Harris and Comcare [2002] AATA 1239 (29 November 2002)

Last Updated: 29 November 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1239

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/1061

GENERAL ADMINISTRATIVE DIVISION )

Re DAVID HARRIS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date 29 November 2002

Place Brisbane

Decision The Tribunal affirms the decision under review.

.................(Sgnd)................

Mr B J McCabe

Member

CATCHWORDS

WORKERS COMPENSATION - chronic adjustment disorder with anxious and depressed mood - whether applicant's condition arose from disciplinary proceedings - whether condition is compensable

Safety Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

29 November 2002 Mr B J McCabe, Member

Introduction

1. The applicant, David Harris, was formerly employed by the Australian Taxation Office (the ATO). He received Rental Assistance from the ATO in connection with a transfer. But he was not eligible to receive the money, and criminal proceedings were commenced against him as a result of the false statements he made in the application. The applicant was convicted of imposing upon the Commonwealth with a view to obtaining a benefit on 1 February 2000, and he was dismissed from the public service subsequently under s 15 of the Public Service Act 1999.

2. Mr Harris suffers from depression. He says the depression set in as a result of stress at work. He says the stress caused by the criminal proceedings was not the problem. He claims he was stressed by other events in the workplace, and should receive compensation. The respondent says Mr Harris's depression was wholly the product of the proceedings arising out of his misconduct. Injuries and illnesses arising out of disciplinary proceedings are not compensable, the respondent says. Mr Harris has appealed Comcare's determination.

The Material Before the Tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The applicant appeared at the hearing in person. He was unrepresented. The respondent tendered five medical reports from Dr Gerry Douglas and two reports from Dr Igor Petroff. Dr Petroff also gave oral evidence. The respondent was represented by Mr Clark of counsel.

The Facts

4. The applicant was a Complex Personnel Officer with the ATO. He was initially based in Canberra. In July 1997 he applied for a transfer to Brisbane. His application was accepted and he was transferred to the Upper Mt Gravatt office of the ATO on 10 November 1997.

5. Prior to his move, the applicant lived with his family in Canberra. He had been employed in other public service positions in the past, most recently in Customs. Mr Harris and his wife sold the family home in Canberra some time before the move to Brisbane.

6. Mr Harris completed a Request for Removal of Household Furniture and Personal Effects document on 12 October 1997 in connection with the move. He also completed an Application for Temporary Accommodation Allowance form on 4 December 1997. Those documents contained false statements.

7. Mr Harris told the Tribunal the ATO had undergone a reorganisation that involved centralising its personnel functions for Queensland in the Mt Gravatt office. Mr Harris understood he was to be part of the new unit. But he said it became apparent during the course of 1998 that the ATO was not committed to the new unit. He said the ATO regarded it as an experiment. He felt unsettled. He said in his evidence that his move to Queensland was a gamble he took in the interests of securing a better lifestyle for himself and his family. He claimed he felt insecure, and the insecurity caused stress that led to his depression.

8. Apart from the uncertainty over the future, the applicant said the unit was in a state of disarray. There was lots of pressure to do overtime. Staffing arrangements were a mess. The clouds over the future of the unit prompted some people to take redundancy packages. Other staff slacked off in anticipation of a further reorganisation. Mr Harris said workers felt bitter and angry, which did not make for a healthy work environment.

9. The applicant said he did not want to purchase a home in Brisbane because of the uncertainty about his future at the ATO. That meant he was forced to pay high rent. He lost weight. His relationships with his family deteriorated, he said. He became less tolerant of his children, and encountered difficulties in communicating with his wife. He claimed he was listless, de-energised and cranky. But he did not take any days off work. He says he didn't realise he had a problem at the time.

10. The ATO subsequently disbanded the personnel unit at Mt Gravatt. Personnel functions were transferred to Canberra.

11. The applicant's supervisor became aware during 1998 that Mr Harris had sold his home before he left Canberra, and that he was not therefore entitled to receive rental assistance in Brisbane. Mr Harris disagreed and commenced a grievance procedure on 28 August 1998. The false statements he made to secure the assistance came to light in the course of that process. The grievance was rejected following an interview with a Mr Gaffney in September, but the question of the false statements made in support of the applications was not resolved. The applicant was formally interviewed in relation to those matters on 5 January 1999. The interview was tape-recorded and Mr Harris was told at its conclusion the matter was to be referred to the Director of Public Prosecutions.

12. Mr Harris said he was not especially concerned about the interview, although he conceded he realised it was a serious matter.

13. The following day, he went to the doctor. He says he decided to address his deteriorating health - a deterioration brought on by the stress at work. He said the interview the previous day and the prospect of criminal charges being laid as a result of his misconduct were - at most - the final straw, rather than the cause of any problems.

14. Mr Harris took many days of sick leave in the months that followed. He sought a redundancy package in June 1999, but he was unsuccessful. He saw a variety of doctors. Medical reports and medical certificates confirming the applicant was unfit for work during that period were included in the T documents. The applicant also saw Dr Petroff, a consultant psychiatrist. Dr Petroff said in his report dated 19 July 1999 that Mr Harris developed a variety of neurotic symptoms following his interview in January. Dr Petroff confirmed in his evidence that Mr Harris said he felt trapped by the investigative process. The doctor said the applicant did not mention problems arising prior to January.

15. The respondent accepts Mr Harris suffers from a chronic adjustment disorder with anxious and depressed mood. But Comcare says this condition is the product of the investigative process, and perhaps of the upheaval that accompanied the applicant's move to Brisbane. His condition was not caused by events at work giving rise to an entitlement to compensation, Comcare claims.

16. I am satisfied Mr Harris's condition was caused by stress associated with the investigation and subsequent conviction and dismissal. While he may have been unsettled and unhappy in his work during 1998 after arriving in Brisbane, there is no credible evidence that his mental health was deteriorating at that point. He had not sought any help until after his interview in January, and he had not been taking time of work. I accept his incapacity for work commenced at the same time as the commencement of the formal investigation in January 1999 that led to his conviction later that year. After observing his demeanour while giving evidence, I do not accept Mr Harris's claim that his condition was already manifesting itself during the course of 1998.

The Relevant Law

17. In order to succeed in a claim for compensation under the Safety, Compensation and Rehabilitation Act 1988, the applicant must demonstrate he suffers from an injury within the meaning of s 4. Section 4 defines injury as follows:

"injury means:

(a) a disease suffered by an employee; or

(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."

18. Given the findings of fact I have made, I must conclude Mr Harris did not suffer from an injury within the meaning of s 4 because his condition was the result of reasonable disciplinary action taken against him. Comcare was right to refuse his claim for compensation.

Conclusion

19. The decision under review is affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed: .....................................................................................

Associate

Date of Hearing 4 September 2002 (at Lismore)

Date of Decision 29 November 2002

The Applicant Appeared in Person

Counsel for the Respondent Mr Clark

Solicitor for the Respondent Dibbs Barker Gosling