Bernadette Melder and Comcare

Case [2013] AATA 534

[2013] AATA 534

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/2401

Re

Bernadette Melder

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance

Date 31 July 2013 
Place Melbourne

The reviewable decision, being the decision of Comcare made 18 April 2012 that Ms Melder is not entitled to compensation for depressive disorder and anxiety, is affirmed.

.........................[sgd]..............................

Deputy President J W Constance

CATCHWORDS

COMPENSATION – adjustment disorder with depression and anxiety – whether employment contributed to a significant degree – whether reasonable administrative action taken in a reasonable manner – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14

CASES

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Wang and Comcare [2012] AATA 242

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

  1. Ms Melder has been employed by the Department of Defence since 1999.  In 2010 she suffered an adjustment disorder to which her employment made a significant contribution.

  2. In 2011 Ms Melder lodged a claim for compensation in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). Comcare has denied liability to pay compensation on the ground that the condition was caused, at least in part, by actions of her employer which were reasonable administrative actions carried out in a reasonable manner in respect of her employment. If such was the case the Act provides that compensation is not payable.

  3. Ms Melder has applied to the Tribunal to review Comcare’s decision.  For the reasons which follow the decision will be affirmed.

    EVIDENCE AND FINDINGS OF FACT

  4. Unless stated otherwise, the following findings of fact are made on the basis of the evidence of Ms Melder.

  5. In late 2008 Ms Melder commenced in the role of the Head of the Systems Program Office within the Lands Systems Division of the Department.  Her supervisor was Brigadier Phelps.

  6. On the basis of the evidence of Brigadier Phelps I am satisfied of the following:

    ·in March 2009 he conducted Ms Melder’s mid-cycle performance review in which he scored her “A-minus” against some criteria, where the choice was between a score of “A” meaning “on track” and “B” meaning “not on track”;

    ·at about this time Brigadier Phelps counselled Ms Melder concerning her leadership, management style and interpersonal skills;

    ·in September 2009 Brigadier Phelps conducted Ms Melder’s end-cycle performance review in which he rated her as not effective and partially effective against some criteria; he recommended that she be placed on a performance improvement plan and as a result her salary progression was deferred.

  7. Ms Melder did not agree with the assessment of her performance and provided a detailed response in writing.[1]  Ms Melder also complained of the manner in which she had been dealt with by Brigadier Phelps.  I will make further findings of fact in relation to this process later in these reasons.

    [1] Exhibit R8 annexure MP5.

  8. On at least two occasions between March 2009 and September 2009 Brigadier Phelps spoke to Ms Melder…

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AGLC
Bernadette Melder and Comcare [2013] AATA 534
Case
[2013] AATA 534
Decision Date

CaseChat Overview and Summary

In the case of Bernadette Melder and Comcare, Ms. Melder, a former employee of the Department, sought compensation for a depressive disorder and anxiety, claiming it was caused by her employment. Comcare, which provides compensation for work-related injuries, denied her claim. Ms. Melder sought a review of Comcare's decision by the Administrative Appeals Tribunal. The Tribunal was tasked with determining whether the employment of Ms. Melder contributed significantly to her illness and whether the administrative actions taken by her employers were reasonable. The key issue was whether the reasonable administrative actions taken in the course of her employment contributed significantly to the disease Ms. Melder suffered.

The Tribunal examined the administrative actions identified by Comcare, including the mid-cycle and end-cycle performance reviews conducted by Ms. Melder's supervisor, Brigadier Phelps, and a meeting convened by Mr. O'Callaghan regarding Ms. Melder's conduct. The Tribunal concluded that these actions, while reasonable, did contribute significantly to Ms. Melder's illness. Despite this, Comcare's decision was affirmed as the disease suffered by Ms. Melder was deemed to be a result of reasonable administrative action taken in a reasonable manner, thus falling outside the definition of 'injury' under the applicable legislation. The Tribunal found that the reasonable administrative actions were sufficient to exclude liability for compensation.

In conclusion, the Tribunal upheld Comcare's decision that Ms. Melder was not entitled to compensation for her depressive disorder and anxiety. The Tribunal found that while her employment contributed to her illness, the reasonable administrative actions taken in respect of her employment were sufficient to exclude the disease from the definition of 'injury'. Therefore, the decision of Comcare to deny compensation was affirmed.

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

Ms Melder has applied to the Tribunal to review Comcare’s decision. For the reasons which follow the decision will be affirmed.EVIDENCE AND FINDINGS OF FACT Unless stated otherwise, the following findings of fact are made on the basis of the evidence of Ms Melder. In late 2008 Ms Melder commenced in the role of the Head of the Systems Program Office within the Lands Systems Division of the Department. Her supervisor was Brigadier Phelps. On the basis of the evidence of Brigadier Phelps I am satisfied of the following:·in March 2009 he conducted Ms Melder’s mid-cycle performance review in which he scored her “A-minus” against some criteria, where the choice was between a score of “A” meaning “on track” and “B” meaning “not on track”;·at about this time Brigadier Phelps counselled Ms Melder concerning her leadership, management style and interpersonal skills;·in September 2009 Brigadier Phelps conducted Ms Melder’s end-cycle performance review in which he rated her as not effective and partially effective against some criteria; he recommended that she be placed on a performance improvement plan and as a result her salary progression was deferred. Ms Melder did not agree with the assessment of her performance and provided a detailed response in writing.[1] Ms Melder also complained of the manner in which she had been dealt with by Brigadier Phelps. I will make further findings of fact in relation to this process later in these reasons.[1] Exhibit R8 annexure MP5. On at least two occasions between March 2009 and September 2009 Brigadier Phelps spoke to Ms Melder about her leadership style in a manner which Ms Melder found distressing. However as Comcare agrees that Ms Melder’s employment by the Department made a significant contribution to her illness, it is not necessary that I make detailed findings in relation to these instances. In late October 2009 Ms Melder transferred to the Land Vehicle Systems Branch where she was employed as a Project Director. As this was a new position she entered into a new Employee Performance Agreement. In a review conducted in February 2010 Ms Melder was rated “fully effective”. In March 2010 her salary progression was approved. On 16 March 2010 Mr O’Callaghan, Deputy Director General of the Division in which Ms Melder was employed, requested that she forward an electronic copy of her Employee Performance Agreement to her supervisor, Brigadier Boyer. Ms Melder was told that this was for the purposes of review and for the provision of feedback to her. On 21 March 2010 Ms Melder received an email from Brigadier Boyer advising her that the process in relation to her Agreement was complete. She heard nothing further about this issue until June 2010. In May 2010 Ms Melder was advised that Ms Kelly had been appointed as the Acting Director-General of the Branch by reason of Brigadier Boyer’s illness. On her appointment, Ms Kelly became Ms Melder’s supervisor. In her role as Project Director, Ms Melder supervised Mr Densten, a Project Manager in her Branch. Ms Melder found Mr Densten difficult to deal with and formed the view that he did not accept her role as Project Director, that he had attempted to bypass her role, that he failed to follow directions and that he had sent information to the Director-General of the Branch without her clearance.

Decision

Reasons for decision

I am satisfied that the end-cycle assessment and the meeting of 10 June 2010 each contributed to Ms Melder’s illness to a significant degree. CONCLUSION As I have found that Ms Melder’s disease was suffered as a result of two separate incidents, each of which was reasonable administrative action taken in a reasonable manner in respect of her employment, that disease is excluded from the definition of “injury” set out in section 5A of the Act. It follows that, in accordance with section 14 of the Act, Ms Melder is not entitled to compensation in respect of this condition. Liability is excluded even though the disease suffered by Ms Melder was also a result of other aspects of her employment which are not excluded.[18][18] Hart v Comcare [2005] FCAFC 16. The reviewable decision, being the decision of Comcare made 18 April 2012 that Ms Melder is not entitled to compensation for depressive disorder and anxiety, will be affirmed.

Ratio Decidendi

Legal Principle Established

Subsection 7(4) makes special provision for determining the date on which an “injury”, being a “disease”, is suffered:(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:(a)the employee first sought medical treatment for the disease, or aggravation; or(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;whichever happens first.ISSUES FOR CONSIDERATION Comcare concedes that Ms Melder has suffered a “disease” within the meaning of the Act as her claimed condition is an “ailment” that was contributed to, to a significant degree by her employment by the Commonwealth. I am satisfied that these are proper concessions. It has been my experience that in applications such as this Comcare has increasingly been prepared to concede that a worker’s condition has been contributed to by his or her employment to a significant degree. This is a development to be commended. It permits the number of issues requiring determination to be reduced with consequent savings in time and costs for the parties and the Tribunal. However it is important in these circumstances that the issues remaining for determination are clearly defined. Comcare argues that Ms Melder has not suffered an “injury” within the meaning of section 5A of the Act as the “disease” from which she suffers was suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [her] employment.” Comcare has identified the following actions as being “reasonable administrative action”, each of which excludes the disease suffered by Ms Melder from the definition of an injury for which compensation is payable:(i)the mid-year performance review in March 2009, conducted by Brigadier Phelps, in which the applicant had some “A minus” ratings (where the choice was between “A” meaning on track and “B” meaning not on track), coupled with performance counselling about the applicant’s leadership, management style and interpersonal skills;(ii)the end of year performance review in September 2009, conducted by Brigadier Phelps, in which he rated the applicant PE (partially meets expectations) against some criteria, recommended a performance improvement plan (PIP) and that the applicant be denied a salary progression; (iii)the meeting Mr O’Callaghan convened between the applicant and Simon Densten on 10 June 2010, following Mr Densten’s complaints about the applicant.[4][4] Respondents Amended Statement of Facts, Issues and Contentions dated 8 March 2013. Although Comcare refers to a “mid-year review” and an “end-of-year review” in its Statement of Facts and Contentions, documents in evidence[5] disclose that the correct terminology is “mid-cycle review” and “end-cycle review” respectively.[5] Exhibit R8, annexure MP3. Before it can be said that a particular administrative action excludes liability for compensation, it must be determined that the administrative action made a significant contribution to the disease suffered by Ms Melder. I set out my reasons for this conclusion in Wang and Comcare[6] and I understand this reasoning is not in dispute in this matter.[6] [2012] AATA 242, [53]-[56].