Carney and Comcare (Compensation)

Case [2016] AATA 36

Carney and Comcare (Compensation) [2016] AATA 36 (29 January 2016)

Division

GENERAL DIVISION

File Number(s)

2015/0991

Re

Sandra Carney

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries
Date 29 January 2016  
Place Canberra

The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

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

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employees – injury caused by work – date of injury –whether reasonable administrative action – whether action in respect of employment – whether carried out in a reasonable manner – decision set aside and substituted.

Legislation

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

Cases

Abrahams v Comcare (2006) 93 ALD 147

Comcare v Mooi (1996) 69 FCR 439

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

Hart v Comcare (2005) 145 FCR 29

REASONS FOR DECISION

Deputy President Gary Humphries

29 January 2016

Background

  1. Ms Sandra Carney, the applicant, comes before the Tribunal seeking compensation for a condition she says she suffered as a result of certain workplace incidents in 2014. These occurred during her employment as an unsworn member of the Australian Federal Police (AFP). The resolution of her present claim turns on the nature of those incidents involving work colleagues and the extent, if any, to which she was psychologically injured by those incidents.

  2. On 24 September 2014, she made a claim for workers’ compensation against her present employer under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). On 20 February 2015, Comcare affirmed an earlier decision to deny liability for the claim and on 3 March 2015, Ms Carney sought a review of this decision in the Tribunal.

    Issues

  3. The issues which fall to the Tribunal to determine under the Act are:

    (a)What is the appropriate diagnosis of Ms Carney’s condition?

    (b)Was this condition a disease as defined in s 5B of the Act?

    (c)If so, was the disease the result of reasonable administrative action pursuant to s 5A of the Act, such that the disease is excluded from the definition of injury in the Act? In this question, determining the date on which she suffered her injury assumes some importance.

    It was conceded at the outset by the respondent, Comcare, that if Ms Carney suffered a disease (which it denied) then the disease was contributed to, to a significant degree, by her employment with the AFP. Comcare asserted that the condition did not amount to a disease, but that if it did it was caught by the reasonable administrative action provisions in s 5A, preventing it from giving rise to compensation.

  4. Ms Carney’s original workers’ compensation claim in these proceedings was for Aggravated back problem due to work-related stress. However, this element of her claim was not pursued at the hearing; the claim became one, in essence,…

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Details
AGLC
Carney and Comcare (Compensation) [2016] AATA 36
Case
[2016] AATA 36
Decision Date

CaseChat Overview and Summary

Ms. Carney, an employee of the Australian Federal Police (AFP), sought compensation for work-related stress against Comcare. The dispute centred around the applicability of her claim to statutory provisions and whether her condition met the criteria for compensation. The Full Bench of the Administrative Appeals Tribunal (AAT) was tasked with deciding whether Ms. Carney's work-related stress qualified as an ailment under the Safety, Rehabilitation and Compensation Act 1988. The critical legal issue was whether Ms. Carney's condition was outside the bounds of normal mental functioning and behaviour, significantly contributed to by her employment, and not the result of reasonable administrative action taken in a reasonable manner.

The Tribunal found that Ms. Carney had a history of vulnerability to workplace stress, which was exacerbated by various incidents at her workplace. The 16 January 2014 incident, where she was accused of refusing a meeting, significantly distressed her, leading to physical and emotional symptoms. The medical evidence, though somewhat tentative, indicated that Ms. Carney had a resolving adjustment disorder with depressed mood, triggered by workplace stress. Both experts agreed on the fluctuating nature of her mental health, with one diagnosing a psychiatric condition and the other not. Despite this divergence, the Tribunal accepted that Ms. Carney's work environment significantly contributed to her condition. The Tribunal concluded that the condition met the statutory criteria for compensation, as it was outside normal mental functioning and behaviour, significantly contributed to by her employment, and not the result of reasonable administrative action.

In light of the findings, the Tribunal set aside the original decision and determined that Comcare is liable to pay compensation to Ms. Carney for an adjustment disorder under section 14 of the Safety, Rehabilitation and Compensation Act 1988.

Orders

Orders of the court

The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

Background

Background to the litigation

Ms Carney’s original workers’ compensation claim in these proceedings was for Aggravated back problem due to work-related stress. However, this element of her claim was not pursued at the hearing; the claim became one, in essence, simply of work-related stress. Abrahams v Comcare (2006) 93 ALD 147 is authority for the proposition that the Tribunal on review may consider a claim in reformulated terms, provided that the same symptoms, disability and timeframe are still being asserted. That is the case here. In addition, Comcare initially pleaded that Ms Carney’s claim was excluded by operation of s 7(7) of the Act, in that she had not disclosed a prior workers’ compensation claim for work related stress. This contention was not pursued at the hearing.Relevant facts Ms Carney has been employed as an unsworn member of the AFP since August 2012, but has held a number of positions in both the public and private sectors in the decade and a half before her present employment. She rose to the level of team leader in a number of those positions, including at the AFP. However, she has been caught up in workplace conflict over much of that period, and her health has been affected by it, leading to extensive periods of leave related to stress and similar conditions. She lodged a claim for a stress-related disorder against a previous employer, Telstra, in 1998. She also attended the Kambah Medical Centre at least twice during 2013, while employed by the AFP, to report “stress at work”. In 2014, there was a series of incidents or events at her workplace (the AFP Headquarters in Barton) which it was variously asserted by the parties contributed to the condition or conditions which formed the basis of her present claim. I now set out briefly those incidents/events.The 16 January 2014 incident On 16 January 2014, Ms Carney was the team leader, Procurement and Vendor Relations in the Business Alignment and Innovation Branch at the AFP. Her superior was Mr John Hahn, Coordinator of the Branch. That day she was advised of a meeting to be held with Ms Virginia Savle, team leader of the ICT Assets Team, who was then acting in Mr Hahn’s position, as he was on leave. The meeting was called to discuss workflow diagrams that had recently been prepared for the Branch. There were three workflow diagrams to be discussed at the meeting; whilst there had been prior discussion in relation to two of those diagrams, the third had only been produced very shortly before the meeting and Ms Carney believed that her team had not had sufficient time to review the third diagram. Ms Carney attended the meeting with two members of her Procurement and Vendor Relations Team. Her version of events was that she advised Ms Savle at the commencement of the meeting that her team was not in a position to discuss the third diagram, but would discuss the other two. Ms Savle then declared that the meeting would not go ahead, and left the room. Ms Savle sent an email later that day to Ms Carney expressing disappointment that you refused to have this discussion with me (in front of 2 of your team members) given that I am acting in John’s role.[1] Ms Carney’s evidence was that she was extremely upset by this email, asserting that it stated that she had refused a meeting concerning workflow diagrams. She told the Tribunal she felt nauseous and experienced back pain that afternoon. That day she contacted Ms Alison Mogg, Acting Contract Manager, to explain that Ms Savle’s email was incorrect.[1] T18E.

Evidence

Evidence Before The Court

The effect of these provisions and the case law is that, for her claim to succeed under s 14, Ms Carney must show that she suffered a condition outside the boundaries of normal mental functioning and behaviour, that the condition was significantly contributed to by her employment, and that it was not suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. In the circumstances of this application, Ms Carney’s condition, if it met this test, would be a disease or ailment.The medical evidence Two medical experts were called at the hearing: Associate Professor Michael Robertson for Ms Carney and Dr Catherine Oelrichs for Comcare. In each case it strikes the Tribunal that their evidence seemed somewhat tentative, even guarded. This may be a reflection of what both acknowledged to be some predisposition on Ms Carney’s part to injury arising from workplace conflict. With this glass jaw (as Prof Robertson described it) leading to emotional reactions to a succession of workplace incidents, the difficulty in attributing a particular mental condition to incidents on particular dates is obvious. Prof Robertson said in his tendered report of 2 April 2015 that Ms Carney has a vulnerable personality and a propensity to workplace difficulties. He said she had suffered at least two instances of likely adjustment disorder with depressed or anxious mood, occurring against the background of an obsessional personality style. He diagnosed her as suffering, at the time of his examination on 30 March 2015, a resolving adjustment disorder with depressed mood. In her evidence Dr Oelrichs agreed with Prof Robertson’s comments about Ms Carney presenting with vulnerabilities and propensity to workplace difficulties. In a report dated 6 July 2015, she stood by her view, based on an interview on 24 October 2014, that Ms Carney was not suffering from a diagnosable psychiatric condition at that time. However, with respect to the difference between her and Prof Robertson’s diagnoses, she noted that this would be consistent with the variation of emotional symptoms which appear to have become more apparent in late 2014-early 2015. Prof Robertson told the Tribunal that Ms Carney dips in and out of clinically significant distress, with external stressors playing a significant role in this pattern. He was asked specifically whether the incident of 16 January 2014 had an impact on her; he responded that she appears to have clinically significant distress following that incident leading to considerable impairment of functioning. He said that her response to that event was psycho-pathological, rather than normative distress. Her GP, Dr Goel, diagnosed Ms Carney on 15 October 2014 as suffering from adjustment disorder with anxiety and depression. It is also worth noting Comcare’s acknowledgement that in July 1998 her former employer, Telstra, accepted liability to pay her compensation in respect of an adjustment disorder with depressed mood with a date of injury of 20 November 1996, and that this claim arose in a workplace context.Consideration

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Her GP, Dr Goel, diagnosed Ms Carney on 15 October 2014 as suffering from adjustment disorder with anxiety and depression. It is also worth noting Comcare’s acknowledgement that in July 1998 her former employer, Telstra, accepted liability to pay her compensation in respect of an adjustment disorder with depressed mood with a date of injury of 20 November 1996, and that this claim arose in a workplace context.Consideration The first – and most critical – question for the Tribunal to determine is whether Ms Carney suffered an ailment during her employment with the AFP, and if so when the ailment arose. It was conceded by Comcare that, if she did suffer a condition that fell outside the bounds of normal mental functioning and behaviour, her employment should be considered a significant contributor to it. Superficially, there was divergent expert medical evidence on her diagnosis. Prof Robertson found that she suffered an adjustment disorder with depressed mood (though resolving) as of 30 March 2015. Dr Oelrichs, by contrast, could not diagnose a psychiatric disorder as of 24 October 2014. However, each seemed to accept the fluctuating state of Ms Carney’s mental health, with Dr Oelrichs not contradicting Prof Robertson’s view that Ms Carney did suffer clinically significant distress at other times. The evidence strongly suggests that Ms Carney responded emotionally, even viscerally, to incidents of workplace stress. Both experts acknowledged that she was prone to such reactions when she perceived she was subjected to bullying or unfair treatment. Prof Robertson commented that her experience of such treatment was tantamount to a narcissistic injury. She clearly has a particular susceptibility to adverse reactions in these settings – an eggshell skull, as her counsel described it – but this fact does not diminish the reality of the psychological impact this has occasioned during her working life, nor does it make those reactions any less compensable if the legal test of an ailment is satisfied. In determining whether an employee’s condition has been contributed to, to a significant degree, by his or her employment, s 5B(2)(c) invites the decision maker to take into account any predisposition of the employee to the ailment or aggravation. This provision might be thought to suggest that a condition to which an employee was already predisposed is not one which can be contributed to by his or her employment. That reading of the section is too broad; the better interpretation is that an existing predisposition is an evidentiary matter, to be weighed up on a case-by-case basis, with the possibility in some instances that a condition might be due entirely by the pre-existing condition and not at all to the employee’s employment. In the present case, s 5B(2)(c) does not greatly assist the Tribunal, in that both doctors made reference to the exacerbating influence work stress had on her underlying vulnerability. Prof Robertson gave evidence to the Tribunal that Ms Carney appears to have clinically significant distress following the incident of 16 January 2014, a view that seems consistent with her evidence and her having taken time off work and consulting her GP soon afterwards. Moreover, I discern nothing in the evidence of Dr Oelrichs to contradict this conclusion. Ms Carney’s condition at that time appears to meet the test in Mooi, that is, it was outside the boundaries of normal mental functioning and behaviour.