BRADLEY BEASLEY and COMCARE

Case [2012] AATA 411

[2012] AATA 411

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/4815

Re

BRADLEY BEASLEY

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

Senior Member J L Redfern
Air Vice-Marshal (Dr) T K Austin AM, Member
Date 3 July 2012
Place Sydney

The decision under review is set aside and substituted with the decision that Comcare is liable to pay compensation to the Applicant under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

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

Ms J L Redfern, Senior Member

CATCHWORDS

COMPENSATION – liability for psychological injury – cause of injury - reasonable administrative action – undertaken in a reasonable manner – appraisal of performance -  decision under review set aside

LEGISLATION

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

CASES

Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289

Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; [2012] FCAFC 21
Hart v Comcare (2005) 145 FCR 29
Re Carpenter and Comcare (2010) 116 ALD 190; [2010] AATA 62
Re Georges and Telstra Corporation Limited [2009] AATA 731
Re KRDV and National Australia Bank Ltd (2011) 125 ALD 311; [2011] AATA 210
Re Lynch and Comcare (2010) 114 ALD 394; [2010] AATA 38
Re Shardlow and Comcare [2012] AATA 10
Re Wilson and Comcare [2010] AATA 396

REASONS FOR DECISION

Senior Member J L Redfern
Air Vice-Marshal (Dr) T K Austin AM, Member

3 July 2012

  1. Mr Bradley Beasley is a lawyer, who was employed by the Australian National University (ANU) from May 2004 in the Employment Strategies Branch of the Human Resources Division. He went off work on 31 August 2009 and did not return following a number of meetings with his supervisors in late August 2009. On 29 September 2009, Mr Beasley made a claim for compensation for anxiety and depression which was said to date back to 17 February 2006. Mr Beasley alleged that bullying and harassment by his supervisors caused his condition. He was admitted to Concord Hospital Mental Health Unit in November 2009 for a week. Mr Beasley was under the treatment of a psychiatrist from 28 or 29 September 2009 but refused to attend medical appointments arranged for him by the ANU on 31 March and 12 May 2010. He was given six months notice of termination of his employment on 1 June 2010 and on 30 November 2010, his employment ceased.

  2. Comcare denied the claim on 29 January 2010 and on 9 September 2010, following a request for reconsideration, Comcare affirmed this decision. It was accepted that Mr Beasley suffered a psychological injury related to his employment but his injury was determined to be from 25 September 2009, being the date of a medical certificate provided by Mr Beasley’s treating doctor, and not February 2006 as claimed by Mr Beasley. Liability was declined on the basis that Mr Beasley’s injury was sustained as a result of “reasonable administrative action taken in a reasonable manner” in respect of his employment and…

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AGLC
BRADLEY BEASLEY and COMCARE [2012] AATA 411
Case
[2012] AATA 411
Decision Date

CaseChat Overview and Summary

The case of Bradley Beasley and Comcare involved a dispute over whether Mr Beasley's psychological injury was work-related and whether Comcare, as the respondent, was liable to pay compensation under the relevant legislative provisions. Mr Beasley, a former employee, alleged that his psychological injury was caused by reasonable administrative action taken in a reasonable manner in respect of his employment. Comcare, on the other hand, argued that the injury was not work-related or that it was caused by excluded circumstances under the legislation. The central issues before the court were whether Mr Beasley suffered a work-related injury prior to a specific date and whether his psychological injury remained an effective or operative cause of any incapacity or need for treatment on a subsequent date. Additionally, the court had to determine whether Comcare's liability to pay compensation was affected by any exclusionary provisions in operation before the specific date. If the court found that Mr Beasley did not suffer a work-related injury prior to the specified date, it also had to consider whether he suffered a work-related injury or any aggravation after that date.

The court found that Mr Beasley did not suffer a psychological injury until after 31 August 2009, when he went off work and sought treatment, at which time he suffered a major depressive disorder. This disorder was work-related, and the meetings in late August 2009, including the presentation of the Kealley evaluation to Mr Beasley, contributed to a significant degree to his psychological injury. The court ruled that these matters were not "administrative action" and therefore the cause of Mr Beasley's injury was not an excluded cause under the relevant sections of the Act. Consequently, Mr Beasley was entitled to compensation under the Act. The court set aside the decision of Comcare and substituted it with the decision that Comcare is liable to pay compensation to Mr Beasley for his major depressive disorder under the relevant legislative provision.

Orders

Orders of the court

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Background

Background to the litigation

Given the contentions of the parties, the issues for determination are as follows:(a)Did Mr Beasley suffer a work related injury prior to 13 April 2007 and if so, did that injury remain an effective or operative cause of any incapacity or need for treatment on or after 31 August 2009, when Mr Beasley went off work?(b)If the answer to (a) is yes, is liability to pay compensation affected by the exclusionary provisions in operation before 13 April 2007?(c)If the answer to (a) is no, did Mr Beasley suffer a work related injury or any aggravation after 13 April 2007 and was it “as a result of reasonable administrative action taken in a reasonable manner in respect of [his] employment”?BACKGROUND FACTS AND EVIDENCE Mr Beasley commenced his working life as a painter and decorator and became a union official in 1988. He commenced work as a Senior Industrial Relations Officer at Sydney University in 1995 and in 2000 completed his Bachelor of Laws at the University of Technology, Sydney (UTS). He was admitted as a solicitor of the Supreme Court of New South Wales in June 2000 and worked as a solicitor from October 2000 until December 2001, when he commenced as a legal officer with the Association of Professional Engineers, Scientists and Managers Australia. Mr Beasley completed his Master of Laws in 2003. According to Mr Beasley, he gave advice on employment contracts and industrial disputes and appeared as an advocate on industrial relations matters. In February 2004, Mr Beasley made an application to the ANU as a Senior Employment Strategies Advisor. He contacted Ms Andrea Hope, Deputy Director, Human Resources Division, and negotiated with her about benefits and the scope of the role. Mr Beasley gave evidence, which was not disputed, that it was important to him for the role to have a legal focus to further his career as a lawyer and obtain an unrestricted practising certificate. His long term goals were to finish his Doctorate of Juridical Science at UTS; practice as a principal of his own law firm then go to the Bar and possibly enter politics. It was also important for Mr Beasley that his role should have status as a legal role and that he be recognised as such within the ANU. This was reflected in the chain of email correspondence between him and Ms Hope from 18 to 24 March 2004. In summary, Mr Beasley negotiated increased salary and financial entitlements, a change in his title to “Senior Employment Strategies Advisor – Legal”, an agreement that his classification would be reviewed within six months, two weeks’ additional paid leave to pursue legal employment, lecturing or studies, payment up to $2,000 for his legal registration and supervision by the University Counsel, Mr Ken Grime, on legal matters to assist him in obtaining an unrestricted practising certificate. Notwithstanding this, it is important to note that in the email correspondence Ms Hope stated “I don’t want to change the role description as the role is as described to you”.

Evidence

Evidence Before The Court

Mr Beasley was reviewed by a number of medical practitioners after and at around the time he made his claim. The medical evidence and evidence relating to the cause of Mr Beasley’s injury is in dispute and is referred to below.CAUSATION – EVIDENCE ABOUT MR BEASLEY’S INJURY There is dispute about when Mr Beasley’s “injury” first arose and the cause for his psychological injury. Counsel for Mr Beasley submitted that his injury first arose in 2006 when he was treated by Mr Jones. In the alternative, it was submitted that Mr Beasley’s injury was part of a gradual process that started in 2006 and that the events of late August 2009 were the “final straw”. Counsel for Comcare submitted that Mr Jones treated him for depression in relation to personal issues. Mr Beasley did not take any time off for work related anxiety prior to 31 August 2009. He was robust and well able to deal with disputes in the workplace and had in fact threatened taking legal action on more than one occasion – he was not bullied or harassed by his supervisors. There is no evidence that he suffered from a psychological condition, that is, a condition “outside the boundaries of normal mental functioning and behaviour” (Comcare v Mooi (1996) 69 FCR 439) prior to 25 September 2009, when he first sought treatment. According to a report from Dr Penna dated 1 January 2010, Mr Beasley’s symptoms were “typical of severe anxiety & depression illnesses”. Mr Beasley had told him he had “suffered several years of harassment at work but his symptoms had only become intolerable in the last few months”. Dr Hampshire provided reports dated 10 December 2009 and 9 August 2010. Both reports were in similar terms but the second report provided some updated information. Dr Hampshire also gave oral evidence. According to Dr Hampshire, Mr Beasley had a “Major Affective Disorder of marked severity”. Mr Beasley reported harassment over a period of three years and told Dr Hampshire he had seen two psychologists in relation to the harassment in this period. Dr Hampshire reported that Mr Beasley told him that issues had arisen during August 2009 that were being driven by Mr Watts, Mr Stewart, Dr White and Ms Kealley. He felt they were acting in a covert manner to damage his career. The “relentless persecution and bullying and harassment” had been going on for three years but this incident “tipped” him over the edge. Dr Hampshire was of the view Mr Beasley had Post Traumatic Stress Disorder (PTSD) as a result of the work related incidents described to him by Mr Beasley. It was not his impression that Mr Beasley’s breakdown was the result of personal relationship issues or alcohol abuse. Mr Beasley was very organised, structured and obsessive and could be vulnerable to mental illness in certain circumstances. He had assessed Mr Beasley two weeks before the hearing and was impressed with his progress. Mr Beasley was “not far off being fully recovered”. Dr John Champion, psychiatrist, provided a report dated 6 May 2011 in respect of an assessment undertaken of Mr Beasley on 27 April 2011. Dr Champion also gave oral evidence. According to Dr Champion, Mr Beasley had experienced an episode of depressive illness, most likely an Adjustment Disorder with depressed mood, with onset during August 2009. Mr Beasley may have had some subclinical depression prior to this but Dr Champion reported that Mr Beasley was adamant that his work had not suffered and it was the events in August 2009 that precipitated his seeking medical assistance and ceasing work. Dr Champion was of the opinion that Mr Beasley may have some predisposition towards overreaction on the basis of his strongly obsessional personality structure. The severity of his depressive episode may also have been contributed to by the heavy alcohol consumption reported at the time of his hospitalisation. According to Dr Champion, even though Mr Beasley reported he had been stressed by the work situation from 2005, it was not until 2009 that his condition developed to the point of a diagnosable depressive disorder. Dr Champion did not agree that Mr Beasley had PTSD but accepted he had a major depressive disorder. He also accepted there was no evidence that the alcohol intake recorded in his admission notes demonstrated a history of alcohol abuse. Mr Beasley himself conceded he had turned to alcohol in times of stress but was otherwise a “social drinker”.

Decision

Reasons for decision

There is evidence Mr Beasley was resistive of change, was in conflict with Dr White (and indeed most of his supervisors from 2006) and did not accept Dr White’s authority. Mr Beasley could have been counselled in relation to a number of these matters but his supervisors chose not to do so. They sought to avoid confrontation but issues were repeatedly raised with him on an ad hoc basis over many months. This led to further conflict and increasing suspicion on Mr Beasley’s part. When matters came to a head on 27 August 2009, Mr Watts met with Mr Beasley on 28 August 2009 but there was no resolution and Mr Beasley was referred to the formal grievance procedure. By this stage, it was too late and a facilitated resolution, as suggested by Mr Beasley, may have been more appropriate given the circumstances. We accept that reasonable action does not have to be perfect but, as observed by Professor Creyke, in Re Wilson and Comcare [2010] AATA 396, it has to be “tolerable and fair”. In this case it was not.CONCLUSION In summary, we find that Mr Beasley did not suffer a psychological injury until after 31 August 2009, when he went off work and sought treatment, at which time he suffered a major depressive disorder. This disorder was work related. The meetings in late August 2009, including the presentation of the Kealley evaluation to Mr Beasley during the meeting of 20 August, contributed to a significant degree to Mr Beasley’s psychological injury. These matters were not “administrative action” and therefore the cause of Mr Beasley’s injury was not an excluded cause under ss 5A(1) or (2). As such, Mr Beasley is entitled to compensation under s 14 of the Act. Having regard to these findings, the decision of Comcare should be set aside and substituted with the decision that Comcare is liable to pay compensation to Mr Beasley for major depressive disorder under s 14 of the Act.

Ratio Decidendi

Legal Principle Established

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