Tribunal finds employee's 10-year depression not 'permanent impairment'

In a recent case, the Administrative Appeals Tribunal considered whether a former employee was still liable to receive compensation for a psychological condition she developed after she was subjected to sexual harassment in 2008. Ultimately, the Tribunal sided with the evidence of a consultant psychiatrist, who found that the worker’s employment no longer contributed materially to her current symptoms. With this, it upheld Comcare’s decision to cease compensation.

Michelle Bell commenced employment as a customer services officer with the Department of Human Services in February 2007. In 2009, she lodged a claim for compensation in respect of “anxiety disorder/depression”. Bell stated her injury was caused by sexual harassment by a colleague the previous year.

In 2010, the Tribunal found that Comcare was liable to pay compensation to Bell for “major depressive disorder and panic disorder”, citing the date of the injury as 18 December 2008. Bell subsequently resigned from her employment at the Department.

In September 2018, Bell submitted a claim for permanent impairment and non-economic loss stemming from her 2008 injury. Comcare denied liability, and Bell sought review of its decision from the Tribunal.

The Hearing

The Tribunal considered whether Bell was entitled to continue to receive compensation in respect of her 2008 injury. Bell relied on evidence from a clinical psychologist, Barbara Anderson, who opined that she continues to experience impaired functioning due to the harassment. However, during the hearing, Anderson conceded that she was not provided with Bell’s medical records and confirmed that she did not have the accreditation to make formal workplace assessments.

Conversely, Comcare relied on the evidence from consultant psychiatrist Dr Riccardo Caniato. Dr Caniato concluded that multiple other “significant and severe stressors” contributed to Bell’s current symptoms, which included her separation from her children’s father in 2014 and the prolonged period where custody arrangements were unresolved. With this, Dr Caniato concluded that Bell’s previous employment no longer contributed to her current symptoms or issues.

Judgment

The Tribunal ultimately preferred the opinion of Dr Caniato over that of Anderson. It found that the “series of non-work related factors had the effect of pushing the employment factor further and further into the background.” The Tribunal also noted that, between May 2016 and when Bell lodged her compensation claim, she reported high functioning levels and a significant lessening of symptoms.

With this, the Tribunal affirmed Comcare’s refusal to pay compensation. 

Key Takeaways

• Where an employee continues to receive workers’ compensation, it must be shown that the employment contributes to the injury on an ongoing basis
• The Tribunal will have regard to both work- and non-work-related factors when considering an employee’s ongoing injury
• Where a worker’s employment no longer contributes to their current injury, they may stop receiving compensation, even where the injury is still present