Burns v Comcare (Practice and procedure) - [2025] ARTA 361

Burns and Comcare (Practice and procedure) [2025] ARTA 361 (12 March 2025)
Applicant:Ms Jacqueline Burns
Respondent: Comcare
Tribunal Number: 2024/10928

Tribunal:Ms A E Burke, General Member
Place:Melbourne
Date of decision: 12 March 2025
Date of written reasons: 11 April 2025

The Tribunal, pursuant to section 101(1)(b) of the Administrative Review Tribunal Act2024 (Cth) dismisses the application as it is satisfied that the application for review of the decision has no reasonable prospects of success.

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Ms A E Burke, General Member
Catchwords
PRACTICE AND PROCEDURE – workers’ compensation – previous settlement – subsequent claim – written notice of injury be provided as soon as practicable – no reasonable prospect of success – application dismissed
Legislation Administrative Review Tribunal Act 2024 (Cth) Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases

Ellison v Comcare [2022] FCA 95
Holmes and Comcare [2001] AATA 290
Statement of Reasons

The application was heard via telephone on 11 March 2025. Ms Burns was represented by Mr Jonathan De Biase of Angela Sdrinis Legal, and Ms Rachel Cubela of Moray & Agnew Lawyers appeared for the Respondent Comcare. The Tribunal made an oral determination to which Mr Jonathan De Biase has requested written reasons.
BACKGROUND
On 26 July 2017 Comcare denied liability for Ms Burns’ claimed condition lodged on 12 December 2016 in respect of "Major depressive disorder, Generalised anxiety disorder with indicators of Post Traumatic Stress Disorder". Ms Burns indicated she had suffered a date of injury as 1 December 2016, noting she had experienced trauma back in August 2012 and February 2013. The claims and liability manager determined:
I have reviewed and considered all information that has been provided. I agree with the Delegate that you suffered a psychological condition, and that the weight of the evidence supports that it resulted from reasonable administrative action. I note you sought medical attention for your psychological symptoms on 1 December 2016, being immediately after the meeting in question concerning your performance. It would appear that your condition largely arose as a result of a performance management process. I note your view that …. behaved in an improper manner, however the evidence indicates that the process was conducted in a reasonable manner. By virtue of section 5A(2)(a), this means that compensation is not payable for your condition.
On 20 February 2018 the Administrative Appeals Tribunal issued a decision in respect of Ms Burns’ appeal against denial of her 2016 injuries as the parties had reached an agreement. The decision recorded:
Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the reviewable decision dated 26 July 2017.
On 27 April 2024, Ms Burns lodged a claim for workers compensation for ‘Major Depressive Disorder, Anxiety, Post Traumatic Stress Disorder’ and stated she first noticed her condition on 1 October 2014 and sought treatment on 1 October 2014. Attached to Ms Burns’ claim was a lengthy account of her claimed condition which she indicated first arose in 2013, part of Ms…

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 Burns v Comcare (Practice and procedure)

Details

AGLC: Burns v Comcare (Practice and procedure) [2025] ARTA 361
Case: [2025] ARTA 361
Decision Date: 12 March 2025

CaseChat Overview and Summary

In Burns v Comcare, the Federal Court reviewed an application for reconsideration of a decision denying Ms Burns workers’ compensation for a psychological condition. Ms Burns claimed the injury was caused by workplace events occurring in 2013 and 2014. The key legal issues were whether Ms Burns provided timely notice of her injury as required by section 53 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and whether her current claim for compensation was distinct from her previously settled claim. The Court held that Ms Burns did not provide timely notice of her injury, which would have prejudiced Comcare’s ability to investigate her claim. Additionally, the Court found that Ms Burns' current claim was not sufficiently distinct from her previously settled claim, as the medical evidence indicated her condition had been ongoing since at least 2013. The Court concluded that the application for review had no reasonable prospects of success and dismissed it.

The Court noted that Ms Burns had previously accepted a settlement for her psychological condition in 2018, and there was no evidence to support that her current claim involved a separate condition. The Court emphasized the importance of timely notice of injury and the potential prejudice caused by significant delays in lodging a claim. The Court found that the substantial delay in Ms Burns’ claim prejudiced Comcare and made a determination of the matter costly, complex, and slow. The Court also highlighted that Ms Burns had been well enough to lodge her claim in 2016, despite suffering from the same condition, which further undermined the prospects of her current claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The application was heard via telephone on 11 March 2025. Ms Burns was represented by Mr Jonathan De Biase of Angela Sdrinis Legal, and Ms Rachel Cubela of Moray & Agnew Lawyers appeared for the Respondent Comcare. The Tribunal made an oral determination to which Mr Jonathan De Biase has requested written reasons.BACKGROUND On 26 July 2017 Comcare denied liability for Ms Burns’ claimed condition lodged on 12 December 2016 in respect of "Major depressive disorder, Generalised anxiety disorder with indicators of Post Traumatic Stress Disorder". Ms Burns indicated she had suffered a date of injury as 1 December 2016, noting she had experienced trauma back in August 2012 and February 2013. The claims and liability manager determined:I have reviewed and considered all information that has been provided. I agree with the Delegate that you suffered a psychological condition, and that the weight of the evidence supports that it resulted from reasonable administrative action. I note you sought medical attention for your psychological symptoms on 1 December 2016, being immediately after the meeting in question concerning your performance. It would appear that your condition largely arose as a result of a performance management process. I note your view that …. behaved in an improper manner, however the evidence indicates that the process was conducted in a reasonable manner. By virtue of section 5A(2)(a), this means that compensation is not payable for your condition. On 20 February 2018 the Administrative Appeals Tribunal issued a decision in respect of Ms Burns’ appeal against denial of her 2016 injuries as the parties had reached an agreement. The decision recorded:Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the reviewable decision dated 26 July 2017. On 27 April 2024, Ms Burns lodged a claim for workers compensation for ‘Major Depressive Disorder, Anxiety, Post Traumatic Stress Disorder’ and stated she first noticed her condition on 1 October 2014 and sought treatment on 1 October 2014. Attached to Ms Burns’ claim was a lengthy account of her claimed condition which she indicated first arose in 2013, part of Ms Burns’ chronological summary reads:I was victimised, isolated and bullied by [the] Assistant Commissioner from his arrival to my work area in approximately late 2013. He would not explain to my managers (…) what his issue with me was. …. he removed me from under their management in order to isolate me from my support network, and instead placed me with managers compliant with his desire to get rid of me. This set me into a spiral of anxiety and depression that greatly affected my work performance and my wellbeing over the subsequent 2 years. Then… [a manager] took over the drive to get rid of me. This culminated in a disingenuous Coaching Plan and Performance Management process which resulted in the complete destruction of my mental health, despite many warnings to them that this was occurring. I became suicidal and was admitted to a psychiatric facility in October 2017 under Dr Kerryn Fitzpatrick. I have been under her psychiatric care since that time and she has deemed me to be Totally and Permanently Disabled by their actions. I have not worked since that time and have not been well enough until now to lodge this claim. This was because going through the events constantly triggered me to re-live the trauma and relapse into severe anxiety and depression, as a symptom of PTSD. The critical incident that forms the basis of this claim is the behaviour of [a manager], and of the staff operating under her direction, and the severe psychological injury those actions caused to me. I had never claimed Comcare leave prior to October 2017 but the background involving [the Assistant Commissioner] is provided to answer the question of how all of this started, which was asked of me in 2020 when I first attempted to lodge this claim. I felt that I was talked into withdrawing that claim, because I was not well enough to provide all of this evidence at that time, and the indication I was given was that my claim would be rejected.…ConclusionI have been on a disability support pension for the past 6.5 years because every time I felt I had recovered enough to try to lodge this complaint it would cause me to re-live all of the trauma and relapse. ANZ is in the process of taking my family home due to mortgage default so I need a fast resolution to this claim and the backpay I am owed. I hope that someone will finally take what was done to me seriously.

Evidence

Evidence Before The Court

On 5 November 2024 Comcare affirmed the 6 May 2024 determination to deny Ms Burns’ claim. The Comcare delegate determined:34. In your reconsideration submissions, you are claiming that the decision to deny your current claim (1263463/3) solely pursuant to section 53 of the SRC Act, was insufficient and effectively is a denial under section 14 of the SRC Act. To make a finding in this regard, I have considered all medical and factual information available on your claim file.35. Section 53 of the SRC Act requires that written notice of injury be provided as soon as practicable to the relevant authority. What was required to be notified to Comcare was the injury, and the SRC Act places the onus of informing Comcare on you, in such a manner that notifies Comcare that it may need to consider a claim for workers’ compensation.36. The primary delegate found that it is difficult to assess this claim in the context of workers’ compensation some 10-11 years after the claimed events in question. Comcare (and by delegation, the ATO) was therefore unable to have you medically assessed at the relevant time of the claimed injury and were denied the opportunity to manage the injury through medical treatment and/or rehabilitation. The lengthy delay in making this claim may also have caused the quality of the evidence to be eroded, and persons with knowledge of the claimed events in 2013/2014 may no longer be available to provide their evidence.37. I note that you left the employ of the ATO in November 2017, therefore it was likely to be difficult in obtaining contemporaneous records from 2014 through to 2017, to assist in the assessment of your claim.38. As noted by the primary delegate, in relation to claim 1263463/1 you indicated in the claim form completed that you previously experienced a similar symptom, injury, or illness in 2012/2013, but made no reference to any work-relatedness in relation to those experiences. The denial of liability for claim 1263463/1 did proceed to the AAT, who issued a decision on 20 February 2018 noting the parties had reached agreement by consent, and the denial of liability was affirmed. There is no suggestion of you providing notice of an earlier injury in 2013/2014 during those proceedings.39. There remains no evidence that the failure to give timely written notice of injury arose due to an absence from Australia, ignorance, mistake, or any other reasonable cause. It is therefore likely that there has been significant prejudice to the ATO, given the passage of time since the date of your claimed injury, whether 1 October 2014 (this claim), 19 November 2013 (claim 1263463/2), or any other date you have or have not specified. I note that there is no compelling evidence on your claim files to indicate any reasonable cause for the delay in lodging your claim.40. Therefore, in reviewing your claim afresh, I agree with the primary delegate that you did not provide notice of the injury in writing to Comcare as soon as practicable. In the circumstances, unless Comcare would not be prejudiced by the late notice, or the late notice resulted from ignorance, mistake or another reasonable cause, the SRC Act does not apply to the claim.41. Apart from the consideration of section 53 of the SRC Act, I am also mindful of the provisions of section 54 of the SRC Act. On the available evidence there does not appear to be any distinction between the conditions claimed in claim 1263463/1, and the circumstances surrounding that claim, from the current claim (1263463/3) under review. Whilst you have noted in your written submissions that your injury ‘peaked’ some time in 2017 and noting you had already claimed for a previous condition with a 2016 date of injury; the available evidence is not clear in distinguishing these two claimed conditions.42. I therefore do not consider that there is any material change in the nature of the claimed injury, or the circumstances said to have led to the injury, to warrant a fresh claim for compensation being made.43. The medical evidence of Dr Fitzpatrick, in the report dated 10 May 2023, does not provide sufficient evidence to establish that the diagnosed condition is a new or distinct condition to that previously claimed (1263463/1). From reviewing the report, it appears that your claimed condition commenced in approximately October 2014 (four years prior to you being deemed ‘unable to work’ on 6 October 2017), and since then, your symptoms, and therefore condition, has continued.44. The medical conditions you are claiming in this claim, being ‘Major Depressive Disorder, Anxiety and Post Traumatic Stress Disorder’, appear to be the same medical conditions as the previously claimed in claim 1263463/1; namely ‘Major depressive disorder, Generalised anxiety disorder with indicators of Post Traumatic Stress Disorder’. I again note that claim 1263463/1 was resolved and affirmed in the AAT by decision (2017/5243) dated 20 February 2018.45. Having given consideration to the above, I am satisfied that the evidence before me supports your assertions that your condition may have ‘peaked’ around the time you received the intention to dismiss letter. However, there is limited medical evidence to confirm this, other than the backdated certificate from Dr Fitzpatrick, submitted in May 2020. You now submit that the delivery of the letter in October 2017 is the catalyst for your current claimed condition. 46. The passage of time from 2013, 2014, or 2017, has significantly prejudiced the ATO from the ability to appropriately investigate your submissions. I also note that the proceedings in the AAT were continuing at that time with the decision being handed down on 20 February 2018, therefore it is unlikely that the delayed lodgment in 2024 could be due to ‘ignorance, from a mistake or from any other reasonable cause’; as noted in section 53 of the SRC Act.47. I also note that insufficient distinction has been made between the condition you were allegedly suffering at the time of your previous AAT proceedings, and the claimed condition apparently suffered in October 2017; which was around the time you received the intention to dismiss letter.48. It is apparent that the intention to dismiss letter in October 2017 came following Coaching Action Plans, due to performance issues in 2016, and was the subject of claim 1263463/1 and subsequent AAT case 2017/5243.49. I agree with the primary delegate that the section 53 requirements for this claim have not been met. In addition, the condition claimed under section 54 on this claim (1263463/3), has not been sufficiently distinguished from that of your earlier claim (1263463/1).50. From the limited available medical information on your claim file, the condition now claimed appears to be substantially the same, and a continuation of, your previously claimed condition. The decision to deny that claim was affirmed in the AAT on 20 February 2018.51. For these reasons, and the reasons detailed above, this claim is therefore excluded by the provisions of section 53 of the SRC Act. Therefore, I am in agreement with the reasoning and conclusion in the determination under review, to deny your claim.EVIDENCE

Decision

Reasons for decision

There was no evidence to satisfy the Tribunal that Ms Burns had suffered a separate condition from the one she had accepted a settlement, and it would be futile to all concern to allow the matter to progress.DECISIONThe Tribunal is satisfied that the application for review of the decision has no reasonable prospects of success.The Tribunal, pursuant to section 101(1)(b) of the Administrative Review Tribunal Act2024 dismisses the application as it is satisfied that the application for review of the decision has no reasonable prospects of success.

Ratio Decidendi

Legal Principle Established

Comcare’s representative contended:·Ms Burns was seeking to cherry pick as her previous claim condition had been accepted to arise from the stressors in her workplace, fundamentally it was all one and the same sets of circumstances.·Ms Burns had accepted and received a settlement in good faith for her previous claim when she was legally represented.·Ms Burns was simply prosecuting her previous claim which has been settled.CONSIDERATION The Tribunal as a merits review body, does not dispense justice, but must proceed in a manner which is fair and just within the statutory law which applies in the particular case. The Tribunal must also ensure all parties to the proceedings are afforded a fair and just hearing. The exercise of any discretion must be used wisely and the lack of prospect of success does not require a finding that the particular case is hopeless or bound to fail. However, the Tribunal could see no merit in allowing Ms Burns’ claim to proceed as it had no prospect of success. The Tribunal considered that Ms Burns’ claim had no prospect of success on several fronts.(a)Ms Burns had failed to give notice of her claimed conditions as required by section 53 of the SRC Act. The Tribunal does not concur with Comcare’s submission that the Tribunal does not have jurisdiction in respect of section 53 of the SRC Act. Numerous matters before the Tribunal have dealt with the determinative position of a claim failing because it was not compliant with section 53 of the SRC Act. Notably: Holmes and Comcare [2001] AATA 290 (‘Holmes’) and Ellison v Comcare [2022] FCA 95 (‘Ellison’). (i)Holmes where the member found the applicant had not complied with section 53(1)(a) of the SRC Act as they had not given notice "as soon as practicable" after they became aware of that injury.(ii)Ellison where his Justice accepted that ss 53 and 54 of the SRC Act impose preconditions upon a decision-maker, including the Tribunal, deciding a claim for compensation. Finding:The paramount consideration is whether Comcare was appropriately informed as to the nature of the claimed injury and its connection with the employment; and whether it was provided a fair opportunity to properly investigate that claim. As I have said, the materials before Comcare in the reconsideration application raised that claim. Comcare was on notice of it and had ample opportunity to properly investigate it......That report was plainly significant to the reconsideration application; and the review officer specifically referred to and briefly summarised it. That broader claim had been before Comcare in the reconsideration application, and the Tribunal had jurisdiction to consider and decide it.Treating the broader claim as being properly before the Tribunal does no harm to the “orderly process of administration contemplated by the Act” (Abrahams at [16]). The orderly process of administration contemplates “progressive and evolving decision-making” in the light of subsequent events and circumstances: Hannaford at [57]The Tribunal did not consider this factor alone was the cause of Ms Burns' application having no reasonable prospects of success. However, it was an added speed bump on her way to explaining why after 11 years and previously accepting a settlement for the same condition she was now seeking to press a supposedly new claim. Ms Burns' evidence was she is only well enough now to progress this claim for mental anguish she felt from 2013. This seems at complete odds with the fact she was well enough to press her claim in 2016 when she was suffering from the same condition. Additionally, the evidence from Dr Fitzpatrick also indicates Ms Burns was aware of the issues in 2013 and again there is no reasonable explanation as to why Ms Burns did not put in an injury report, claim of harassment against her manager or a Comcare claim in 2013.(b)Ms Burns had accepted a settlement for her claimed psychological condition There was no evidence before the Tribunal to satisfy it that Ms Burns claim was for a new claimed condition. Ms Burns accepted a settlement, whilst legally represented in 2018 for her mental health condition. The evidence before the Tribunal from Ms Burns and Dr Fitzpatrick indicates her psychological condition whilst present in 2013 was improving and it was the subsequent actions of the performance management in 2017 that caused her injury. On 27 October 2024 Ms Burns emailed Comcare to explain the basis of her new claim in the email she states:…The date of claimed injury is NOT October 2013. Per the original claim that was lodged in late 2020 the injury I am claiming for was caused by [ a manager] and the false performance management process she oversaw. This injury peaked when she issued me with the intention to dismiss letter in October 2017 which contained no factual basis for my dismissal, just her opinion that I lacked the intelligence, judgement and common sense to remain employed.The prior events leading up to her taking over as Assistant Commissioner were provided for background context to explain why I was being unfairly targeted and bullied. I had been asked verbally for this information at the time that the original claim from 2020 was being assessed. Yes the behaviour of [the Commissioner] did trigger anxiety, depression and time off work and the ongoing bullying and harassment from his managers led to my work performance dropping badly. However I had been recovering and improving and the Coaching process to help train me in the work of my new team had built my confidence back up and given me structure and organisation with key goals to meet. (c)the significant delay in proceeding with the claim will prejudice all concerned, making a determination of the matter costly, complex and slow.