Sharrock and Comcare [2007] AATA 1260 (26 April 2007)

Last Updated: 1 May 2007

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1260

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2005/378

GENERAL ADMINISTRATIVE DIVISION		)
	Re		DAVID GLEN SHARROCK

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

J.W. Constance, Senior Member Dr M.D Miller AO, Member

Date 26 April 2007

Place Canberra

Decision

The decision under review, being the decision of Comcare made 14 November 2005, is affirmed.

..............................................
J.W Constance, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – Psychological injury – ‘Work-related stress, depression and anxiety- Comcare rejected liability for the claim - Whether psychological injury suffered as a result of emergency door failure – Whether reaction was outside the boundaries of normal behaviour

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14

Comcare v Mooi (1996) 69 FCR 439

Schultz v Comcare [1999] AATA 997

Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537

REASONS FOR DECISION

26 April 2007
J.W Constance, Senior Member
Dr M.D Miller AO, Member

INTRODUCTION

1. On 13 January 2005 Mr Sharrock was working in the carpenters’ workshop beneath the Australian National Gallery in Canberra. For a short period that morning he felt trapped in the workshop when there was a power failure throughout the entire building. Following this incident Mr Sharrock requested the management of the Gallery to address what he saw as the failure of locks on the workshop doors to function properly in an emergency. In his view management failed to understand the problem and failed to have regard for his safety and that of fellow workers.
2. Sometime after the incident Mr Sharrock lodged a claim for compensation in respect of an injury of “work related stress, depression and anxiety” which he claimed was caused by the incident and the manner in which management had dealt with his requests for rectification of the problem of the operation of the locks. Comcare has rejected liability to compensate Mr Sharrock in these circumstances. Mr Sharrock has sought a review of this decision.
3. For the reasons which follow the decision of Comcare will be affirmed.

EVIDENCE AND FINDINGS OF FACT

4. Unless otherwise stated, the following findings of fact are made on the basis of the evidence of Mr Sharrock. We are satisfied of the facts found on the balance of probabilities.
5. Since 1998 Mr Sharrock has been employed as a carpenter by the National Gallery of Australia. His work takes him throughout the Gallery although he is based in the carpenters’ workshop. Most of the workshop is below ground level. There are high windows near the ceiling in one wall.
6. In February 2003 Mr Sharrock suffered a generalised anxiety disorder which arose in the course of his employment. In his claim for compensation, he described the injury as “stress at work, depression, anxiety”. Mr Sharrock referred to a number of workplace stressors as having contributed to this injury, including threats of dismissal or redundancy made by management to staff, his “interrogation” by management and being made the subject of a “witch hunt” by management. Comcare accepted liability for the injury of generalised anxiety disorder.^[1]
7. In December 2003 Mr Sharrock made a claim for ‘depression, anxiety and insomnia” which he claimed arose from continuing interrogations and threats made by his employer. This claim was made for an aggravation of the previously accepted condition. Comcare again accepted liability to compensate Mr Sharrock, this time for “major depressive disorder, single episode.” ^[2]
8. On 13 January 2005 Mr Sharrock was alone in the workshop. Two other employees were in an adjacent office. The door between the two areas was closed. At approximately 8.00 am the power to the Gallery failed, the main lights went out and the emergency alarm sounded. Battery powered emergency lighting came on. Mr Sharrock attempted to leave the building as he was required to do in accordance with emergency procedures. The first door by which Mr Sharrock intended to leave would not open as it was controlled by a magnetic lock which would not release. He then tried the internal door to the office (which he knew had a separate exit to the main building) but this door was also secured by a magnetic lock which also failed to release. Mr Sharrock understood that this situation had been reported to management previously. Both doors were fitted with an emergency release requiring the breaking of a glass cover but Mr Sharrock did not seek to activate these devices. Mr Sharrock was uncertain whether the emergency release mechanisms would work but there is no evidence that they would not have released the doors had they been activated.
9. Mr Sharrock then walked up a ramp to a third door which was secured by a bar which required to be pushed downwards to open the door. Mr Sharrock did this but the door would not open more than about ten centimetres as items had been stacked outside it. He tried to squeeze through the opening but could not do so. The door had been blocked in this way previously and this situation had been reported to management also. As Mr Sharrock walked back to the first door, intending to break the glass to activate the emergency release, the power supply was restored and he was able to leave the workshop through the main exit by pressing the button and releasing the magnetic lock in the ordinary way. The three doors were about five to ten metres apart.
10. Later the same day Mr Sharrock completed and lodged with his employer a Health & Safety – Incident/Hazard Reporting Form. ^[3] In this form he reported the incident and that “our only way to get out is from the ramp door and this door is regually (sic) blocked by goods being left in front of it..........” He described the hazard as “Doors locking. Good (sic) left in front of doors.”
11. Between the time of the incident and the end of June 2005, a number of meetings were held between Mr Sharrock and various management staff of the Gallery in response to a request by Mr Sharrock to have the locks on the two doors altered so that they would automatically unlock in the event of a power failure. Numerous emails were exchanged in this process.^[4] The locks were altered to operate as Mr Sharrock requested but it was not until 28 June 2005 that the operation of the locks was tested in the manner requested by Mr Sharrock.^[5] This required the shutting off of the power supply to the whole building, as had occurred on 13 January 2005.
12. Mr Sharrock gave evidence that whilst he was in the workshop after the alarm went off he was in fear of being trapped and was shaking and nervous. He also said that he felt stressed on the day of the incident. Mr Sharrock gave evidence that these were the same feelings he experienced in relation to other incidents at work.
13. Mr Sharrock also gave evidence that the manner in which management dealt with his request that the door locks be altered and tested in a particular way made him feel that those responsible for the management of the Gallery were of the view that that the staff of the workshop were unimportant. He also said that:

”How I felt was two issues: one, they didn’t care and two, they didn’t understand either............Well, frustrated, you know, to the point that I put - under the internal door of the Gallery that leads up to the office, I actually put a wedge under that so that I knew that I could get out......” ^[6]

Later he stated that he felt “angry, agitated and frustrated” as a result of the manner in which management dealt with his requests.

14. In a letter dated 10 May 2005 ^[7], written to Comcare, Mr Sharrock stated that after 13 January 2005 he:

“felt more stressed about the door and the failure of the NGA complaint and reporting system to deal with it..........and as the problem wore on I had trouble sleeping, constant headaches and started fighting with my wife and family who have threatened to leave me again if these problems are not sorted out. I am unsociable, irritable and have no motivation.”

When he gave evidence Mr Sharrock did not describe symptoms of this severity.

15. Mr Sharrock gave evidence that, as a result of concern he felt whilst locked in the workshop, he made an appointment to see his psychologist, Mr Nomchong. He telephoned Mr Nomchong’s receptionist on the day of the incident and the appointment was made for 18 January 2005. Mr Nomchong had been treating Mr Sharrock since December 2003 for the anxiety and depression suffered by Mr Sharrock as a result of earlier incidents at work. We are not satisfied that Mr Sharrock made this appointment for the reason stated or that he sought any treatment from Mr Nomchong in relation to the incident itself. Mr Nomchong gave evidence, which we accept, that Mr Sharrock consulted him on 18 January 2005, 1 February 2005 and 22 February 2005, but that he did not become aware of the workshop incident until he was informed of it by Mr Sharrock’s Rehabilitation Case Manager on 15 March 2005. Mr Nomchong’s notes of the consultations in January and February 2005 show that Mr Sharrock’s wife attended the consultations with Mr Sharrock and there was discussion of her work situation. There is no record by Mr Nomchong of any discussion of the incident in the workshop during these consultations. As Mr Nomchong was treating Mr Sharrock for a mental condition arising from his employment by the Gallery, we are satisfied that Mr Nomchong would have recorded the incident in his notes of these consultations had he been informed of it by Mr Sharrock.
16. Mr Sharrock first consulted his general practitioner concerning the events of 13 January 2005 and the situation which developed subsequently on 15 March 2005. Mr Sharrock was absent from work from 15 March 2005 until 22 March 2005. Dr Somasundaram certified that Mr Sharrock was suffering “work related stress” during this period. ^[8]
17. Counsel for Comcare challenged Mr Sharrock’s account of what happened in the workshop and suggested that he did not remain in the workshop for as long as he claimed and that he did not make an effort to contact other persons who were, or may have been, in the workshop office or outside the door which he claimed was blocked. Counsel also questioned Mr Sharrock as to why he did not activate the emergency lock release as soon as he determined that the first door was locked. For the reasons which follow it is not necessary that we make a final determination as to what actually happened while Mr Sharrock was in the workshop. It is not in dispute that at least for a short period two of the three means of leaving the workshop were locked and it would have been necessary to employ the emergency procedure to unlock the doors. We also note that in an Action Checklist dated 14 January 2005 ^[9] it is recorded that “material [was] removed from outside door.”
18. Counsel also challenged the truthfulness of Mr Sharrock’s description of his feelings whilst he was in the workshop and afterwards. It was put to Mr Sharrock that he did not feel trapped nor did he fear for his safety. It was also put to him that he did not suffer an injury as a result of the incident and its aftermath and that his motivation in claiming compensation was to further an industrial campaign against his employer. Mr Sharrock denied these propositions.
19. Again, for the reasons which follow we do not have to determine the precise nature of the symptoms experienced by Mr Sharrock. Even if we were to find that he experienced all of the feelings and symptoms he has described as a consequence of the series of events involving the doors, we are not satisfied that he suffered an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988.

CONTENTIONS ON BEHALF OF MR SHARROCK

20. At the commencement of the hearing we asked Counsel for Mr Sharrock to clarify the claim being made. In response we were informed that Mr Sharrock claims to have suffered a compensable injury, being either an aggravation of his previously accepted injury of anxiety and depression or, in the alternative, a new injury of anxiety and depression. The condition (whether it be an aggravation or a new injury) is claimed to have been contributed to in a material degree by his employment, specifically the incident of being trapped in the workshop on 13 January 2005 and the manner in which the employer dealt with Mr Sharrock’s request that the locking system be altered.
    

ISSUE FOR DETERMINATION

21. The issue for determination is whether Mr Sharrock has suffered from an “injury” within the meaning of the Act

APPLICABLE LAW

22. Subsection 14(1) of the Act provides:

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

23. The relevant part of the definition of “injury” ^[10] provides:

“(a) a disease suffered by an employee......

......but does not include any such disease, injury or aggravation suffered by an employee as a result...failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment......”

24. “Disease” is defined to mean:

“ (a) any ailment suffered by an employee; or

(b) the aggravation of any such ailment;

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

25. “Aggravation” is defined to include “acceleration or recurrence.”
26. The parties have agreed that the condition of anxiety and depression is properly classed as a “disease” within the meaning of the Act. We agree that this is the appropriate manner in which the condition claimed by Mr Sharrock should be treated.
27. In the frequently cited decision of the Federal Court in Comcare v Mooi (1996) 69 FCR 439 at 443-5, Drummond J. said:

“...... in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to "injuries" compensable under s14 (1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, i.e., abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensable under s14 (1)."

28. There is no doubt that, in appropriate circumstances, anxiety and depression can amount to an injury within the meaning of the Act: Schultz v Comcare [1999] AATA 997.
29. As to the meaning of “aggravation”, in the sense used in workers’ compensation legislation, it includes the making worse of an existing disease: Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537 at 593.

MEDICAL EVIDENCE

30. Dr Somasundaram has been Mr Sharrock’s general practitioner since 1989. He first diagnosed Mr Sharrock as suffering from anxiety and depression in 2003. He treated him by counselling, the occasional prescription of sleeping pills and by providing some samples of antidepressant tablets. Mr Sharrock told Dr Somasundaram that his anxiety was being caused by his situation at work.
31. Mr Sharrock consulted Dr Somasundaram on 15 March 2005. His previous consultation was in December 2004. Dr Somasundaram’s evidence in relation to the March 2005 consultation was as follows:

“Q. Do you have any record of why Mr Sharrock consulted you?

A. Yes. He’d come to me saying that again the problem at work is continuing and he was very angry, unable to sleep, poor concentration and that he wanted to take some time off presumably. I haven’t got a record of the nature of certificate I gave him.

Q. Do you have a record of your diagnosis?

A. It’s the same diagnosis, you, know, essentially an ongoing condition which was aggravated from incidents at work......At the time he didn’t mention anything specifically, but it was all the same. Leigh Nomchong, the psychologist, he told me that he has been seeing (him) on a regular basis in relation to the incidents happening at work.

Q. And did you prescribe him any particular form of treatment on the 15^th?

A. Yes, I did. I gave him some samples, some antidepressant tablets called Avanza.^[11]

32. The certificate issued by Dr Somasundaram indicating that Mr Sharrock was unfit for work from 15 March 2005 until 22 March 2005 stated that the injury from which Mr Sharrock suffered was “work related stress” and that there was a pre-existing or contributing factor of “depression/anxiety”.^[12]
33. In a report to Comcare on 4 July 2005, Dr Somasundaram stated that he had been seeing Mr Sharrock on a regular basis since 8 April 2004 and that “he had been suffered [sic] from ongoing stress, depression, anxiety, poor sleep and irritability as a result of the ongoing stress from his work place...........I don’t believe that he needs any medical therapy other than the occasional sleeping pill.” Dr Somasundaram listed eleven consultations with Mr Sharrock concerning this condition but did not refer to the consultation of 15 March 2005. This may have been an oversight.
34. Mr Nomchong, Consultant Psychologist, has been treating Mr Sharrock for depression since December 2003 ^[13]. In the opinion of Mr Nomchong this depression has arisen from “difficulties with his employer and the management practises [sic] that they were undertaking with him and other members of staff........” ^[14]. Earlier in these reasons we have set out details of the consultations between Mr Sharrock and Mr Nonchong in January and February 2005, and that Mr Nomchong was not informed by Mr Sharrock of the January incident or its aftermath during these consultations. When Mr Nomchong reported to Comcare on 14 June 2005 ^[15] he stated that Mr Sharrock continued to suffer the symptoms he (Mr Nomchong) had reported previously but their intensity had reduced. Mr Nomchong did not refer specifically to the incident on 15 January 2005 or its aftermath in his report.
35. When asked by Counsel for Comcare whether there was any particular change in Mr Sharrock’s presentation to him on the visits of 18 January 2005 through to 12 April 2005, Mr Nomchong replied:

“No significant change. Again, alienated from the gallery and annoyed with this whole process with Comcare, with workers compensation, with management, the whole process." ^[16]

In giving evidence Mr Nomchong said that the workshop incident caused Mr Sharrock to feel trapped and that as Mr Sharrock felt this was caused by the incompetence of management he felt “irritation and upset.”^[17] When asked as to his view as to whether Mr Sharrock had suffered a specific reaction to being trapped, Mr Nomchong said that Mr Sharrock became fixated by the issue, became “annoyed and upset and irritated” ^[18] and was “frustrated and disappointed” by the failure to test the doors in the manner he felt it should have been done.^[19]

36. Ms Wilson, Psychologist, was Mr Sharrock’s Rehabilitation Case Manager in 2005. In a letter dated 8 September 2005 ^[20]and forwarded to Mr Sharrock, Ms Wilson records that she had been told by Mr Sharrock that since April 2005 he had been taking intermittent days off work due to lack of sleep. She expressed the opinion that “this anxiety was clearly related to the issues going on regarding the workshop doors.” However in a Rehabilitation Progress Report of 21 July 2005,^[21] Ms Wilson reported that “Mr Sharrock stated that the lack of sleep was due to worrying about work related issues” (emphasis added).
    

DETERMINATION OF THE ISSUE

37. We are not satisfied on the balance of probabilities that Mr Sharrock suffered any condition “outside the boundaries of normal mental functioning and behaviour” ^[22] as a result of the incident of 15 January 2005 and/or the manner in which his employer dealt with his complaint in regard to the operation of the doors. This means that we are not satisfied that Mr Sharrock suffered an injury within the meaning of subsection 14(1) of the Act.
38. Dr Somasundaram was not informed of the specific nature of the incident when consulted by Mr Sharrock on 15 March 2005 and his certificate of that date referred to Mr Sharrock as suffering from “workplace stress.” We are of the view that Dr Somasundaram was not in a position to make a diagnosis of depression or an aggravation of existing depression on the basis of the information before him and in fact, does not appear to have done so. The reaction to the incident and the subsequent actions of the employer described by Mr Nomchong are all within the boundaries of normal functioning and do not amount to a description of a disease or the aggravation of a disease within the meaning of the Act.
39. Whilst Ms Wilson refers to Mr Sharrock having experienced “anxiety” related to the issue of the workshop doors, she was not called to give evidence and Counsel for Mr Sharrock did not seek to rely on her evidence. In any event Ms Wilson does not appear to have carried out an assessment of Mr Sharrock’s medical condition at the time and simply relied upon what Mr Sharrock had told her. We are not satisfied that the condition briefly referred to by her amounted to a medical condition of anxiety beyond the boundaries of normal mental functioning.

FURTHER EVIDENCE AND ISSUES RAISED IN ARGUMENT

40. Considerable time during the hearing was devoted to evidence as to whether or not Mr Sharrock abused alcohol at any time relevant to the determination of the issue before us. This arose from the evidence of Dr George, Consultant Psychiatrist. Dr George examined Mr Sharrock on behalf of Comcare on 13 July 2005. In his report of 20 July 2005, ^[23] Dr George expressed the opinion that Mr Sharrock had suffered from an underlying condition of alcohol abuse for the previous twelve months and that this may have been associated with depression. In the opinion of Dr George the condition of alcohol abuse was the “predominant” medical condition suffered by Mr Sharrock at the time of his assessment. Dr George gave evidence and confirmed his opinion.
41. Both Dr Somasundaram and Mr Nomchong disagreed with the opinion expressed by Dr George. Mr Sharrock gave evidence that he did not consume alcohol to the extent referred to by Dr George and that Dr George had made errors in recording the history Mr Sharrock had given to him and upon which he had based his opinion
42. In light of our findings already set out it is unnecessary that we determine the issue as to whether Mr Sharrock does suffer, or has ever suffered from alcohol abuse. Suffice to say that this was a very contentious issue.
43. Comcare also argued that even if Mr Sharrock;’s condition was a ‘disease” within the definition of the Act it was not an ”injury” as defined, as it was suffered as a result of his failure to obtain a benefit in connection with his employment. The “benefit” upon which Comcare relied was argued to be the failure to have the doors tested in the manner he wished. To be successful this argument would require a broad interpretation of the word “benefit” but, in view of our findings, it is not an argument upon which we need to decide.

DECISION

44. The decision under review, being the decision of Comcare made 14 November 2005, is affirmed.
    

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

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

Geoff Foley, Associate

Date/s of Hearing 10-12 April 2007

Date of Decision 26 April 2007

Counsel for the Applicant Clare Besemeres

Solicitor for the Applicant Pamela Coward & Associates

Counsel for the Respondent Lorraine Walker

Solicitor for the Respondent Dibbs Abbott Stillman

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^[1] Ex.A5.
^[2] Ex.R5.
^[3] T15l.
^[4] T9a and T29.
^[5] T29 p-115.
^[6] Oral evidence, 10/4/2007
^[7] Ex.A3 p.50
^[8] Ex.A3 p.16.
^[9] Ex.A3 p.131.
^[10] Subsection 4(1).
^[11] Oral evidence, 10/4/2007
^[12] Ex.A3 p.16.
^[13] Ex.A4.
^[14] Oral evidence, 11.4.07
^[15] Ex. A3 p.101.
^[16] Oral evidence, 11.4.07.
^[17] Transcript 11.4.07.
^[18] Transcript 11.4.07.
^[19] Transcript 11.4.07.
^[20] Ex.A3 p.236.
^[21] Ex.A3 p.247.
^[22] Comcare v Mooi ibid.
^[23] Ex.A3 p-178.