Cheryl Peters and Comcare - [2012] AATA 636

[2012] AATA 636

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/4942

Re

Cheryl Peters

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr John Handley, Senior Member

Date 21 September 2012

Place Melbourne
The Tribunal affirms the decision under review.
(sgd) John Handley
Senior Member
COMPENSATION – applicant returned to work after a non-compensable injury with certificate to undertake suitable and normal duties – subsequent injury by administrative action of her employer – failure to obtain a transfer and a benefit – whether administrative action was reasonable and taken in a reasonable manner in respect of her employment – decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B
CASES
Commonwealth Bank of Australia v Reeve and Another (2012) 125 ALD 181
National Australia Bank Ltd v KRDV [2012] FCA 543
Buck and Comcare [2012] AATA 327
REASONS FOR DECISION
Mr John Handley, Senior Member

Ms Peters, the applicant in this review, has been employed by Australian Taxation Office (the ATO) since January 2007. On 29 June 2009 she fractured her right little toe at home. It is agreed between the parties that the injury was outside the scope of her employment. She was incapacitated for approximately three weeks and returned to work on 20 July 2009.
In a claim for compensation dated 7 October 2009 lodged with the respondent (T20, p.56), the applicant recorded that the injury she suffered was stress and anxiety because of management of my graduate (sic) return to work due to fractured toe injury. She also claimed that meeting with management and management caused her injury or illness (T20, p 58). The applicant recorded in her Statement of Facts Contentions dated 7 December 2011 lodged prior to the commencement of the hearing that her injury arose or occurred because:
The managers failed to comply with medical advice and recommendations from the beginning and failed to follow policies, procedures and guidelines as set out by the Australian Taxation Office (ATO) and Public Service Act 1999 (at p 6).
The respondent decided in its initial determination that the applicant did suffer adjustment reaction with mixed emotional features (the injury). The applicant did not challenge the diagnosis and therefore, I am satisfied that the injury was properly diagnosed.
The respondent accepted that the applicant suffered a psychological injury to which her employment significantly contributed and therefore, s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) was satisfied. However, it decided that entitlement to compensation was excluded by the provisions of s 5A of the SRC Act (T46, p 162-169) and that decision was affirmed on reconsideration on 17 September 2010 (T60, p 233-237).
Section 5A(1) of the SRC Act provides that injury means either a disease suffered by an employee or an injury that is a physical or mental injury that arises out of or in the course of the employment:
… but does not include a disease, injury … suffered as a result of reasonable administrative action taken in a reasonable manner in respect…

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 Cheryl Peters and Comcare

Details

AGLC: Cheryl Peters and Comcare [2012] AATA 636
Case: [2012] AATA 636
Decision Date: 21 September 2012

CaseChat Overview and Summary

Cheryl Peters, the applicant, sought review of a decision by Comcare, the respondent, to deny liability for an injury she claimed arose out of or in the course of her employment. Comcare argued that the injury resulted from reasonable administrative action taken in a reasonable manner concerning the applicant’s employment, thereby excluding it under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The injury in question occurred after the applicant returned to work on 20 July 2009, following a three-week absence due to a fracture of her fifth right toe sustained at home. The applicant contended that the injury was a result of four principal issues: the management of her return to work, a decision not to place her on the on-call roster, the consequences of a discussion with management on 10 August 2009, and a refusal by the employer to transfer her to the WTC. Comcare raised an issue concerning the deemed date of injury, but it was deemed not significant upon review.

The court examined the administrative actions taken by the employer in managing the applicant's return to work and the reasons behind the decisions that led to the alleged injury. Specifically, the court scrutinized the meeting between the applicant and her supervisor, Mr Mitvalski, on 23 July 2009, which was deemed appropriate in addressing her capacity to perform pre-injury duties. The court also considered the applicant’s claims regarding her placement on the on-call roster, the implications of the 10 August 2009 discussion with management, and the refusal to transfer her to the WTC. The court determined that the administrative actions were reasonable and did not constitute an injury compensable under the Act.

Having thoroughly reviewed the evidence, the court concluded that the decision under review should be affirmed. The court was satisfied that the injury was a result of reasonable administrative actions taken in a reasonable manner in respect of the applicant’s employment. Consequently, Comcare was not liable for the injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The court’s decision upheld the respondent's position that the injury did not qualify for compensation under the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr Katz provided another report at the request of the respondent’s solicitors on 2 July 2011 (Exhibit R4). He reported that the applicant had told him that she was prevented from relocating to the WTC, her supervisors did not follow the correct procedure and she had been told that she could not move sites because of operational reasons. The applicant agreed that she had said that to Dr Katz (Transcript, p 66). Dr Katz also recorded in his report that the applicant had sought relocation and she had told him she was not specifically after a transfer. He reported that the applicant was distressed because she had been prevented from going onto the lucrative after hours roster because she had been judged to be psychologically unfit. It was his opinion that the applicant suffered from a major depressive disorder which is coming to remission with counselling support and the provision of anti-depressant medication (Exhibit R4 at paragraph 3.1). Conclusions and Reasons The applicant has sought review of a decision made by the respondent to deny liability for an injury it admitted arose out of or in the course of the employment. However, the respondent contended that the injury was the result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment. Consequently, it is an injury, if the respondent’s contentions are accepted, which is excluded by the provisions of the SRC Act. The injury suffered by the applicant occurred after she returned to work on 20 July 2009 having been absent for the previous three weeks. During that time the applicant was recovering from a fracture of her fifth right toe which was sustained at home in non‑compensable circumstances. The review requires an examination of four principal issues which both parties agreed gave rise to the injury namely, the management of the applicant’s return to work following the injury at home; a decision not to place her the on-call roster; the consequences of a discussion with management on 10 August 2009 and a refusal by the employer to temporarily transfer her to the WTC. The respondent raised an issue at the commencement of the hearing concerning the deemed date of injury. I was not then satisfied that it would be a significant issue in this review. Having heard and observed the applicant and the respondent’s witnesses, having reviewed the transcript of 3 days of evidence and the large volume of documents which were exhibited, I am remain satisfied that it is not a significant issue. For reasons which follow, I am also satisfied that the decision under review should be affirmed. I am satisfied that the injury suffered by the applicant was the result of reasonable administrative action taken in a reasonable manner in respect of her employment. The applicant contended that the management of her return to work contributed to her injury. That contention has many elements. Initially the applicant met with Mr Mitvalski on 23 July 2009, being four days after she returned to the workplace. Having read the minutes of the meeting held on that day (T8) and having also read his statement and heard him in evidence, I am satisfied that meeting, called by him, was entirely appropriate. The minutes clearly indicate that an issue for Mr Mitvalski was the capacity of the applicant to undertake her pre-injury duties and his intention to ensure that she could comfortably work. This is evident by three references in the minutes to him offering assistance to the applicant in the completion of her work and an enquiry whether she would be interested in working in another business line.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2010/4942
Re	Cheryl Peters
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr John Handley, Senior Member
Date	21 September 2012
Place	Melbourne