Box and Comcare (Compensation) - [2019] AATA 5522

Box and Comcare (Compensation) [2019] AATA 5522 (26 November 2019)
Division:GENERAL
File Number: 2018/1553

Re:Anthony Box
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member R West
Date:26 November 2019
Place:Melbourne

The decision under review is affirmed.
..................[sgd]......................................................
Member
Catchwords
WORKERS COMPENSATION– depression – reasonable administrative action – wilful and false representations - for purposes connected with employment - s.7(7) and s.5A(1) – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988
Cases
Anderson and Australian Postal Corporation [2016] AATA 228
Dalton and Comcare [2018] AATA 2923
Finnian and Comcare (Compensation) [2019] AATA 10
Griffiths and Australian Postal Corporation [2017] AATA 1025
Griffiths v Australian Postal Corporation [2018] FCA 520
Hennessey-Milne and Comcare [2018] AATA 4453
K & S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518
Kennedy and Comcare [2015] AATA 334
National Australia Bank Ltd v Georgoulas [2013] FCA 1412
Secretary, Department of Employment and Workplace Relations v Comcare [2008] FCA 52
REASONS FOR DECISION
Member R West
26 November 2019

The matter for review by the Tribunal pursuant to s.64 of the Safety, Rehabilitation and Compensation Act 1988 (Act) is the decision of the Senior Case Manager of the Respondent dated 22 February 2018 to affirm the determination of the delegate dated
3 January 2018, to deny liability under s.14 of the Act for the Applicant’s claim for major depressive disorder of recurrent type, moderate severity.
Background
The Applicant commenced employment with the Department of Human Services (DHS) in January 2006 in the Centrelink Debt Recovery Unit. He was promoted to an APS 5 position as an Analyst in April 2010.
He was seconded to the Australian Crimes Commission in 2014 and returned to DHS in 2015 in his position as an APS 5 Analyst.
In July 2015 the Applicant lodged an application for promotion to an APS 6 Senior Intelligence Analyst position within DHS. In December 2015 the Applicant was advised that his application was unsuccessful. The Applicant lodged an appeal to the

Merit Protection Committee (MPC) on 19 February 2016. On 10 March 2016 the Applicant was notified that the MPC had affirmed all promotion decisions and his appeal was unsuccessful.
On 6 June 2016 the Applicant received a letter from the MPC[1] in which the Merit Protection Commissioner stated:
It has come to my attention that the Committee made an error in that your review applications were not in fact considered. I sincerely apologise for the failure of the Committee to deal with your application appropriately…..regrettably I have no capacity to correct the mistake…..You may seek to apply to a court for judicial review, having regard to the error that has been acknowledged.
[1] T3.5 at p.115.
The Applicant did not seek judicial review. He was appointed to an acting position as an APS 6 team leader in the Tactical Intelligence section on 20 June 2016. On 30 June 2017 the Applicant was advised that his temporary appointment to the APS…

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 Box and Comcare (Compensation)

Details

AGLC: Box and Comcare (Compensation) [2019] AATA 5522
Case: [2019] AATA 5522
Decision Date: 26 November 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by Comcare to deny liability for the applicant's claim for major depressive disorder. The applicant, an employee of the Department of Human Services, alleged his condition was caused by the department's handling of his promotion application and subsequent complaints made about his conduct. Comcare contended that the claim was excluded from compensation under the Safety, Rehabilitation and Compensation Act 1988 due to either a wilful and false representation by the applicant regarding prior ailments or because the condition arose from reasonable administrative action taken in a reasonable manner.

The Tribunal was required to determine whether the applicant's depressive disorder constituted an "injury" as defined by the Act, specifically considering the exclusions for wilful and false representations and for conditions arising from reasonable administrative action. This involved assessing the applicant's conduct in completing his compensation claim form and the nature of the administrative actions taken by his employer.

The Tribunal found that while the applicant had made a false representation on his claim form by stating he had not previously suffered from a similar ailment, this representation was not wilful. The applicant explained that the process of completing the claim form was distressing due to his then-current symptoms, and he had not intended to defraud the Commonwealth. He sought to rectify the error shortly after becoming aware of it. Furthermore, the Tribunal considered the applicant's promotion application issues and the subsequent complaints. It concluded that the administrative actions, while potentially contributing to the applicant's condition, were not taken in a reasonable manner, particularly in light of an acknowledged error by the Merit Protection Committee in handling his promotion appeal and the manner in which the complaints were addressed.

The Tribunal affirmed the decision to deny liability. It held that the applicant's condition was excluded from the definition of injury under section 5A(1) of the Act because it resulted from reasonable administrative action taken in a reasonable manner. The Tribunal found that the applicant's explanation for the false representation did not establish wilful intent, but the exclusion related to reasonable administrative action was determinative.

Orders

Orders of the court

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Background

Background to the litigation

The matter for review by the Tribunal pursuant to s.64 of the Safety, Rehabilitation and Compensation Act 1988 (Act) is the decision of the Senior Case Manager of the Respondent dated 22 February 2018 to affirm the determination of the delegate dated 3 January 2018, to deny liability under s.14 of the Act for the Applicant’s claim for major depressive disorder of recurrent type, moderate severity.Background The Applicant commenced employment with the Department of Human Services (DHS) in January 2006 in the Centrelink Debt Recovery Unit. He was promoted to an APS 5 position as an Analyst in April 2010. He was seconded to the Australian Crimes Commission in 2014 and returned to DHS in 2015 in his position as an APS 5 Analyst. In July 2015 the Applicant lodged an application for promotion to an APS 6 Senior Intelligence Analyst position within DHS. In December 2015 the Applicant was advised that his application was unsuccessful. The Applicant lodged an appeal to the Merit Protection Committee (MPC) on 19 February 2016. On 10 March 2016 the Applicant was notified that the MPC had affirmed all promotion decisions and his appeal was unsuccessful. On 6 June 2016 the Applicant received a letter from the MPC[1] in which the Merit Protection Commissioner stated:It has come to my attention that the Committee made an error in that your review applications were not in fact considered. I sincerely apologise for the failure of the Committee to deal with your application appropriately…..regrettably I have no capacity to correct the mistake…..You may seek to apply to a court for judicial review, having regard to the error that has been acknowledged.[1] T3.5 at p.115. The Applicant did not seek judicial review. He was appointed to an acting position as an APS 6 team leader in the Tactical Intelligence section on 20 June 2016. On 30 June 2017 the Applicant was advised that his temporary appointment to the APS 6 team leader position would cease. Thereafter he continued in his position as an APS 5 Analyst. On 4 July 2017 the Applicant was advised by his superior, Assistant Director Annemarie Johnson, that she had received two formal complaints about his conduct as team leader from members of staff. The matter was investigated by the Assistant Director and escalated to the National Manager and was reviewed by the Ethics and Conduct Standards unit. On 2 August 2017 the Applicant was informed that he was to receive a formal warning regarding his conduct. The Applicant took personal leave from 2 October 2017, citing anxiety and depression as the reason for his absence. The Applicant lodged a claim for compensation on 31 October 2017.Evidence In conducting the review the Tribunal has had regard to:(a)each of the documents produced to the Tribunal by the Respondent pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (the T-Documents);(b)the oral evidence of:(i)the Applicant;(ii)Dr Scott Chambers; and(iii)Annemarie Johnson.(c)the following documents tendered by the Applicant:(i)a bundle of emails – Exhibit A1;(ii)a medical report of Dr Gail Reid dated 17 June 2019 – Exhibit A2(iii)a report of Lucy Rogers, Clinical Registrar, Psychology dated 20 June 2019 – Exhibit A3; and(iv)telephone records for the period 7 November to 19 November – Exhibit A4(d)the following documents tendered by the Respondent:(i)record of a Skype conversation between Robyn Scott and Fiona Singleton of 5 April 2017 – Exhibit R1;(ii)medical report of Dr Chambers dated 28 November 2018 – Exhibit R2;(iii)transcript of telephone message dated 16 September 2019 – Exhibit R3;(iv)medical report of Dr Chowdary dated 6 February 2015 – Exhibit R4; and(v)admission records for Austin Health dated 25 June 2015 – Exhibit R5.Contentions

Evidence

Evidence Before The Court

The Applicant lodged a claim for compensation on 31 October 2017.Evidence In conducting the review the Tribunal has had regard to:(a)each of the documents produced to the Tribunal by the Respondent pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (the T-Documents);(b)the oral evidence of:(i)the Applicant;(ii)Dr Scott Chambers; and(iii)Annemarie Johnson.(c)the following documents tendered by the Applicant:(i)a bundle of emails – Exhibit A1;(ii)a medical report of Dr Gail Reid dated 17 June 2019 – Exhibit A2(iii)a report of Lucy Rogers, Clinical Registrar, Psychology dated 20 June 2019 – Exhibit A3; and(iv)telephone records for the period 7 November to 19 November – Exhibit A4(d)the following documents tendered by the Respondent:(i)record of a Skype conversation between Robyn Scott and Fiona Singleton of 5 April 2017 – Exhibit R1;(ii)medical report of Dr Chambers dated 28 November 2018 – Exhibit R2;(iii)transcript of telephone message dated 16 September 2019 – Exhibit R3;(iv)medical report of Dr Chowdary dated 6 February 2015 – Exhibit R4; and(v)admission records for Austin Health dated 25 June 2015 – Exhibit R5.Contentions The Applicant claims to have suffered an injury, namely stress, anxiety and depression, which was sustained in the course of his employment as an analyst officer with the DHS. The Applicant reported that he first noted the condition on 15 March 2016 and first sought medical treatment on 10 June 2017.[2][2] T3 at p.29 – 30. The Applicant claims that his condition was caused by:a.the failure of the DHS and the Australian Public Service Commission (APSC) to properly review his application for promotion in the period July 2015 to March 2016; andb.the manner in which the DHS dealt with two complaints made about the Applicant by work colleagues in July 2017. The Respondent has conceded in its written submissions that the Applicant suffers from an ailment, as defined in s.4 of the Act, being a major depressive disorder of recurrent type, and that but for the Applicant’s failure to obtain a promotion, and complaints made by other staff and resultant disciplinary action, the Applicant’s ailment would not have been aggravated and would not have caused him to be incapacitated for work, impaired or to have required medical treatment. The Respondent asserts, nevertheless, that it is not liable to compensate the Applicant under Part II of the Act because:a.the Applicant represented to the DHS that he had not previously suffered from the ailment and this representation was wilful and false and for purposes connected with his employment, and by virtue of s.7(7) the ailment is excluded from the definition of ‘injury’ in s.5A of the Act; and/orb.the Applicant’s ailment resulted from reasonable administrative action taken by the DHS in a reasonable manner, and by virtue of s.5A(1) is excluded from the definition of ‘injury’ in s.5A of the Act. Wilful and false representation

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Applicant gave the following explanation[15] for having made the false representation on the claim form:I wish to address the issue of the initial claim submitted on 31 October 2017; the initial Comcare claim that I submitted. With regards to that claim, as I have explained yesterday, it took approximately four weeks from the 3rd of October when I left work on personal leave, to actually get to finishing the Comcare claim. Unfortunately, I clicked the box saying that I had not suffered from a previous similar injury. I believed at the time that I had ticked that, that that was correct, and as I said when I was cross-examined yesterday, Dr Reid advised within about four or five days after that – she reminded me of a previous situation where I had come back from Canberra a few years earlier and had been diagnosed with a depressive illness. There was certainly no intent in me trying to defraud the Commonwealth in regard to putting the claim in. I’ve tried to rectify it. Unfortunately, in hindsight, I should have withdrawn that Comcare claim and started a new one but given it had taken four weeks to do, by the time I became aware of the error, I tried to rectify it directly with the Allianz case manager. Yesterday, I produced some evidence to show that I contacted the desk number of the Allianz case manager. Unfortunately, I obviously don’t have a copy of the – I’ve requested a recording of the call and the message that I left, and Allianz did not respond to me with regard to my requests on my admission over the phone that I had made an error, and I wanted the error to be rectified.[15] Transcript pages 92.45 – 93.20.There are a number of elements to the Applicant’s explanation which warrant consideration. The Applicant claimed it took approximately four weeks to complete the Comcare claim. The Applicant expanded on this aspect of his explanation in his final submissions where he stated:[16]Just finally, I just wanted to go back over the issue of the error on my Comcare claim being wilful. It’s very hard to explain my symptoms and how I was feeling in that period, when it was still reasonably fresh – the full extent of the Department’s failures. So, I guess I’ll refer you back to the report by Dr Chambers, on the 27th of December, in regards to the current symptoms, in which he describes a few of them, low mood, low energy, increase in weight, largely staying at home, easily irritable, disrupted sleep, along with secondary insomnia, low appetite, ruminating about workplace issues, reduced enjoyment from activities, feelings of hopelessness in regards to career, anxious travelling to the city, et cetera. Basically, I was just managing to exist in October 2017. I was largely housebound. I was very isolated, I felt abandoned by the Department. All those things were going on for me during October 2017 and as I’ve explained a few times now, it took four weeks to actually go through the whole process of putting a claim together and most of that process was with regards to the attachments that came to claim, as I found it terribly distressing to have to deal with any of those circumstances.[16] Transcript page 115.09.