Tribunal considers the application of May in a workers’ compensation claim by a Parliament House employee

Date: July 23, 2020


Whitlock v Comcare (2020) AATA 1353.


Key Points:



Ms Whitlock was employed by the Department of Parliamentary Services as a security officer at Parliament House in Canberra.  From November 2016, Ms Whitlock claimed to have been bullied by her colleagues, which resulted in stress and anxiety.  Ms Whitlock lodged a workers’ compensation claim in respect of “depression and anxiety” claimed to have been sustained as a result of “bullied through rumors, isolated from co-workers and management through rumors, treated differently by management”.

Comcare denied liability to pay compensation, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), for “aggravation of post-traumatic stress disorder” and “aggravation of major depressive disorder” on the grounds that Ms Whitlock’s psychological condition was not contributed to, to a significant degree, by her employment with the Department.  This decision was affirmed on reconsideration and Ms Whitlock sought further review at the Administrative Appeals Tribunal.


The Law:

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.

Under Section 4 of the SRC Act, an ailment means any physical or mental ailment, disorder, defect or morbid condition.

The High Court decision of Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 is authority that subjectively experienced symptoms, without an accompanying physiological or psychiatric change is not enough to constitute a disease for the purpose of the SRC Act.



The evidence before the Tribunal showed Ms Whitlock had a significant and lengthy history of psychiatric issues. Ms Whitlock argued at hearing that whether the condition suffered in the course of her employment with the Department was a new condition or an aggravation of her pre-existing condition, it was contributed to, to a significant degree, by her employment.

Comcare argued that Ms Whitlock’s underlying psychiatric condition was present when she commenced employment with the Department and the nature of that condition was that the symptoms waxed and waned over time.  Comcare’s position was that there was no change to the underlying pathology of the pre-existing condition, and that Ms Whitlock did not suffer a new condition or any aggravation of any ailment.  In the alternative, Comcare argued that any condition was not contributed to, to a significant degree, by her employment.

The Tribunal found that based on the medical evidence Ms Whitlock suffered from an eating disorder, anxiety with panic attacks, a sleep disorder and agoraphobia.  The Tribunal did not accept that the symptoms Ms Whitlock experienced while working for the Department from September 2016 to June 2017 constituted a new condition. The Tribunal found that all of those conditions were present when Ms Whitlock commenced her position in May 2016.

The Tribunal was then required to consider whether Ms Whitlock had suffered an aggravation of those pre-existing conditions. The Tribunal accepted Comcare’s contention that in accordance with May, in circumstances where an employee has a pre-existing condition, there must be evidence of a psychiatric or physiological change in order for there to be an aggravation.  It is not enough for an employee to assert that they are experiencing symptoms at work – there must be a discernable change to the employee’s psychological condition. The Tribunal acknowledged that Ms Whitlock reported an increase in psychiatric symptoms to her GP around June and July 2017, but did not accept that this was enough to satisfy the test in May.

The Tribunal then considered whether Ms Whitlock’s reporting of increased symptoms in June and July 2017 met the less onerous tests set out in a number of cases including most recently in Stefaniak and Comcare [2019], Knox and Comcare [2019] and Wood and Comcare [2019].  That line of authority states that pain resulting from, or pain increased by work without worsening an underlying condition can be an aggravation under the SRC Act.  The Tribunal accepted that the applicant’s subjective complaints of symptoms were enough to satisfy the less onerous test in the cases outlined above, and that the applicant had suffered an aggravation of her pre-existing ailment.

The Tribunal was then required to consider whether Ms Whitlock’s employment had significantly contributed to the aggravation of her pre-existing condition. The Tribunal did not accept that the bullying had significantly contributed to the aggravation, and instead found that the significant contributors were genetic, personality and family factors, as well as her underlying vulnerability.

The Tribunal was not satisfied that the aggravation of Ms Whitlock’s pre-existing condition was contributed to, to a significant degree, by her employment.  Therefore, Ms Whitlock did not suffer a ‘disease’ for the purposes of s5B(1) of the SRC Act.  The decision under review was affirmed.


Lessons Learnt:

This decision highlights a difference between the test set out and May and the more recent decision relation to aggravations.  It indicates a potential shift in the Tribunal’s application of May and the requirement to show a physiological or psychiatric change.  Until the Tribunal’s comments are tested, it is important to remember that an increase in the symptoms of an underlying or pre-existing condition may be enough to satisfy a Tribunal that an aggravation has occurred and, depending on the circumstances, the aggravation may be compensable.




Rebecca Tloczek                                                                Claire Tota
Solicitor                                                                                 Partner
Direct:  +61 (0) 8 9265 6020                                            Direct: +61 (0) 8 9265 6011                         



Download PDF:  Whitlock and Comcare

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