Adam and Comcare (Compensation) - [2017] AATA 1507

Adam and Comcare (Compensation) [2017] AATA 1507 (15 September 2017)
Division:GENERAL DIVISION
File number: 2016/0392
Rowena Adam
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr James Popple, Senior Member
Date:15 September 2017
Place:Canberra

Comcare’s decision on 9 December 2015 is affirmed.
........................................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — Applicant suffered psychological condition as result of e-mail from supervisor and discussion with second-level supervisor — whether e-mail and discussion were reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment — decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14

CASES
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Domburg v Nurses Board of Victoria [2000] VSC 369
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Lim v Comcare (2017) 154 ALD 413
Magro and Comcare [2013] AATA 938
Radulovic and Comcare (2010) 120 ALD 311

REASONS FOR DECISION
Dr James Popple, Senior Member
15 September 2017
Summary

The applicant worked for the Department of Defence (the Department). She was responsible for performing a particular task. Her first-level supervisor sent her an e-mail, confirming a deadline for the applicant to complete the task. But, in the e-mail, the first-level supervisor also explained why she was not satisfied with the progress that the applicant had made on the task, and made suggestions about how the applicant could undertake such tasks in future. The next day, the applicant had a discussion with her second-level supervisor. During that discussion, her second-level supervisor confirmed the deadline. He also raised concerns about the applicant’s performance, and made suggestions about how the applicant could improve her performance.
Comcare concedes that the applicant suffered a psychological condition which was contributed to, to a significant degree, by her employment by the Department. And Comcare concedes that her condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
The applicant says that her disease was caused by the imposition of the deadline. Comcare says that the disease was caused by the e-mail that the applicant’s first-level supervisor sent her, and by the discussion that the applicant had with her second-level supervisor.
The deadline, the e-mail and the discussion were all causes of the applicant’s disease. The applicant would not have suffered her disease if she had not received the e-mail or not participated in the discussion. The e-mail and the discussion were both reasonable informal counselling actions taken in respect of the applicant’s employment with the Department. Each was reasonable administrative action taken in a reasonable manner for the purposes of s 5A of the SRC Act. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.
Background
Mrs Rowena Adam…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adam and Comcare (Compensation)

Details

AGLC: Adam and Comcare (Compensation) [2017] AATA 1507
Case: [2017] AATA 1507
Decision Date: 15 September 2017

CaseChat Overview and Summary

This matter concerned an application by Mrs Rowena Adam for a review of Comcare's decision to deny her claim for workers' compensation. Mrs Adam, an employee of the Department, claimed to have suffered a psychological condition, described as anxiety, which she attributed to interactions with her supervisors, including an email and a discussion. Comcare conceded that Mrs Adam's condition was significantly contributed to by her employment but argued that it arose from reasonable administrative action taken in a reasonable manner, thereby excluding it from compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act).

The central legal issue before the Tribunal was whether Mrs Adam's psychological condition constituted an "injury" as defined by section 5A of the SRC Act. Specifically, the Tribunal had to determine if the condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of Mrs Adam's employment. If this condition was met, Comcare would not be liable to pay compensation.

The Tribunal found that the email from Mrs Adam's supervisor and a subsequent discussion with a second-level supervisor were both reasonable informal counselling actions taken in respect of her employment. Applying section 5A(1) of the SRC Act, the Tribunal concluded that these actions constituted reasonable administrative action taken in a reasonable manner. Consequently, Mrs Adam's psychological condition, which was caused by these actions, was excluded from the definition of "injury" under the Act.

Accordingly, the Tribunal affirmed Comcare's decision that it was not liable to pay compensation to Mrs Adam.

Orders

Orders of the court

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Background

Background to the litigation

The deadline, the e-mail and the discussion were all causes of the applicant’s disease. The applicant would not have suffered her disease if she had not received the e-mail or not participated in the discussion. The e-mail and the discussion were both reasonable informal counselling actions taken in respect of the applicant’s employment with the Department. Each was reasonable administrative action taken in a reasonable manner for the purposes of s 5A of the SRC Act. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.Background Mrs Rowena Adam was, and is, employed by the Department. On 21 July 2015, she made a claim for workers’ compensation.[1] She claimed that she had suffered anxiety, which had been caused by “[m]eetings, emails and tasking directions from first and second level supervisors”.[1] Mrs Adam completed the first part of the claim form on 26 June 2015. It would appear that she provided the claim form to the Department on 20 July, and that the Department completed the second part, and forwarded the form to Comcare on 21 July 2015. On 18 September 2015, Comcare denied her claim. Comcare agreed that Mrs Adam suffered a psychological condition which was significantly contributed to by her employment. But Comcare said that her condition had arisen as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Accordingly, Comcare said, it was not liable to pay her compensation. On 16 October 2015, Mrs Adam requested a reconsideration of that determination. On 9 December 2015, Comcare affirmed its determination. On 26 January 2016, Mrs Adam applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 9 December 2015 affirming its determination that Comcare is not liable to pay compensation to Mrs Adam.Issue Comcare concedes that Mrs Adam suffered a psychological condition which was contributed to, to a significant degree, by her employment by the Department. That means that her condition is a “disease” as defined in s 5B of the SRC Act.[2][2] Mrs Adam called her condition “anxiety”; Comcare called it “adjustment reaction with anxious mood”. Nothing turns on this. Under s 14 of the SRC Act, 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. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. The issue in this review is whether Mrs Adam’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14.People involved

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 26 January 2016, Mrs Adam applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 9 December 2015 affirming its determination that Comcare is not liable to pay compensation to Mrs Adam.Issue Comcare concedes that Mrs Adam suffered a psychological condition which was contributed to, to a significant degree, by her employment by the Department. That means that her condition is a “disease” as defined in s 5B of the SRC Act.[2][2] Mrs Adam called her condition “anxiety”; Comcare called it “adjustment reaction with anxious mood”. Nothing turns on this. Under s 14 of the SRC Act, 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. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. The issue in this review is whether Mrs Adam’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14.People involved Three people were involved in the events relevant to this review:·Mrs Adam who was, at the time, a contracting officer in the Procurement and Contracting Support Branch of the Department (the Branch);·Ms Jade Nguyen who was a senior contracting officer in the Branch and Mrs Adam’s supervisor; and·Mr Nicholas Plowman who was a chief contracting officer in the Branch and Ms Nguyen’s supervisor.All three provided statements, and gave evidence at the hearing.Agreed facts I make the findings set out in [15]–[35] below, on the balance of probabilities. These findings are based on the evidence before me, especially the statements made by the people listed at [13] above, and by Mrs Adam’s husband (Christopher), and evidence that they gave at the hearing. These findings are generally agreed between the parties. The Branch provided assistance, on the contracting component of tenders, to areas of the Department involved in tendering. Other areas of the Department also had responsibilities relating to the review and evaluation of responses to tenders, with particular regard to (for example) financial or engineering issues. In 2014 and 2015, the Department conducted a tender for “wideband satellite support” (the WSS tender). The WSS tender was managed by a collection of staff of the Department, referred to (within the Branch, at least) as “the Project”. The Project included an evaluation committee.[3][3] It is not clear to me, but it may be that the Project comprised the evaluation committee. Within the Branch, Mrs Adam was generally responsible for tenders relating to satellite communications. She was involved in the development of the request for tender for the WSS tender. The Branch was responsible for providing assistance to the Project on the contracting component of the evaluation of the responses to the WSS tender (the WSS evaluation).

Ratio Decidendi

Legal Principle Established

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