Cho and Comcare (Compensation) - [2017] AATA 175

Cho and Comcare (Compensation) [2017] AATA 175 (10 February 2017)
Division:GENERAL DIVISION
File Number(s): 2014/5236
Re:Kelvin Cho
APPLICANT

ComcareAnd
RESPONDENT

DECISION
Tribunal:Ms N Isenberg, Senior Member
Date:10 February 2017
Place:Sydney

The decision under review is affirmed.
.............................[sgd]..............................
Ms N Isenberg, Senior Member
Catchwords
COMPENSATION - Commonwealth Employees - nature of injury – adjustment disorder with mixed emotional features - whether disease – date of injury – whether caused by employment – whether pre-existing condition – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, (2), 7(7), 14(1)
Cases
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve and Anor (2012) 199 FCR 463
Meaney and Comcare [2012] AATA 352
Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316
REASONS FOR DECISION
Ms N Isenberg, Senior Member
10 February 2017
DECISION UNDER REVIEW

The Applicant, Kelvin Cho, claims that he suffers depression, anxiety and insomnia, diagnosed as an adjustment disorder with mixed emotional features, principally as a result of events which occurred in his workplace in the national office of the Department of Immigration and Citizenship (now Department of Immigration and Border Protection (‘the Department’)) from 16 May 2013 onwards.
In his claim the Applicant asserted that his condition developed as a result of his supervisor verbally abusing and spitting on him on 16 May 2013, slamming her office door into his face on 17 May 2013 and making false accusations which led to his suspension from work on 29 May 2013, collectively ‘events relied on’.
In the reviewable decision dated 3 October 2014 the Review Officer affirmed the determination dated 13 May 2014 which had disallowed the claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) in respect of the claimed condition. While the delegate had been satisfied that the Applicant suffered from an “ailment”, namely an “adjustment disorder with anxious and depressed mood” which was significantly contributed to by his employment, the delegate considered that the circumstances of the Applicant’s claim fell within the exclusionary provisions of the SRC Act, namely that the “injury” was ‘suffered as a result ofreasonable administrative action taken in a reasonable manner’. The Review Officer was satisfied that the Applicant’s condition was ‘as a result of’, at least in part, the decision on 29 May 2013 to suspend the Applicant, and was satisfied that this suspension was undertaken in a reasonable manner.
BACKGROUND TO THE CLAIM
The Applicant was employed in 2013 as a Legal Assistant (APS3) at the Department in Canberra. A detailed account of the events relied on was set out in a lengthy statement attached to his claim for compensation dated.
In its Statement of Facts, Issues and Contentions (‘SFIC’) the Respondent contended that Mr Cho’s employment did not contribute, to a significant degree, to his ‘ailment’ because by May 2013, if not earlier, he…

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 Cho and Comcare (Compensation)

Details

AGLC: Cho and Comcare (Compensation) [2017] AATA 175
Case: [2017] AATA 175
Decision Date: 10 February 2017

CaseChat Overview and Summary

This matter concerned a claim for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) by Mr Cho against Comcare. The claim related to an adjustment disorder with mixed emotional features, which Comcare had disallowed on the basis that the injury, if any, was suffered as a result of reasonable administrative action taken in a reasonable manner. The Senior Member of the Administrative Appeals Tribunal was required to review this decision.

The legal issues before the Tribunal were whether Mr Cho suffered a pre-existing psychological condition that was aggravated by the events relied upon, or alternatively, if he did not have a pre-existing condition, whether he suffered an "injury" as defined by the SRC Act. Crucially, if either of these were established, the Tribunal also had to determine whether the condition or aggravation occurred as a result of reasonable administrative action taken in a reasonable manner.

The Tribunal considered that the question of whether Mr Cho suffered a pre-existing psychological condition prior to the events relied upon was ultimately immaterial. This was because the core question was whether, if he did have such a condition, it was aggravated to a significant degree by the events, or if he did not have a pre-existing condition, whether the events significantly contributed to the development of the condition. The Tribunal found that the evidence supported a conclusion that Mr Cho's condition was one outside the boundaries of normal mental functioning and behaviour prior to the events in question, referencing *Comcare v Mooi* (1996) 69 FCR 439. The Tribunal noted that Mr Cho had a psychological history predating the events, including an incident in early 2012 where he assaulted a male nurse.

Having reached the view that Mr Cho's condition was one outside the boundaries of normal mental functioning and behaviour prior to the events, the Tribunal determined it was not necessary to consider whether the events fell within the exclusionary provisions of section 5A of the SRC Act. Consequently, the Tribunal found that Mr Cho was not entitled to compensation under section 14(1) of the SRC Act, and therefore affirmed the decision under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the reviewable decision dated 3 October 2014 the Review Officer affirmed the determination dated 13 May 2014 which had disallowed the claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) in respect of the claimed condition. While the delegate had been satisfied that the Applicant suffered from an “ailment”, namely an “adjustment disorder with anxious and depressed mood” which was significantly contributed to by his employment, the delegate considered that the circumstances of the Applicant’s claim fell within the exclusionary provisions of the SRC Act, namely that the “injury” was ‘suffered as a result ofreasonable administrative action taken in a reasonable manner’. The Review Officer was satisfied that the Applicant’s condition was ‘as a result of’, at least in part, the decision on 29 May 2013 to suspend the Applicant, and was satisfied that this suspension was undertaken in a reasonable manner.BACKGROUND TO THE CLAIM The Applicant was employed in 2013 as a Legal Assistant (APS3) at the Department in Canberra. A detailed account of the events relied on was set out in a lengthy statement attached to his claim for compensation dated. In its Statement of Facts, Issues and Contentions (‘SFIC’) the Respondent contended that Mr Cho’s employment did not contribute, to a significant degree, to his ‘ailment’ because by May 2013, if not earlier, he was already suffering the effects of an underlying and constitutional psychotic condition. Further, to the extent that his condition may have worsened during his employment, the employment was not a significant contributing factor in the worsening. In the alternative, the Respondent contended there that Mr Cho’s underlying condition was aggravated by his employment, but that that condition was contributed to, to a significant degree, by ‘reasonable administrative action taken in a reasonable manner’ with respect to his employment. It referred to: ·the decision to demote Mr Cho from his acting APS4 position at the end of March 2013;·the meeting between Ms Calvert and Mr Cho on 16 May 2013 where she informed him she would need to discuss his work performance with her own supervisor, Mr Phillipson;·the discussions between Ms Calvert and Mr Cho on 17 May 2013, regarding his leave “arrangement” and her request that he supply records to support that the arrangement had been approved;·meetings involving Mr Cho, Ms Calvert and Mr Phillipson on 22, 24 and 27 May 2013, during which they raised their concerns about Mr Cho’s work performance and behaviour; and·the decision on 29 May 2013 to suspend Mr Cho. As to the reasonableness of these actions, the Respondent submitted that they should be considered in the context of repeated efforts to alert Mr Cho to concerns about his performance and behaviour at work; that he was difficult to manage; his behaviour and interpersonal skills caused apprehension in other staff, and; he repeatedly refused to accede to legitimate requests by his superiors.

Evidence

Evidence Before The Court

Consequently, the issues may be distilled as follows:·Did Mr Cho suffer a pre-existing psychological condition prior to the events relied on? If so, was that pre-existing psychological condition aggravated by those events?·If he did not suffer a pre-existing psychological condition, did he suffer an “injury” as defined in the SRC Act?·If he suffered an injury or if his pre-existing psychological condition was aggravated by the events relied on, did that occur as a result of reasonable administrative action taken in a reasonable manner?EVIDENCE The Applicant relied on a number of detailed statements and also gave extensive oral evidence at the hearing. Evidence was also given by:·Olivia Cho, the Applicant’s wife ·Dr S Allnutt, consultant psychiatrist·Dr S Yenson, consultant psychiatrist ·Lisa Harris, Director, Change and Procurement Team, Services Management Branch of the Department·Stella Calvert, Principal Legal Officer, Legislative Services and LEGEND Section of the Department·Peter Noakes, Director, Onshore Contract Section, Service Management Branch of the Department·Rachel Major, Intelligence Analyst, Strategic Policy and Planning Division of the Department·Dr A Rees, consultant psychiatrist The hearing proceeded over six days. Both parties then made extensive written submissions. Events leading up to May 2013 The Applicant was born in Singapore in 1975. In 1986, the Applicant arrived in Australia. While at school, the Applicant said, he was subject to bullying and racist remarks. In one altercation, he experienced a retinal detachment. He was expelled from school on 2-3 occasions for fighting, which, he said, was because he was defending himself against bullying. After completing year 12, he undertook further study at TAFE, completing a Diploma in Marketing. In 1994, he commenced working in the family’s restaurant/business. In 2003, the Applicant graduated from Sydney University with a Bachelor of Laws. He completed a Graduate Diploma in Legal Practice at the College of Law. Following his admission in 2004, he worked as an employed solicitor, changing firms in 2005. In 2006 the Applicant left legal practice to undertake postgraduate studies, completing a Graduate Certificate in Chinese Administrative Law in 2006 at the East China University of Political Science and Law, and a Master of Laws at Sydney University in 2007.During 2007, the Applicant was also employed by a firm of solicitors as a self-styled Senior Associate. Between 2008 and 2011, the Applicant undertook further study at Sydney University completing a Master of International Business and a Master of Commerce. In January 2012, the Applicant accepted a graduate position as a Legal Assistant (APS3) with the Department in its Canberra office, notwithstanding that it was at a significantly reduced salary. The Applicant lived and worked in Canberra during the week and returned to Sydney on the weekends. Mr Cho said that he found it ‘frustrating’ having to cook and clean for himself, in addition to missing his family. Throughout 2012 he undertook three graduate rotations, which were in the nature of probation. In the course of his evidence he provided some information about his first posting. He said there were ‘personality issues’ with his supervisor, Ms Choon. He said that he was critical of the Department’s treatment of refugees and told Ms Choon’s supervisor what he thought. He said Ms Choon ‘passed’ him, saying that ‘she knew the circumstances that he was under’. Of another rotation, he said there was one personality issue but he also had concerns about the format of how the work should be done.

Decision

Reasons for decision

Having come to this view it was not necessary to consider if any of the events relied on came within the exclusion of s 5A SRC Act. Therefore, the Applicant is not entitled to compensation under s 14(1) of the SRC Act.DECISION The decision under review is affirmed

Ratio Decidendi

Legal Principle Established

In a report dated 1 June 2015, Dr Prabhu said that he had been treating the Applicant for 9 sessions. He reported that the Applicant presented with severe depression following work incidents. In particular, he noted:...In April 2013, while working in Immigration Detention he was assigned extreme workloads and also was subject to racist bullying by a supervisor. [The Applicant] sought EAP psychological treatment in April 2013 for the resulting work stress and was referred to see a GP in April 2013.He left his position in Detention and started a new position in legal and was in the process of managing his wellbeing and earned recommendations for promotions. However, bullying incidents with his supervisor in May 2013 where he had to face an angry tirade in which his supervisor had also spat on his face, left him shaken and upset. He was also humiliated as co-workers overheard the abuse and some laughed. [The Applicant] wrote an email to his supervisor requesting that the abusive behaviour stop. In response to his email his supervisor continued the next day with unlawful threats to remove his validly applied carer’s leave to take care of his mother who at the time was suffering from cancer. When [the Applicant] tried to discuss his concerns with his supervisor she slammed a door into on his face (sic). [The Applicant] sought guidance from Human Resources and submitted a complaint. In response to his complaint his supervisor unlawfully performance managed him in breach of his employment conditions. [The Applicant] was so distressed by the situation he saw EAP in mid May 2013 for psychological treatment...[and] sought workplace health and safety to arrange a fitness to work appointment with a workplace doctor as he felt he could no longer work in his current situation.CONSIDERATION Whether the Applicant suffered a psychological condition prior to the events relied on is ultimately immaterial because, the question is, if he did, did the events relied on contribute, to a significant degree, to an aggravation of the claimed condition? If he did not, it is the same question: did the events relied on contribute, to a significant degree to the development of the claimed condition?What was Mr Cho’s psychological state prior to the events relied on? A psychological injury such as that claimed by Mr Cho - an adjustment disorder with anxious and depressed mood - is compensable if the condition is sufficiently serious to be described as ‘outside the boundaries of normal mental functioning and behaviour,’ provided it is contributed to, to a significant degree, by the employee’s employment: s 5B of the SRC Act (and provided it has not been excluded under s 5A). In my view, for the reasons discussed below, the evidence supports a finding that prior to the events relied on, the Applicant’s condition was one outside the boundaries of normal mental functioning and behaviour: per Comcare v Mooi (1996) 69 FCR 439. The Applicant had some psychological history well before the events relied on. Dr Hong reported that in early 2012 the Applicant had assaulted (by pushing) a male nurse when he attempted to visit his mother in hospital outside visiting hours.