Shephard and Comcare [2003] AATA 25 (15 January 2003)

Last Updated: 16 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 25

ADMINISTRATIVE APPEALS TRIBUNAL )

)

) No N2001/1705

GENERAL ADMINISTRATIVE DIVISION )

Re Patricia Shephard

Applicant

And Comcare

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Date 15 January 2003

Place Sydney

Decision The Tribunal sets aside the decision under review, namely the decision of the independent review officer dated 26 October 2001, and substitutes a decision reinstating the determination made by a delegate of the Respondent on 27 June 1995, pursuant to s 14 of the Safety Rehabilitation and Compensation Act 1988, accepting the Applicant's claim for compensation in respect of her "anxiety state".

..............................................

RP Handley

Deputy President

CATCHWORDS

COMCARE - liability for injury and disease - meaning of disease - whether the Applicant's employment contributed in a material degree to her psychiatric disease - whether harassment and intimidation by a neighbour had a sufficient connection to the Applicant's employment - connection established - held that the Applicant's employer was liable - decision under review set aside.

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27, 62(1)(a), 114, 114B

Guide to the Assessment of the Degree of Permanent Impairment

Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626

Kirkpatrick v Commonwealth (1985) 9 FCR 36

Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1 (6 January 1999)

Treloar v Australian Telecommunications Commission (1990) 97 ALR 321

Re "AXA" and Comcare [1999] AATA 917

Wiegand v Comcare Australia [2002] FCA 1464

REASONS FOR DECISION

15 January 2003 Mr RP Handley, Deputy President

1. Two applications were made by Patricia Shephard ("the Applicant"):

* N2001/504, an application to the Tribunal dated 11 April 2001 for a review of a decision by an independent review officer of Comcare Australia ("the Respondent") made on 5 March 2001 affirming the decision that the Applicant was entitled to compensation for permanent impairment and non-economic loss on the basis of 10% permanent impairment in respect of her compensable condition.

* N2001/1705, an application to the Tribunal dated 5 November 2001 for a review of a decision by an independent review officer of the Respondent made on 26 October 2001 revoking the determination made on 27 June 1995 and substituting a determination that no liability exists to the Applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").

2. A hearing was conducted in Wollongong on 16 and 17 December 2002. At the hearing, the Applicant was represented by Cameron Jackson, of Counsel, and the Respondent was represented by Elenne Ford, of Counsel. The documents before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 in respect of both applications ("the T Documents", referred to hereafter as T(504) and T(1705)) together with the other documents tendered by the parties at the hearing. The Applicant, Catherine Faulks, Stephen Eccles and Belinda Young gave evidence at the hearing.

3. This decision relates to application No N2001/1705. At the time of this decision, the Tribunal had been unable to make a decision relating to application No N2001/504 because of a lack of relevant up-to-date medical evidence. The Tribunal will undertake further discussions with the parties with a view to re-opening the hearing of this matter.

Background

4. On 3 June 1995, the Applicant lodged a claim for compensation in respect "stress - fear", caused by threats to her property and intimidation by a neighbour as a result of the Applicant being an employee of the Department of Social Security ("DSS"), now Centrelink. On 27 June 1995, the Respondent advised the DSS that they accepted liability for the Applicant's "anxiety state" (T(504) 11).

5. On 22 August 2000, the Applicant lodged a compensation claim for permanent injury, being depression and panic attacks (T(504) 177), together with a completed non-economic loss questionnaire (T(504) p331). On 22 November 2000, the Respondent notified the Applicant that it accepted that she did have an entitlement to a lump sum for permanent impairment in respect of her anxiety state (T(504) 184). The Respondent found her to have a 10% whole person impairment. The amount of compensation was assessed at $23,588.62, being $11,648.70 for permanent impairment pursuant to s 24 of the Act, and $11,939.92 for non-economic loss pursuant to s 27 of the Act (T(504) p342).

6. By letter of 10 January 2001, the Applicant requested a reconsideration of the Respondent's determination. On 5 March 2001, an Independent Review Officer affirmed the decision of the 22 November 2000. On 11 April 2001, the Applicant lodged an application for a review of this decision by the Tribunal.

7. On the 26 October 2001, an Independent Review Officer of the Respondent, having reviewed the file pursuant to s 62(1)(a) of the Act, determined that liability for the Applicant's "anxiety state" should not have been accepted. The Review Officer decided to revoke the determination of 27 June 1995 and in substitution determined that no liability existed in respect of the claim (T(1705) 10). On 5 November 2001, the Applicant lodged an application for a review of this decision with the Tribunal.

Applicable Legislation

8. The Act imposes liability to pay compensation in the case of injury where the injury arises "out of, or in the course of, the employee's employment". The following definitions are included in s 4:

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.

disease means:

(a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

being an ailment or aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

Ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)

9. Section 14 of the 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".

10. Section 24 states:

(1) where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a) the duration of the impairment;

(b) the likelihood of improvement in the employee's condition;

(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters.

(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6) The degree of permanent impairment shall be expressed as a percentage.

(7) Subject to section 25, if:

...

(b) Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

11. Section 27 states:

Compensation for non-economic loss

(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.

(2) The amount of compensation is an amount assessed by Comcare under the formula:

where:

A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.

12. The degree of permanent impairment of an employee resulting from an injury is determined by reference to the "Guide to the Assessment of the degree of permanent impairment" ("the Guide"). Table 5.1 sets out the criteria by reference to which the degree of permanent impairment of an employee suffering from a psychiatric condition is assessed, as follows:

TABLE 5.1

NOTE: Includes psychoses. neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.

% DESCRIPTION OF LEVEL OF IMPAIRMENT

0 Reactions to stressors of daily living WITHOUT loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance.

5 Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance. reactions to stressors of daily living with minor loss of personal or social efficiency lack of conscience directed behaviour without harm to community or self minor distortions of thinking

10 Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance. reactions to stressors of daily living with minor loss of personal or social efficiency lack of conscience directed behaviour without harm to community or self minor distortions of thinking

15 ANY ONE of the following accompanied by a need for some supervision and direction in activities of daily living. reactions to stressors of daily living which cause modification of daily patterns marked disturbances in thinking definite disturbance in behaviour

20 ANY TWO of the following accompanied by a need for some supervision and direction in activities of daily living reactions to stressors of daily living which cause modification of daily living patterns marked disturbance in thinking definite disturbance in behaviour

25 ALL of the following accompanied by a need for some supervision and direction in activities of daily living reactions to stressors of daily living which cause modification of daily living patterns marked disturbances in thinking definite disturbances in behaviour

30 ANY ONE of the following accompanied by a need for supervision and direction in activities of daily living hospital dischargees who require daily medication or regular therapy to avoid remission loss of self control and/or inability to learn from experience causing considerable damage to self or community

40 MORE THAN ONE of the following accompanied by a need for supervision and direction in activities of daily living hospital dischargees who require daily medication or regular therapy to avoid remission loss of self control and/or inability to learn from experience causing considerable damage to self or community

50 ONE of the following severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others need for supervision and direction in a confined environment

60 BOTH of the following severe disturbances of thinking and/or behaviour which entail potential or actual harm to self and/or others need for supervision and direction in a confined environment

90 Very severe disturbance in all aspects of thinking and behaviour such as to require constant supervision and care in a confined environment and assistance with all aspects of activities of daily living

Issues in Dispute

13. There are two issues in dispute between the parties:

(1) Whether the Applicant's psychiatric condition is a disease "that was contributed to in a material degree by the employee's employment"; and, if this question is answered in the affirmative,

(2) What is the degree of permanent impairment resulting from the disease?

This second issue is the subject of application No 2001/504, and will not, therefore, be dealt with in this decision.

Evidence

14. The Applicant was born on 28 October 1948 and is aged 54. She is divorced and has two adult children. From 1978, she lived at 25 Armour Street, Bellambi, a northern suburb of Wollongong. In March 1991, she commenced employment as an ASO3 (Administrative Services Officer Level 3) counter assessor at the Corrimal office of the DSS. In about 1990, Jacqui Attard moved into the house opposite the Applicant's house. Initially, their relationship was reasonably amicable although they had little contact. On Friday 19 May 1995, at about 7.00pm, two other neighbours of the Applicant's, Belinda Young, who had moved into the house next door eight or nine weeks previously, and Jason Wakeman, a neighbour of about 11 years, came to the Applicant's front door to speak to her. The Applicant said they told her that Ms Attard had said she was going to trash the houses of all three of them. She said the Applicant had some "really nice stuff" and she was going to shove the hose in through the Applicant's front window, turn the hose on full blast and watch the fun.

15. When Ms Young and Mr Wakeman had asked why Ms Attard was going to do this to the Applicant, Ms Attard, having called the Applicant a lot of obscene names, said she knew the Applicant worked for the DSS and had dobbed in "every poor bastard around here who is trying to get ahead". In a Statutory Declaration dated 12 December 2002 (A7), Ms Young said that Ms Attard made similar comments to her on a number of occasions. This was the first time the Applicant became aware of Ms Attard's change of attitude towards her. The Applicant thinks this might have happened as a result of a friend of Ms Attard's being in trouble with the DSS. However, the Applicant never knew anything about this.

16. The Applicant said while Ms Young and Mr Jakeman were speaking to her at her front door, Ms Attard appeared at the front of her house across the street and shouted "You pair of bastards. Don't think I am going to forget your crawling up her arse". Ms Young confirmed in evidence that when she and Mr Jakeman went to see the Applicant, Ms Attard saw them and yelled out. Ms Young said before this she had never had any difficulty with Ms Attard. It was only after this incident that she started having trouble with Ms Attard and that Ms Attard made threats against her. Ms Young said she was also not aware of Ms Attard threatening Mr Jakeman until after the incident.

17. The following week, the Applicant went to work but she asked her daughter and partner to remain in the house during the day while she was out. On Wednesday 24 May 1995, while Mr Jakeman was away attending his mother's funeral, his house was "trashed" and the day after, on Thursday 25 May 1995, a friend of Ms Attard walked into Ms Young's house while she was at home with her children and "trashed" her lounge room, damaged her fridge and repeated Ms Attard's threats.

18. Stephen Eccles, the Applicant's boyfriend at the time, made a statement dated 9 October 2002 (A4). He said he moved into the area in 1992 after splitting up with his wife. He remembered meeting Ms Attard at the Applicant's house "about half a dozen times" and thought she "seemed pretty nice". He does not know why Ms Attard's attitude to the Applicant changed. After it changed, he heard Ms Attard shout at the Applicant "you dob in all the pensioners". He witnessed Ms Attard's "sons" abusing the Applicant and throwing stones. He was present when Ms Young and Mr Jakeman came to see the Applicant on 19 May 1995. After Mr Jakeman's house was trashed, Mr Jakeman called him over to see what had been done.

19. On Sunday 28 May 1995, the Applicant's car was vandalised. The exterior paintwork was scratched and sprayed with a can of white aerosol paint, a rear view mirror was broken and the radio aerial was snapped off. The word "HATE" was also scratched on the garage door. When the Applicant took the car to the garage, the mechanic found the brakes had been "bled" and the Applicant remembered noticing what appeared to be oil on the driveway underneath the car after it was vandalised. It cost $2000 to repair the car.

20. The Applicant said she felt very frightened by these events and phoned the police. On Monday 29 May 1995, she phoned her acting manager at work - Helen Newbold, and explained what had happened. Ms Newbold noted that the Applicant "sounded very upset" (T(504) 3). Next day, on Tuesday 30 May 1995, Ms Newbold went to visit the Applicant at home and saw two boys "throwing garbage on the road, and jumping on Trish's fence". The Applicant asked Ms Young to come round and tell Ms Newbold what had happened previously and Ms Young did so.

21. The Applicant said these boys were Ms Attard's son and his friend. The son and his friends would throw stones at the Applicant if she went outside to bring the washing in - she had cuts on her legs as a result. They also knocked over her garbage bin in her presence and kicked its contents around. They continually called her obscene names. There were times during late May and June 1995 when she was so frightened that she was unable to go to work. In the statement dated 3 June 1995 attached to her claim (T(504) 14), the Applicant said two neighbours who had been supporting her had engine oil thrown over their front porches. One was set alight but the Fire Brigade attended and cleaned the oil off. The next day, Ms Attard called to the Applicant from her front door "You're next - watch your back" and then made a movement across her throat to indicate a throat being cut.

22. The Department of Housing agreed to move the Applicant to a house at 18 Bramsen Street, Bellambi, about a kilometre away. She moved on 15 July 1995. The Applicant said she did not want to leave her home of 18 years and felt very sad. The new house was awful, was too small for her furniture and smelt of dog. There were no locks on the windows and the front door would sometimes open by itself. Then the Applicant was told both by an ex-neighbour and by her daughter that Ms Attard knew where the Applicant had moved to. The Applicant said she was always afraid or on the alert.

23. The first day the Applicant returned to work at the Corrimal office, she was working at the counter when a big woman whom the Applicant knew to be a friend of Ms Attard's and whose name was Marlene, came into the office. The Applicant said she looked inebriated. She headed for the Applicant, looking straight at her, throwing her arms around. She got to within eight feet of the Applicant and said: "We know who you are. You're dead meat. We saw you in your blue dressing gown outside the house". The Applicant said she was wearing a blue dressing gown on the day of her move. She was very frightened by Marlene and backed off away from the counter while another male officer tried to get Marlene out of the office. The Applicant retreated into the toilet. She felt sick. Her moving house seemed futile. She had lost her home. She felt frightened and unsafe. She leant against the lockers and slid down to the floor.

24. Then on 25 February 1997, at about 2.30am, she received a threatening phone call. The voice sounded like Marlene. The person said, calling the Applicant obscene names, "You never learn. You're dead meat. You think you're a smart arse because you work for the Government". A few mornings later, at about 9.30am, she received a similar threatening call. The Applicant said she believed that "they", meaning Ms Attard, her boys and Marlene, intended to kill her.

25. On 3 March 1997, the Applicant was getting ready to go to work. She opened the front door and saw something hanging on the porch. She realised it was a "chook", still with its feathers but with its head and neck cut off, dripping blood on to the porch. It was awful. She went inside and phoned the police and the people at work. She felt like Aboriginees must feel when a bone is pointed at them - she was terrified. The police took ages to come but eventually came and took a statement and took the chook down. When the Applicant mentioned Ms Attard's name to them, they obviously recognised it.

26. The Applicant never stayed alone in the house again. Initially, she went to stay with a friend, Gail, who lived in a third floor unit and the Applicant felt safe there. On 20 September 1997, after returning home from a cruise, she and a cousin, Dorothy Chisholm, swapped houses and the Applicant moved to Woonona. In a Statutory Declaration made on 29 October 2002 (A5), Ms Chisholm recalled how on one occasion in 1991, when she had been visiting the Applicant at her house in Armour Street, Bellambi, Ms Attard had been present, sitting with them on the veranda, because she had asked the Applicant to help her write a statement in relation to her being charged for possession of approximately an ounce of marijuana. While the Applicant was in the house, Ms Attard turned to Ms Chisholm and said:

We will all have to watch ourselves with Tricia working for the DSS. She knows where all the skeletons are buried.

27. The Applicant related one further incident in March 1998. A series of things - her keys and gold watch - went missing. One day she came home and found a photo lying face down on the floor and a goldfish gone. Then, while driving to work in her car, there was a boom. Her mechanic, on checking the car, thought something might have been stuck in the end of the exhaust pipe. Later, her keys reappeared on the doorstep although, by that time, the Applicant had had the locks changed. She discussed what had happened with the staff counsellor at the DSS and said she hoped it was not Ms Attard who had been responsible. The counsellor concluded that the incident was probably related to the recent breakdown of the Applicant's relationship with Mr Eccles. The Applicant said she had not agreed with this explanation and when she later confronted the counsellor about this, the counsellor apologised.

28. Later, in June 1998, the Applicant inadvertently came across Ms Attard's file at work when helping a colleague. As soon as the Applicant saw the name on the file, she "froze" and went and told her manager. She felt Ms Attard had violated her space at work. She was angry and afraid.

29. The Applicant said she participated in various return to work programs. On the day that she last worked in November 1999, she went looking for a filing cabinet and could not find it. Then she looked for the door to the toilet and also could not find it. So she walked out.

30. Since then, the Applicant has thought of harming herself, most recently after the conciliation conference in this matter held in Sydney. She felt she was not being believed and that she was never going to be able to go home. She felt like driving up to the top of the mountain and driving off the cliff. Last year, a friend committed suicide by gassing himself in his car with exhaust fumes. She thought how she might do this, about getting tubing and trying to insert this through the car window.

31. The Applicant said she would like to be able to return to work, and return to her home in Armour Street, Bellambi, and have her life back. Not long ago, she went to visit the Centrelink office at Corrimal and was pleased that she was able to locate the filing cabinet and the toilet door.

32. The Applicant was questioned about her medical history. In 1978, she had a period in hospital suffering from insomnia and depression. This was as a result of constant ear pain for which she had three operations. Her right ear would become inflamed and very painful and she found it difficult to sleep. The Applicant could not recall suffering from anxiety and depression in 1984/1985, as noted by her general practitioner, Dr O Gupta, in his clinical notes (R1). She remembers having family problems at this time and having to come to terms with having been assaulted as a child, since she was forced to have contact with her assailant, her brother, when her mother was very ill.

33. The Applicant said she was sexually abused as a child by her brother, who was five years older than her. Six weeks after her second marriage in 1987, she discovered that, before the marriage, her husband had been sexually abusing her daughter. While a neighbour looked after her daughter, she took all her husband's clothes from the house and dumped them in the road outside the coffee lounge where he worked. Then she went to the police to report what had happened and her husband was subsequently charged. The trial went on for years. He was eventually convicted and sentenced to three years good behaviour and a $1000 bond.

34. The Applicant agreed that she had suffered chest pains in 1988 as the court case involving the abuse of her daughter, during which she had been trying to protect her daughter, was coming to an end. Then in 1992, she saw a counsellor on one occasion after her mother's death when she was again forced to have contact with her brother. She did not recall otherwise suffering stress in 1992 or 1994 although, once again, she acknowledged seeing Dr Gupta in 1995 after her father's death when she had to deal with her brother one last time.

35. In 1993, the Applicant underwent a hysterectomy performed by Dr T O'Malley, Gynaecologist. Following this, she had hormone replacement therapy (HRT). The Applicant agreed that she may have told Dr O'Malley that the HRT was making her depression worse.

36. The Applicant said that by 1995, she was happy in her work, involved in the work social club and busy arranging outings, and "life was good". Other things affected her, but once the cause was gone, she got on with her life.

37. Catherine Faulks made a statement dated 15 November 2002 (A3). She said she worked at the DSS office at Corrimal from 1991 and was the Applicant's direct supervisor from late 1993 to mid 1995. Ms Faulks said the Applicant was an excellent worker: hard working, conscientious and caring both with staff and clients. She was very good at dealing with difficult situations and difficult clients on whom she had a calming influence. At the same time, the Applicant was aware of the need for rules of conduct and she followed them. She was very professional and before May 1995 had not "brought her problems to work".

38. Ms Faulks said she noticed a change in the Applicant from the time the harassment began in 1995. She had increasing difficulty dealing with stressful situations and became agitated and teary. For nine months from mid 1995, Ms Faulks worked as the in-office trainer and saw less of what was happening in the office. Then for nine months from early 1996, she became the newstart allowance section manager. The Applicant was in her section but Ms Faulks saw little of her because she was off work for much of that period. Ms Faulks left the Corrimal office in 1996 and became the area trainer. She still saw the Applicant occasionally at training sessions. Ms Faulks said she was not present at the Corrimal office when a woman came into the office and made death threats to the Applicant, but she was told of the incident.

Consideration of the Law and Findings

39. The parties accept that the Applicant's psychiatric condition is a disease. For a disease to be a compensable injury pursuant to s 14 of the Act, the definition of disease in s 4 must be satisfied. In particular, the disease must be "an ailment or aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation".

40. There is no dispute that the harassment to which the Applicant was subjected caused the Applicant's psychiatric condition. The issue, therefore, is whether the Applicant's condition was contributed to in a material degree by her employment with the DSS.

41. As Deputy President McMahon said in Re "AXA" and Comcare [1999] AATA 917 at paragraph 27:

The starting point for a consideration of the meaning of contribution is Federal Broom Co Pty Limited v Semlitch (1964) 110 CLR 626. At 632 Kitto J equated "some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed" with a "contributing factor". At 641, Windeyer J pointed out that the necessary link lay in what the worker in fact did during his employment, not merely the fact of his being employed. He said:

"The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."

42. In Treloar v Australian Communications Commission (1990) 97 ALR 321, a case on the relevant legislation prior to the 1988 Act taking effect, the Full Federal Court said at 328:

once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree. ... All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. ... The use of the word "material" in conjunction with the words "contributing factor" in the legislation ... has served only to emphasis that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.

43. In Re "AXA" (supra), death threats had been made to the applicant on his home phone. The Tribunal found there were clear links in the text of some of the recorded calls with the applicant's work activities. The Tribunal found, at paragraph 31, that:

the phone calls were circumstances to which the applicant would not have been exposed but for his employment ... the consistency of the work related references in the text of the phone calls is, in my view, sufficient to associate them with his employment to the necessary degree on the balance of probabilities (Minister for Multicultural Affairs v Epeabaka (1999) FCA 1 6/1/99).

44. In Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36 at 40, the Full Federal Court emphasised that the applicant's genuine belief that a disability arose from his work did not make his employment a contributing factor:

The fact that the applicant thought his disability arose out of his work, and therefore thought it compensable, may have been potent factors in the development of his neurosis. But these were thoughts in his mind. They did not mean that his employment actually was a contributing factor in the development of his neurosis.

45. Most recently, in the Federal Court decision Wiegand v Comcare Australia [2002] FCA 1464, von Doussa J emphasised, at paragraph 24:

All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee.

46. He also noted, at paragraph 27:

In a case where an employee suffers a long standing mental ailment which has its origin in factors unrelated to the employment, an aggravation of that condition contributed to in a material degree by the employee's employment will not fall outside the definition of disease merely because it is likely that in the end the underlying ailment would inevitably have progressed until the employee was unable to work: see Federal Broom Co Pty Ltd v Semlitch per McTiernan J at 630.

47. The Respondent accepts that the Applicant suffers from a psychiatric condition which is a disease. As stated above, the issue, therefore, is whether that condition was contributed to in a material degree by her employment. The Respondent does not dispute that the Applicant was harassed and intimidated by her neighbour, Ms Attard. There is ample evidence to support a finding to that effect.

48. There is also sufficient evidence to support a finding that Ms Attard and her friend, Marlene, knew that the Applicant worked for what was then the DSS: the Applicant gave evidence of this, as did Ms Young and Mr Eccles, and Ms Chisholm, a cousin of the Applicant, makes reference to this in her Statutory Declaration of 29 October 2002 (A5). However, the authorities cited above establish that the mere fact of knowledge of the person's employer on the part of the perpetrator of the harassment or intimidation is not by itself enough to establish contribution in a material degree to the employment. In the present case, there must be some feature or characteristic of the Applicant's employment to which she would not have otherwise been exposed which contributed in a material degree to her condition.

49. In his written submission, Mr Jackson, for the Applicant contended that Ms Attard and Marlene "understood that working for the Department of Social Security involved case management of DSS clients, including determining entitlements and assessing clients". The evidence which it is claimed supports this is that of the witnesses who attested that Ms Attard said of the Applicant: "she dobbed in every poor bastard who tries to get ahead around here", or words to that effect. Ms Ford, for the Respondent, in her written submissions, stated that "There is no evidence connecting the tasks which the Applicant carried out at her place of employment with the change in attitude of Ms Attard".

50. The Applicant said in evidence that she thought that Ms Attard's change in attitude to her after being neighbours for approximately five or six years, and having had a reasonably amicable relationship, was as a result of a friend of Ms Attard's being "in trouble with DSS". However, the Applicant otherwise knew nothing about this. The Applicant worked as a counter officer, level ASO3, at the DSS's Corrimal office. There is no evidence of whether Ms Attard or Marlene knew of the Applicant's particular position. The Applicant's evidence and that of Ms Faulks suggests the Applicant took a professional approach to her employment and would not have divulged specific details of what her work entailed.

51. The Tribunal assumes that it is public knowledge among adults in the community that the DSS and now Centrelink is a government agency with responsibility for processing claims for social security benefits. It would be public knowledge that, in doing so, the DSS/Centrelink must apply the rules and refuse a claim where a person is not qualified for a benefit or, where a person is qualified, make an assessment where relevant as to the level of entitlement. It would also be widely known that, from time to time, neighbours or contacts "dob in" others whom they believe are not entitled to a social security benefit because, for example, the person is working or receiving some other form of disqualifying support.

52. In the Tribunal's view, these features or characteristics of DSS/Centrelink work would not unreasonably be associated with a person who is a DSS/Centrelink employee. The situation is similar to that in Re "AXA" (supra) where the applicant was an employee of ASIO and received a series of malicious and threatening phone calls. Some of these calls bore no apparent relationship to the applicant's work. Others contained some general insult such as "ASIO shit", "spycatcher cunt", "pigs", "surf the net cunt" or referred to the applicant's distinctive car that he used in his job as a client liaison officer. None of these apparently employment linked comments was of a specific nature.

53. In the present case, as noted above, Ms Attard and her friend, Marlene, knew the Applicant worked for the DSS. The threats and obscene comments of which there is evidence clearly connected the Applicant with public perceptions of the functions undertaken by the DSS: for example, "every poor bastard who tries to get ahead around here, you fucking dob in" (Statutory Declaration by Stephen Eccles (A4)); "I am going to get Patricia Shephard. She is the bitch around here that puts everyone who tries to get ahead into the DSS. She doesn't know who the fuck she is messing with" (Statutory Declaration by Belinda Young (A7)); "We know who you are. You're dead meat" (the Applicant's oral evidence of Marlene's actions at the DSS Corrimal Office about 17/18 July 1995). The Applicant said she was "stunned" when her neighbours Ms Young and Mr Jackson told her of the threats on the evening of 19 May 1995 (T(504) 7 p17). As noted above, the Applicant gave evidence that Ms Attard's change in attitude towards her may have been as a result of a friend of Ms Attard's being "in trouble with DSS". The evidence indicates that the malicious damage to the property of Ms Young, Mr Jackson and the Applicant did not commence until after Ms Attard saw Ms Young and Mr Jackson talking to the Applicant at her front door on the evening of 19 May 1995.

54. In the Tribunal's view, there is a sufficient connection between some of the threats and the public perception of the work of a DSS officer to find, on the balance of probabilities, that the Applicant's condition was contributed to in a material degree by her employment by the Commonwealth. Thus, the Tribunal sets aside the reviewable decision made on 26 October 2001 and reinstates the decision made by a delegate of the Respondent on 27 June 1995 that the Respondent is liable to pay compensation to the Applicant under s 14 of the Act.

55. In so finding, the Tribunal notes the medical evidence (R1, 2 and 3) as to the Applicant having previously suffered what was variously described as stress, insomnia, anxiety and depression over various incidents concerning her personal situation. It is apparent from the Applicant's evidence that these incidents are largely related to the Applicant's sexual abuse as a child and to the sexual abuse of her daughter by the Applicant's second husband and the ensuing trial that followed as a consequence of the Applicant reporting the matter to the police.

56. The Tribunal accepts the Applicant's evidence that when the harassment and intimidation started on 19 May 1995, she was happy in her work, involved in her work social club and busy arranging outings, and considered "life was good". Ms Faulks gave evidence that she noticed a change in the Applicant from that time in 1995. In her Statutory Declaration (A3), Ms Faulks said she witnessed "the gradual deterioration of Patricia's mental and general health". In his Statutory Declaration (A4), Mr Eccles refers to the effect of the harassment and intimidation on the Applicant. Thus, the Tribunal is satisfied that the Applicant suffered a disease or aggravation of a disease as a consequence of the harassment and intimidation.

57. In conclusion, the Tribunal sets aside the decision under review, namely the decision of the independent review officer dated 26 October 2001, and substitutes a decision reinstating the determination made by a delegate of the Respondent on 27 June 1995, pursuant to s 14 of the Act, accepting the Applicant's claim for compensation in respect of her "anxiety state".

58. Pursuant to s 67 of the Act, the Respondent is to pay the Applicant's costs in accordance with the Tribunal's General Practice Direction.

I certify that the preceding 58 paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

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

Associate

Date/s of Hearing 16 and 17 December 2002

Date of Decision 15 January 2003

Counsel for the Applicant Mr C Jackson

Counsel for the Respondent Ms E Ford