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
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.
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
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.
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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- AGLC
- Carney and Comcare (Compensation) [2016] AATA 36
- Case
- [2016] AATA 36
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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.