Taylor and Comcare (Compensation) [2017] AATA 1327 (22 August 2017)
Division: GENERAL DIVISION
File Number(s): 2016/2494
Re:Wendy Taylor
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member J F Toohey
Date:22 August 2017
Place:Sydney
The Tribunal:
(i)is satisfied that the applicant’s employment contributed to a significant degree to a psychological condition that was outside the bounds of normal mental functioning and behaviour and was a disease for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth);
(ii)affirms the decision that the effects of the applicant’s injury ceased by 10 December 2015; and
(iii)decides that, by reason of s 7(7) of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the disease suffered by the applicant is not an injury for the purposes of the Act.
.......................[sgd]..............................................
Senior Member J F Toohey
CATCHWORDS
Compensation – bullying and harassment – adjustment reaction with anxious mood – depression – liability accepted – subsequently disputed – whether condition outside the boundaries of normal mental functioning and behaviour – whether employment contributed to a significant degree – whether effects of injury ceased – whether applicant made wilful and false representation – Tribunal satisfied that applicant’s employment contributed to a significant degree to her condition – decision that effects had ceased affirmed – not an injury by reason of wilful and false representation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 5A, 5B, 7, 62
CASES
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Mooi (1996) 69 FCR 439
Comcare v Porter (1996) 70 FCR 139
Federal Broom Co Pty Ltd v Semlitch (1964)110 CLR 626
Ianella v French (1968) 119 CLR 84
Madden and Australian Postal Corporation [2008] AATA 411
Re Duffy and Comcare [1996] AATA 676
Re Georgoulas and National Australia Bank Limited [2013] AATA 512
Re Iliadis and Comcare [1996] AATA 602
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253REASONS FOR DECISION
Senior Member J F Toohey
22 August 2017
INTRODUCTION
Wendy Taylor was employed by the Department of Human Services (DHS) from 23 July 2007 until her retirement on 28 August 2013. On 27 January 2012, she claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act) for “adjustment reaction with anxious mood” as a result of bullying and harassment during her employment.
In her claim for compensation, Ms Taylor identified 21 December 2011 as the date on which she was injured or first noticed that she was ill. She identified 29 April 2011 as the date on which she first sought medical treatment for her injury.
Comcare accepted that Ms Taylor had suffered an injury to which her employment had contributed to a significant degree and that it was liable under s 14 of the Act to compensate her. The Comcare delegate noted the apparent inconsistency in the dates identified in Ms Taylor’s claim form. On the basis that her medical practitioner first certified her unfit for work due…
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- AGLC
- Taylor and Comcare (Compensation) [2017] AATA 1327
- Case
- [2017] AATA 1327
- Decision Date
CaseChat Overview and Summary
The AAT was required to determine several legal issues. Firstly, it needed to ascertain the correct diagnosis of Ms Taylor's psychological condition, specifically whether it was an adjustment disorder or recurrent depression. Secondly, the Tribunal had to assess whether Ms Taylor's employment contributed to her condition to a significant degree. Thirdly, it was necessary to determine if the effects of any injury had ceased. Finally, the AAT had to consider whether Ms Taylor had made a wilful and false representation in her claim.
The Tribunal preferred the diagnosis of recurrent depression over adjustment disorder, finding that Dr Samuell's evidence was more measured, considered, and reasoned, and better related to Ms Taylor's overall history. The Tribunal was satisfied that from around April 2011, Ms Taylor suffered from recurrent depression, a condition outside the bounds of normal functioning and behaviour, to which her employment contributed to a significant degree. While acknowledging some doubt regarding Ms Taylor's state of mind when completing the claim form, the Tribunal concluded that it could not be satisfied that her representations were wilful and false. The Tribunal affirmed the decision that the effects of the injury had ceased by 10 December 2015. Consequently, by reason of section 7(7) of the Act, the disease suffered by Ms Taylor was not an injury for the purposes of the Act.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Dr Reutens reported that Ms Taylor described symptoms “consistent with a mild Adjustment Disorder With Anxiety” which had “significantly resolved” since she had been off work, but she continued to have “residual symptoms of irritability, and some anxiety and low mood” because the situation had not been fully resolved. Dr Reutens said the main employment factor contributing to Ms Taylor’s condition was her perception of bullying and harassment before April 2011 which “developed gradually such that by April 2011 she consulted [Dr Liew].”Consideration I prefer Dr Samuell’s diagnosis of recurrent depression to the diagnosis of adjustment disorder made by Dr Smith. I prefer Dr Samuell’s view that Ms Taylor’s symptoms from around April 2011 are explained by reference to recurrent depression and not to adjustment disorder. Dr Samuell had the benefit of a more complete history than Dr Smith. The clinical notes and the evidence supported his diagnosis, and he related his diagnosis to Ms Taylor’s overall history which indicates recurrent episodes of depressive symptoms. In my view, Dr Samuell’s evidence was more measured, considered and reasoned than Dr Smith’s, and he was able to relate his opinion to the circumstances of Ms Taylor’s case. With respect to Dr Smith, he did not appear to me to draw a line between an independent assessment of Ms Taylor’s condition and advocacy on her behalf. He appeared to accept uncritically that Mr W “was responsible for the intimidating behaviour including the sexual inappropriateness of his conduct”. His statement that Ms Taylor was “significantly traumatised” does not accord with her own description and it is not supported by her doctor’s clinical notes. Dr Smith appeared to accept uncritically that the incident in July 2010 caused Ms Taylor’s condition with limited understanding of all of the circumstances and despite the absence of any report of symptoms to her doctors for approximately nine months following that event. I am satisfied that, from around April 2011, Ms Taylor suffered from recurrent depression and not an adjustment disorder.DID MS TAYLOR’S EMPLOYMENT CONTRIBUTE TO HER CONDITION TO A SIGNIFICANT DEGREE? For reasons that follow, I am satisfied that, from April 2011 when Dr Liew prescribed Aropax, Ms Taylor suffered from a condition outside the bounds of normal functioning and behaviour to which her employment contributed to a substantial degree. In Dr Samuell’s view, conduct by Mr W of the kind described by Ms Taylor would not have traumatised her in the sense required for diagnosis of adjustment disorder (and, as I understand his evidence, would not have triggered depression). He thought that, as Ms Taylor described it, the incident, did not seem like an event “of sufficient moment to be able to cause a serious mental health condition”. Dr Samuell noted that Ms Taylor did not appear traumatised and did not complain of trauma, for many months after July 2010. He did not think it possible that she would see her doctor frequently without trauma of the magnitude now claimed being noticed or recorded. He acknowledged that the continued presence in the workplace of a “harasser” could continue the problem but said it did not accord with his clinical experience.