Credibility and reliability crisis: the challenges of claiming psychological injury

Date: December 10, 2024

 Osman and Australian Postal Corporation (Compensation) [2024] AATA 2274

Key Points:

• The AAT was asked to determine whether the respondent was liable for Mr Osman’s (theapplicant) ‘stress and anxiety’ arising from a series of workplace events allegation.
• The AAT was critical of the inconsistent factual evidence and unreliable medical evidence, and was not able to conclude whether the applicant suffered an injury for the purpose of section 5A of the Safety, Rehabilitation and Compensation Act 1988(SRC Act). However, the AAT did find that the administrative action taken against the applicant was “entirely reasonable”. The reviewable decision was affirmed.

Background:

The applicant, a Mail Officer employed by the respondent since 2016, had made multiple workplace complaints in the recent years which had resulted in several investigations by the respondent, Comcare, as well as the Fair Work Commission (FWC). While not directly relevant to the present AAT proceedings, his ‘bullying at work’ allegations had been found by the FWC to be unsubstantiated. The subject AAT proceedings concerned a denial of liability for ‘stress and anxiety’ claimed to be caused by the abovementioned ‘bullying at work’ allegations.

The applicant initially lodged three applications with the AAT relating to similar workplace psychological injury. Two of the applications were settled by consent of the parties prior to the present Application proceeding. The AAT was asked to decide a threshold issue of issue estoppel and res judicata given the two settled claims were based on the same or significantly comparable factual allegation. The AAT was satisfied that the factual matrix was not the same as the two settled claims.

The remaining issues for determination were:

(a) Did the Applicant suffer an ailment or aggravation of an ailment within the meaning of the Act?

(b) If so, was that ailment contributed to, to a significant degree, by the Applicant’s employment such as to constitute a disease for the purposes of s 5B of the Act?

(c) If so, were any of the contributing factors the result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment, such that his claim should be excluded under s 5A(2) of the Act?

The Law:

Section 14 of the SRC 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”.

“Injury” is defined in subsection 5A(1) of the SRC Act to mean a disease suffered by an employee.

“Disease” was defined in section 5B(1) of the SRC Act as an ailment suffered by an employee or the aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment.  The term ‘reasonable administrative action’ at sub-section 5A(2) of the SRC Act is non-exhaustive.

Section 6 of the SRC Act indicates in a non-exhaustive fashion when an injury can be considered to have arisen out of or in the course of employment including the ‘administrative action’. The causation test has been elaborated upon by the High Court in Comcare v Martin at paragraph 45:

… it becomes apparent that an employee has suffered a disease “as a result of” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee’s employment.

Conclusion:

After a nine-day hearing, the AAT found in favour of the respondent while making multiple remarks on the applicant’s credibility and the reliability of medical evidence.

The AAT noted the applicant’s lack of insight into his own conduct and lack of candour. The AAT found that most of the medical evidence was heavily based on the applicant’s self-reporting. Two of the experts conceded when giving evidence that they would change their opinion and diagnoses if the facts they had been provided were untrue. The AAT was critical of the evidence provided by the applicant’s general practitioner, stating that it was bordering on advocacy. The AAT also commented that, due to the unreliable state of the medical evidence, it was not possible to speculate the impact of non-work-related factors.

The AAT rejected most of the applicant’s evidence and arguments and found that it was entirely reasonable for the applicant’s manager to implement certain administrative actions, which resulted in the applicant having an emotional response but did not constitute a condition outside of the boundaries of normal mental functioning and behaviour, such as to constitute a compensable disease.

Lessons Learnt:

Psychological expert opinion based on unreliable factual evidence provided by the applicant can undermine the reliability of the expert opinion. The credibility and reliability of witnesses, particularly the applicant, are crucial for the success of psychological claims.

Contact:

Download PDF here:  Osman and Australian Postal Corporation

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