Andrew Turkington and Comcare

Case [2014] AATA 616

[2014] AATA 616  

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2014/0043

Re

Andrew Turkington

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr R G Kenny, Senior Member
Date 1 September 2014
Place Brisbane

The Tribunal affirms the decision under review.

..............................[Sgd]..........................................

Mr R G Kenny, Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Claim for psychiatric injury – Diagnosis of adjustment disorder with depressive reaction – Significant contribution by aspects of employment - Contribution resulted from reasonable administrative action taken in a reasonable manner –No liability of respondent for compensation for incapacity or impairment – Decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 7, 14

CASES

Comcare v Martinez (2013) 137 ALD 481

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Georges and Telstra Corporation Ltd [2009] AATA 731
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Hay v Comcare [2014] AATA 325
Perera v Comcare [2013] AATA 589
Pettiford v Comcare [2014] AATA 95
Radulovic and Comcare [2010] AATA 777
Yu v Compare [2010] AATA 960

REASONS FOR DECISION

Mr R G Kenny, Senior Member

1 September 2014

BACKGROUND

  1. On 15 July 2011, Andrew Turkington (“the applicant”) completed a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for rehabilitation and compensation in respect of “psychological injury”. He claimed that this resulted from a telephone call he received from his director at approximately 11.45am on 10 December 2010 while they worked with the Australia Taxation Office (“ATO”). He alleged that the director raised an “imputation in [a] phone call that [he] was not competent in his job and had overly personalised performance management of a staff member”.


    On 16 August 2013, Comcare entered the diagnosis of “adjustment reaction with depressive reaction”[1] and dismissed the applicant’s claim. It did so after determining that the applicant’s employment contributed to the condition but that liability did not arise under the Act because the condition resulted from reasonable administrative action that was taken by the ATO in a reasonable manner as provided for in s 5A of the Act. That determination was affirmed by a Senior Review Officer from Comcare in a reviewable decision dated 4 November 2013.

    [1] The determination and the reviewable decision have described the condition as “adjustment reaction with depressive reaction” whereas the diagnosis would seem to be “adjustment disorder with depressive reaction”.

    ISSUES AND LEGISLATION

  2. The definitions of “injury” and “disease”, respectively, in ss 5A and 5B of the Act, read:

    5A       Definition of injury

    (1)       In this Act:

    “injury” means:

    (a)       a disease suffered by an employee; or

    (b)       an injury (other than a disease) suffered by an employee, that is   a physical or mental injury arising out of, or in the course of, the   employee’s employment; or

    (c)       an aggravation of a physical or mental injury (other than a   disease) suffered by an employee (whether or not that injury   arose out of, or in the course of, the employee’s employment),   that is…

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Andrew Turkington and Comcare [2014] AATA 616
Case
[2014] AATA 616
Decision Date

CaseChat Overview and Summary

The case of Andrew Turkington and Comcare involves a claim for psychiatric injury by the applicant, Andrew Turkington, against the respondent, Comcare, relating to his employment with the Australian Taxation Office (ATO). Turkington alleged that his psychiatric condition, specifically an adjustment disorder with depressive reaction, was significantly contributed to by reasonable administrative action taken in a reasonable manner regarding his employment. The primary issue for the court was to determine the onset date of Turkington's psychiatric condition and whether the administrative action taken by his superiors constituted a significant contributing factor to his condition.

The court examined the events leading up to Turkington's psychiatric condition, focusing on a phone call he received from his manager, Mr. Unwin, during a Christmas party in December 2010. The call informed Turkington of a transfer of a team member, S, out of his team, a decision made by Mr. Roache. This notification came as a shock to Turkington, who had been managing S's performance and had raised concerns about S's health and performance. Turkington argued that Mr. Unwin's failure to consider his earlier stress and to comply with ATO guidelines on managing illness and injury in the workplace rendered the administrative action unreasonable. Turkington sought to establish that the administrative action significantly contributed to his psychiatric condition, thereby entitling him to compensation under the relevant legislation.

In its reasoning, the court concluded that the phone call by Mr. Unwin was indeed reasonable administrative action taken in a reasonable manner. The court found that Turkington's psychiatric condition was sustained on 15 December 2010, when he first sought medical treatment and was prescribed Diazepam by his GP. The court held that the phone call made a significant contribution to the development of Turkington's adjustment disorder, as it was "more than material" according to the statutory definition. Given that the administrative action was reasonable, the court found that Turkington could not rely on it to establish liability for compensation under the Act, affirming the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The first issue for determination is the date of the applicant’s injury. The further issue is whether the applicant’s psychiatric condition developed as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.EVIDENCEThe applicant In December 2012, the applicant was a team leader in the Small and Medium Enterprises (“S&ME”) area of the ATO. He was appointed to that position in January 2010. In the hierarchy above him were Mr Cameron Unwin and Mr John Roache. Mr Unwin was the General Compliance Regional Director, to whom the applicant reported. Mr Roache was the Senior Director, to whom Mr Unwin reported. One of the concerns that the applicant had from about July 2010 was in relation to a member of his team, S, whom he was performance managing. The applicant was concerned about S’s health and recommended to S that he undergo an Initial Needs Assessment. S refused to do so unless a Performance Management Procedure was formally commenced. The applicant said that S had complained to Mr Unwin about him and had requested Mr Unwin to allow him to transfer from the applicant’s team. This reallocation was denied and the applicant said that he was supported in his actions by Mr Unwin and Mr Roache. The applicant said that, in August 2010, he advised Mr Unwin that he was feeling stressed with the ongoing performance management of S but that Mr Unwin took no action at that time. The afternoon of Friday 10 December 2010 was the occasion of the S&ME area’s Christmas party in a city hotel. At about 11.30 am, the applicant left his work area, which was an open plan setting, to attend the function. About 20 minutes after he arrived at the venue, he received a call on his work-supplied mobile phone from Mr Unwin. The call lasted about 10 minutes. The applicant has only a vague memory of the conversation except for his recollection that he “quickly became angry and agitated” and the primary message from Mr Unwin. This was that S had been to see Mr Roache requesting a transfer out of the applicant’s team; that, because of S’s distressed state at the time, Mr Roache had directed that the transfer occur; that Mr Roache required Mr Unwin to find a new placement for S; and that Mr Unwin was to advise the applicant, accordingly. This notification by phone of the transfer shocked and angered the applicant though he believed that Mr Unwin had remained calm during the conversation. The applicant remained at the function for about 1½ hours and then left for the afternoon on flex-time which had been previously arranged. He said that both Mr Unwin and Mr Roache attended the party but did not speak to him about S’s transfer. After the weekend, on 15 December 2010, the applicant consulted Dr Wagon. He advised Dr Wagon of the recent workplace events and the effects it had upon him. Dr Wagon prescribed Diazepam and arranged, for 17 December 2010, a long appointment with the applicant. Dr Wagon completed a medical certificate excusing the applicant from work until 3 January 2011. The applicant again saw Dr Wagon on 5 January 2011 and on 25 January 2011 when Dr Wagon provided him with a medical certificate excusing him from work until 18 February 2011. The applicant took that certificate to Mr Unwin without giving any explanation of it. Mr Unwin signed it without comment and then the applicant took sick leave. He returned to work on 19 February 2011 and had periods of sick leave until he took extended leave until January 2013. On return, he accepted the position of an operative though he retained his earlier team leader standing and salary.

Decision

Reasons for decision

I am satisfied that the phone call by Mr Unwin was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment.[18] Accordingly, because of the exclusionary terms of s 5A(1) of the Act, any contribution to the applicant’s depression by that administrative action cannot be relied upon to establish liability under the Act.[19] [18] In so determining, I have considered the authorities referred to by the parties. [19] See Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

The applicant also submitted that the action taken by Mr Unwin was not reasonable. He submitted that Mr Unwin was aware that he had been suffering from stress earlier in 2010 and submitted that this should have been taken into account by Mr Unwin before he advised him of Mr Roache’s concerns about his performance. The applicant submitted that this was required by the ATO guides entitled “Addressing underperformance - a guide for managers and employees” and “Managing illness and injury in the workplace CMPI 2006/10/01”. He submitted that before Mr Unwin raised those concerns, the applicant should have been referred for a health assessment to determine his fitness for duty via an INA. The applicant also submitted that failure to comply with the ATO guides was unlawful and that any unlawful conduct could not be reasonable. He referred to the following authorities to support his contentions: Commonwealth Bank of Australia v Reeve[8]; Hay v Comcare[9], Yu v Comcare[10]; and Georges v Telstra Corporation[11], Pettiford v Comcare[12], and Perera v Comcare.[13][8] [2012] FCAFC 21.[9] [2014] AATA 325 at [38].[10] [2010] AATA 960 at [3] and [4].[11] [2009] AATA 31.[12] [2014] AATA 95.[13] [2013] AATA 589.CONSIDERATION The first issue for determination is the date of the onset of the applicant’s psychiatric condition. In the decision under review, 25 January 2011 was found to be when the applicant first sought medical treatment and was given time off work by Dr Wagon. However, on 15 December 2010, Dr Wagon referred to anxiety/depression and, significantly, prescribed Diazepam for the applicant. That treatment does not appear in the GP’s clinical notes before then and the applicant continued with Diazepam into 2011. I am satisfied that, in accordance with s 7(4)(a) of the Act, the applicant sought, and obtained, medical treatment on 15 December 2010 and that his psychiatric condition is taken to have been sustained by him on that date. That is consistent with the evidence of Dr Robertson and Dr Morris. As I read Dr Klug’s report, he attributed the initial onset of the applicant’s psychiatric condition to the incidents in late 2010 or early 2011, and that he had an exacerbation of this in 2013 but that there was no aggravation, acceleration or recurrence or of any condition that pre-existed the onset in 2010/early 2011. Ms Henderson conceded that the phone call to the applicant on 10 December 2010 made a significant contribution to the applicant’s psychiatric condition. While the applicant conceded that the phone call contributed to his condition, he submitted that it did not do so significantly. The Act requires that, for contribution to be significant, it must be “more than material”.[14] The applicant has placed reliance on a range of events that occurred in the workplace in and after January 2011. These post-date the onset of the applicant’s claimed condition and cannot be considered to have made any contribution to it. On the other hand, apart from a reference almost 12 months earlier, the clinical notes of the applicant’s GP do not refer to any psychiatric concerns before 10 December 2010. From and including the notes on 15 December 2010, psychiatric concerns dominate those notes and treatment commenced and was continued. I am satisfied that, consistent with the psychiatric opinions in this matter, the phone call made a contribution which was more than material to the development of the applicant’s adjustment disorder. [14] See s 5B(3) of the Act.