Christine Jones and Comcare

Case [2013] AATA 334

[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 536

Comcare v Mooi (1996) 137 ALR 690

REASONS FOR DECISION

Ms A F Cunningham, Senior Member

  1. 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.

  2. 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.

  3. 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

Christine Jones, the applicant, sought a determination of whether her psychological condition, an adjustment disorder, arose out of her employment with the Australian Taxation Office (ATO) and was compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The dispute involved the assessment of the degree to which her employment and the invalidity process contributed to her condition, as well as the applicability of certain exclusions under the Act. The case was heard and determined by the Administrative Appeals Tribunal (AAT).

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Included in the considerations listed in section 5B (2) of the SRC Act are any predisposition of the employee to the ailment or aggravation and any other matters affecting the employee’s health. It is clear from the evidence that Ms Jones‘s pre-existing medical conditions which were not employment related, also contributed in the sense that they pre-disposed her to the adjustment disorder.CONCLUSION Ms Jones was understandably frustrated by the protracted nature of the PIP process. She was particularly distressed when she was required to undertake further assessments and tests for conditions that she considered were not related to her application for PIP. There was some confusion particularly in the latter part of 2008 and early 2009, as to who was to arrange for the cardiologist report. Ms Jones stated that she saw Dr Galligan in early 2008. Dr Galligan was however, not prepared to release his Report until he received a request from Dr Tabart which was not initiated until 8 May 2009. In her Report of 18 September 2009 Dr Tabart had recommended that an up-to-date report be obtained from Ms Jones’s treating cardiologist as well as a psychiatric evaluation. Whilst it was clear from Dr Tabart's Report that she expected Ms Jones's GP to investigate to exclude all physical causes of fatigue, it was not clear from the Report whether Dr Tabart expected Ms Jones’s GP to also arrange for the treating cardiologist's report and the psychiatric evaluation. On 30 September 2008 Mr Hunter noted that a copy of the Report was to be released to Ms Jones via her GP, that Ms Jones had been advised of the process and that there was to be a discussion regarding ongoing case management as the “issue needs further investigation by employee and her treaters”. On 1 October 2008 Mr Hunter met with Ms Jones who advised that she had an appointment with her GP on 2 October and would be covering the recommendations in the OHA report. The log entry records that Ms Jones agreed to meet with Mr Hunter following the visit with her GP to discuss her case and whether or not the file should be kept open or closed if she did not wish to pursue the invalidity process. It is clear from these entries that Mr Hunter considered that Ms Jones would make a decision as to whether or not to pursue her claim for PIP following her consultation with her GP. On 20th October 2008 Mr Hunter discussed the file with his regional manager and advised that he was awaiting feedback as to whether or not the file would be closed. Mr Hunter discussed the matter further with Ms Jones on 26 November 2008 when she advised that she was seeing her cardiologist soon and should have some further details. Mr Hunter noted that he would await advice from Ms Jones and progress the issue when documentation was received. Ms Jones states in her witness statement that after the second assessment in September 2008 she waited for a response from the ATO and Dr Tabart in relation to her PIP application. She went on to state that by late February 2009 after considering that enough time had passed for a report, she contacted the H&PM office and was advised that her case had been closed.

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”.