Psychological condition is not an injury
Date: May 10, 2023
CCTS and Comcare (Compensation)  AATA 60
- The Tribunal was asked to decide whether Comcare was liable for the applicant’s claimed psychological condition.
- The Tribunal found that the applicant had not suffered an injury for the purposes of section 5A of the SRC Act, and the reviewable decision was affirmed.
In October 2018, CCTS (the applicant) commenced employment with the Australian Border Force (ABF) in the Department of Home Affairs. From October 2019, she was employed as an APS3 Officer in Aviation Traveller, working in airport operations at the Sydney International Terminal.
On 3 June 2021, the applicant lodged a claim for workers’ compensation in respect of ‘major depression and anxiety’ which she claimed to have sustained as a result of workplace incidents on 5 December 2020, 25 December 2020, and 9 January 2021.
By determination dated 23 August 2021, Comcare denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) in respect of ‘adjustment disorder with mixed anxiety and depressed mood’ sustained on 11 January 2021. The applicant sought reconsideration of the determination and by reviewable decision dated 1 October 2021, Comcare affirmed the determination on the basis that the applicant’s condition arose as a result of reasonable administrative action, taken in a reasonable manner, in respect of their employment. The applicant sought further review at the Administrative Appeals Tribunal.
Section 5A(1) of the SRC Act provides as follows:
- a disease suffered by an employee; or
- an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
- 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
A disease is defined under section 5B of the SRC Act as an ailment, or an aggravation of an ailment, which has been contributed to, to a significant degree, by the employee’s employment.
Under section 4 of the SRC Act, an ailment means any physical or mental ailment, disorder, defect or morbid condition.
The authority of Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 provides that in order for an action to be considered administrative, it must:
- be taken in respect of the employee’s employment;
- be directed specifically at the employee and not taken in respect of a class of employees; and
- not merely affect an ordinary feature of the employee’s work, workplace or environment.
Comcare v Martin (2016) 258 CLR 67 provides that the administrative action must be an event without which the applicant’s condition would not have been a disease.
The Tribunal accepted the evidence of Dr Christopher Cocks (Consultant Psychiatrist) and found that the applicant suffered from “Major Depressive Disorder” (MDD) with an unspecified date of onset.
In determining whether the employment factors significantly contributed to the applicant’s condition, the Tribunal gave Dr Cocks’ evidence greater weight because he was the only medical expert who had received and considered all the relevant material, including the summonsed documents, and was cross-examined on his opinions. Dr Cocks considered that the work-related incidents were not substantial in their contribution to the applicant’s development of MDD. He considered that while they were relevant in their perpetuation of the condition, they needed to be viewed in the context of the substantial non-work related psychosocial stress the applicant suffered prior to and following the date of the claimed injury. He concluded that while the workplace incidents were relevant, they should not be considered as causative to the applicant’s MDD. Accordingly, the Tribunal was satisfied that on the balance of probabilities the applicant’s employment with ABS did not significantly contribute to her MDD.
While the Tribunal’s finding was sufficient for liability to be denied, for the sake of completeness, the Tribunal also considered whether, had the applicant’s MDD been contributed to, to a significant degree, by her employment, it was excluded on the basis that it was suffered as a result of reasonable administrative action taken in a reasonable manner. The Tribunal made the following findings:
- It was not satisfied that the workplace meetings between the applicant and her supervisors were administrative action for the purposes of section 5A of the SRC Act, on the basis that none of the meetings involved taking disciplinary action against the applicant, nor did they purport to impact on her contract of employment; rather they were to define or delimit or supervise the employment, job or task entrusted to the applicant or to give directions to her and explain how these are to be performed. Accordingly, it followed that any ailment the applicant suffered as a result of the workplace meetings (had they contributed to her condition to a significant degree) would not be excluded by section 5A(2) of the SRC Act from being a compensable injury.
- If the workplace meetings were administrative action, they satisfied the definition of reasonable administrative action for the purposes of section 5A(1) of the SRC Act, and they were undertaken in a reasonable manner.
- It was not satisfied that the applicant would not have suffered the ailment if the workplace meetings (if administrative action) had not been taken.
Accordingly, the Tribunal was not satisfied that the applicant suffered an injury for the purposes of section 5A of the SRC Act and the reviewable decision was affirmed.
The Tribunal’s decision highlights the importance of contemporaneous medical evidence. When relying on a medical opinion, it is important to ensure that the medical expert has reviewed and considered all the available medical and factual evidence when forming their opinion.
Caitlin Jenkins, Paralegal | email@example.com | Direct: +61 2 4044 4111
Claire Tota, Partner, HBA Legal | firstname.lastname@example.org
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