Australia: Stress Is Not A Psychological Injury

Griffin and K & S Freighters Pty Ltd (Compensation) [2023] AATA 535

Key Points

The AAT was asked to determine whether the respondent was liable for Mr Griffin's (the applicant) 'stress' arising from a series of events including being the subject of a claimed false sexual harassment allegation from a co-worker.

Although the events giving rise to the 'stress' were disputed, the AAT found that the applicant had not suffered an injury for the purpose of section 5A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and therefore it was not necessary to decide whether the events had occurred as claimed. The reviewable decision was affirmed.

Background

In about May 2019, the applicant commenced employment as a night shift truck driver with the respondent's client, Ingham's Enterprise Pty Ltd (Ingham). On 1 October 2020, the manager of Ingham's Feed Mill in Murray Bridge spoke to and sent a letter to the applicant advising him, among other things, of a sexual harassment complaint from a contractor to Ingham's, Ms MS, against him. The applicant was also advised of the commencement of an investigation into the allegations and his immediate suspension from duties.

The supervisor of the complainant on behalf of Ingham wrote to the applicant informing him of the allegations and invited him to attend an interview. In the interview, the applicant acknowledged the occurrence of some of the allegations however did not concede that any of the behaviours were inappropriate.

On 9 November 2020, the applicant was sent a show cause letter for potential termination of his employment. The applicant subsequently lodged a workers' compensation claim for his 'stress', which referred to the disagreement with Ms MS and receiving the letter containing what he claimed were false allegations.

On 19 January 2021, the respondent determined that they were not liable to pay the applicant compensation in respect of 'stress'. Following a request for reconsideration, on 9 February 2021, the respondent issued a decision affirming the determination.

The AAT was tasked to decide:

• whether the applicant had sustained a psychological ailment, or an aggravation of a psychological ailment as defined in s4(1) of the SRC Act?
• If so, whether that psychological ailment, or aggravation thereof, was contributed to, to a significant degree, by the applicant's employment with the respondent so as to be considered a 'disease' for the purposes of s5B of the Act?
• If so, whether the applicant's ailment, or aggravation thereof, was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment?
• Whether the reviewable decision, dated 9 February 2021, be affirmed or otherwise under s43(1) of the Administrative Appeals Tribunal Act 1975?

The Law

Section 14(1) of the SRC Act relevantly provides:

"...Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment."

The meaning of 'injury' is defined in s 5A(1) of the SRC Act, which provides:

The meaning of 'disease' is defined in s 5B(1) of the SRC Act, which provides:

The meaning of ailment is defined in s 4(1) of the SRC Act, which provides:

Conclusion

The AAT found that the applicant did not suffer an injury for the purpose of s5 of the SRC Act. In reaching this decision, the AAT relied on the evidence presented by the respondent's expert, Associate Professor Mendelson, over the evidence provided by the applicant's general practitioner, Dr Liu and clinical psychologist Ms Bruyns for the following reasons:

• A/P Mendelson raised concerns that the clinical diagnosis of 'stress' of the applicant by Dr Liu was not a medical diagnosis. Instead, it was a manifestation of anxiousness which A/P Mendelson believed was an emotional reaction to the allegations made.
• The applicant's pursuit of employment following the termination of his employment was inconsistent with the unfit for work certificate issue by Dr Liu.
• Ms Bruyns suggested that the applicant's reported symptoms were consistent with PTSD. However, Ms Bruyns did not identify the signs and symptoms relied on.
• A/P Mendelson believed that the there was no basis for a PTSD diagnosis as there was no evidence the applicant suffered symptoms required to satisfy the diagnosis.
• A/P identified a similarity in symptoms contained in the notes of Dr Liu that were not referred to in the notes of Ms Bruyns but were contained in her report. He also raised concerns of a potential contamination of Ms Bruyns report as the applicant's representative was present during the consultation.

Ultimately the AAT accepted A/P Mendelson's evidence that the applicant's understandable emotional reaction from the events did not constitute any diagnosable mental disorder and he had not suffered an injury for the purposes of the SRC Act.  It was therefore not necessary to consider whether the "injury" had arisen as a result of reasonable administrative action under s5A(2).

Lessons Learned

A purported diagnosis or report of 'stress' is unlikely to constitute a compensable injury. Any psychological diagnosis needs to be underpinned by identifiable symptoms and 'stress' is insufficient for the purposes of establishing 'injury' pursuant to s5A of the SRC Act.

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