Nelson v Comcare

The Relevant Legislative Provisions 12 Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. 13 At all relevant times, the terms injury, disease, aggravation, impairment and ailment were defined in s 4 of the Act as follows: injury means:

(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment:

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). 14 It follows from the above definitions that: (a) When the expression injury is used in s 14(1) of the Act, it is intended to be used with the meaning accorded to it by the definition in s 4; (b) That definition includes "… a disease suffered by an employee"; (c) Disease means any ailment suffered by an employee or the aggravation of any such ailment being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation; and (d) Aggravation is defined to include acceleration or recurrence.

The Tribunal Decision 15 The Tribunal affirmed the decisions made by Comcare on 27 September 2006 and 2 May 2007. The Tribunal said (at [1] of its Reasons): Mr Nelson ("The Applicant") was employed by Centrelink at its Gosford Call Centre. He has complained of a psychological condition, contending it was sustained because of his employment. 16 After briefly referring to the applicant's two applications in the Tribunal, the Tribunal formulated the issues which it had to decide as follows: ● Did the Applicant suffer from a psychological injury which resulted in impairment or an incapacity for work?

● If so, did the Applicant's employment with Centrelink contribute to the illness in a material degree?

● If yes, is the Applicant entitled to compensation for medical treatment under section 16 of the Act and to compensation for incapacity under sections 19, 20, 21 or 21A of the Act? 17 The Tribunal then referred to ss 4, 14, 16, 19, 20, 21 and 21A of the Act. It quoted extensively from ss 4, 14 and 16. In particular, the Tribunal set out the definitions of disease and injury in the terms in which those definitions were expressed in s 4 of the Act at all relevant times. 18 The Tribunal then proceeded to examine the evidence before it and to make relevant findings. These findings may be summarised as follows: (a) In 1991, the applicant had left a previous job as a Sheriff's Officer because he had suffered Post-Traumatic Stress Disorder (PTSD) as a result of an altercation with a judgment debtor in which violence was threatened. He had sought and received medical attention as a result of this incident for a period of approximately 18 months; (b) He subsequently had several other jobs before joining Centrelink in May 2000; (c) Between 1993 and 2000, he had had no symptoms of any mental illness and had not sought medical treatment for such illness in that period; (d) The applicant first became stressed at Centrelink once he was "fully on the phone". This was from about September 2000; (e) He had problems with changing policies, dealing with various team leaders, work pressures to perform and aggression from customers; (f) In late 2001, he changed the basis of his employment from full-time to part-time because he could not cope with his workload. He worked four days a week instead of five days a week; (g) After this period and before early 2003, the applicant sought medical attention. He was prescribed anti-depressants which he took for some months. He was given no coping strategies nor advised to discuss his concerns with his supervisors. He may have seen a doctor in relation to other matters at that time as well; (h) On 24 March 2003, there was a verbal altercation between the applicant and a co-worker who sat nearby. For some months there had been tension between them. The applicant was very upset by this altercation. There was no sense of fear. The applicant said that he was embarrassed in front of other colleagues; (i) As a result of this altercation, the applicant took two days off work on sick leave. He went to a doctor because he was continually crying and could not sleep; (j) The applicant complained to his team leader about the incident. As a result, the co-worker was moved. The applicant saw this as vindication of his complaint, although he felt that management was on the side of his co-worker; (k) The co-worker remained in the applicant's thoughts constantly for months. He was unable to relax at home and was "short" with his children. In April 2003, the applicant was referred to the Employees Assistance Program (EAP), which provides psychological counselling for workers. Over three to four sessions, he was given strategies to rid himself of the thoughts he was having about his co-worker; (l) The applicant also said that it was the nature of Centrelink itself and the problems that it was causing people in the community which led to his emotional problems; (m) An internal inquiry into the applicant's complaint took place in August and September 2003. The inquiry did not recommend that any action be taken; (n) On 13 October 2003, the applicant saw his GP and said that he was feeling stressed at work. He said that this was probably because he was disappointed with the outcome of the inquiry. He was diagnosed as suffering from depression and was prescribed Mirtazapine. (o) The applicant's medical records showed numerous attendances at his GP's surgery between March and October 2003 with no mention of any work-related stress issues. He was unable to explain this; (p) In 2004, the applicant found himself again physically located at work quite close to the co-worker with whom he had had the altercation in March 2003. He tried to have the co-worker moved but failed. He became upset. His sleep was interrupted. He felt sick and began crying again; (q) On 8 September 2004, the applicant made a formal complaint about the March 2003 incident. Centrelink responded by saying that the matter was closed; (r) The applicant then saw another EAP counsellor for about six to ten sessions. He was given other counselling. 19 The Tribunal then reviewed the medical evidence. 20 Dr Butler, the applicant's treating psychiatrist, was of the opinion that the applicant had a psychological injury which was contributed to by his employment. He said that the incident with the co-worker was only one of the reasons why the applicant had become symptomatic. 21 Dr Sagar, a psychiatrist who saw the applicant and testified at the behest of the respondent, described the applicant's condition as decompensation. He said the applicant was in a melancholy depressive state. He said that the applicant had an obsessional or defensive narcissistic personality. Dr Sagar said that the incident with the co-worker was the straw that broke the camel's back. It was possible that the applicant had decompensated before joining Centrelink. The PTSD diagnosis in 1991 was significant. Persons with that disorder typically, on securing a job, quickly have interpersonal problems at work. 22 Dr Akkerman, a psychiatrist, also gave evidence on behalf of the respondent. He said that the applicant had a personality problem which was unaffected by his employment. 23 At [39]-[44] of its Reasons, the Tribunal referred to the parties' submissions. At [40], the Tribunal noted that it was submitted on behalf of the applicant that the sole contributing factor to the applicant's condition was his employment with Centrelink. There was no mention in this section of the Tribunal's Reasons of any submission directed to the concept of "aggravation of an ailment". 24 At [45]-[60], the Tribunal considered each of the issues which it had identified at [3] of its Reasons. 25 The Tribunal held that the applicant suffered from a psychological injury (Reasons at [45]-[47]). It also held that the psychological injury from which the applicant suffered resulted in impairment and incapacity for work within the meaning of s 4 of the Act in March 2003, October 2003 and May 2005. 26 The Tribunal then considered the second issue which it had identified at [3] of its Reasons under the heading: "Did the Applicant's employment with Centrelink contribute to the condition in a material degree?" 27 At [50] of its Reasons, the Tribunal described this as "the crux of this case". The Tribunal then discussed the concept of "material contribution" and the evidence relevant to that question. The Tribunal seemed to hold that the applicant already suffered from an underlying personality disorder when he commenced working for Centrelink (see [57] of the Tribunal's Reasons). 28 At [58] of its Reasons, the Tribunal said: It does not follow, in our view, that the Applicant's work, through aggressive telephone calls and the co-worker incident, materially contributed to his condition. The co-worker incident, in our view, produced only an episodic increase in his pre-morbid stress condition. 29 The Tribunal then returned to the concept of "material contribution". At this point in its reasons, it referred to and discussed the judgment of Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536. 30 The Tribunal then concluded its Reasons with the following (at [60]): After considering all the evidence, in particular the possible factors that may have contributed to the onset or aggravation of the Applicant's psychiatric condition, we find that the circumstances of the Applicant's employment with Centrelink did not substantially contribute to his disease. Mr Nelson is not entitled to compensation pursuant to section 14 of the Act. It follows that he is not entitled to compensation in respect of medical expenses under section 16, nor is he entitled to compensation for incapacity under sections 19, 20, 21 or 21A of the Act. 31 The only places that the concept of "aggravation of an ailment" were mentioned at all in the Tribunal's Reasons was at [5] (when s 4 of the Act was extracted) and at [60].

Consideration and Decision 32 The applicant submitted that: (a) In the Tribunal, he had argued that he suffered the onset of a disease within the meaning of s 4 of the Act because of his employment with Centrelink and that, in the alternative, he had argued in the Tribunal that his underlying psychiatric condition had been aggravated within the meaning of that term as defined in s 4 of the Act with the result that the respondent was liable to compensate him in respect of those circumstances pursuant to s 14 of the Act; and (b) The Tribunal had simply failed to address his arguments based upon the alleged aggravation of his underlying psychiatric condition. 33 It was submitted on behalf of the applicant that an ailment will be aggravated within the meaning of those expressions in the definitions contained in s 4 of the Act if it becomes more severe or is hastened in some way. The terms aggravation and acceleration in the present context have been given their normal English meanings in judgments of this Court (see Casarotto v Australian Postal Commission (1989) 86 ALR 399 at 404-405 and Martin v Australian Postal Corporation [1999] FCA 655 at [22]-[28]). 34 In the present case, in order to make good the contention concerning aggravation of an existing ailment which the applicant submits was advanced to the Tribunal, the applicant would need to demonstrate that, at the time he commenced his employment with Centrelink, he was suffering an ailment within the relevant definition and that that ailment was aggravated (ie made more severe) by his employment by Centrelink or that the aggravation was contributed to in a material degree by his employment by Centrelink. The notion of material contribution was explained by Finn J in Sahu-Khan 156 FCR 536. In that case, his Honour concluded that, in order to assess whether the aggravation of an ailment was contributed to in a material degree by the employee's employment, the Court was obliged to evaluate all relevant contributing factors in order to determine whether the employment made a contribution which was more than a mere contributing factor. His Honour described the exercise as a matter of fact and degree (Sahu-Khan 156 FCR 536 at [16] (p 542-543)). 35 The fundamental premise of the applicant's argument is that the Tribunal simply failed to address his case based upon alleged aggravation of an existing ailment (viz his underlying psychiatric condition). 36 The Tribunal described the applicant's complaint at [1] of its Reasons as a complaint to the effect that his psychological condition was sustained because of his employment. That language tends to suggest that the Tribunal regarded the applicant's case as being confined to a case based upon the contention that he sustained an ailment as an employee of Centrelink, being an ailment that was contributed to in a material degree by Centrelink. The terms of the general formulation of the issue in [1] of the Tribunal's Reasons tend to suggest that the Tribunal did not regard aggravation of an existing ailment as being an alternative basis for the applicant's claims before it. 37 The language used by the Tribunal in the second dot point in [3] of its Reasons also suggests that the Tribunal did not have under consideration the question of aggravation. 38 As mentioned at [26]-[27] above, the Tribunal described the crux of the case as being captured in the heading to the last part of its Reasons for Decision, namely: "Did the Applicant's employment with Centrelink contribute to the condition in a material degree?" At [58], the Tribunal appears to make a finding that the applicant's condition was not materially contributed to by his employment. 39 Whilst it is true that the word aggravation appears in [60] of the Tribunal's Reasons, the substance of that paragraph is a finding directed to the question of whether or not the applicant's employment substantially contributed to his psychiatric condition. That is to say, the proposition being addressed in that paragraph of the Tribunal's Reasons is: Was the onset of the applicant's condition caused by or materially contributed to by the applicant's employment by Centrelink? In [60] of its Reasons, there is no application of the mind of the Tribunal to the alternative case put by the applicant to the effect that his underlying psychiatric condition was made more severe or hastened by his employment by Centrelink. 40 For these reasons, I am of the view that the Tribunal did fail to address the question of aggravation in its Reasons and in its decision. 41 But that is not the end of the matter. 42 The Tribunal would not be obliged to address the question of aggravation unless the applicant had advanced a case to the Tribunal based upon aggravation of his underlying psychiatric condition. 43 The submissions made on behalf of the applicant to the Tribunal were made orally. They were amplified by a Written Submission. 44 In the Written Submission, the author of that document did not develop with any precision the reasons why it was contended on behalf of the applicant that the applicant had suffered a disease at work of the requisite kind. There is a heading in the document as follows: Section 14 - Aggravation of a Disease Under that heading, there is reference to s 14 and to the definitions of injury and disease in s 4. But, as I have said, there is no development of the argument so as to make clear the basis upon which the proposition that the applicant had suffered a disease of the requisite kind was being advanced. 45 In his oral submissions to the Tribunal, Counsel for the applicant did specifically put that the applicant had suffered an aggravation of a disease and thus an injury at work. A little later in his submissions, aggravation was mentioned again. It is also fair to say that the submissions made in the Tribunal on behalf of the applicant seemed also to rely upon sub-clause (a) of the definition of disease in the sense that Counsel argued that the applicant had sustained his psychological condition as a result of his employment by Centrelink. 46 Counsel for the respondent quite properly and fairly conceded that the question of aggravation had been argued before the Tribunal. His submissions in the appeal proceeded upon the footing that the case based upon aggravation of the applicant's existing psychiatric condition had been understood and addressed by the Tribunal. It was submitted on behalf of the respondent that conformably with the medical evidence adduced by the respondent before the Tribunal, the Tribunal found that the applicant suffered from underlying psychological disorders which were inevitably going to bubble to the surface in the workplace and that those disorders had not been aggravated by the applicant's employment by Centrelink. All that had happened was that the inevitable consequences of those disorders manifested themselves during the applicant's employment by Centrelink. 47 Counsel for the respondent submitted that the medical evidence made clear that the applicant's underlying condition was such that it was always going to manifest itself in the ways that it did, no matter where he worked or what the circumstances of his employment turned out to be. Counsel was at some pains to demonstrate that there was a significant body of medical evidence before the Tribunal which would have justified a conclusion being reached by the Tribunal to the effect that, notwithstanding the fact that the applicant did suffer from an underlying condition, the symptoms which manifested themselves from 2003 onwards were the inevitable result of that underlying condition rather than the result of exacerbating factors caused by his employment. 48 It is true that there is evidence to that effect submitted by Counsel for the respondent. However, there was also evidence called on behalf of the applicant to the effect that the applicant's underlying condition was made worse or more severe by his employment with Centrelink. 49 I do not think that the respondent can answer the criticisms presently raised by the applicant by submitting, in effect, that, if the Tribunal had considered the question of aggravation, it would inevitably have come to the view that the applicant's underlying condition was not aggravated by his employment. Of course, I appreciate that the respondent does not quite put its submission in this way. The respondent's submission is that the Tribunal did, in fact, address the question of aggravation and gave it short shrift. The respondent submitted that the Tribunal was entitled to give the question of aggravation short shrift because there was a substantial body of evidence that would justify the Tribunal taking that approach. 50 The applicant did argue before the Tribunal that his underlying condition had been aggravated by his employment in the sense contemplated by the definitions in s 4 of the Act. The argument was not developed much but this does not detract from the fact that the argument was put. The Tribunal was obliged to turn its mind to the argument and to deal with the question of aggravation. It was a significant part of the applicant's case before the Tribunal. The argument was seriously advanced by the applicant and was worthy of serious consideration. Whilst it is true that the Tribunal is not required to consider and address every submission made to it, serious submissions of the type to which I have just alluded must be addressed (Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276-277 per Jenkinson J). It is an error of law for the Tribunal not to consider such a submission and not to reveal its consideration of that submission in its Reasons for Decision (see Hartnett v Migration Agents Registration Authority [2004] FCA 50 at [50]; and Australian Postal Corporation v Sellick (2008) 245 ALR 561 at [88]-[89] (pp 579-480)). This statement of principle is consistent with the more general statements of principle directed to giving content to the concept of error of law made by the Full Court in Repatriation Commission v Hill (2002) 69 ALD 581 at [59] (pp 597-598). 51 In order to meet its obligations in this regard, it was incumbent upon the Tribunal to turn its mind by a rational process of reasoning to the question of aggravation and to come to a view as to whether or not the applicant's argument should be acceded to. In order to meet those requirements in the present case, the Tribunal was obliged to make reference to the relevant medical evidence, to come to a view about that evidence and to explain its reasons for doing so. It was then obliged to relate that evidence to the notion of aggravation by reference to the relevant statutory provisions and authorities. The Tribunal did none of those things. 52 Counsel for the applicant also submitted that the Tribunal had committed a reviewable error of law by failing to give any or adequate reasons for its decision when it failed to address the applicant's case based upon aggravation of an existing ailment. I think that the error committed by the Tribunal is more aptly described as a failure to consider and address that case rather than a failure to give reasons or adequate reasons for rejecting that case. 53 For these reasons, the Tribunal's decision must be set aside. I will make orders accordingly. 54 The applicant seeks an order that, in the event that his appeal is successful, the matter be remitted to a differently constituted Tribunal to be determined according to law. This application was not supported by any particular submissions. I do not think that the applicant has made out a case for such an order and I decline to make an order in those terms. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate: Dated: 8 October 2009 Counsel for the Applicant: Mr D Richards

Solicitor for the Applicant: Slater & Gordon Lawyers

Solicitor for the Respondent: Mr B Dubé of Sparke Helmore Lawyers (Appeared)