Barton and Comcare (Compensation)

[2018] AATA 2582

Barton and Comcare (Compensation) [2018] AATA 2582 (27 July 2018)

Division:GENERAL DIVISION

File Number(s):      2015/2952

Re:Annette Barton

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta

Date:27 July 2018

Place:Adelaide

The Tribunal:

(1) sets aside the respondent’s determination;

(2) substitutes a determination that Dr Barton’s admitted psychiatric disorder (an adjustment disorder with mixed anxiety and depressed mood) was not the result of any reasonable administrative action taken in a reasonable manner in respect of Dr Barton’s employment, and that her psychiatric disorder is, therefore, an “injury” under section 5A of the Safety Rehabilitation and Compensation Act 1988; and

(3) remits the matter to the respondent for further assessment of Dr Barton’s incapacity.

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

Senior Member N A Manetta

CATCHWORDS

COMPENSATION – psychiatric disorder – injury occurring in workplace - whether result of reasonable administrative action – held actions in question not reasonable and injury compensable

LEGISLATION

Safety, Rehabilitation, and Compensation Act 1988

CASES

Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Comcare v. Martin [2016] HCA 43; 258 CLR 467

REASONS FOR DECISION

Senior Member N A Manetta
Member L Stephan

27 July 2018

1. This is an application by Dr Annette Barton seeking a review of the determination of the respondent, Comcare, that her accepted psychiatric disorder (an “adjustment disorder with mixed anxiety and depressed mood”) was the result of “reasonable administrative action taken in a reasonable manner”, and that the disorder is not, on that account, a compensable injury by virtue of the operation of the exception in s 5A(1) of the Safety Rehabilitation and Compensation Act 1988 (the Act).  At the hearing before us, Dr Barton represented herself; Ms Slack appeared for the respondent.

2. The respondent concedes that, but for the operation of the exception, Dr Barton’s psychiatric condition would be a workplace “injury” that has arisen as a result of her employment.  Hearing the matter afresh on the evidence before us,[1] which we note was extensive, our task was simply to decide whether Dr Barton’s psychiatric disorder was, as the respondent contends, the result of a reasonable administrative action (or two or more such actions) taken in a reasonable manner.  We note that as the case was argued before us, the respondent relied on several specific administrative actions.  It maintained that each of them contributed to the development of Dr Barton’s psychiatric disorder and that each of them was reasonable.  The operation of the exception in s 5A(1) was, therefore, attracted by one or more of these administrative actions in the respondent’s view.

   [1] Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

3. In our view, Dr Barton’s psychiatric disorder is not the result of a reasonable administrative action or actions taken in a reasonable manner.  It follows that Dr Barton has suffered a compensable injury in the workplace, consisting of her psychiatric disorder, and that the respondent’s determination should be set aside.

4. We note further that the only question before us was the threshold issue of whether Dr Barton’s disorder was a compensable injury.  The question of the impact of that psychiatric disorder on Dr Barton’s capacity to work did not arise for determination in the proceedings before us.

5. We set out below the background facts, our key findings, and our reasons in respect of the conclusion we have just stated.  We note that in light of the extensive evidence before us, we have tried to isolate and treat only the critical issues in dispute.

   BACKGROUND FACTS AND KEY FINDINGS

6. Dr Barton commenced employment with the Bureau of Meteorology in August 2009 in Adelaide in the role of “South Australian Regional Hydrology Manager”. She was employed in this capacity at the time of the onset of her psychiatric disorder. One of her managerial duties was the supervision of employees within the Adelaide office of the Bureau at Kent Town.

7. As a matter of background, we note that one of the officers Dr Barton supervised, a Mr Iwanicki, had a very difficult working relationship with her.  We state that fact neutrally, implying no necessary criticism of Mr Iwanicki and no necessary criticism of Dr Barton.  It was not necessary for us to form a view on that matter.  It is sufficient to note that Mr Iwanicki had submitted a claim for compensation to Comcare, which was resisted by Comcare.  Mr Iwanicki commenced proceedings in this Tribunal.  We understand that the proceedings Mr Iwanicki brought involved an allegation of bullying and harassment levelled by him against Dr Barton.  Again, we are content to state that fact neutrally.  The Tribunal hearing was to take place at the end of February 2014.  Dr Barton was called as a witness in the proceedings and she gave evidence.  We accept that Dr Barton experienced a high degree of anticipatory stress in the lead-up to the hearing.

8. Dr Barton also supervised a Mr Kupeckyj, a field officer.  As at mid-February 2014, Mr Kupeckyj had been on sick leave from the Bureau for some time following a back injury sustained at home.  That back injury meant that Mr Kupeckyj might have difficulty with fieldwork on his return to work.  He had evidently reached a stage in his recuperation where he felt he could return to work and, indeed, the evidence suggests he was pressing to return work.  He was engaged in what was referred to in evidence before us as a “graduated-return-to-work” program to ensure he could manage his duties at work safely.

9. There is no doubt that Mr Kupeckyj held very strong views against Dr Barton.  Again, it is necessary only that we refer to the fact of the holding of these views, whether justified or unjustified.  We note that the fact that those views were held meant Dr Barton was in an invidious position (whether she was aware of that fact or not) in respect of her ongoing involvement in Mr Kupeckyj’s return-to-work program.  As we have said, Mr Kupeckyj was keen to return to an active role in the Bureau, but his return to fieldwork necessitated outdoor activities that could have exposed him to further back injury.  On the evidence before us, that was a possibility. 

10. In the event, Mr Kupeckyj’s return to active fieldwork had been delayed for some time and was to be further delayed to his dismay.  The decision to delay Mr Kupeckyj’s return to fieldwork further was communicated to him by Dr Barton in a critical email dated 18 February 2014.  We need not set it out.  Importantly, Dr Barton had sent a draft of that email to Mr Glenn Milner, the Manager of People Services, within the Human Resources Section of the Bureau.  Mr Milner had approved the email in advance of its being sent to Mr Kupeckyj.  We shall explain the significance of that fact shortly.

11. Mr Kupeckyj was dissatisfied with the email Dr Barton had sent to him, which signalled, from his perspective, further unnecessary delay in his return to active work.  His own responding email, sent one hour and twenty minutes later, referred to a clear failure in the graduated-return-to-work process.  In his email, Mr Kupeckyj formally invoked a dispute resolution process in respect of “all matters concerned with my forever and (sic) delayed RTW program.”  Mr Milner indicated in his evidence that following receipt of Mr Kupeckyj’s email, a meeting was called on 19 February in accordance with the requirements of the relevant enterprise bargaining agreement.  The meeting was attended by Mr Kupeckyj, Dr Barton, and a Mr Godfrey.  Mr Milner attended by phone.  Mr Nairn, the Acting Regional Director of the South Australian office of the Bureau was also in attendance. Mr Kupeckyj had a union representative with him.

    FIRST ADMINISTRATIVE ACTION: MEETING OF 19 FEBRUARY 2014 AND SUBSEQUENT DISCUSSION WITH MR MILNER ON 20 FEBRUARY 2014

12. The meeting had been called to discuss the allegedly unfair delays associated with Mr Kupeckyj’s return-to-work program.  As we have said, the immediate catalyst for the meeting was the email Dr Barton had sent Mr Kupeckyj on 18 February 2014.  Mr Milner had clearly been called in to assist the discussion from a human resources point of view.  It seems to us clear that Mr Milner appreciated the meeting was one that was liable to become difficult; otherwise, we do not understand that he would have been called in to assist.  In his evidence before us, he indicated that he was aware that there were difficulties in the relationship between Dr Barton and Mr Kupeckyj and these in fact explained in part his participation in the meeting. 

13. We find that Mr Kupeckyj raised at the meeting his frustration at the delay in the progress of his return-to-work program.  We find that he must have expressed concern at the content of Dr Barton’s most recent email which had prompted his own strong email invoking the dispute resolution process.  In our view, Dr Barton’s email must have been raised and discussed.  We find that Mr Kupeckyj also raised his more general concerns about Dr Barton’s conduct as his manager.  That was confirmed by Mr Milner in his evidence.

14. We find Mr Kupeckyj expressed his own views about his situation candidly at that meeting. We note that, within a day or so of that meeting, he was to allege formally that Dr Barton had bulled and unfairly treated him.  This led to the Di Battista report, to which we shall refer in due course.

15. Mr Milner failed, in our opinion, to say one thing at the meeting we find it was clearly incumbent on him to say.  When Mr Kupeckyj raised his concerns about the email he had received on 18 February from Dr Barton, it was, in our opinion, incumbent on Mr Milner to indicate immediately to Mr Kupeckyj that a draft of the email had in fact been approved in advance by him at Dr Barton’s request.  Mr Milner knew the relationship between Dr Barton and Mr Kupeckyj was difficult.  That indication by Mr Milner would have made clear to Mr Kupeckyj that Dr Barton had not been acting unilaterally and maliciously, but that she had in fact been liaising with Mr Milner to ensure her response to Mr Kupeckyj was appropriate and fair.    

16. In respect of the email, we are particularly concerned over a further aspect of Mr Milner’s conduct.  The day after the meeting, that is, on 20 February, Dr Barton spoke again to Mr Milner.  We accept that Dr Barton was very upset and broke down in tears when she asked Mr Milner why he had failed to disclose to Mr Kupeckyj the fact of his prior approval of the email.  At that point, Mr Milner, aware of Dr Barton’s concerns, ought in our opinion to have indicated to her plainly that he would contact Mr Kupeckyj (by email or otherwise) and correct the mistaken impression.  He did not do so even though he had further email correspondence with Mr Kupeckyj.

17. We must say that we do not understand Mr Milner’s decision not to correct the record in this regard.  His concern, as explained to us in his evidence, was to ensure the return-to-work program progressed and to assist in rebuilding a harmonious relationship, if possible, between Dr Barton and Mr Kupeckyj.  Mr Kupeckyj had invoked a grievance process to discuss the delays in his return-to-work program because of the contents of an email he had received that had been vetted and approved by Mr Milner himself.  Mr Milner further knew on 20 February that his failure to mention his prior approval of the email at the meeting the previous day was causing a great deal of concern to Dr Barton personally. At the same time, he also knew that Mr Kupeckyj had serious concerns about Dr Barton’s management style.  We believe Mr Milner’s decision not to inform Mr Kupeckyj of the fact that he, Mr Milner, had approved the email of 18 February was unreasonable and unfair not only to Dr Barton, but also to Mr Kupeckyj, who could only have left the meeting thinking that the email that had been sent him was all Dr Barton’s work.

18. Summarising at this point, we find that Mr Milner had made a very serious error of judgment that caused the meeting to be conducted in an unreasonable manner.  He did not inform Mr Kupeckyj of his involvement in the email of 18 February that had led to the meeting either at the meeting itself or after the meeting despite Dr Barton’s having approached him in a state of real concern and upset.  He compounded, therefore, his initial error.  We find that he deliberately chose on 20 February not to act on Dr Barton’s very clear indication to him that this aspect of his conduct at the meeting was not fair in her view.  Her personal stress was evident according to Mr Godfrey who gave evidence that Dr Barton broke down in tears when speaking with Mr Milner by phone. 

19. We also find that Mr Milner did raise with Mr Kupeckyj at the meeting on 19 February the option of invoking a “review-of-actions” process in respect of Dr Barton’s management style.  We find that Mr Milner acted reasonably in informing Mr Kupeckyj of his rights in this regard. 

20. We do not agree, however, with the respondent’s submission that it was this reference to Mr Kupeckyj’s rights that was the catalyst, or trigger, for Dr Barton’s upset state.  It seems quite clear to us from Dr Barton’s evidence, Mr Godfrey’s evidence, and from Dr Houen’s (the treating psychiatrist’s) evidence that Dr Barton had been upset because Mr Milner had not revealed he had approved the email when it was a draft.  We have already indicated our finding that we do not believe Mr Milner’s behaviour in this regard was reasonable.

    SECOND ADMINISTRATIVE ACTION: DI BATTISTA REPORT AND LETTER OF SANCTION

21. Shortly thereafter, Mr Kupeckyj formally requested a review of Dr Barton’s actions towards him as his manager. He was entitled to do so.  On 17 March 2014, Mr Milner recommended that a Ms Di Battista, who was known to Mr Milner, undertake a review of Dr Barton’s conduct.  The Bureau formally engaged her to undertake the review.  She was asked to investigate Dr Barton’s conduct and report on Mr Kupeckyj’s allegations of bullying and unfair treatment.

22. We do not find the decision to appoint Ms Di Battista inappropriate, although we find her report seriously deficient, for reasons to be explained.  Ms Di Battista was known to Mr Milner, and we have no reason to doubt Mr Milner believed genuinely that she was competent to undertake the task.

23. In our opinion, however, the review by Ms Di Battista miscarried substantially.  First, we accept Dr Barton’s submission that Ms Di Battista refused to consider documentation offered to her by Dr Barton during the investigation.  That was unfair, and especially so since Ms Di Battista records in her report that she had received additional documentation from Mr Kupeckyj on 2 April 2014. 

24. Secondly, we find that Ms Di Battista mishandled a difficult situation although it is not an uncommon one.  That situation was that Dr Barton’s view of events and Mr Kupeckyj’s view of events ended up being diametrically opposed.  In these circumstances, Ms Di Battista could not, in our opinion, reasonably draw, as she chose to do, the very strong conclusions against Dr Barton that she did in the manner that she did.  

25. In this regard, we refer to several self-evidently unsatisfactory parts of the report to illustrate our concerns.  The report’s “Executive Summary” on p.1 refers to Dr Barton’s having conducted a “targeted campaign towards Mr Kupeckyj in particular”.  Ms Di Battista concluded on p.1 that Dr Barton “questioned Mr Kupeckyj’s honesty, integrity and opinion to such an extent that it detrimentally impacted him”.  She refers in her “Conclusion” on p.6 to “Mr Kupeckyj’s enthusiasm” appearing “to have been a source of annoyance for Ms (sic) Barton”, and that she had “reacted to his concerns with a level of hostility and interrogation”.  All of this language strongly suggests outright victimisation by Dr Barton of Mr Kupeckyj.  Indeed, her final sentence on p. 6 reads: “Ms (sic) Barton’s treatment of Mr Kupeckyj caused him to feel victimised, disempowered and vulnerable in retaining his employment”.

26. In respect of what is noted as the “site inspection incident”, Ms Di Battista specifically found on p.3 that Mr Kupeckyj’s version of the derogatory tone of his interaction with Dr Barton “credible” despite there being no witnesses, and she found that Dr Barton had proceeded to “denigrate” Mr Kupeckyj’s safety concerns.  In respect of the so-called credit card issue, Ms Di Battista concludes on p. 3 that “the nature of the insult alleged to have been made by Ms (sic) Barton” to him on that occasion “is such that it is unlikely to have been fabricated” by Mr Kupeckyj. 

27. These are not the only concerns we have with the report but they illustrate well enough its deficiencies.  The conclusions drawn were self-evidently based on Mr Kupeckyj’s own views of the matter, which Ms Di Battista chose in the event to prefer.  In our opinion, these conclusions were not open to Ms Di Battista because Ms Di Battista was not in a position to decide the objective reliability or unreliability of Mr Kupeckyj’s version of events based on his word alone.  We note in this connection that Ms Di Battista records on p.1 that she had considered that “obtaining witness statements was not likely to further validate the information obtained from the principal parties”.

28. In our opinion, Ms Di Battista had only one option open to her given the widely divergent views of the interactions between Mr Kupeckyj and Dr Barton, her refusal to consider any written material provided by Dr Barton, and her decision to proceed without witness statements.  That sole option was to report that she was unable, given the markedly differing version of events, to draw any objectively verifiable conclusion in respect of Mr Kupeckyj’s allegations.  The disparity between their respective views could not be resolved properly by Ms Di Battista’s simply preferring, as she ended up doing, Mr Kupeckyj’s version of events over Dr Barton’s.

29. Importantly, in our opinion, the fundamental errors in the drawing of conclusions can be discerned merely from a perusal of the report.  When it came to review the report, the Bureau ought, in our opinion, to have appreciated clearly that the report was not satisfactory on its face.  The report ought to have been rejected by the Bureau, but the Bureau adopted it instead and issued a letter of sanction to Dr Barton on 29 April 2014.

30. The Bureau’s adoption of a report which was seriously flawed on its face to justify its letter of sanction was in our view a serious error and unreasonable.

    THIRD ADMINISTRATIVE ACTION: PERFORMANCE ASSESSMENT DISCUSSION

31. The next administrative action of substance concerns a performance assessment discussion that occurred between Mr Perkins, Dr Barton’s line manager, and Dr Barton. Mr Godfrey attended that meeting as Dr Barton’s “support person”.  Mr Milner was also in attendance.

32. We have no doubt that Mr Perkins’ conduct of the review was unfair to Dr Barton.  First- and we do not blame Mr Perkins for this error- the findings of the Di Battista report and the letter of sanction issued by the Bureau were unfair and ought not to have informed the discussion.  Of course, Mr Perkins could hardly have helped referring to the Di Battista report and the subsequent letter of sanction in the conduct of that performance review, but unknown to him, they were flawed.  Secondly, we find that Mr Perkins himself raised with Dr Barton in a most unfair way complaints he said came from external stakeholders.  The unfairness arose in raising the complaints in a general way only.  When Dr Barton asked for specifics, these were denied her on the basis of the need to preserve confidentiality.

33. We find that it was not appropriate to put to Dr Barton generalised complaints about her conduct from “external stakeholders” without giving her any detail so that she could evaluate the criticisms and respond to them meaningfully.  Her meaningful response could only have assisted Mr Perkins in his conduct of the review.  His refusal to provide the specifics, but to act on the complaints in any event, was very unfair in our opinion.

1. As a result of that meeting, Dr Barton was removed from her role as a manager and given a project role on a temporary (although apparently open-ended) basis.  This move had the effect of removing her from her daily position and daily responsibilities.  The move was clearly against Dr Barton’s will and caused her considerable stress.  That administrative action was inappropriate based, as it was, on the unfair review by Mr Perkins and the earlier unfairness in the Di Battista Report and the letter of sanction.  Moreover, we do not accept that the transfer to a project role was designed to assist Dr Barton in her career aspirations.  This was alluded to by Mr Perkins, but we reject that suggestion firmly.  Mr Perkins could only have had in mind, in our opinion, removing Dr Barton from her role as a manager and from her liaison role on behalf of the Bureau with external stakeholders. That was the prime motivation in the decision.

2. Shortly thereafter, Dr Barton began to take sick leave on and off.  We have no doubt that the leave was genuinely taken given her psychiatric disorder, which by May to June 2014 had manifested itself.

   FURTHER ADMINISTRATIVE ACTION

3. We make reference now to a further administrative action.  On 3 June 2014, Mr Perkins apparently informed Dr Barton that he was considering what is known as a “Code-of-Conduct” disciplinary proceeding against her because he was concerned with other alleged instances of misbehaviour.  He was concerned that Dr Barton may have improperly finalised certain financial agreements with local councils without consulting higher management echelons.  Her alleged misbehaviour in that regard was to be combined with review of another incident involving one of Dr Barton’s employees.  The incident arose in the context of what Dr Barton described as a flood-warning emergency in the Bureau.  We accept the situation was in Dr Barton’s mind an emergency.  In order to ensure appropriate monitoring of the situation, Dr Barton rang one of the Bureau’s hydrologists at home to request him to return to work to assist.  The employee consented to do so although he was on sick leave at the time.  Mr Perkins gave evidence that he would never call on a sick employee at home.

4. In due course, in July 2014, the “Code-of-Conduct” initiating document was sent to Dr Barton. We do not need to consider further the decision to initiate the review because reliance on the “Code-of-Conduct” process as a reasonable administrative action that had contributed to Dr Barton’s psychiatric disorder was abandoned by Comcare at the hearing before us. 

5. This concession was properly made in our opinion.  As the psychiatric evidence made clear, Dr Barton’s psychiatric disorder had manifested itself before the letter was sent in July.

   PSYCHIATRIC EVIDENCE

6. We turn now to the psychiatric evidence.  The psychiatrists gave concurrent evidence and in the event there was a large amount of agreement between them, except in respect of the time at which it could be concluded that Dr Barton began to suffer from a properly diagnosable psychiatric disorder.  We regard the difference of opinion between the psychiatrists in this latter respect as unimportant given our ultimate conclusions.

7. We summarise the evidence as follows.  Doctors Houen, Takyar and Shaikh were all called.  Dr Houen was called by Dr Barton.  Drs Takyar and Shaikh were called by the respondent.  Dr Houen is Dr Barton’s treating psychiatrist.  Dr Houen believed that the February meeting (the first administrative action we have described above) was a critical event in the development of Dr Barton’s psychiatric disorder.  Dr Houen believed the evolution of what would subsequently be diagnosable as a psychiatric illness commenced at this point in time.

8. Dr Houen, Dr Takyar and Dr Shaikh all believed the subsequent events we have referred to were additional stressors.  Dr Shaikh, who was called by the respondent, maintained that as at February 2014 Dr Barton could not be said to have been suffering from a diagnosable psychiatric illness.  He agreed, however, that by May or June 2014, Dr Barton’s symptomatology was such that a psychiatric illness had emerged.  Dr Takyar, in his oral evidence, appeared to support Dr Houen’s view.

9. We agree with Dr Shaikh that, assessing Dr Barton’s symptomatology as at February 2014, one could not say at that point in time that Dr Barton was unequivocally suffering from a diagnosable psychiatric disorder.  She was clearly distressed as a result of the February meeting and her interactions with Mr Milner on 20 February and had experienced physical symptoms around that time as well; but we accept that a “snapshot”, so to speak, of Dr Barton’s symptomatology at that time would not have been sufficient to allow a definitive conclusion to be drawn by a qualified psychiatrist that she was then suffering from a psychiatric disorder.  

10. That conclusion is not, as we understand matters, strongly disputed by either Dr Houen or Dr Takyar.  Dr Houen’s point is, we believe, that in retrospect one can isolate the incident in February 2014 as the first episode manifesting itself in symptoms (that is, distress) that indicated Dr Barton’s mental state had deteriorated substantially and that she was vulnerable to the worsening of the psychiatric condition that was, from that point on, in the process of evolution. 

11. As a matter of strict medical diagnosis, we agree with Dr Shaikh’s assessment that as at February 2014, it was not possible to say definitively that Dr Barton was suffering from a psychiatric disorder.  We also agree with the respondent’s submission that none of the psychiatrists maintained that Dr Barton’s disorder would have manifested itself in the absence of the second and third administrative actions to which we have referred above.  None of the psychiatrists gave evidence that the February 2014 meeting was solely responsible for the extent of the symptoms of the disorder as they eventually emerged.   We also accept that it is not possible for the psychiatrists meaningfully to answer the question of whether what we shall call for convenience Dr Barton’s “incipient” psychiatric disorder may have righted itself without intervention had the February 2014 meeting been the only stressor.  

12. We accept that all psychiatrists believed Dr Barton’s workplace exacerbated her incipient psychiatric disorder.  In particular, we accept that the first, second and third administrative actions we have described above contributed to the development of the magnitude of the psychiatric disorder as it ultimately manifested itself in May to June of 2014.  We further note that all psychiatrists accepted that a diagnosable psychiatric disorder was present in May to June of 2014.

    RESPONDENT’S CASE AND OUR CONCLUSIONS

13. The respondent’s case before us was that, as the first, second and third administrative actions we have described above contributed to Dr Barton’s psychiatric condition, Dr Barton could not be said to have suffered a compensable injury (on account of s 5A of the Act) if any of the administrative actions was reasonable. 

14. In our opinion, for the reasons we have given none of the administrative actions we have described above and which we have found contributed to Dr Barton’s disorder was an objectively reasonable action taken in a reasonable manner in the circumstances of the case.  We have already expressed our reasons for this conclusion.  

15. We have also indicated that we reject the respondent’s contention that it was Mr Milner’s suggestion of a review-of-actions procedure to Mr Kupeckyj at the February 19 meeting that triggered Dr Barton’s emotional distress.  Rather, as we have indicated, it was the fact that Mr Milner had not indicated that he had approved the email of 18 February that caused Dr Barton distress.   

16. Had we found one or more of the administrative actions we have described reasonable, the test in s 5A would have required us to ask whether or not Dr Barton’s psychiatric disorder would have occurred in the absence of the administrative action or actions in question.[2]  Given our conclusion that none of the administrative actions was reasonable, it is not necessary for us to ask and answer this question; but we note that on the psychiatric evidence, it would have been difficult to determine whether Dr Barton would have suffered her psychiatric condition but for one or other of the administrative actions. Indeed, it would be most surprising if a psychiatrist could dissect the relative impact of these administrative actions as contributing factors in the onset of the disorder; but as we have said, the necessity to ask and answer that question does not arise in this case.

    [2] Cf Comcare v. Martin [2016] HCA 43; 258 CLR 467 at [45].

17. It follows, in our opinion, that the following conclusions are appropriate on our review of all the evidence: (1) Dr Barton suffered an “injury” in her workplace caused by her employment; (2) the injury comprised the development of her psychiatric disorder which had manifested itself and was diagnosable as such in May to June 2014; (3) neither the initial onset of the disorder nor any exacerbation of it in the workplace was the result of reasonable administrative action taken in a reasonable manner.

18. It follows in our conclusion that Dr Barton’s psychiatric disorder is a compensable “injury” for the purposes of the Act and is not excluded from the definition of “injury” by the operation of the exception in section 5A (which excludes any “injury” that arises as a result of reasonable administrative action taken in a reasonable manner).  

    FORMAL DETERMINATION

19. It follows in our opinion that we should (1) set aside the respondent’s determination; (2) substitute a determination that Dr Barton’s admitted psychiatric disorder (an adjustment disorder with mixed anxiety and depressed mood) was not the result of any reasonable administrative action taken in a reasonable manner in respect of Dr Barton’s employment, and that her psychiatric disorder is, therefore, an “injury” under section 5A of the Act; and (3) remit the matter to the respondent for further assessment of Dr Barton’s incapacity.

20. We shall make a formal determination to this effect accordingly.

    DECISION

21. The Tribunal:

    (1) sets aside the respondent’s determination;

    (2) substitutes a determination that Dr Barton’s admitted psychiatric disorder (an adjustment disorder with mixed anxiety and depressed mood) was not the result of any reasonable administrative action taken in a reasonable manner in respect of Dr Barton’s employment, and that her psychiatric disorder is, therefore, an “injury” under section 5A of the Safety Rehabilitation and Compensation Act 1988; and

    (3) remits the matter to the respondent for further assessment of Dr Barton’s incapacity.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

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

Administrative Assistant

Dated: 27 July 2018

Date(s) of hearing:	17, 18, 19 & 20 October 2017, 9 March 2018
Applicant:	In person
Counsel for the Respondent:	Ms Slack
Advocate for the Respondent:	Ms N Donaghy
Solicitors for the Respondent:	Sparke Helmore Lawyers