from 11 July 2019.’ The delegate’s Statement of Reasons explained the decision as follows:
[13] T32, 138-144.
9. I understand that arrangements were made for you to undergo an independent medical examination with Dr Wasim Shaikh, psychiatrist on 20 February 2020. I have had the opportunity to review Dr Shaikh’s report dated 21 February 2020 following his physical examination and review of the available medical and factual evidence and note that Dr Shaikh formed the view that you had sustained a psychological condition, detailed to be “Major Depressive Disorder”.
10. In terms of the development of your psychological condition, Dr Shaikh observed:
“...In terms of ongoing psychological complaints, Mr Stamatopoulos notes that there continue to remain sleep disturbances, including difficulties in getting to sleep, and waking up in the middle of the night. His appetite is poor, and so is his motivation towards self-grooming. His mood is low, and he is anxious about his future. His concentration has been affected, and he provided examples. He ruminates over the incident, and himself being targeted. His is easily startled and reports himself to be hypervigilant when driving. He is not socialising, or engaging in activities such as attending the gym, or playing sports. In a lesser frequency, he still plays basketball, goes to the cricket nets, and has also been to watch the Big Bash cricket games.
He notes his motivation is poor in the morning. His relationship has suffered an impact. He denies ideations of self-harm.
Mr Stamatopoulos describes emotional complaints, including anxiety, sleep disturbances, and reduced appetite, in the weeks following the index incident of 11 July 2019
…
Mr Stamatopoulos does not suffer a pre-existing psychiatric condition. The bulk of his emotional complaints relates to the near-miss incident of 11 July 2019. His perception of being targeted thereafter, and being reprimanded for unfair issues at work, perhaps led to an aggravation of the depressive disorder, but most of his ongoing emotional complaints continue to have primary linkage to the index incident of 11 July 2019. More than 75% attribution towards the psychiatric disorder is from the incident of 11 July 2019...”
11. Following your examination with Dr Shaikh on 20 February 2020, the Linfox workers’ compensation department received additional information surrounding the alleged incident on 11 July 2019.
a. Inspector Report of Ms Catherine De Souza, WHS Inspector of Regulatory Operations Group Comcare dated 18 October 2019;
b. Undated letter of Peter Farrant, National Safety Manager;
c. Kellogg’s Botany Traffic Management Plan
d. Diagram of the Incident area; and
e. CCTV footage of the incident on 11 July 2019.
12. The additional information was provided to Dr Shaikh for the provision of a supplementary independent medical report. Dr Shaikh’s report dated 27 February 2020 provided the following information regarding the development of your psychological condition:
“...I believed there was causal relationship to the index incident of 11 July 2019, with further aggravation following his perception of unfair warnings and eventual dismissal.
I have perused the additional information provided, and the opinions previously expressed do not change. Despite the inspector findings, it is known that Mr Stamatopoulos perceived a threat to his safety, and this was followed by his ill emotional experiences. As previously noted, documents from his GP, Dr Jason Cook, clearly discuss his frustration and anxiety over the incident of July 2019. Documentation also confirms receipt of EAP attention, and prescription of sedatives in August 2019. There was discussion of submitting a claim, but Mr Stamatopoulos was resistant.
[T]he claimant perceived a threat to his personal safety and thereafter experiences emotional symptoms consistent with work related psychiatric condition. There may be a potential for his perception to be an exaggeration of actuality, but this does not change the element of causality or temporality...”
…
Evidence and Findings
16. On review of the medical evidence available to me, I am satisfied that you have sustained a condition which could be characterised as “outside the boundaries of normal mental functioning and behaviour. To this end, I am mindful that on 21 February 2020, Dr Shaikh diagnosed you as suffering from "Major Depressive Disorder”.
17. In order for a psychological condition to constitute a “disease” within the meaning of section 5B of the SRC Act, I also need to be satisfied, on the balance of probabilities as opposed to possibilities, that your claimed psychological condition, in any event, was contributed to, to a significant degree, by your employment with Linfox.
18. In view of the relevant medical and factual evidence to hand, I am satisfied that your psychological condition has been contributed to, by a significant degree, by your employment at Linfox. To this end, I am satisfied that the medical evidence from Dr Shaikh supports a finding that the “incident of 11 July 2019, with potential further aggravation following his perception of unfair warnings and eventual dismissal” was significant in terms of the development of your psychological condition.
19. In those circumstances, I am of the view that Linfox is liable to pay compensation in respect of your psychiatric condition, being “Major Depressive Disorder”, having regard to section 14 of the SRC Act.
20. Mindful that you first reported the onset of your psychological condition on 11 July 2019, I find the date of injury for the purposes of the SRC Act to be 11 July 2019.
21. Consequently, I find Linfox liable to pay compensation for reasonable medical treatment expenses and incapacity benefits arising from your accepted psychological condition pursuant to sections 16 and 19 of the SRC Act respectively, as from 11 July 2019.
22. I have attached a copy of the reports of Dr Shaikh dated 21 February 2020 and 27 February 2020 for your consideration and reference. [14]
[14] T32, 138-144.
The Second Determination
The Respondent determined that the Applicant was entitled to receive $9,071.40 by way of incapacity payments under section 19 of the SRC Act for the period 11 July 2019 to 6 December 2019 (his notional resignation date),[15] but not thereafter.[16]
[15] The delegate identified 6 December 2019 as the date of “cessation of employment”, although it is noted that his employment was in fact terminated on 5 December 2019: see T14, 71.
[16] T31, 133, 135, 136.
The Respondent affirmed this Determination on 21 April 2020,[17] the delegate stating:
On 13 March 2020, you were a party to Fair Work Commission proceedings against Linfox. The central issue of the proceedings was your termination from Linfox on 6 December 2019 due to disciplinary matters (unrelated to your accepted claim for workers' compensation). I understand that a resolution was reached on the day and as part of the resolution, you accepted the termination of your employment with Linfox on 6 December 2019.
In these circumstances, I consider the cessation of your employment with Linfox on 6 December 2019 to be a relevant factor for the purposes of determining your entitlement to incapacity benefits as per section 19(4)(g) of the SRC Act. Therefore, I find that as of 6 December 2019 the reason for your incapability to work is the cessation of your employment rather than your accepted psychological condition.[18]
[17] T35, 148, 150, 153.
[18] T35, 153.
In Stamatopoulos and Linfox Australia Pty Ltd (Compensation) [2021] AATA 1790 the Tribunal set aside the Determination relating to incapacity payments and remitted it for reconsideration in accordance with the Tribunal’s findings.[19] The Tribunal proceeded without holding a hearing, pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The Tribunal set out the chronology in some detail, and stated at [77]:
I am satisfied on the evidence that the Applicant was incapacitated for work on 5 December 2019 by a psychiatric disorder. The major contributing factor to that psychiatric disorder was the injury suffered on 11 July 2019. I have taken into account Dr Shaik’s reports which were based on an assessment of the Applicant made more than two and a half months after the termination of the Applicant’s appointment and the reports of Dr Allan prepared months later. I have given greatest weight to the contemporaneous evidence.
[19] See T40, 194.
The Tribunal found, at [78]:
The Applicant was not undertaking his pre-injury duties immediately prior to the termination of his employment on 5 December 2019. He was certified as unfit from 16 October to 3 November 2019 inclusive. He was suspended from work from 23 October 2019 and did not work from 16 October 2019 until his termination.
His incapacity for work as of 5 December 2019 was because of a psychiatric disorder and not because of the termination of his employment as a consequence of misconduct.
The major contributing factor to the Applicant’s psychiatric disorder and hence his incapacity for work on 5 December 2019 was the injury that occurred on 11 July 2019.
On 15 July 2021, the Respondent issued two fresh Determinations. The first related to the period 9 December 2019 to 24 March 2020, the second from 25 March 2020 onwards.
THE PERIOD 9 DECEMBER 2019 – 24 MARCH 2020
The Respondent determined that the Applicant was totally incapacitated for the period 9 December 2019 to 24 March 2020 inclusive, and that he was entitled under section 19 of the SRC Act to incapacity payments of $39,859.20.[20] The Applicant’s solicitor asked the Respondent to provide more information about the calculation of normal weekly earnings (NWE) and the relevant period, and formally requested a reconsideration.[21] On 20 August 2021, the Respondent provided payroll information and affirmed the determination. There is no further application before the Tribunal relating to this determination.
[20] T41, 214, 215.
[21] T43, 223.
THE PERIOD COMMENCING 25 MARCH 2020
In respect of the period commencing on 25 March 2020, the Respondent assessed his compensation entitlement as nil.[22] On 22 July 2021, the Applicant requested a reconsideration.[23]
[22] T42, 217, 218.
[23] T43, 223.
On 20 August 2021, the Respondent affirmed the decision.[24] The delegate’s Statement of Reasons concluded as follows:
[24] T45, 226.
18. In proceeding to undertake a reconsideration of the Determination of 15 July 2021, I agree with the findings of the Primary Delegate insofar as, having regard to section 19(4)(g) of the SRC Act, that you took yourself away from employment as of 24 March 2020 when you agreed to resign from your employment with Linfox.
19. l am further satisfied that your inability to work therefore was due to your decision to remove yourself from employment and accept a position that you resign from your position with Linfox, by extension, therefore, reducing your entitlement to nil.
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.
21. I further agree with the findings of the Primary Delegate insofar as, at the time of his examination of you on 21 February 2020, Dr Shaikh formed the view that you were capable of undertaking your preinjury duties, progressing to full time hours, such that by late March 2020, it would be expected that you would be performing full-time hours.
22. I note the contentions put forward by your solicitor in your request for reconsideration, insofar as you continued to be fully incapacitated for employment during this period having regard in particular, to the evidence of Dr Allan, psychiatrist. I have however, ultimately preferred the evidence of Dr Shaikh, mindful that:
a. His evidence represents the most contemporaneous evidence from a specialist at the relevant time, in terms of assessing your ability to work; and
b. The evidence of Dr Allan supports an improvement insofar as your capacity following the resolution of contemporaneous legal proceedings suggesting your capacity for employment was influenced by the claims process, matters which are not compensable for the purposes of the SRC Act consistent with the principles espoused in Kirkpatrick v the Commonwealth.
23. I have therefore affirmed the Determination of 15 July 2021, which found that your entitlement to incapacity benefits on and from 25 March 2020 is nil.[25]
[25] T46, 237.
On 27 August 2021, the Applicant applied to the Tribunal for review of this Determination.[26]
[26] T1.
MATERIALS BEFORE THE TRIBUNAL
The Tribunal received the following evidence:
(a)Applicant’s statement dated 5 November 2020
(b)Applicant’s supplementary statement dated 7 December 2021
(c)Reports of Yolinda Ucio, psychologist dated 4 March 2020, 6 June 2020, 3 July 2020 and 13 January 2021
(d)Report of Dr Leon, psychiatrist dated 22 December 2020
(e)Reports of Dr Tsang, psychiatrist dated 11 May 2021 and 29 October 2021
(f)Notes of Newington Medical – Dr Cooke, General Practitioner dated 27 April 2014 to 12 November 2021
(g)Notes of Yolinda Ucio, psychologist dated 21 November 2019 to 13 November 2021
(h)Medical certificates of Dr Cooke dated 26 August 2019 to 3 June 2021
(i)Letter from GWK Lawyers and Income Tax documents for financial years ending 2020 and 2021 dated 10 December 2021
(j)Records extracted from Wellbe Counselling & Psychology
(k)Records extracted from Newington Medical
Medical Reports:
(a)Dr Shaikh, report dated 21 February 2020 and supplementary reports dated 27 February 2020 and 18 February 2022
(b)Dr Allan, reports dated 4 August 2020, 11 September 2020 and 19 January 2021 (previously considered by the Tribunal)
(c)Dr Allan’s ‘new’ reports of 19 November 2021, 10 January 2022
Written submissions:
(a)Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 9 March 2022
(b)Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 7 April 2022
(c)Respondent’s written submissions dated 13 December 2022 (RS1) and 13 January 2023 (RS2)
(d)Applicant’s written submissions dated 30 December 2022 (AS)
Other:
(a)T-Documents (T1 – T46)
THE CLOSED PERIOD
The Applicant’s counsel indicated at the outset that the Applicant re-commenced part-time employment (3 days a week) on 24 May 2021 and full-time employment in early June 2021. A work capacity certificate dated 3 June 2021 signed by Dr Jason Cooke stated that he was fit for his pre-injury duties.[27] Therefore, the claim for incapacity payments did not extend beyond 3 June 2021, and in the present proceedings the Tribunal was only required to consider the closed period 25 March 2020 to 3 June 2021.[28]
[27] T39, 192; Applicant’s Hearing Bundle, 219 (AHB).
[28] Transcript, 19 July 2022, 9; Transcript, 13 December 2022, 45; Written Submission, 30 December 2022, at para 8.
Mr Mrsic referred to both 3 June 2021 and 6 June 2021 as relevant cut-off dates.[29] The letter of instruction to Dr Allan indicated the Applicant’s incapacity for work extended to 6 June 2021. This variation was not addressed by the parties in oral or written submissions. The Tribunal will proceed on the footing that the cut-off date is 3 June 2021, as agreed upon by the parties on the first day of hearing and based upon the work capacity certificate signed by Dr Cooke.
[29] Transcript, 13 December 2022, 45-46.
The reviewable decision of 20 August 2021 relating to the period commencing on 25 March 2020 is the only decision under review in these proceedings. Ms Wright confirmed that there was no challenge to any of the Determinations relating to earlier periods.[30]
[30] On 21 April 2020, the Respondent assessed his incapacity payments for the period 11 July 2019 to 6 December 2019 at $9,071.40: T31, 135; T35, 148; and on 15 July 2021, assessed the period 9 December 2019 to 24 March 2020 at $39,859.20: T41, 214, 215. These periods are not in issues in these proceedings.
Mr Mrsic invited the Tribunal to determine the Applicant’s incapacity entitlements for this closed period at $140,024.89.
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.
She asked him whether he had made false tax claims for car use,[37] whether he was working secretly,[38] whether he was working in January 2021,[39] whether he worked at all in 2020-2021,[40] whether he was driving a large van,[41] what he told his doctors about his work situation,[42] and whether his GP was prepared to write him a medical certificate even if it was not warranted.[43]
[37] Transcript, 19 July 2022, 33-37, 41.
[38] Transcript, 19 July 2022, 34.
[39] Transcript, 19 July 2022, 43.
[40] Transcript, 19 July 2022, 59.
[41] Transcript, 19 July 2022, 26, 31.
[42] Transcript, 19 July 2022, 67.
[43] Transcript, 19 July 2022, 77.
He was also questioned on his new relationship,[44] whether his improved condition in March 2021 meant he could have done some job seeking,[45] his state of mental health when he started working on 24 May 2021 for WholesalePak, and whether the fact that he was on JobKeeper and involved in litigation with the Respondent was the reason he did not seek part-time work earlier.[46]
[44] Transcript, 19 July 2022, 73.
[45] Transcript, 19 July 2022, 74.
[46] Transcript, 19 July 2022, 75.
He was questioned on his overall medical record from 2015 to 2017,[47] his experience of flashbacks,[48] his medication regime (namely prescriptions for Seroquel, Luvox, and Mirtazapine),[49] his sessions with his psychologist Ms Ucio and whether her notes, which suggested that he had been working, were misdated.[50]
[47] Transcript, 19 July 2022, 61.
[48] Transcript, 19 July 2022, 30.
[49] Transcript, 19 July 2022, 29.
[50] Transcript, 19 July 2022, 44, 54.
Ms Wright’s questioning was intended to show that the Applicant was not only an unreliable witness but dishonest, that he had made exaggerated and false assertions to various health providers about his mental health, and that he was deservedly dismissed for misconduct.
The Medical Evidence – Dr Martin Allan, Consultant Psychiatrist
Dr Allan gave evidence that he had been a psychiatrist since 2013.[51] In all, he provided five reports, dated 4 August 2020, 11 September 2020, 19 January 2021, 19 November 2021, and 10 January 2022.
[51] Transcript, 13 December 2022, 3.
His initial report dated 4 August 2020 was based on a Telehealth consultation with the Applicant.[52] He subsequently provided reports dated 11 September 2020 and 19 January 2021. These reports were considered by Senior Member Kelly in the Tribunal’s earlier decision.
[52] T36, 156.
Dr Allan re-examined the Applicant by Telehealth on 17 November 2021, and provided two further reports, dated 19 November 2021[53] and 10 January 2022. [54]
[53] AHB, 48.
[54] AHB, 61.
In his first report, he outlined the basis for his diagnosis as follows:
In Dr Shaikh’s report from February 2020, a diagnosis of Major Depression is made. Dr Shaikh states, “It is my opinion that Mr Stamatopoulos’ condition bears causal relationship to the index incident on 11 July 2019 with potential further aggravation following his perception of unfair warnings and eventual dismissal. Dr Shaikh did not report any pre-existing psychiatric condition”. Dr Shaikh provided a supplementary report after being given further information, his previously expressed opinions “do not change” in response to that.
Correspondence from Ms Ucio is also noted with significant symptoms of distress, worry and feelings of helplessness are noted. Ms Ucio stated, “It appears he may have symptoms consistent with Posttraumatic Stress Disorder”.
Her mental health review plan refers to symptoms of “anxiety/insomnia as well as depression” in the context of “work-related incidents”.
Further correspondence from Ms Ucio in March 2020 refers to issues of “depression and anxiety” as a consequence of the workplace issues.
Further documents, a large volume of which are from the employer, have been reviewed as well as various medical certificates where issues of “work-induced anxiety and depression due to bullying and harassment” are referred to.
Dr Allan outlined the history of the matter as explained by the Applicant before providing a diagnosis of MDD with crosscutting features of Post-Traumatic Stress Disorder (PTSD). His report states that the near miss incident was a ‘significant causative factor’ of his depressive disorder and the termination of his employment was comparatively a ‘minor contributing factor’.
In his report dated 19 November 2021, Dr Allan confirms the Applicant’s incapacity for work until 6 June 2021. He stated:
Mr Stamatopoulos reports that although now improved in his mental health, he had ongoing difficulties in marked symptomatology up until around the time of his return to work in June 2021. At that time, he reports that through conversations with a friend, who is part owner of the company which he is now working in, he was given a chance to work initially working three days per week (20 hours) before progressing after two weeks to working a five days in full-time hours.
…
Mr Stamatopoulos had no significant improvement in depressive symptoms up until the early months of 2021. He states that whilst he had remained on fluvoxamine, the antidepressant, other medications were being trialled by his GP and then initial psychiatrist, Dr Leon whom he only saw on one occasion. Medications have included trials of Circadin, desvenlafaxine and amitriptyline, none of which provided any further benefit to his mood and none of which assisted his sleep quality.
…
At this time, he reports a marked improvement of his mental health when compared to how I saw him last year, when I regarded him as suffering from an ongoing depressive disorder. His condition should now be regarded as in a state of remission. He is working full time. His mood is improved and he appears euthymic. He describes his diet and weight as "normal". He sleeps well but is supported by medication with this and could potentially develop marked insomnia again if these medications were ceased. He no longer has nightmares or night sweats. He describes an improvement in his confidence but still feels this is subdued compared to how it was prior to his work injury. He states his social life is "better". He likes to walk. He sees his partner and sees friends. In his words "my quality of life is improving".
Dr Allan’s supplementary report dated 10 January 2022 diagnosed the Applicant with MDD and associated PTSD, both of which he opined were in remission.
In oral evidence, Dr Allan opined that the Applicant suffered from a mental injury caused by his Linfox employment and was incapacitated for work for the period in question.
Ms Wright cross-examined Dr Allan on certain formal matters, including his failure to incorporate his instructions into his reports.
She challenged his diagnosis on the basis that it relied heavily on uncorroborated assertions made by the Applicant. Dr Allan conceded that his diagnosis was based largely on information provided by the Applicant and that he saw his role primarily as a psychiatrist rather than an investigator, even though he held himself out as an independent expert.
Dr Wasim Shaikh, Psychiatrist
Dr Shaikh provided two reports: his original report dated 21 February 2020 and a supplementary report dated 27 February 2020.
In his original report he opined that the near miss incident was the cause of the Applicant’s mental injury, and that the Applicant was incapacitated for work.
In a further supplementary report dated 18 February 2022, he stated:
I diagnosed Mr Stamatopoulos, following the assessment of February 2020, as suffering Major Depressive Disorder. He then experienced symptoms of low mood, anxiety, sleep disturbances, impaired motivation, reduced appetite, and impaired cognition. There were reduced social engagements and recreational participations.
Whilst I have not recently assessed Mr Stamatopoulos, the report of Dr Allan from November 2021 indicates an improvement in mood, normality in appetite, absence of significant sleep disturbances, better social engagements, and improved confidence. This indicates, as noted by Dr Allan, that the work-related psychological condition has resolved.
…
Following the index incident of July 2019, Mr Stamatopoulos continued in the workplace, until his termination of employment in December 2019. In my previous report, I noted that he was capable of undertaking his pre-injury employment in a gradually increasing manner. I noted that he would be capable of working 20 hours a week, and with appropriate treatment, progression to full time hours.
It is my opinion that if there had not been determination (sic)[55] of December 2019, Mr Stamatopoulos would have likely continued to work. There may have been a period of incapacity post March 2020, but this was likely due to the aggravation of his Depressive Disorder, caused by his perception of being reprimanded for unfair issues. An incapacity beyond March 2020 was unlikely due to the index event.
…
It is my opinion that a psychiatric condition which persisted beyond March 2020 would have likely been caused by his aggravated Depressive Disorder, which was contributed to by his perception of being targeted and unfairly reprimanded in the latter months of 2019. It is quite obvious as well that his involvement in compensation proceedings led to ongoing symptoms and impairment in 2020, and it was only in mid-2021, the he (sic) returned to work- even Dr Allan's document reflects that there was distress associated with dispute about his incapacity.
[55] Presumably, ‘termination’.
Dr Shaikh also stated:
...I fail to justify the notion that the workplace injury of July 2019 was the sole contributory factor to his incapacity for work until 06 June 2021. Dr Allan himself has commented in his report of early 2020 that Mr Stamatopoulos would have capacity for work in a few months, and it was the ongoing litigation proceedings which were a barrier. Dr Allan, according to me, fails to attribute significance to Mr Stamatopoulos' ongoing involvement in litigation, and his perception of being treated unfairly in the latter months of 2019, leading to his dismissal - these are significant contributors, and cannot be ignored.
Dr Ricky Tsang, Psychiatrist
Dr Tsang was not called to give evidence, but I note his report dated 29 October 2021 based on his last review of the Applicant on 31 August 2021. In that report, he diagnosed PTSD and comorbid MDD,[56] currently in early remission while still on three psychotropic medications. The doctor opined:
It is my professional opinion that Mr Stamatopoulos’s condition and his previous incapacity was significantly contributed by the index near miss incident in July. It was further exacerbated by his perceived unfair warnings and dismissal. He does not suffer a pre-existing psychiatric condition before the incident.
[56] See AHB, 75.
Dr Tsang considered that he might regain his full work capacity in another 2 to 3 months if his reintegration of work plan went smoothly, and that he agreed with the opinions expressed by Dr Sheikh and Dr Allan and their clinical impressions at the time of assessment.
LEGISLATION
The relevant provisions of the SRC Act are as follows.
Section 5A provides:
Definition of injury
(1)In this 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;
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.
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
Section 5B provides:
Definition of disease:
(1) In this 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.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
Section 14 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.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
Section 19 of the SRC Act is as follows:
Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
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.
NWE is the amount of the employee's normal weekly earnings.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a) where the employee is in employment (including self‑employment)—the amount per week that the employee is earning in that employment;
(b) where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c) where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d) where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e) where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour‑market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f) where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare’s opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant.
…
CONSIDERATION
The Applicant has an accepted condition with a notional or ‘deemed’ injury date of 11 July 2019. Section 19 incapacity payments are payable to an employee who is incapacitated for work ‘as a result of’ an injury. Broadly, Comcare is liable to pay an amount of compensation in respect of the injury for each week the employee is incapacitated. The amount of compensation is worked out using the formula set out in the section.
Section 5A(1)(b) refers to 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, with an exclusion for reasonable administrative action.
Section 5B defines ‘disease’ to mean an ailment suffered by an employee, or 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, where significant degree means a degree that is substantially more than material. The section provides a non-exhaustive list of matters that may be taken into account in determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee.
The parties proceeded on the basis that the relevant injury suffered by the Applicant was ‘a disease’ within the meaning of section 5B of the SRC Act. This is consistent with the analysis by the delegate in the original determination of liability as noted at [13] above.
I am satisfied that the Applicant was properly diagnosed by Dr Allan and Dr Shaikh as suffering from MDD which developed in the months following the near miss incident.
It is clear from the medical record that the Applicant’s clinical depression developed steadily over the months following the near miss incident. It did not come into existence spontaneously on 11 July 2019. I accept Dr Shaikh’s view that the near miss incident was not the sole cause of his mental health condition, and that the problems with management were contributing factors. It was nevertheless an ailment contributed to, to a significant degree, by his employment.
Ms Wright argued that any incapacity suffered from 25 March 2020 was the result of an aggravation suffered from about late October 2019, which should be the subject of a separate claim. She said that the Respondent had been denied the opportunity to explore in greater detail the issue of reasonable administrative action. The short answer to this is that reasonable administrative action qualifies each of the categories of injury identified in section 5A, and not just the limb relating to aggravation. Moreover, the issue of reasonable administrative action was well ventilated in cross-examination and submissions.
Ms Wright contends that even if the Applicant had a compensable ailment at some earlier point, by the beginning of the closed period on 25 March 2020, the near miss incident had faded in causal significance. At no point during the closed period did his employment by the Respondent contribute, to a significant degree, to his chronic depression.
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 lately
Been at this work for 8 years
Has anxiety, getting him down/depressed,
states having mental anguish
Not 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.
I do not accept these contentions.
The Applicant was a long serving union delegate. He conceded in evidence that this was sometimes a stressful role. However, there is no evidence of any previous bout of depression associated with that role. The psychiatric evidence rather suggests that his mental health was thoroughly compromised by the near miss incident, and in the months following he was far more susceptible to the consequences of workplace stress. Conflict with management was unlikely to have caused chronic depression in late 2019 without the antecedent damage to his psychological integrity associated with the near miss incident. The near miss incident that occurred on 11 July 2019 was not the only contributing factor, but it was by far the most substantial cause of his MDD.
Under those circumstances, it is not accurate to describe his major depression as a result of administrative action, reasonable or not. It was the result of an antecedent psychological state produced by the near miss incident, to which his workplace friction contributed to some degree. The extent to which administrative action contributed to his chronic depression is difficult, if not impossible to determine, but his MDD cannot be regarded simply as ‘a result’ of any administrative action taken by the Respondent.
Nor is it self-evident that the administrative action in question constituted reasonable administrative action taken in a reasonable manner. There were obvious mitigating factors to be found in his circumstances. He had suffered a distressing workplace accident on 11 July 2019 for which, on 26 March 2020, the employer accepted liability. He was obviously distressed at what he perceived as a dilatory, or indeed desultory, response to his personal and communal safety concerns, verging on indifference. This is borne out by the medical records provided by Newington Medical.[63] His supervisors took few, if any, active steps to alleviate his concerns. The incidents for which he was dismissed were relatively minor infractions, such as making a phone call, being 11 minutes late after a lunch break or blocking a walkway with his forklift. Moreover, he had personally alerted management to the pallet misalignment which ultimately led to his third and final warning when it was discovered that he had loaded the pallet into position. It was a harsh outcome for a long-standing employee. The evidence does not support a positive finding that his suspension and dismissal constituted reasonable administrative action taken in a reasonable manner, or that his MDD was ‘a result’ of such reasonable action.
[63] T37, 177-187.
The Applicant’s chronic depressive condition was diagnosed independently by two psychiatrists and supported by a substantial body of clinical information. The ailment was contributed to, to a significant degree, by his employment, in the sense that it was substantially more than material.
I consider that it would be a mischaracterisation to describe his MDD as ‘a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’ as that expression is used in section 5A of the SRC Act. The Tribunal finds that throughout the relevant closed period he was suffering from an ailment satisfying the statutory definition of disease under the SRC Act, for which he is entitled to receive compensation in accordance with the SRC Act.
THE QUESTION OF WORK CAPACITY
The core question in these proceedings is whether the Applicant’s incapacity for work continued beyond 24 March 2020, and if so, whether he had recovered any significant work capacity during the closed period of 25 March 2020 to 3 June 2021.[64]
[64] Transcript, 19 July 2022, 9; Transcript, 13 December 2022, 45; Written Submission, 30 December 2022, at para 8.
On this question the medical evidence is somewhat divided. As noted above, Dr Allan considered that the incapacity continued until he was certified as fit to resume his pre-injury employment on 3 June 2021.
Dr Shaikh provided two reports: his original report dated 21 February 2020 and a supplementary report dated 27 February 2020. In his original report, he opined that the near miss incident was the cause of the Applicant’s mental injury, and that the Applicant was incapacitated for work. His conclusion that the near miss incident was not the ‘sole contributing factor’ to his incapacity for work in his further supplementary report dated 18 February 2022 is noted at [54] above.
Although Dr Shaikh was called by the Respondent, he was not cross-examined by the Applicant’s counsel on these views expressed in the Report.
I do not think that the views expressed by Dr Shaikh are fatal to the Applicant’s claim. His difficulties with management may have contributed to his depression or delayed his recovery, but that does not eclipse the causal significance of the original trigger for his MDD. It is tantalising to consider whether he might have continued at work under different scenarios, but such speculations are not determinative under section 19. There is no requirement that the original trigger, in this case the near miss incident, must be the ‘sole contributing factor’.
Mr Mrsic notes that the Applicant was under general medical care and specialised psychiatric care throughout the period and, after some adjustment to his medication, made a full recovery which enabled him to re-enter the workforce with the help of a friend, initially part-time and then full-time. He asks the Tribunal to find that he was incapacitated for work throughout the relevant closed period, and to accept the global figure calculated by his instructing solicitors, based on figures provided by the Respondent for lost income during the relevant period, amounting to $140,024.89.
Ms Wright does not accept the written assurance provided by the Applicant’s lawyer that the Applicant did not work throughout the closed period.[65] She contends that he was either not incapacitated or exaggerated the degree of incapacitation throughout this period. She points to various factors:
·The near miss incident that occurred on 11 July 2019 did not stop him either working or driving his car to and from work.
·He did not discuss the near miss incident with his general practitioner when he saw him on 9 August 2019, discussing it for the first time on 26 August, almost 7 weeks after the incident.
·He made a claim for car expenses in the 2020 and 2021 tax years.
·He told a counsellor that he had a job in late January 2021.
·He did not make any claim for workers’ compensation until after he had received two workplace warnings for misconduct.
[65] See AHB, 221.
First discussion with Dr Cooke
Ms Wright observed that the Applicant saw Dr Cooke on 9 August 2019 for an unrelated condition and did not discuss the near miss incident.[66] She suggests that this is inconsistent with the notion that he was severely affected by it.
[66] T37, 177.
I note that the Applicant saw Dr Cooke again on 26 August 2019. On that occasion, it appears that the near miss incident was raised.[67] The file note states:
[67] T37, 177.
p/w frustration, aggravation and anxious over an incident at work last month that nearly killed him. He was nearly run over by a B-double truck on 11/7/2019 whilst on site at work.
That driver works for Linfox, same company as Harry.
We had a discussion about the incident and whether a workers comp claim is necessary.
Harry wants to avoid that if possible and is currently liaising with his employer, but that still remains an option if necessary.
Harry has become quite anxious after this incident, which has also affected his sleep.
He is especially bothered by the apparent lack of action by his employer at this stage.
Plan:
trial of Endep at night
medical certificate issued
liaise with employer himself to try and achieve some resolution
consider putting a workers comp claim in if necessary
In my opinion, the slightly delayed reporting of the incident to Dr Cooke does not show that the incident did not contribute significantly to his chronic depression. Nor does it show that the Applicant regarded the incident as trivial or inconsequential.
In response to a question from Ms Wright as to what he experienced after the near miss incident, he said:
Look, for me to explain it in medical terms it’s difficult. My vocabulary is not great. I would explain firstly like a psychological shock, mentally and emotionally. And I wasn’t aware of at the time. I tried to self-manage it. I didn’t know what I was dealing with. After a period of time I saw my GP.[68]
[68] Transcript, 19 July 2022, 62.
It is trite to observe that clinical depression is very different from a physical injury, both in terms of development and assigning the exact time of onset. I also note that it was not until 26 March 2020 that the Respondent accepted liability for his MDD.
Motor vehicle claims
The Applicant’s tax returns relating to the closed period include claims for motor vehicle expenses. In the 2020 tax year, he claimed $2,142.00 for 3150 kms (100% business use).[69] In the 2021 tax year he claimed $360.00 for 500 kms (100% business use).[70]
[69] AHB, 231.
[70] AHB, 227.
The Applicant said in oral evidence that he could not remember giving his accountant instructions regarding motor vehicle use. He had used his car when he was employed by the Respondent, but only to travel to and from work. He did not show a clear understanding of the basis for claiming motor vehicle deductions.
Ms Wright submitted that by reason of these claims, the Tribunal might reasonably infer that he had worked during this period, without declaring the income. In any event, it demonstrated that he was not incapacitated for work during this period.
Mr Mrsic suggests that the tax deduction information could be put down to a zealous accountant and did not necessarily imply that the Applicant was working prior to May 2021. I am inclined to agree. No doubt the Applicant would be wise to ask his accountant to file an adjustment with the ATO for these tax years.
Ms Ucio’s file note dated 30 January 2021
Ms Ucio saw the Applicant over an extended period from 2019 to 2021. She made file notes after each session, and these were made available to the Tribunal. A note dated 30 January 2021 states:[71]
[71] AHB, 141; Respondent’s Hearing Book, 55 (RHB).
30.01/21. H.S.
Feedback
His current employment is with a friend but at the moment he has lost some days of work.
He will be dong (sic) deliveries, he will have more information for the next session on this one.
Regarding his previous employment he said it is going ok. They have told him that they will pay him from 5/9/19 to 13/3/20 but after that date they won't pay him anymore.
He has for further information and they have said that the Psychiatrist he saw has written his report the people who suffer PTSD should get over after 2-3 months.
Hs solicitor is indicating that they may have to go to High Court where Harry will be put on a stand to respond to questions.
Regarding his new job, he is driving a small truck and he notices being cautious because of his past experience.
STRATEGIES
Relaxation techniques
Psychoeducation.
(Emphasis added)
Ms Wright relies heavily upon this note as indicating that as of at least 30 January 2021 the Applicant was in fact working. She contends that it is improbable that Ms Ucio’s file note is incorrectly dated.[72]
[72] Transcript, 13 December 2022, 78.
The Applicant denies that he was working at all until he commenced part-time employment in May 2021. In oral evidence, he said that Ms Ucio told him, ‘face-to-face’ that she made a mistake with the date.[73]
[73] Transcript, 19 July 2022, 50.
I have reviewed Ms Ucio’s counselling notes in detail. In terms of file keeping, it is not a flawless record. There are multiple errors. For example, the body of the file note dated 14 March 2020 commences with a date of ‘14/03.21’.[74]
[74] RHB, 58. In her letter to Dr Cooke dated 21 August 2021 (AHB, 71), Ms Ucio states that she provided psychological treatments on “30/1/21, 20/2/21, 28/7/21 and 21/8/21”. File notes for this period shows sessions on 30 January 2021 (AHB, 141; RHB, 55); 20 February 2021 (AHB, 142; RHB56); 14 March 2021 (RHB, 58), 28 July 2021 (AHB, 144; RHB, 59) and 21 August 2021 (AHB, 146; RHB, 60). At first, I considered that the session on 14 March 2021 had been omitted from this list, but on further examination, I note that there are two dates on this document, as noted above.
Other examples abound. For example, her letter dated 4 March 2020 to Dr Cooke states:
He has attended 6 counselling sessions with me on 21/11/19, 27/12/19, 20/12/19, 18/1/20, 01/02/20 and 13/2/20.[75] (Emphasis added)
[75] AHB, 65.
There is no file note for any sessions that took place on 27 December 2019 or 20 December 2019. The file notes for sessions between 21 November 2019 and 13 February 2020 are dated as follows: 21 November 2019;[76] 7 December 2019;[77] 21 December 2019;[78] 18 January 2020;[79] 1 February 2020;[80] and 13 February 2020.[81] The reference to ‘27/12/19’ correlates with a session that took place on 7 December 2019. The reference to ‘20/12/19’ correlates with the session that took place on 21 December 2019.
[76] AHB, 120-1.
[77] AHB, 122.
[78] AHB, 123.
[79] AHB, 124.
[80] AHB, 125.
[81] AHB, 126.
The error appears to have been corrected in Ms Ucio’s correspondence to the Applicant’s lawyers on 3 July 2020.
[The Applicant] commenced Counselling through Wellbe Counselling & Psychology for the first time on 21/11/19 and the subsequent sessions were on: 07/12/19; 21/12/19; 18/1/20; 01/02/20; 13/02/20…[82]
[82] AHB, 67.
In her letter dated 13 January 2021 addressed to Dr Cooke, she refers to providing six sessions of psychological treatment on the following dates: ‘26/6/20, 10/07/20, 24/07/20, 18/11/20, 19/12/20 and 13/01/21.’[83] For some reason this summary does not include five private sessions not under Medicare, file noted as follows: 17 August 2020,[84] 8 September 2020,[85] 1 October 2020,[86] 27 October 2020,[87] and 18 November 2020.[88] This omission is corrected in the summary of consultations which include those privately funded sessions. But even the summary document is flawed. For example, the session that took place on 17 August 2020[89] is listed as ‘18/8/20’.[90]
[83] AHB, 70.
[84] See RHB, 49.
[85] AHB, 135.
[86] AHB, 136; RHB, 50.
[87] AHB, 137; RHB, 51.
[88] See AHB, 138; RHB, 52.
[89] AHB, 134; RHB, 49.
[90] See AHB, 145.
It is therefore not unlikely or far-fetched that the file note in question is misdated.[91]
[91] AHB, 141; RHB, 55.
As to when the session occurred, I note that there is a four-month gap in the record separating the 20 February 2021 and 28 July 2021 sessions. This is unusual. The Applicant had at least 27 sessions with Ms Ucio between 21 November 2019 and 13 November 2021, at a normal rate of about one per month. They tend to be evenly spaced and the gap between the February and July sessions is by far the longest.
The note in question states that he will be doing deliveries and will have more information for the next session ‘on this one’. It refers to a ‘current job’, and states that he ‘is driving a small truck and he notices being cautious because of his past experience’. The file note dated 28 July 2021 refers to him having a ‘NEW JOB’,[92] and the 21 August 2021 note, that he had ‘started work’.[93]
[92] AHB, 144.
[93] AHB, 146.
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.
I note that his Fair Work claim was settled on 24 March 2020, with a notional termination date of 5 December 2019.[98] Two days later, on 26 March 2020, the Respondent accepted liability for the accepted condition. There is an obvious linkage between these events.
[98] T14, 71-72. Details of this claim have not been provided to the Tribunal.
While I accept that his departure from the company following the resolution of his Fair Work claim was a relevant factor under paragraph 19(4)(g), I do not consider that it should disentitle him from receiving incapacity payments under section 19 for the closed period.
DISPOSITION
For these reasons I find that the reviewable decision should be set aside. There was some dispute as to the appropriate course to be taken under such circumstances. Both parties invited the Tribunal to determine for itself the quantum of incapacity payments owed to the Applicant, rather than remitting the matter to the Respondent with an instruction to perform the calculation.
I note that in Goodricke and Comcare [2010] AATA 410, the Tribunal set aside a decision in similar circumstances and remitted the matter to Comcare to ‘fine-tune’ the payment amount. The present case appears to be somewhat more straightforward. The amount of NWE ($2,588.26) is not in dispute.
On 21 April 2020, the Respondent assessed the Applicant’s incapacity payments for the period 11 July 2019 to 6 December 2019 at $9,071.40[99] based on NWE of $2,588.26. This figure was also used in the Determination on 15 July 2021, relating to the period 9 December 2019 to 24 March 2020 inclusive.[100]
[99] T31, 135; T35, 148.
[100] T41, 214, 215; T45, 227.
The original claim by the Applicant was set out in a Table provided by his solicitor.[101] As noted above, the period of claim was reduced by Mr Mrsic to a shorter closed period ending on 3 June 2021. I have adjusted the Table as follows:
[101] AHB, 6.
Period Weeks NWE ($) % Actual earnings pw ($) Compensable loss pw ($) Total ($) 25.3.20-20.10.20 30 2,588.26 100% 0.00 2,588.26 77,647.80 21.10.10-23.5.21 31 2,588.26 75% 0.00 1,941.20 60,177.05 24.5.21-3.6.21 1.8 2,588.26 85% 1,100.00 1,100.02 1,980.03[102] Total arrears 139, 804.88 [102] The original Table referred to $2,200.04 for the fortnight ending on Friday 4 June 2021.
DECISION
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).
COSTS
The Applicant seeks an order pursuant to subsection 67(8) of the SRC Act that the Respondent pay the Applicant’s reasonable costs and disbursements in relation to this application as agreed or taxed.[103] I reserve my decision as to costs and direct that the parties file and serve written submissions within 21 days of the date of this decision. This issue will be determined on the papers, unless either party requests a hearing to be listed.
[103] ASFIC, para 35.
I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
..........[SGD]..............................................................
Associate
Dated: 13 June 2023
Date(s) of hearing: 19 July 2022 and 13 December 2022 Counsel for the Applicant: Mr J Mrsic Solicitors for the Applicant: Mr J Clarke, Grieve Watson Kelly Lawyers Counsel for the Respondent: Ms S Wright Solicitors for the Respondent: Ms E Stower, HWL Ebsworth Lawyers
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