Worker successfully appeals and secures right to seek compensation for a stress related disease Worker successfully appeals and secures right to seek compensation for a stress related disease

Worker successfully appeals and secures right to seek compensation for a stress related disease

26 February 2020 | Workers' Compensation

A worker was stood down on 6 March 2018. He did not return to work, and sought compensation for a stress related condition. The employer denied that the worker suffered a stress related condition and also denied liability on the basis that the stress related disease arose from an excluded matter, being a matter of discipline under s5(4) of the the Act.

In issue

The decision considers whether the worker suffered a stress related disease. The issue as to whether the worker is not entitled to compensation by virtue of s5(4) of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act) has not been determined.

The background

The worker was employed by Swan Transit as a bus driver since 2008. Swan Transit had a Fatigue Management Policy (FMP) to which the worker was required to adhere as a term of his employment. It provided that there should be a minimum of 10 hours of non-work time between shifts. In or about February 2018, Swan Transit amended the FMP to reduce the minimum hours of non-work time between shifts to eight hours for workers who volunteered for special event shifts.

Over a period of about one month prior to 6 March 2018, the worker raised numerous questions and concerns as to whether the amended FMP contravened the enterprise agreement. Despite the answers and explanations provided to him, he refused to sign the policy. Swan Transit required that all employees sign the amended FMP and most had done so. None had taken issue with it.

At a meeting with management personnel on 6 March 2018, the worker was told that he would be stood down if he did not sign the amended FMP. Following the meeting, he did not complete his work shift and he did not return to work.

Over a period of eight months from 8 March 2018 to 21 November 2018, the worker was seen by five medical practitioners at Mead Medical, a general practice, each of whom certified him either totally or partially incapacitated for work as a bus driver by reason of his reported symptoms of stress, anxiety and depression. These symptoms - labelled in some certificates as reactive stress and anxiety - were ultimately diagnosed as an adjustment disorder with mixed anxiety and depression. This disorder was described by Dr William Babe in his report of 21 November 2018 as an 'ongoing depressive illness with anxiety-type symptoms and a near phobic type reaction to returning to work'.

The worker claimed workers' compensation on the basis that he was unable to work as a bus driver due to a disease in the form of an adjustment disorder precipitated by the work incident. Swan Transit disputed liability. Swan Transit did not rely on any medical evidence. The claim proceeded to arbitration.

The worker's position was that his condition was a disease in the form of a mental disorder. He did not dispute that it was stress-related, and that it arose from an excluded matter, being a matter of discipline. The real issue from his point of view, was whether the employer's actions in relation to that matter were harsh and unreasonable.

The decision at arbitration

The Arbitrator was not satisfied that the worker had contracted a disease, as described in paragraph (c) of the definition of 'injury'. The Arbitrator's conclusions were that there was 'insufficient evidence' to establish on the balance of probabilities that the worker was suffering from a disease, namely an adjustment disorder with mixed anxiety and depression and, in any event, that if he were suffering such a disease there was 'insufficient evidence' to establish on the balance of probabilities that his employment was a contributing factor and contributed to a significant degree.

Not being satisfied that the worker had suffered an injury, or that if he did, his employment was a contributing factor, the Arbitrator made no provisional rulings on the operation of s5(4) of the Act.

The decision on appeal

The worker appealed. On appeal, the Judge applied the test in Comcare v Mooi, being that in order to establish that the worker had a disease, that he had to establish the existence of 'a mental ailment, disorder, defect or morbid condition' and in doing so, also had to demonstrate that he had sustained a condition that was 'outside the boundaries of normal mental functioning and behaviour'.

The Judge found that the test was clearly capable of being satisfied on the medical evidence and that of the worker. The Arbitrator was not required to identify 'a recognised psychiatric disorder'. It was sufficient in the circumstances of this case to find that the worker had suffered a disease (which includes a mental ailment) described as 'stress and anxiety' which was well 'outside the boundaries of his normal mental functioning and behaviour'.

The Judge also noted a critical error, being that there was no reason for the Arbitrator, having accepted the worker's evidence, to reject the documentary evidence of five medical practitioners in the form of their clinical records and certificates (and in the case of Dr Babe, his report) to the effect that the worker had presented repeatedly with psychological symptoms that were indicative of stress and anxiety that related to the work incident, that incapacitated him for work as a bus driver and that could be diagnosed as an adjustment disorder for the purposes of DSM-5.

The Judge held that an adjustment disorder is by definition 'the development of emotional or behavioural symptoms in response to an identifiable stressor occurring within three months of its onset'. The characterisation of the worker's symptoms by reference to that diagnostic label is, consistent with the diagnosis of 'reactive stress and anxiety' expressed by other doctors at Mead Medical who saw the worker. As a matter of fact, therefore, there was no necessary inconsistency between the diagnoses entered on the various certificates of capacity, and certainly none that would justify the finding of the Arbitrator that the medical evidence did not establish a disease in the form of a mental ailment or disorder.

In summary, the question for the Arbitrator was, whether irrespective of what diagnostic label might be given to it, was the worker's symptomatic condition outside the boundaries of normal mental functioning and behaviour. Applying the proper test, the Arbitrator could only have concluded that the worker did suffer a disease for the purposes of s5(1).

Leave to appeal was granted and the appeal was allowed. The Arbitrator’s findings that the worker did not suffer from a disease in the form of a mental ailment or disorder and, that if he did, his employment did not contribute to it to a significant degree are set aside. The matter was remitted for re-hearing by another Arbitrator in accordance with the reasons.

Implications for you

The decision highlights the low burden for establishing that an injured worker suffered a stress related disease.

Fawkes v Swan Transit Services Pty Ltd [2019] WADC 168

Author

Colby Treasure

Colby Treasure

Principal