Bailey and Comcare (Compensation)

Case [2020] AATA 1244

Bailey and Comcare (Compensation) [2020] AATA 1244 (8 May 2020)

Division:GENERAL DIVISION

          2017/3023File Number:

Re:Jacqueline Bailey

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:8 May 2020

Place:Brisbane

The Tribunal sets aside the decision under review and in substitution decides that Comcare is liable to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the aggravation of her Adjustment Disorder with Anxiety.

........................................................................

Deputy President J Sosso


CATCHWORDS

COMPENSATION – liability under Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14 – aggravation of psychological ailment – pre-existing vulnerability – whether contributed to, to a significant degree, by employment – whether reasonable administrative action – whether undertaken reasonably – decision under review set aside and substituted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Comcare v Power (2015) 238 FCR 187; [2015] FCA 1502

Dean v Australian Postal Corporation (2010) 52 AAR 52; [2010] FCA 680
Georges and Telstra Corporation Ltd [2009] AATA 731
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42; [1998] SASC 6519
Martin v Comcare (2015) 238 FCR 373; [2015] FCAFC 169
Telstra Corporation Limited v Hunter (2016) 68 AAR 372; [2016] FCA 318

Wiegand v Comcare (2002) 72 ALD 795; [2002] FCA 1464

REASONS FOR DECISION

Deputy President J Sosso

8 May 2020

INTRODUCTION

  1. Ms Jacqueline Bailey (the Applicant) commenced employment with the Department of Human Services (the Department) on 9 July 2007 – Exhibit 1 T3 p. 13.

  2. On 14 November 2016 the Applicant signed a Claim for Compensation form and stated that the claimed condition was “Anxiety Stress Depression” resulting from attending a meeting at 9:30 am on 27 October 2016 – Exhibit 1 T3 p. 10.

  3. At the time of lodging the Claim, the Applicant’s job title was “Part 6A objections” and her main job duties comprised reviewing “decisions made regarding child support payments” Exhibit 1 T3 p. 13.

  4. This matter is marked by contradictory accounts of events that occurred whilst the Applicant was employed by the Department in the period 2011 until 2016. In the Introductory section of this decision, reference is mostly made to the Applicant’s perception of those events.  The other versions of the events are set out further below when findings are made as to the preferable account of what actually occurred and the perceptions of the parties involved.

  5. The Applicant was born, and attended school, in Sydney. She is one of two children and has no family history of psychiatric illnesses although there was a history of earlier bullying by her younger brother and his friends which she described as being relentless for years – Exhibit 2 ST35 pp. 372, 374.

  6. In addition, the Applicant recounted traumatic events when she was in Year 6 at primary school, when her teacher was physically violent to his students. On one occasion the teacher picked up a small boy sitting next to the Applicant by…

Continue reading Bailey and Comcare (Compensation)

Sign in free to access the full text

Details
AGLC
Bailey and Comcare (Compensation) [2020] AATA 1244
Case
[2020] AATA 1244
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Jackie Bailey against a decision by Comcare regarding her entitlement to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether the Applicant suffered an aggravation of a psychological ailment, specifically an Adjustment Disorder with Anxiety, and whether this aggravation was contributed to, to a significant degree, by her employment. A key element of the case involved an assessment of whether certain administrative actions taken by the Applicant's employer were undertaken reasonably.

The legal issues before the Tribunal were whether the Applicant suffered from a mental ailment as defined by the Act, and if so, whether her employment contributed to the aggravation of that ailment to a "significant degree." This required the Tribunal to consider the meaning of "significant degree" as interpreted in light of amendments to the Act, which stipulated that a contribution must be "substantially more than material." Furthermore, the Tribunal had to determine if the administrative actions taken by the employer concerning the Applicant's Regular Hours Agreement were conducted reasonably, particularly in light of the Applicant's known psychological vulnerabilities.

The Tribunal found that the Applicant did suffer from a mental ailment, specifically an Adjustment Disorder with Anxiety, which had been aggravated during the period she was negotiating her Regular Hours Agreement. While acknowledging the Applicant's pre-existing psychological vulnerabilities and personality traits, the Tribunal concluded that the administrative actions taken by the employer were not reasonable. This unreasonableness stemmed from the manner in which meetings were conducted, the lack of adequate support and courtesy provided to the Applicant, and the failure to adequately address her concerns, despite her known psychological sensitivities. The Tribunal applied the principles established in *Comcare v Power*, emphasising that the "significant degree" test requires a contribution substantially greater than merely material, and involves an evaluative exercise.

Consequently, the Tribunal set aside the decision under review and substituted its own decision, finding Comcare liable to pay compensation to the Applicant under section 14 of the Act for the aggravation of her Adjustment Disorder with Anxiety.

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

It is also appropriate that the Tribunal deal with the credibility of the Applicant’s testimony.Evidence of Ms Wistrom and Ms Williams Ms Williams testified on 6 November 2019. The Tribunal also had the benefit of receiving a “Statement in Response to Jackie Bailey” dated 2 December 2016 (Exhibit 1 T6.7 pp. 78 – 82), a Witness Statement dated 13 March 2018 (Exhibit 2 ST34 pp. 349 – 357) and a Supplementary Witness Statement of 16 April 2019 (Exhibit 2 ST44 pp. 517 – 523). The Tribunal accepts that the change in the Applicant’s 7:00 am start arrangements flowed from a Departmental nationwide review of all staff on Regular Hours Agreements. Further, the Tribunal accepts that there was a Departmental Directive that all Regular Hours Agreements should have a start time not earlier than 8:00 am – Exhibit 2 ST34 pp. 353 - 354. In short, there is no credible evidence that Ms Williams was motivated in her discussions with the Applicant about her start time by any ill-will and that those discussions were driven by wider Departmental policies and Directives. Ms Williams met the Applicant, inter alia, on 12 and 25 July 2016. On both occasions the Applicant was accompanied by her support person, Ms Wistrom. Ms Wistrom is a Departmental employee who was approached by the Applicant on the morning of 12 July 2016 and asked if she would be a support person for a forthcoming meeting. Ms Wistrom testified that the Applicant was a work colleague but they did not work directly with each other. She also testified that she did not see the Applicant socially, had never been to her home and had only seen her socially during an occasional work organised morning tea – Tr. 4.11.2019 p. 69. In short the Applicant and Ms Wistrom were not friends and apart from the fact that they both work on the some floor, had little to do with each other. Ms Wistrom also testified that she managed a team and had experience in organising and conducting meetings with staff – Tr. 4.11.2019 p. 73. In her Statement of 19 March 2019, Ms Wistrom gave the following account of the 12 July 2016 meeting – Exhibit 2 ST40 p. 425:“4. I attended the Eucalyptus Room at 9am, Ms Bailey also attended. Ms Bailey’s Team Leader, who I now know to be Lynda Williams, arrived not long after…I recall the meeting was to discuss a Regular Hours Agreement. I recall that Ms Bailey asked Ms Williams to explain how she came to be on a Regular Hours Agreement when there had not been any prior discussion, negotiation or relevant form signed. I recall Ms Bailey asked Ms Williams about a number of policies and aspects of the Enterprise Agreement (EA) and why they did not relate to her situation.5. I recall Ms Williams did not provide answers to these questions. I recall that Ms Williams did not take notes at all during the meeting. I recall Ms Bailey becoming emotional as Ms Williams’ lack of response continued. I recall Ms Williams did not appear to be engaged with Ms Bailey, or the subject matter. Ms Williams stated she would seek further information and schedule a follow up meeting with Ms Bailey to discuss. Ms Bailey became quite emotional. Ms Williams left the room.”

Decision

Reasons for decision

In these circumstances, the Tribunal is not satisfied that the administrative action taken in negotiating the Applicant’s regular hours agreement was taken in a reasonable manner. It was not reasonable because the parties involved knew the particular psychological vulnerabilities of the Applicant, yet conducted confronting and sometimes unnecessary meetings and failed to provide the Applicant with the support and, at times, the courtesy she required and was entitled to receive.DECISION The Tribunal sets aside the decision under review and in substitution decides that Comcare is liable to pay compensation to the Applicant pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the aggravation of her Adjustment Disorder with Anxiety.

Ratio Decidendi

Legal Principle Established

The Applicant gave measured and relevant testimony both during evidence in chief and during her cross-examination by Mr Clark. The Tribunal, therefore, formed a positive view of the evidence given by the Applicant and also formed the view that she was a witness of credit.CONSIDERATIONDoes the Applicant suffer from a psychiatric ailment? Comcare accepted (CSIFC paras 16 - 17), based on the diagnosis of Dr Lovell in his report of 28 March 2018, that the Applicant suffered from an Adjustment Disorder with Anxiety. Consequently, Comcare accepted that the Applicant suffered from a mental ailment, as defined in s 4 of the Act. Having considered both the written and oral evidence of Dr Lovell, as well as the other medical practitioners, the Tribunal agrees that the preponderance of evidence supports the proposition that the Applicant suffers from a mental ailment, irrespective of the particular label that may be ascribed. The only contrary point of view is that expressed by Dr Mann in his report of 28 December 2016 – Exhibit 1 T8 pp. 168 – 175 and, in this respect, he is an outlier. The evidence also supports the proposition that the Applicant has had ongoing psychological problems since at least 2011. The preponderance of medical evidence suggests that her underlying adjustment disorder with anxiety waxes and wanes, but has never entirely resolved itself. The Tribunal accepts that the preferable diagnosis is that the Applicant suffered an aggravation of her underlying condition during the course of 2016 when she was negotiating her Regular Hours Agreement.Significant contribution Comcare contends (CSIFC para 18) that the Applicant’s psychological ailment was not contributed to, to a significant degree, by her employment with the Department. In particular, Comcare relies on the diagnosis of Dr Lovell that the Applicant’s mental ailment is a result of an amalgam of non-work-related issues and her heightened sense of interpersonal sensitivity and obsessional personality traits – OSR para 7. The “significant degree” test applies in relation to an ailment, or an aggravation of that ailment, that an employee suffers on or after 12 April 2007. Subsection 7(4) provides, for the purposes of the Act, an employee is taken to have sustained an injury, being a disease or an aggravation thereof, on the earlier of:(a)the employee first seeking medical treatment; or(b)when the disease first resulted in incapacity or impairment. Reference can be made to the very helpful discussion of the history of the 2007 amendments to the Act in Comcare v Power (2015) 238 FCR 187 at 201, 205/[78], [93]-[94] per Katzmann J. In particular, the following guidance was given:“78. A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial….93. There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of ‘significant’ as ‘substantially more than material’ makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be ‘more than trivial’; it had to be substantially more than trivial….94. Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention…While the chapeau to the subsection states that those matters ‘may’ (not ‘shall’) be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words ‘may’ means ‘shall’…”(emphasis in original)