Psychological condition arising out of adverse determination not compensable
Date: December 14, 2020
Crick and Comcare  AATA 4483.
- The Tribunal was required to consider whether Ms Crick continued to suffer from a back injury and a psychological condition.
- The Tribunal considered whether claims management processes can be considered part of “employment”.
- The Tribunal affirmed the decision to cease liability for Ms Crick’s claims because the weight of the evidence showed her ongoing complaints were no longer related to her employment.
Ms Crick was employed by the Australian Taxation Office (the ATO), from 1996 until 2019. Ms Crick tripped and fell in her workplace on 10 June 2008, and subsequently submitted a claim for workers’ compensation.
Liability to pay compensation was accepted in respect of:
- Injuries to the spine, right hip and right thigh, sustained on 10 June 2008, during the fall.
- Aggravation of the lumbar spine injury, sustained on 27 February 2009, while she was travelling from one office to another.
- Adjustment reaction with depressive reaction, sustained around January 2014, as a result of the termination of her employment.
By determination dated 8 March 2017, Comcare found it had no present liability to pay compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), for medical treatment and incapacity to work, in respect of those injuries.
The determination was affirmed on reconsideration, and Ms Crick submitted an Application for review at the Administrative Appeals Tribunal.
An injury is defined under section 5A of the SRC Act as an injury arising out of, or in the course of, an employee’s employment.
Section 5B of the SRC Act defines a disease as an ailment, or an aggravation of an ailment that was contributed to, to a significant degree, by the employee’s employment.
There were a range of issues before the Tribunal, but the most interesting related to the Tribunal’s discussion of Ms Crick’s psychological claim.
Ms Crick’s psychiatrist, Dr Leong, gave evidence that the 2008 injury was a not a significant contributor to her ongoing psychiatric symptoms and incapacity. Instead he was of the view that the termination of Ms Crick’s employment in 2014 had impacted on her resilience in respect of dealing with the pain of the 2008 injury. Dr Leong gave evidence that termination of Ms Crick’s employment in January 2014 left her partially incapacitated for work.
Comcare relied on the evidence of Dr Wasim Shaikh, (Psychiatrist) who was of the opinion that Ms Crick’s psychological condition was not related to her employment. Dr Shaikh also noted inconsistencies in Ms Crick’s presentation between the surveillance and his examination. His evidence was unchallenged at hearing.
The Tribunal found that Ms Crick no longer suffered from psychiatric symptoms. The Tribunal found that even if she had developed a psychological condition as a result of the decision to cease payment of her compensation entitlements, this event is not within the scope of the word “employment” in section 5A and 5B of the SRC Act. In coming to this conclusion, the Tribunal relied on the authority in Federal Broom Co Pty Ltd v Semlitch, in which Windeyer J said that “employment” means the activities the worker in fact performs in their employment. The contributing factor must therefore be some characteristic of the work performed or the conditions in which it was performed. A decision to stop paying compensation does not fall within the meaning of employment.
It concluded that compensation was not payable under the SRC Act because such an injury did not arise from her employment, nor was it significantly contributed to by her employment.
The decision under review was affirmed.
This decision is authority for the proposition that psychological conditions resulting from the management of an employee’s claim are not compensable. Those decisions are not considered part of an employee’s employment and, therefore, it cannot be said that any such condition arose out of a person’s employment, nor that it was significantly contributed to by their employment.
Rebecca Tloczek Claire Tota
Direct: +61 (0) 8 9265 6020 Direct: +61 (0) 8 9265 6011
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