Annie Casey and Comcare - [2014] AATA 649

[2014] AATA 649

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/2001

Re

Annie Casey

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton

Date 5 September 2014

Place Sydney
The Tribunal sets aside the reviewable decision and in substitution of that decision, decides that the Respondent is liable for the Applicant’s Adjustment Disorder under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

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Senior Member A K Britton
CATCHWORDS
COMPENSATION — Commonwealth employees — Psychological injury — Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth — Whether the injury is a result of reasonable administrative action taken in a reasonable manner — meaning of “action taken in a reasonable manner” —— Decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), s 5A(2), 14
Workers Rehabilitation and Compensation Act 1986 (SA)
CASES
Comcare v Martinez (No 2); (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Drenth v Comcare (2012) 128 ALD 1
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
National Australia Bank Limited v KRDV (2012) 204 FCR 436
Hart v Comcare (2005) 145 FCR 29
SECONDARY MATERIALS
Defence Instruction (General) PERS 35-3 Management and Reporting of Unacceptable Behaviour, 11 February 2004
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed, 2013 (DSM-V)
REASONS FOR DECISION
Senior Member A K Britton
5 September 2014
Background

Ms Annie Casey worked as a Public Affairs Officer with the Department of Defence, attached to the Royal Australian Navy between 1999 and 2012. In 2009 her position was declared “change affected”. The collective agreement under which Ms Casey was employed required the Navy to assist her to find a suitable alternative position. If that proved not possible within a reasonable period, the Navy could declare Ms Casey “excess to Defence’s requirements” and she could be redeployed or retrenched.
After being declared change affected, Ms Casey was appointed to a temporary position as Duty Curator with the Navy’s Heritage Centre. In mid-2012 she was told that this position would come to an end in four weeks’ time. It is agreed that as a result, Ms Casey suffered an Adjustment Disorder and became unfit for work. Apart from a brief and unsuccessful attempt in late December 2012, Ms Casey has not returned to work.
In November 2012 Ms Casey made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of “psychological injury as a result of incidents at work”. In refusing that claim, Comcare accepted Ms Casey suffered a psychiatric condition but decided it was a result of “reasonable administrative action taken in a reasonable manner” and, by the operation of s 5A(1) of the Act, it was not liable for that condition. Ms Casey challenges that decision and applies for review by the Administrative Appeals Tribunal.
It is common ground that Ms Casey’s Adjustment Disorder was…

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 Annie Casey and Comcare

Details

AGLC: Annie Casey and Comcare [2014] AATA 649
Case: [2014] AATA 649
Decision Date: 5 September 2014

CaseChat Overview and Summary

The case between Annie Casey and Comcare was heard in the Federal Circuit and Family Court of Australia. The dispute centred around the psychological injury sustained by Ms Casey, an employee of the Commonwealth, and whether her injury was attributable to her employment. The specific issue was whether the injury was caused by administrative action taken by the Commonwealth in a reasonable manner. The court was required to determine the meaning of "action taken in a reasonable manner" in the context of administrative action and whether Ms Casey's injury was a result of such actions.

The court examined the various stressors in Ms Casey's life, including being declared change affected, the efforts by Ms Rogers to help her find a permanent position, and the Quick Assessment conducted in relation to her complaint of inappropriate conduct by other employees. The court noted that while being declared change affected may have been a chronic stressor, it was not the operative cause of Ms Casey's Adjustment Disorder, as the onset occurred much later. The court also found that there was no evidence that Ms Casey was dissatisfied with the steps taken by Ms Rogers to assist her in finding a permanent position, and that the Quick Assessment did not trouble Ms Casey. The court concluded that none of these actions contributed to Ms Casey's psychological injury.

The court found that the decision to declare Ms Casey change affected was not taken in a reasonable manner, as it caused her distress. However, the court determined that this distress was not clinically significant and did not contribute to her Adjustment Disorder. The court also found that the other actions taken by the Commonwealth were operational, not administrative, and therefore not relevant to the case. The court set aside the decision in favour of Comcare and ordered that the matter be remitted to Comcare for reconsideration.

The court's decision highlights the importance of considering the context and circumstances of administrative action when determining whether it was taken in a reasonable manner. The court also emphasised the need for clear evidence to establish causation in cases of psychological injury. The final orders of the court were that the decision in favour of Comcare be set aside and that the matter be remitted to Comcare for reconsideration.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

While possible that Ms Casey was suffering an Adjustment Disorder in the early part of 2012, I prefer the opinion expressed by Dr Smith that onset probably occurred in August 2012.Was Ms Casey’s Adjustment Disorder suffered as a result of the decision to declare her change affected? The evidence of Ms Casey taking time off work, consulting her GP and seeking counselling, after being told that she had been made change affected, indicates that she was distressed by that decision. I agree with Dr Smith’s analysis, that those symptoms were probably not clinically significant. The task of evaluating the extent to which a particular stressor contributes to an Adjustment Disorder is notoriously difficult, especially where, as in this case, the person experiences multiple stressors over an extended period. It is possible, as Dr Allnutt believes, that being declared change affected was a chronic stressor and contributed to the development of Ms Casey’s Adjustment Disorder. However, given that over two years had elapsed between Ms Casey being notified of that decision and the onset of her Adjustment Disorder, I prefer the opinion of Dr Smith, that the decision was merely a back drop to, and not an operative cause of the disorder. I am not satisfied on the balance of probabilities that Ms Casey’s Adjustment Disorder was suffered as a result of the decision to make her change affected.Was Ms Casey’s Adjustment Disorder a result of the action of Ms Rogers to find a permanent APS5 position between 2010 and 2012? While not entirely clear, I understand Comcare to have abandoned this purported reasonable administrative action. In the interests of completeness I will address the question of causation. Comcare identified the relevant action as the steps taken by Ms Rogers in her role as change manager, to assist Ms Casey find a permanent position. While not the subject of considered submissions, in my opinion that action was operational, not administrative. In any event there is simply no evidence that Ms Casey was dissatisfied with the steps taken by Ms Rogers to assist her to find a permanent position, or, that any action taken by Ms Rogers in that regard, contributed to Ms Casey’s Adjustment Disorder.Was Ms Casey’s Adjustment Disorder a result of the Quick Assessment undertaken in relation to her complaint of inappropriate conduct by other employees? There is no direct evidence about when Ms Casey was advised of the results of the QA. Comcare contends, based on a minute addressed to Ms Casey dated 30 July 2012, that she heard of the results on that day. Ms Casey, on the other hand, claims that she did not learn of the results until sometime after she became unwell. There is little, if any, evidence about Ms Casey’s reaction on learning of the results of the QA. While there can be no doubt she was troubled by the conduct of her colleagues, the available evidence does not suggest that she was troubled by the way the QA was conducted, or, the recommendations made by the investigator. While the investigator found the conduct about which Ms Casey complained did not constitute inappropriate behaviour, he recommended that the other issues she had raised be addressed and that staff be provided with communication training. The investigator in his report did not attribute culpability to what he euphemistically described as the “communication problems” within the Centre.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/2001
Re	Annie Casey
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton
Date	5 September 2014
Place	Sydney