CCTS and Comcare (Compensation)

Case [2023] AATA 60

CCTS and Comcare (Compensation) [2023] AATA 60 (24 January 2023)

Division:GENERAL DIVISION

File Number(s):          2021/7190

Re:CCTS  

APPLICANT

AndComcare

RESPONDENT

Decision

Tribunal:Senior Member Dr Linda Kirk

Date:24 January 2023

Place:Sydney

The Tribunal affirms the decision under review in accordance with subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

.................................[SGD].......................................

Senior Member Dr Linda Kirk

Catchwords

WORKERS’ COMPENSATION – whether the Applicant suffered an ailment or an aggravation of an injury for the purposes of section 5A(1)(a) of the Safety, Rehabilitation and Compensation Act 1988 resulting in disease as defined by section 5B(1)(b) of the Act – whether the Applicant’s employment contributed, to a significant degree, the aggravation of the ailment such that she has a ‘disease’ under section 5B(1) of the Safety, Rehabilitation and Compensation Act 1988 – whether employer’s conduct amounted to reasonable administrative action – whether any reasonable administrative action was taken in a reasonable manner – whether any injury is excluded for being a result of reasonable administrative action - decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)

Cases

Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29
Comcare v Martinez (No 2) [2013] FCA 439
Comcare v Mooi (1996) 69 FCR 439
Comcare v Power (2015) 238 FCR 187

Comcare v Reardon [2015] FCA 1166

Comcare v Sahu-Kahn (2007) 156 FCR 536

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463

Drenth v Comcare [2011] AATA 582

Hollis v Comcare [2017] FCA 558

Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42

Lim v Comcare [2017] FCAFC 64

Su v Comcare [2011] AATA 934

Vo v Comcare [2005] AATA 773
Von Stieglitz v Comcare [2010] AATA 263

REASONS FOR DECISION

Senior Member Dr Linda Kirk

24 January 2023

INTRODUCTION

  1. CCTS (‘the Applicant’) was born in 1996.[1] She commenced employment with the Australian Border Force (‘the ABF’) in the Department of Home Affairs in October 2018.[2] From October 2019, she was employed as an APS3 Officer in Aviation Traveller, New South Wales working in airport operations at the Sydney International Terminal.[3]

    [1] Exhibit R1, T25, 180.

    [2] Transcript of proceedings, 9 August 2022, 5.

    [3] Ibid at 45.

  2. On 3 June 2021, the Applicant lodged a claim for workers’ compensation in respect of ‘major depression and anxiety’ which she claimed to have sustained as a result of a series of workplace incidents on 5 and 25 December 2020 and 9 January 2021.[4] The Applicant reported that she first noticed her symptoms on 5 December 2020, and first sought medical treatment on 11 January 2021.[5]

    [4] Exhibit R1, T25, 7-18.

    [5] Ibid at 14.

  3. By determination dated 23 August 2021, Comcare (‘the Respondent’) denied liability under section 14 of the Safety, Rehabilitation and Compensation Act1988 (Cth) (‘the SRC Act’) in respect of ‘

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AGLC
CCTS and Comcare (Compensation) [2023] AATA 60
Case
[2023] AATA 60
Decision Date

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal, with Linda Kirk SM presiding, concerning a claim for compensation by an applicant against Comcare. The dispute centred on whether the applicant had suffered an "injury" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), specifically an ailment or an aggravation of an ailment, and whether her employment contributed to this condition to a significant degree, thereby constituting a "disease" under the Act. A further issue was whether any such disease was a result of reasonable administrative action taken in a reasonable manner by the applicant's employer, the Australian Border Force (ABF).

The Tribunal was required to determine several key legal issues. These included establishing the diagnosis and date of onset of the applicant's condition, whether this condition constituted an "ailment" or an "aggravation" of an ailment, and if it was a "disease" under section 5B(1) of the SRC Act due to significant contribution from her employment. Crucially, the Tribunal also had to consider whether the applicant's condition, if it met the definition of "injury," was excluded by section 5A(2) of the Act because it arose from reasonable administrative action taken reasonably by the ABF.

In its reasoning, the Tribunal considered conflicting medical opinions regarding the applicant's diagnosis and the onset of her condition. While Associate Professor Damodaran diagnosed an adjustment disorder with mixed anxiety and depressed mood, with symptoms becoming clinically identifiable by January 2021, Dr. Cocks opined that the applicant suffered from Major Depressive Disorder, with symptoms indicating a pre-existing condition that was exacerbated by workplace incidents. The Tribunal gave greater weight to Dr. Cocks' opinion, noting he had considered all relevant material. However, the medical evidence remained inconclusive on the precise date of onset. The Tribunal also considered the applicant's emotional responses during meetings with her employer, finding that discussions about her mental health were not unreasonable given the nature of her work.

Ultimately, the Tribunal was not satisfied that the applicant had suffered an "injury" for the purposes of section 5A of the SRC Act for which Comcare was liable to pay compensation under section 14. Consequently, the Reviewable Decision was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue for determination is whether the Applicant is entitled to compensation for an ‘injury’ under section 14 of the SRC Act and specifically:1)what is the diagnosis and date of onset of the Applicant’s condition?2)is the Applicant’s condition an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in section 4 of the SRC Act?3)was this ailment or aggravation of an ailment contributed to, to a significant degree, by the Applicant’s employment with the ABF, such that she has a ‘disease’ under section 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in section 5A(1)(a)? 4)whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner by the ABF within the meaning of section 5A(2), such that it is excluded from the definition of ‘injury’ in section 5A(1) of the Act.EVIDENCE BEFORE THE TRIBUNALEarly years The Applicant was born in Sydney in 1996. She is the youngest of four children and has an older sister and two older brothers. She attended Tahmoor Public School and then went to Magdalene High School, a private catholic school. After term one, she moved to Picton High School where she completed her education. She was an academic student who was always in the top two classes.[10] The Applicant is reported to have been a shy child who worried about embarrassing herself. She experienced separation anxiety or “high trait anxiety”.[11] She is reported to have suffered from anxiety in secondary school and would go to the sickbay with nausea. She also experienced performance anxiety and suffered from migraines.[12] [10] Exhibit R2, R1, 78.[11] Exhibit R2, R2, 96.[12] Exhibit R2, R2, 96. The Applicant was prescribed an anti-depressant by her general practitioner in August 2013. She claims that she did not have the script filled and therefore did not take the medication. She had been getting upset and crying, but she believes this was an effect of taking the contraceptive pill.[13]Education and employment On completion of her High School Certificate, the Applicant completed a Bachelor of Policing through the University of Western Sydney over a three-year period. She then completed a Certificate in Workforce Essentials through Charles Sturt University. She withdrew from the process of becoming a police officer and did not attend the New South Wales Policy Academy in Goulburn to complete the final stage of her studies as she was concerned about the culture within the police force. [13] Transcript of proceedings, 10 August 2022, 121. The Applicant applied for a position with the ABF and as a Correctional Officer with Juvenile Justice. She obtained both positions and worked full-time with the ABF and as a casual Detention Officer at Reiby Juvenile Justice Centre. She transferred to working with the ABF full-time in 2018 and worked six days per week.[14] She commenced working in airport operations at the Sydney International Terminal at the end of October 2019. Her duties involved conducting passenger processing and enforcing customs and migration legislation at the border.[14] Exhibit R2, R1, 78.Relationship with father

Decision

Reasons for decision

The Tribunal is not satisfied that the Applicant suffered an ‘injury’ for the purposes of section 5A of the SRC Act for which the Respondent is liable to pay her compensation under section 14 of the Act.DECISION The Reviewable Decision is affirmed.

Ratio Decidendi

Legal Principle Established

The evidence is that the Applicant was upset both at the start of the meeting and during the meeting. There is evidence that the Applicant regularly became upset and teary during meetings to discuss her welfare. The point had been reached where it was necessary to have a discussion with the Applicant about the concern for her mental health. This was not unreasonable in light of the important work that takes place at the airport.[193]CONSIDERATION AND REASONS[193] Ibid, 152. What is the diagnosis and date of onset of the Applicant’s condition? Based on the evidence before it, and for the following reasons, the Tribunal finds that the Applicant suffers from Major Depressive Disorder with an unspecified date of onset. Associate Professor Damodaran diagnosed the Applicant with ‘adjustment disorder with mixed anxiety and depressed mood.’[194] He considered that the symptoms from this condition became clinically identifiable by 9 January 2021 but noted that the Applicant had ‘some emotional distress and emotional symptoms’ before this date. He reported that there was no pre-existing psychiatric condition, although the Applicant was ‘psychologically vulnerable given the understandable grief and bereavement she was going through during 2020.’ In his opinion, the Applicant’s condition ‘is not an aggravation, acceleration, or recurrence of any pre-existing condition.’ [194] Exhibit R2, R10, 288. Dr Cocks’ opinion is that the Applicant suffers from Major Depressive Disorder as her symptoms meet the DSM-5 criteria for this condition. Specifically, the Applicant ‘presents with biological and psychological symptoms characteristic of a depressive illness.’ In his view, the Applicant’s condition does not meet criteria C for Adjustment Disorder, as the criteria for another condition, Major Depressive Disorder, are met. Dr Cocks’ evidence is that the Applicant’s symptoms are not consistent with bereavement or grief which tends to be fluctuating and does not influence biological parameters such as a pervasive sleep disturbance. He found that as the symptoms the Applicant displayed are biological changes, this indicates she suffers from a depressive illness not the effects of bereavement. In reaching a finding as to the ailment which the Applicant suffers, the Tribunal has given greater weight to the opinion of Dr Cocks for reason that, unlike Associate Professor Damodaran, he received and considered all the relevant material including the summons documents. The evidence that the Applicant’s condition has persisted beyond six months is a further indication that the criteria for Adjustment Disorder are not met as criteria E provides ‘Once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional 6 months.’ In relation to the date of onset of the Applicant’s depressive illness, Associate Professor Damodaran’s opinion is that this condition became clinically identifiable by 9 January 2021. Whereas she had ‘some emotional distress and emotional symptoms’ before this date, she did not have a pre-existing psychiatric condition. Accordingly, the Applicant’s depressive illness ‘is not an aggravation, acceleration, or recurrence of any pre-existing condition.’ Dr Cocks’ view is that the Applicant’s condition is pre-existing as evidenced by the fact that she had a pre-existing vulnerability to the development of depression, and the evidence in the notes of the clinical psychologist (Ms Bridgford) that the Applicant noticed a general deterioration in her mental health towards the middle of 2020. In Dr Cocks’ opinion, the workplace incidents ‘contributed an exacerbation’ of the Applicant’s condition. The medical evidence is therefore inconclusive as to the date of onset of the Applicant’s condition.