[2013] AATA 334
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2010/5067
Re
Christine Jones
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Ms A F Cunningham, Senior Member
Date 24 May 2013 Place Hobart Decision Summary
The decision under review is affirmed.
........................................................................
Ms A F Cunningham, Senior Member
CATCHWORDS
Workers Compensation - adjustment disorder - application for partial invalidity pension to ComSuper - whether employment related - disease not contributed to, to a significant degree by employment with ATO- decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (the SRC Act)
New South Wales Workers Compensation Act
CASES
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Commonwealth Bank of Australia v Reeve (2012) FCAFC 21
CF Holland Group Proprietary Limtied v Robertson (2010) 185 FCR 566
Humphrey Earl Limited v Speechley (1951) 84 CLR
Meaney and Comcare (2012) AATA 352
Comcare v Sahu-Khan (2007) 156 FCR 536Comcare v Mooi (1996) 137 ALR 690
REASONS FOR DECISION
Ms A F Cunningham, Senior Member
The applicant, Christine Jones joined the Australian Tax Office (ATO) in January 2003 as an APS4 where she worked as a technical adviser, supervising and assisting call centre staff who answered queries from members of the public on taxation issues. It was Ms Jones’s intention to work at the ATO until May 2012 at which time she would be entitled to a retirement bonus. Due to ill-health and on medical advice Ms Jones commenced working part-time in February 2008 and subsequently sought advice in relation to an invalidity pension from ComSuper. In May 2008 Ms Jones approached the ATO to commence an application process for Partial Invalidity Pension (PIP). She underwent a number of medical assessments between July 2008 and February 2010 when Dr Ruttenberg provided a report to the ATO stating that in his opinion Ms Jones was not suitable for partial invalidity. Ms Jones subsequently lodged a claim for "stress" which was rejected by Comcare in June 2010 on the basis that her stress was the result of "reasonable administrative action". Comcare's decision was affirmed on review and. Ms Jones now seeks a review of the decision by the AAT.
It was argued on behalf of Ms Jones that the assessment conducted as part of her application for PIP was unduly extended, incomplete, mishandled and ineffective. It is contended that before the assessment was completed, Ms Jones’s case was closed and then reopened. Ms Jones received Dr Ruttenberg's report on about 10 February 2010 in which he opined that she was not suitable for partial invalidity. It is alleged that it was a consequence of this state of affairs that Ms Jones suffered a chronic adjustment disorder and was thereby incapacitated for work.
The respondent opposes the claim on a number of bases. Firstly, it is contended that the evidence does not support a finding that the applicant's condition was contributed to by her employment with the ATO. Secondly, it is argued that the PIP process was conducted by ComSuper, an entirely…
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- AGLC
- Christine Jones and Comcare [2013] AATA 334
- Case
- [2013] AATA 334
- Decision Date
CaseChat Overview and Summary
The legal issues before the tribunal included the nature and extent of the injury claimed, the degree to which the employment contributed to the condition, and whether the employer's actions constituted reasonable administrative action. The tribunal had to consider the evidence provided by various medical experts, including psychiatrists and a cardiologist, to ascertain the nature and cause of Ms Jones's condition. Additionally, the tribunal examined whether the employer's handling of Ms Jones's application for Partial Invalidity Pension (PIP) constituted reasonable administrative action, which could exclude the injury from being compensable under the Act.
The tribunal found that Ms Jones was suffering from an adjustment disorder, which met the criteria for a "disease" under the SRC Act. The disorder was attributed to multiple factors, including her employment with the ATO, although the tribunal also acknowledged the contribution of her pre-existing medical conditions. The tribunal concluded that the employer's actions during the PIP process did not amount to reasonable administrative action as they exacerbated Ms Jones's condition. The tribunal further determined that the employer's failure to communicate effectively and the confusion surrounding the cardiologist report and psychiatric evaluation contributed to Ms Jones's stress and anxiety.
The tribunal ordered that Ms Jones's psychological condition, an adjustment disorder, was compensable under the SRC Act. The tribunal found that the employer's actions did not constitute reasonable administrative action, and thus, the exclusionary provisions under section 5 (A) of the Act did not apply. Consequently, the tribunal ruled in favor of Ms Jones, granting her compensation for the injury sustained during her employment with the ATO.
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
Ratio Decidendi
Legal Principle Established
The issues are:(1)What is the nature of the claimed injury?(2)Was the condition contributed to, to a significant degree, by the applicant's employment with the ATO?(3)If so, do the exclusionary provisions of section 5 (A) apply, i.e. did the actions of the employer amount to reasonable administrative action taken in a reasonable manner in respect of the applicant's employment?CONSIDERATIONInjury The injury nominated in Ms Jones’s application for compensation was "stress" which was the condition identified by her general practitioner, Dr Vaughan. At Comcare's request Dr Vaughan provided a subsequent Report dated 25 March 2010 in which she clarified that it was her opinion that Ms Jones was suffering anxiety/stress. The two psychiatrists who examined Ms Jones, Drs Radcliffe and Sale considered that Ms Jones suffered an adjustment disorder. Dr Radcliffe opined in his Report dated 8 March 2012 that Ms Jones was suffering from a chronic adjustment disorder which meet the DSM -IV criteria. He attributed the condition to a number of factors which he apportioned as being 45% pre-existing heart condition, 10% depression and 45% as a result of the prolonged invalidity process and receipt of Dr Ruttenberg's Report on 9 February 2010. This Report stated that Dr Ruttenberg did not consider that Ms Jones was incapacitated for full-time work and in his opinion, was not suitable for partial invalidity. Dr Sale opined in his Report of 6 April 2011 that Ms Jones’s original psychiatric condition is likely to be major depression but considered that the foundation for her worker’s compensation claim was an adjustment disorder with anxiety symptoms which arose out of the protracted and ultimately unsuccessful application for partial invalidity. It was his opinion that Ms Jones’s pre-existing depressive condition would cause her to be less resilient in dealing with stressors and was contributory rather than causal of her condition. Dr Sale did not consider that the adjustment disorder was an ongoing source of incapacity but suggested that her depressive condition was causal of partial incapacity for work. On the basis of this expert evidence, the Tribunal is satisfied that as at the date of her claim for compensation Ms Jones was suffering a psychological condition, namely an adjustment disorder, constituting a "disease" within the meaning of section 5B of the SRC Act being a condition "outside the boundaries of normal mental functioning and behaviour" (Comcare v Mooi (1996) 137 ALR 690 at 696).Date of Injury The Act requires that a deemed date of injury be established. Subsection (4) of section 7 provides :“For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:(a)The employee first sought medical treatment for the disease, or aggravation; or(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;whichever happens first”.