VCBV and Australian Postal Corporation (Compensation) - [2024] AATA 1023

VCBV and Australian Postal Corporation (Compensation) [2024] AATA 1023 (9 May 2024)
ReviewNumber:       2020/6518; 2020/6519
Division:GENERAL DIVISION
File Numbers:         2020/6518; 2020/6519
Re:VCBV
APPLICANT

AndAustralian viewPostal Corporation
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:9 May 2024
Place:Perth

1.The Reviewable Decision in application 2020/6518 is affirmed.
2.The Reviewable Decision in application 2020/6519 is affirmed.

........................[Sgd]................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
WORKERS’ COMPENSATION – Whether liability should be accepted under s 14 of the Safety, Rehabilitation & Compensation Act 1988 (Cth) for a claim of “mental stress” – whether the Applicant suffered from an “ailment”? – disease – whether the ailment was contributed to, to a significant degree by the Applicant’s employment with Australia Post – whether the Applicant was entitled to incapacity payments under s 19 of the Act for right knee pain for periods including 30 July 2020 to 5 August 2020 – no jurisdiction to broaden period of incapacity payments – whether any incapacity was due to a non-compensable psychological ailment – reasonable administrative action – competing expert evidence – Reviewable Decisions affirmed
LEGISLATION
Safety, Rehabilitation & Compensation Act 1988 (Cth) ss 4, 4(1), 5A(1), 5A(1)(a), 5A(1)(b), 5A(2), 5B(1), 5B(2), 5B(2)(a), 5B(2)(b), 5B(2)(c), 5B(2)(d), 5B(2)(e), 5B(3), 7(7),14, 14(1), 16(1), 19, 19(1), 54(1), 54(2), 60, 62
CASES
Browne v Dunn (1893) 6 R. 67, H.L
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468; [2016] HCA 19
Vo and Comcare [2005] AATA 773
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
9 May 2024
OVERVIEW

The Applicant is a 63-year-old man who commenced employment with the Respondent (Australia Post) as a Postal Transport Officer on approximately 13 April 2018. The actual work he undertook was as a Dock Marshal.
He made two claims for workers’ compensation arising from his work at Australia Post.
The relevant statutory scheme that applies to the Applicant’s claims is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
The mental stress workers’ compensation claim
In a claim form dated 8 June 2020 (R1/24), the Applicant stated that he was working part-time and described his injury as “mental stress”. He stated that he first noticed the illness on 21 February 2020 at 1.20pm, and that he first sought medical treatment for the injury on 20 April 2020.
Under the question “Did the injury/illness result from one specific incident?” the Applicant wrote, “Received letter from Ms [E] (Facility Mgr) and see attachment”.
The attachment was a single typed page (R1/27).
In that attachment the Applicant detailed an incident on 21 February 2020 where he was told that he did not collect parcels by the Facility Manager, E, and that she was going to “escalate the matter”. The Applicant said that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 1023
Decision Date: 9 May 2024

CaseChat Overview and Summary

This matter concerned a review by the Administrative Appeals Tribunal of decisions made by the Australian Postal Corporation regarding compensation claims by the Applicant. The dispute involved two applications: one concerning the acceptance of liability for a psychological ailment under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) allegedly arising from employment with Australia Post, and the other concerning entitlement to incapacity payments under section 19 of the Act for right knee pain for a specific period. The Tribunal was presided over by Senior Member Dr M Evans-Bonner.

The primary legal issues before the Tribunal were whether the Applicant suffered from a compensable "ailment" or "disease" under the Act, and if so, whether this condition was contributed to, to a significant degree, by their employment. This involved determining the factual basis of the Applicant's allegations of workplace mistreatment, including bullying and harassment, against competing accounts from other employees. Additionally, the Tribunal had to consider whether any incapacity for work was due to a non-compensable psychological ailment, specifically whether it stemmed from reasonable administrative action taken in a reasonable manner, and whether the period for which incapacity payments were sought was within the Tribunal's jurisdiction.

The Tribunal's reasoning hinged on resolving conflicting expert medical evidence and the Applicant's own testimony against that of lay witnesses. The Tribunal noted that a key forensic psychiatrist's opinion was contingent on factual findings regarding the Applicant's allegations of workplace mistreatment. If the Applicant's allegations were substantiated, the psychiatrist indicated that causation for an adjustment disorder would be more straightforwardly linked to employment. Conversely, if allegations made against the Applicant by others were found to be correct, the psychiatrist suggested that any mental ailment likely had a constitutional basis due to inherent personality characteristics, rather than being caused by the workplace. The Tribunal heard evidence from the Applicant and two lay witnesses, and considered medical reports on the papers, to make these crucial factual determinations.

The Tribunal affirmed the Reviewable Decisions. This outcome indicates that the Tribunal found the Applicant's allegations of workplace mistreatment were not sufficiently established to meet the threshold for a compensable psychological ailment under the Act, or that any incapacity was not due to a condition contributed to by their employment to a significant degree. The Tribunal also found no jurisdiction to broaden the period for which incapacity payments were claimed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

On 2 September 2020, the Applicant’s representative lodged an application seeking review of the 2020/6519 Reviewable Decision in this Tribunal (R2/10-12).OVERVIEW OF THE HEARING, WITNESSES, ISSUES AND EVIDENCE Joined applications and representation On 24 February 2021, the Tribunal’s Assistant Case Assessment Registrar decided that applications 2020/6518 and 2020/6519 be joined and heard before the Tribunal at the same time. The hearing was on 26, 27 and 28 March 2024. The Applicant was represented by Mr Wong of Soul Legal. The Applicant’s wife was also present as a support person. Australia Post was represented by Mr Woulfe of Counsel instructed by Ms Danti from Moray and Agnew Lawyers. Witnesses and the factual basis for the claims In their hearing certificates the parties had indicated that they intended to call medical witnesses. The Applicant had proposed to call consultant psychiatrist Dr Frederick Ng and the Applicant’s treating psychologist, Professor Miguel Fernandez. The Respondent proposed to call consultant forensic psychiatrist Dr Lawrence Terace. At the commencement of the hearing, the parties agreed to proceed based on the Applicant and two lay witnesses (J and R) giving evidence in person at the hearing. This was because Dr Terace had stated in his reports (R3 and R4), that there were two possible conclusions depending on the factual findings of the Tribunal. If the Applicant’s allegations against Australia Post (including bullying and harassment in the workplace) were correct, then the events in the workplace provoked an adjustment disorder. Dr Terace commented, “If [the Applicant] was mistreated, then the matter is relatively simpler with respect to causation” (R3/pages 32 and 33 of report, underlining in original). In this factual scenario, the Applicant would succeed in application 2020/6518 and the 2020/6518 Reviewable Decision would be set aside and substituted with the decision that liability under s 14 of the SRC Act should be accepted. However, if the allegations made against him by others (including J and R) were correct, then any mental ailment was not caused by the workplace, but rather had a constitutional causation from maladaptive personality characteristics of the Applicant (R6/page 16 and 17 of report). In this factual scenario, the Applicant would not succeed, and the 2020/6518 Reviewable Decision should be affirmed. In his report dated 21 February 2022, Dr Terace described the question succinctly (R3, page 32) as being: “whether [the Applicant] is correct as to being mistreated or was his perception simply a consequence of his own inherent maladaptive personality characteristics?” It was agreed that once I had made these factual findings, I could consider the evidence of Dr Ng and Dr Terace on the papers and on the basis that the rule in Browne v Dunn (1893) 6 R. 67, H.L. which requires contradictory evidence to be put to a witness before it can be relied upon, would not apply. Thus, the hearing proceeded in that manner with the Applicant giving evidence on the first and second days of the hearing, and J and R giving evidence on the second day. The whole of the third day was taken up with closing submissions.

Decision

Reasons for decision

In a reconsideration on own motion dated 2 September 2020, a claims manager of Australia Post varied the 2020/6519 Determination so that Australia Post was not liable to pay compensation in accordance with s 19 of the SRC Act for the Applicant’s absence from employment from 30 July 2020 to 5 August 2020 (R1/110-111). I will refer to this as the 2020/6519 Reviewable Decision. The reasons given by the claims manager for making the 2020/6519 Reviewable Decision included that the Applicant was absent from work despite his treating doctors indicating he could return to work with restrictions and that instead he was absent due to a psychological condition (R2/110). On 2 September 2020, the Applicant’s representative lodged an application seeking review of the 2020/6519 Reviewable Decision in this Tribunal (R2/10-12).OVERVIEW OF THE HEARING, WITNESSES, ISSUES AND EVIDENCE Joined applications and representation On 24 February 2021, the Tribunal’s Assistant Case Assessment Registrar decided that applications 2020/6518 and 2020/6519 be joined and heard before the Tribunal at the same time. The hearing was on 26, 27 and 28 March 2024. The Applicant was represented by Mr Wong of Soul Legal. The Applicant’s wife was also present as a support person. Australia Post was represented by Mr Woulfe of Counsel instructed by Ms Danti from Moray and Agnew Lawyers. Witnesses and the factual basis for the claims In their hearing certificates the parties had indicated that they intended to call medical witnesses. The Applicant had proposed to call consultant psychiatrist Dr Frederick Ng and the Applicant’s treating psychologist, Professor Miguel Fernandez. The Respondent proposed to call consultant forensic psychiatrist Dr Lawrence Terace. At the commencement of the hearing, the parties agreed to proceed based on the Applicant and two lay witnesses (J and R) giving evidence in person at the hearing. This was because Dr Terace had stated in his reports (R3 and R4), that there were two possible conclusions depending on the factual findings of the Tribunal. If the Applicant’s allegations against Australia Post (including bullying and harassment in the workplace) were correct, then the events in the workplace provoked an adjustment disorder. Dr Terace commented, “If [the Applicant] was mistreated, then the matter is relatively simpler with respect to causation” (R3/pages 32 and 33 of report, underlining in original). In this factual scenario, the Applicant would succeed in application 2020/6518 and the 2020/6518 Reviewable Decision would be set aside and substituted with the decision that liability under s 14 of the SRC Act should be accepted. However, if the allegations made against him by others (including J and R) were correct, then any mental ailment was not caused by the workplace, but rather had a constitutional causation from maladaptive personality characteristics of the Applicant (R6/page 16 and 17 of report). In this factual scenario, the Applicant would not succeed, and the 2020/6518 Reviewable Decision should be affirmed.

Ratio Decidendi

Legal Principle Established

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