Willcott and K & S Freighters Pty Ltd
[2011] AATA 237
•5 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 237
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1813
GENERAL ADMINISTRATIVE DIVISION ) No 2010/2388
No 2010/2389Re RODNEY WILLCOTT Applicant
And
K & S FREIGHTERS PTY LIMITED
Respondent
DECISION
Tribunal Deputy President R D Nicholson
Dr J Chaney, MemberDate5 April 2011
PlacePerth
Decision 1. In relation to Application No 2010/1813:
The reviewable decision dated 15 March 2010 is set aside and in lieu thereof it is determined:
- The applicant did not fail or refuse, without reasonable excuse, to undertake the rehabilitation programme dated 13 August 2009; and
- The applicant’s rights to compensation under the Safety Rehabilitation and Compensation Act 1988 and to institute or continue any proceedings under that Act in relation to compensation was not suspended on 24 November 2009.
- The respondent pay the applicant’s costs of the proceedings to be taxed on a party party basis as agreed or taxed, being costs non common with applications 2010/2388 and 2010/2389.
2. In relation to Application No 2010/2388:
- The reviewable decision dated 31 March 2010 not to undertake a reconsideration of the determination dated 30 December 2009 is set aside.
- The primary determination dated 30 December 2009 is set aside, and in lieu thereof it be determined that the applicant does not have the capacity to earn $1 027.87 per week in his pre-accident condition
- The respondent pay the applicant’s costs of the proceedings on a party party basis as agreed or taxed, being costs non-common to the other two applications dealt with in these orders.
3. In relation to Application No 2010/2389:
A. The reviewable decision dated 6 April 2010 is set aside.
B. The primary determination dated 16 September 2009 also is set aside and the decision substituted that the applicant’s mental injury arose out of or in the course of his employment and is a compensable injury.
C. The respondent pay the applicant’s costs to be taxed.
....(sgd) R D Nicholson.......
Deputy President
CATCHWOrds
COMPENSATION – (1) agreement to set aside determination that applicant’s rights to compensation under the Safety Rehabilitation and Compensation Act 1988 were suspended; (2) whether Tribunal should determine that applicant does not have capacity to earn amount earned in pre-accident condition or whether issue should be referred for consideration; (3) whether applicant’s mental injury of depression was precluded from being compensable by being the result of reasonable disciplinary action in relation to him.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988
CASES
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
Bushell v Repatriation Commission (1992) 175 CLR 408
Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Lees v Comcare [1999] FCA 753
Brian Young v Telstra Corporation [1993] AATA 376
Hakim v Australian Postal Commission (1989) 11 AAR 5
Graham v Military Rehabilitation & Compensation Commission [2006] AATA 286
Re Georges and Telstra Corporation Limited [2009] AATA 731
Bropho v Hreoc [2004] FCAFC at [79]
Re Von Stieglitz and Comcare [2010] AATA 263REASONS FOR DECISION
5 April 2011 Deputy President R D Nicholson
Dr J Chaney, MemberFactual Background
1. The following outline of the relevant facts is taken from the respondent’s submissions. The applicant on or about 30 November 2009 was employed by the respondent as a casual truck driver delivering stock to stores using a prime mover and trailer. There was no appreciable difference between the prime movers available and all were in good condition. The trailers involved varied from some 20 feet in length to some 40 feet in length to accommodate containers of varying length.
2. The respondent operated its business from a depot located at Kewdale on the basis of a morning shift and an evening shift. Some 16 – 18 drivers and trucks were available for the morning shift. A Mr Thomas was the “Fleet Controller” who managed the use of the trucks and allocation of work for the drivers.
3. The evening shift had some 6 – 8 drivers assigned to work. However, all of the respondent’s trucks were at the depot and able to be used as required for the evening shift. The movement of trucks around the depot was relevantly controlled by a leading hand, a Mr Green.
4. It is not in dispute that at about 11.40 am on 30 December 2008 the applicant slipped and fell in the course of his employment whilst making a delivery to a company described as “Sands Freightlines” and in doing so sustained physical injuries, principally to his lower back. The applicant reported to Mr Thomas on his return to the respondent’s depot the circumstances and nature of his injuries.
5. The applicant, despite completing his normal work that day and having worked again on 31 December 2008, subsequently developed increased symptoms of pain and stiffness and was unable to return to work after New Year’s Day as rostered.
6. The applicant consulted Dr Kuan, his treating general practitioner, and was certified unfit for work. He initially prescribed pain relieving medication on or about 6 January 2009. On or about 12 January 2009 Dr Kuan prescribed a minimal dose of anti-depressant medication to assist the applicant to sleep (Endep 25 mg 1 nocte prn 20 mgs), and on the evidence given by Dr Kuan, not for any psychological reason. Dr Kuan’s clinical notes indicate it was prescribed in case there was a neuropathic component. A diagnosis of “Depression” was not made.
7. The applicant was shortly thereafter certified as fit for a rehabilitation programme which involved a graduated return to work. The applicant made a claim for workers compensation under the Safety and Rehabilitation Act 1988 (the SRC Act) and the respondent’s claims manager, CGU, accepted the claim. Mr Figredo, the respondent’s then Safety Advisor, was assigned to manage the applicant’s rehabilitation with the assistance of “WORKFOCUS”, a company approved under the SRC Act as a rehabilitation provider with the ultimate goal to assist the applicant in returning to pre injury hours and duties.
8. Specialist medical review, together with certifications and assistance of Dr Kuan, ultimately resulted in the applicant returning to work on a graduated basis increasing the hours of suitable duties provided to him via a rehabilitation programme. In the later stages of the applicant’s rehabilitation a gymnasium based exercise programme was included with a positive effect. Gradually, with an appreciable degree of flexibility in terms of the duties that the applicant was required to undertake, Mr Figredo described himself as “nursing” the applicant through the programme and returning the applicant to work.
9. On 30 July 2009 WORKFOCUS reported that the applicant was upset because CGU had written to him declining to pay compensation for anti-depressant medication. Dr Kuan, it appears, had advised WORKFOCUS that he applicant had been prescribed anti-depressant medication over the duration of his treatment and was now starting to be weaned off that medication.
10. On 5 August 2009 the applicant made a claim for compensation in respect of “depression”.
11. On 21 August 2009 the applicant was examined by Dr Edwards-Smith, Consultant Psychiatrist. Dr Edwards-Smith in her report dated 4 September 2009 noted the applicant had commenced a sideline business selling Amway products with his wife and that he was successfully participating in a return to work program. She considered that the applicant was not at that time suffering from a psychiatric condition (ie depression) and indicated that “there are matters related to compensation and secondary gain which are motivating factors”.
12. On 16 September 2009 CGU determined that the respondent was not liable to pay compensation to the applicant in respect of depression.
13. The determination of 16 September 2009 was reconsidered and affirmed on 6 April 2010.
14. The specialists who examined the applicant, including the applicant’s treating Neurosurgeon, Dr Narula, were unable to ‘exactly pinpoint the source’ of the applicant’s complaints of pain. However, Dr Bowles, Occupational Physician, in his report dated 30 October 2010 considered that the applicant suffered from ‘mechanical back pain” and noted that he applicant was nearly doing his normal full time duties and over the following one or two months he should, through increments, return to ‘unrestricted full time duties’. Dr Bowles also noted that there were “interpersonal issues” with other workers at work, citing the applicant as telling him that he had ”been assaulted at work by one and nearly assaulted by another. He said he was putting up with a lot of “bullshit” from a number of workers. He said this was being addressed to some degree”.
15. On 4 September 2009 WORKFOCUS reported that the applicant had completed 2 weeks of ‘pre-injury hours’ with no increase in symptoms other than reporting ‘mild difficulty with getting up and moving in the mornings’. The applicant’s graduated return to work had been accommodated on the morning shift.
16. On 8 September 2009 Mr Figredo contacted CGU noting that the applicant had not reported for work; that he had been canvassing other employees to join Amway; and that the applicant attends meetings regarding Amway “after hours” at various locations. Mr Figredo, it appears, had spoken to the applicant about moving to the evening shift where more suitable duties were available. Such a move conflicted with the applicant’s Amway business and Mr Figredo suggested to the applicant that he would then have to make a choice between working fro the respondent or Amway. The applicant moved to the evening shift shortly thereafter.
17. During the early evening of 24 September 2009 the applicant alleges that he was approached by another driver whose name he could not remember. He said the driver stood on the side step on the driver’s side of the truck and aggressively demanded that he applicant allow him use of the truck. The applicant claims he had radio contact with Mr Thomas who authorised the applicant to continue to use the truck.
18. The driver was a Mr Vine. The applicant alleges that after some heated words concerning the truck, Mr Vine punched him in the face. The truck’s engine was running and the applicant claims he began to drive away to protect himself The applicant claims that Mr Vine grabbed the applicant by the shirt in an attempt to get the applicant from the truck.
19. It appears common ground that Mr Vine jumped from the side step when the applicant drove off with Mr Vine on the step but Mr Vine was able to maintain his footing and was not injured. The applicant asserts that he complained to Mr Thomas that he had been assaulted and that Mr Thomas called the police. The police attended the depot and investigated the applicant’s allegations. However, no charges were laid against Mr Vine.
20. Contrary to the evidence of the applicant, Mr Thomas gave evidence that he did not call the police but in fact that the applicant had done so. Moreover, Mr Thomas gave evidence that he had no recollection of any conversation with the applicant concerning the applicant’s continued use of the truck which was the subject of the disagreement between the applicant and Mr Vine. The fact Mr Vine did use the truck that evening, as stated by Mr Vine, contradicts what the applicant says as regards him being authorized to continue to use the truck.
21. Mr Vine gave evidence that he had a good reason for wanting the use of the particular truck that the applicant was using as Mr Vine needed the truck for promotional reasons in transporting stage material for a concert. He stated there were other trucks available for the applicant to continue to use. He was adamant that he did not punch the applicant. He admitted that his request to the applicant concerning his use of the truck became heated and he became frustrated and aggressive in his demands, however, that the applicant drove off causing him to be dislodged from the side step and that he initially grabbed the applicant’s shirt in an attempt to stop himself falling and being injured.
22. The applicant’s allegations were investigated by the respondent’s then State Manager, Mr Thompson and a Mr Phenna, the then Operations Manager. Both the applicant and Mr Vine were interviewed. On 29 September 2009 the applicant was informed that due to him endangering Mr Vine he was to be disciplined by being provided with a “First and Final Warning – Unsafe Behaviour” reprimand and that “any further incidents of this nature will warrant further disciplinary action including termination of employment” (the Vine Incident).
23. Mr Vine was given a “First and Final Written Warning – Claim Aggressive Behaviour” too.
24. The applicant was asked by Mr Thompson (not Mr Figredo as the applicant asserted in his evidence to the Tribunal) to sign an acknowledgement that he had received the reprimand and warning. Mr Thompson stated he had a discussion with the applicant again on 30 September 2009 and confirmed the warning. Moreover, that the applicant refused to sign the acknowledgement again. Mr Thompson stated that he made no threat to the applicant that if he did not sign the acknowledgement that any other disciplinary action would be taken against him (the Discipline). There was no evidence that in fact any further action of a punitive or disciplinary nature was taken against the applicant in respect of his refusal to sign the Discipline letter.
25. Mr Figredo stated that he had no involvement with the applicant concerning the Discipline and did not ask him to sign the acknowledgement nor did he make any threat to the applicant concerning any failure of the applicant to sign any document.
26. Following the Vine Incident the applicant asserted in his evidence that he was bullied and harassed by the other drivers on the evening shift. Save for allegations against the leading hand, Mr Green, concerning the parking of his truck, he was unable to identify by name any of the employees allegedly bullying and harassing him. The applicant failed to call any of “his workmate” referred to in paragraph 17 of his statement to support his allegations of “other drivers to be very aggressive towards me, making it impossible to work under those conditions. Some of my workmates told me that management had told them that I was faking my injury” and ”the attitude of other truck drivers towards me troubled me so much that I believe it, along with the constant low back pain, lead me to chronic depression and a sense of worthlessness” . Evidence was given as to the relatively small number of employees whereby everyone knew one another. However, the applicant claims that he did not know the names of the small number of co-workers that he alleges were ‘very aggressive towards’ him.
27. Mr Vine gave evidence that following the Vine Incident and him receiving a first and final warning letter from Mr Thompson he simply avoided the applicant at work and took no overt action whatsoever as against the applicant.
28. However, it appears that the applicant and Mr Green, the leading hand, did have disagreements concerning the parking of the applicant’s truck at the depot. The applicant regarded Mr Green as deliberately bullying him over where to park or not to park his truck for unloading and loading purposes.
29. Mr Figredo recalled the applicant and Mr Green raising the issue with him. He acknowledged that Mr Green was getting frustrated with the applicant. However, in Mr Frigredo’s view this was because the applicant would not park his truck where indicated by Mr Green so that loading and unloading could be done efficiently. The matter was resolved when the applicant was moved back to the morning shift. Mr Frigredo’s evidence on this issue contradicts the evidence given by the applicant.
Evidence
30. The applicant gave evidence himself and called as witnesses Dr Derrick Kuan and Professor Skerritt. His book of evidence is an exhibit and includes statements by himself, his wife Sandra Willcott and his mother Patricia Rose Willcott, reports from Professor Skerritt and other papers.
31. The respondent called Mr Figredo, Mr Thomas, Mr Thompson, Mr Vine and Dr Edwards-Smith.
Application Number 2010/1813 – Determination to suspend the applicant’s compensation entitlements under s 37(7) of the Safety Rehabilitation and Compensation Act 1988
32. Following the hearing, the applicant and respondent are in substantial agreement on this application. They agree that the applicant did not fail or refuse, without reasonable excuse, to undertake the rehabilitation programme dated 13 August 2009. Also that the applicant’s rights to compensation under the SRC Act to institute or continue any proceedings under that Act in relation to compensation are not suspended. The applicant seeks therefore to set aside the reviewable decision but the respondent seeks to vary it. In our opinion the items agreed upon are such that the reviewable decision should be set aside.
33. The applicant proposes that it should be declared that the rights are reinstated from 24 November 2009. In our view it lies beyond this Tribunal to make such a declaration; rather the orders as agreed should take effect when made. The result of the orders would be that the relevant rights never were suspended so that the applicant can seek to claim them from 24 November 2009.
34. The respondent agrees to pay costs of the applicant on a party party basis as agreed or taxed, being costs non common with the other two applications.
Application Number 2010/2388 – Determination as to the applicant’s ability from 25 November 2009 to earn $1 027.87 per week performing his pre-injury duties.
35. On 31 March 2010 a decision was made not to undertake a reconsideration of the determination dated 30 December 2009 because the applicant’s rights to compensation at that time had been suspended. The decision of 30 December 2009 was that as at 25 November 2009 the applicant had the capacity to work his pre-injury Normal Weekly Hours of 33.80 hours per week and capacity to earn an amount equal to his Normal Weekly Earnings figure of $1 027.87 per week.
36. Both parties accept that the decision of 31 March 2010 is a reviewable decision and that it should be set aside.
37. Section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) gives the Tribunal the jurisdiction to either make a decision in substitution for the decision so set aside or to remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. The respondent contends for the latter option and the applicant argues for the former option.
38. The respondent commences by contending that the Tribunal is a third tier of review and is provided in respect only of the reviewable decision: Telstra Corporation Ltd v Hannaford [2006] FCAFC 87. It also argues on the authority of Bushell v Repatriation Commission (1992) 175 CLR 408 that the issue before the Tribunal is whether the decision not to reconsider the determination ‘is the correct and preferable decision.’ It accepts that its claims manager CGU, because of the suspension due to the then extant allegation that the applicant had failed, without reasonable excuse, to undertake a rehabilitation programme, in consequence failed to perform a function as an administrator conferred by s 62(4) of the SRC Act. It submits in reliance on Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 that where an administrator fails to exercise a power within its jurisdiction and the function remains unperformed it remains for the administrator to perform the function, not the Tribunal. It submits that the matter should be remitted to the respondent to reconsider the determination of 30 December 2009 with directions that it do so taking into account the orders made in Matter No. 2010 /1813 and the Tribunal’s decision in matter No. 2010/2389. It argues that such a course would ensure that the Tribunal did not substitute its role as a third tier decision maker for the role of a second tier decision maker. It also contends that such a course is also consistent with the Full Federal Court decision in Lees v Comcare [1999] FCA 753.
39. The applicant argues that the cases relied upon by the respondent should be distinguished and that a determining authority’s refusal to exercise a discretion could not have been intended to exclude the Tribunal’s powers of review: Brian Young v Telstra Corporation [1993] AATA 376. In relation to Hannaford’s case, the applicant says that on appeal to the Full Federal Court it was said that it mattered not that there never had been any reconsideration of the determination of Telstra on acceptance of liability under s 14 of the SRC Act as to whether Mr Hannaford had suffered Ross River fever: Hannaford at par 59. Of Bushell’s case the applicant accepts that the majority of the High Court remitted the matter back to the Tribunal but in circumstances where relevant facts had not been found. It is submitted that here the Tribunal has all the relevant evidence before it.
40. The applicant says that Bhardwaj does not support the respondent’s submissions because the High Court there found the Tribunal had jurisdiction to re-decide the matter on the merits of the case, the first decision having been a nullity. In relation to Lees the applicant accepts it held that a determination under s 14 of the SRC Act could not amount to more than a determination that Comcare was liable to pay compensation in accordance with the Act and that components of the determination were to be addressed in accordance with other sections of that Act. However, the applicant contends that the application to the Tribunal here specifically challenges the determination that the applicant is fit for work in his pre-accident capacity.
41. Accepting that the Tribunal has a discretion how to proceed, the applicant contends that the discretion should be exercised to substitute the respondent’s decision. Reliance is made on the fact that here a second tier opportunity to review the decision was availed of and the respondent has not submitted any cogent reason why it would suffer prejudice. Further, a significant number of records from insurers and medical practitioners have been summonsed by the respondent prior to the hearing and evidence from all relevant medical practitioners is in evidence. Additionally the respondent has been on notice that the determination of the applicant’s ability to earn $1027.87 per week performing his pre-injury duties is being challenged.
42. Section 62(4) of the SRC Act provides that the determining authority ‘shall’ reconsider the determination. This is a mandatory provision: Hakim v Australian Postal Commission (1989) 11 AAR 5. It is open to the respondent to reconsider and substitute its own decision at any time: s 62(1). The applicant says that despite its concession that the reviewable decision should be set aside, this decision has not been reviewed.
43. The applicant argues that the applicant has been without wages since 24 November 2009 and it is clear that the rehabilitation process has not been completed such as to warrant a determination that the applicant has ability from 25 November 2009 to earn $1 027.87 per week performing his pre-injury duties. It is said by the applicant that further delay would not only cause financial hardship to the applicant but also delay the applicant’s rehabilitation contrary to the intention of the SRC Act. Also, the applicant has a mental injury so that it would be undesirable to subject him to further stress of litigation. Further, that unnecessary resources and costs would be incurred in a second stream dispute on the same issue if the reconsideration by the respondent was considered to be in some way adverse to the applicant.
44. The applicant further contends that it must be questioned whether the respondent would reconsider the decision without bias. In our view the evidence said to support that submission would not entitle us to form a view that the respondent would inappropriately consider the decision in the event of it being sent for reconsideration.
45. It is apparent to us that there are a number of discretionary factors, being those referred to by the applicant, which would weigh in favour of reconsideration. Also we are of the view that such course would be the preferable, just, economical, informal and quick manner to deal with the matter: s2A, AAT Act. The critical question it seems to us is whether in all the circumstances it would be the fair method of proceeding; that is, whether there are issues which must be addressed on which there is not evidence before the Tribunal.
46. We agree with the applicant’s submission that there is uncontradicted evidence from the summonsed records from Joondalup Health Campus, the summonsed records of Dr Derrick Kuan, the evidence of Dr Kuan, the evidence of Professor Paul Skerritt, the evidence of the applicant, the evidence of Sandra Willcott and the evidence of Patricia Rose Willcott of the applicant’s disability and unfitness. Additionally there is evidence that during the work hardening process the applicant suffered from exacerbation of back pain.
47. As the applicant puts it, the respondent’s evidence at its highest is the report of Dr Michael Bowles dated 30 October 2009 in which he advised that the prognosis appeared better than his last review of the applicant and that he could continue in the graded return to work process back to pre-injury duties in due course when the restrictions lifted within one or two months. The restrictions were that the applicant was not to throw chains, no manual handling of gates, no manual handling of tarpaulins. Dr Bowles had previously held the view that the applicant would not return to pre-injury duties in the foreseeable future.
48. We accept the applicant’s submission that the contemporaneous evidence of ongoing problems ought to be preferred to the opinion of Dr Bowles regarding his expectations about the future, revised by him upon the applicant’s report of improvement of his condition at review on 30 October 2009.
49. The applicant also contends that the inability to compete successfully for suitable employment in the open labour market is a factor to be accounted for in assessing whether the applicant has the ability to earn $1 027.87 per week performing his pre-accident duties: Graham v Military Rehabilitation & Compensation Commission [2006] AATA 286. The applicant’s marketability in the employment workforce was been affected and this is a factor to take into account.
50. In our view it is important also that the respondent has not brought to the attention of the Tribunal any prejudice which it would suffer by a decision that the applicant does not have the capacity to earn the amount in question per week in his pre-accident condition.
51. In our view the correct and preferable decision is to set aside the reviewable decision and to substitute a decision to that effect. The respondent is agreeable to paying the costs of the applicant on a party party basis as agreed or taxed, being costs non common with the other two applications dealt with in these reasons and we consider that should be the further order.
Application Number 2010/2389 – whether the applicant’s mental injury arose out of or in the course of his employment, or alternatively if the applicant has a disease which is significantly contributed to by his employment.
52. This application for review concerns a reviewable decision dated 6 April 2010 to the effect that the respondent was not liable to pay compensation to the applicant under the SRC Act in respect of ‘depression’ secondary to the applicant’s compensable injury of ‘soft tissue injury to lower back.’ The decision also held that the respondent was not liable to pay for the cost of anti-depressant medication.
53. On the hearing of the reviewable decision the respondent filed a Statement of Facts, Issues and Contentions. The respondent does not now press the contentions in 3.2.1, 3.2.3 and 3.2.4(a) and (b). It continues to press the contention in 3.2.4(c) to the effect that for the purposes of s 5A of the SRC Act, the depression suffered by the applicant resulted from reasonable disciplinary action (‘work performance matters’) taken in a reasonable manner against the applicant in respect of his employment by the respondent. The respondent’s principal submission is therefore that it is probable the applicant suffered a disease as defined by s 5B of the SRC Act. However, the exclusion contained in s 5A is enlivened because the disease, injury or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
54. The respondent supports this case in the following manner. It accepts that ‘depression’ is an ailment for the purposes of s 4(1) of the SRC Act. It is said that the applicant did not suddenly develop depression so that it was an instance of gradual onset. The causative factors accepted by the respondent as having contributed to a significant degree to the applicant developing depression and to the aggravation of that condition, without being exhaustive, are the applicant’s low back pain; preoccupation with his physical symptoms; non-organic factors; his perception of being harassed and bullied; the Vine incident; personal problems with his first wife and teenage daughter; personal problems with his stepson; and discipline. The respondent therefore accepts that s5B of the SRC Act has been satisfied and, save for the application and effect of s5A of that Act, the respondent would be liable to pay compensation to the applicant for depression.
55. However, the respondent raises the issue for what period the applicant has suffered depression. Based on reliance upon the evidence of Dr Edwards-Smith, the respondent says it cannot be found that the applicant suffered depression until the Vine incident, after which the respondent clearly began to develop depression in the opinion of the respondent. It would fix the date as 6 October 2009 when Dr Ananda certified the applicant as being unfit for any employment. Section 7(4) of the SRC Act on such a finding would ‘deem’ the date of ‘injury’ for the purposes of the SRC Act as 6 October 2009. That view could only take effect of course if s 5A of the SRC Act did not have exclusionary application.
56. The applicant argues that there are two avenues to attaining compensation for depression. The first is the mental injury test (said by him to be the more appropriate test) and the second is the disease test, being the route the respondent’s submissions have been following.
57. For satisfaction of the first test, the applicant relies upon evidence of Professor Skerritt and of Dr Kuan that the applicant’s depression arose from the accident. The applicant dismisses the evidence of Dr Edwards-Smith on the ground that it became clear as it was given that it applied only to the time at which she saw the applicant.
58. As to the disease test, which the applicant says is a higher test, the respondent’s concession of liability is noted. As to the date upon which the depressive condition should be found, the applicant accepts that this is required by s 7(4) of the SRC Act to be the first occurring of when the employee first sought medical treatment or first resulted in the incapacity for work; or impairment of the employee. Based particularly upon Dr Kuan’s summonsed records as well as notes of other practitioners, the applicant submits it should be found the applicant’s mood was first impaired by depression from at least 6 March 2009, that being the date upon which he first sought remedial treatment.
59. There are difficulties in accepting the evidence of Dr Edwards-Smith and giving effect to it as the respondent proposes. She saw the applicant only once after he had gone to work (4 September 2009). At that time he was on anti-depressant medication and had been so since March 2009. She chose to ignore the reported symptoms of irritability and depressed mood, and chose to rely on the mental state examination conducted during the interview. Professor Skerritt was highly critical of her assessment. He was of the view that more consideration should have been given to the reported symptoms. He was of the further view that he would have diagnosed psychiatric injury. Dr Edwards-Smith clearly confined her evidence to the occasion of her seeing the applicant and sought to limit its effect; she did not appear as a person confident in assessing psychiatric condition. In our opinion, her evidence simply did not have the standing of that from other medical experts involved in handling the applicant and should not be relied upon.
60. In our view, the evidence supports a finding that the applicant suffered from depression from 6 March 2009, this being the date upon which the employee first sought medical treatment.
61. In application of the disease test, there remains the question of whether liability under s 5B of the SRC Act is precluded by application of the discipline test under s 5A of that Act. The applicant contends there is no evidence, medical or otherwise, which supports a conclusion that the applicant’s mental injury of depression arose out of disciplinary action undertaken by Mr Thompson.
62. The respondent relies on the test in Re Georges and Telstra Corporation Limited [2009] AATA 731 and also Bropho v Hreoc [2004] FCAFC at [79] as well as Re Von Stieglitz and Comcare [2010] AATA 263 at [67]. It submits that the discipline in respect of the Vine incident has significantly contributed to the development of and to the aggravation of depression. Support is found in the evidence of Dr Kuan, who was in the process of weaning the applicant off his anti-depressant medication. The applicant’s evidence and cross examination are said to have shown in their emotion his feelings of injustice at the discipline. Professor Skerritt is said to have accepted that the investigation into the Vine incident and the discipline added their measure to the aggravation of depression. Dr Edward-Smith accepted that the investigation into the Vine incident and the discipline could have contributed to the development of and aggravation of depression. The respondent says there was no evidence to suggest that the discipline was in all the circumstances ‘irrational, absurd or ridiculous.’ As to the date of the disease, the respondent submits this should be on and from 6 October 2009. Further that the discipline was causative so that the respondent is not liable to pay compensation to the applicant as the discipline was reasonable in the circumstances and was conducted in a reasonable manner. Therefore the decision should be to affirm the reviewable decision.
63. The applicant attacks the respondent’s suggestion that Professor Skerritt gave an opinion which supports the depression having arisen out of disciplinary action undertaken by Mr Thompson. In cross examination Professor Skerritt said that he did not distinguish, when he made his assessment, whether the mental injury resulted from discipline or the assault itself. On re-examination he has said that the injustice complained of was more with the co-workers than with the company. The basis of his opinion that the assault worsened the applicant’s condition was the applicant’s accounts of something like school yard bullying rather than discipline.
64. The applicant’s evidence was that he did not receive the letter which is allegedly the instrument of discipline because he did not agree with its contents. The letter which was intended to be handed over to the applicant was rejected and never left in possession of the respondent. The applicant was not troubled about the false allegation made against him (that he intentionally drove the truck with Vine standing on the step) because he knew it wasn’t true and if he was sacked because of it, the union would intervene. Further there was nothing threatening about the meeting he had with Mr Thompson. In his evidence, Thompson said he did not engage in any behaviour that would be considered threatening. The meeting concluded amicably.
65. To the contrary to the disciplinary action being significant, the assault was a significant event in the mind of the applicant, such that either he called the police or insisted that the police be called and Thomas called the police. After the assault, the employer’s representative John Figredo was his ally. It was the attitude of the other truck drivers and his sense of worthlessness that affected him.
66. The applicant’s case relies also on the contemporaneous treatment advice given by Dr Kuan. It was to remove him from the afternoon shift truck drivers and put him on morning shift. There was no mention whatsoever about anxiety from disciplinary action taken by the employer. Dr Kuan’s view at the time was that once the stress of the co-workers was removed, he did not envisage further problems with the rehabilitative process. It was not the case that the administrative action played any part in the applicant’s mental injury.
67. In our opinion, the applicant’s submissions best describe the effect of the evidence. The discipline as defined in the respondent’s submissions was the statement to him that if he did not sign the acknowledgement, other disciplinary action would be taken against him. It is apparent that no such disciplinary action was taken against the applicant. To the extent there had been any administrative action in respect of him, he remained full of defiance. That does not sit comfortably with the action having been either completed or the source of his depression. What depressed him as the evidence states it, was the attitude of co-workers and its impact on him.
68. It follows that we do not consider the respondent is able to rely on s 5A of the SRC Act as excluding liability to pay compensation to the applicant.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President R D Nicholson and Dr J Chaney, Member
Signed:.(sgd) T Freeman.............
AssociateDate/s of Hearing 6, 7 and 8 December 2010
Date of Decision 5 April 2011
Solicitor for the Applicant Mr K Wong
Friedman, Lurie, Singh & D’Angelo
Counsel for the Respondent Mr J R Wallace
Solicitor for the Respondent Mr D Clarke
Clarke Legal
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