Costantine and Comcare (Compensation)

Case [2015] AATA 645

Costantine and Comcare (Compensation) [2015] AATA 645 (28 August 2015)

Division

GENERAL DIVISION

File Number(s)

2013/3111

Re

Bernadette Costantine

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr Peter Taylor SC, Senior Member
Date 28 August 2015
Place Sydney

The decision under review is affirmed.

...........................[sgd].............................................

Mr Peter Taylor SC, Senior Member

CATCHWORDS

WORKERS COMPENSATION – “injury” – definition – exclusionary provision – reasonable administrative action taken in a reasonable manner  in respect of employee’s employment – aggravation of pre-existing major depressive disorder– multiple causes – changes to workplace team and employee duties - failure to obtain higher duties opportunities – whether any of causes capable of falling within exclusionary provision - decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 ss 5A(1), 5A(2), 14

CASES

Comcare v Martinez (No 2) (2013) 212 FCR 272; (2013) 137 ALD 481; (2013) 302 ALR 608

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; 125 ALD 181; [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Konstandopoulos v Comcare [2014] AATA 741
KRDV v NAB [2011] AATA 210

Re Thompson and Comcare [2012] AATA 752

REASONS FOR DECISION

Mr Peter Taylor SC, Senior Member

28 August 2015

  1. Ms Costantine is a level 6 officer in the Australian Public Service. On 20 February 2013 she lodged a claim for an injury described as “anxiety and aggravation of depression relating to work management issues”.  The description suggests her injury involved various events, and was not solely linked to any specific occurrence.  In her application Ms Costantine claimed she first noticed her condition on 19 September 2012, while she was reading work emails.  She said it was not until 14 February 2013 she first sought medical treatment.  (It was only on 15 February 2013 that she notified her claim intention.)  The submissions advanced on her behalf in the present proceedings said that her injury had relevantly occurred by 5 November 2012.  That date was based on the proposition, contradicting the information in her claim form, that she first sought treatment on 5 November 2012.  The Applicant’s submissions ultimately identified this as the critical date when Ms Costantine relevantly suffered her illness.

  2. Comcare, in its 23 April 2013 decision, and more particularly its 25 June 2013 affirmation, and its stance in the present review proceedings, accepted that Ms Costantine had a psychological illness significantly contributed to by her employment. However, Comcare characterised the “work management issues” alluded to in Ms Costantine’s injury description as including both (i) her failure to obtain “higher duties" roles, and (ii) her changed work allocations, mainly after about May 2015. Comcare attributed both matters to conduct that constituted “reasonable administrative action”. An injury suffered “as a result of reasonable administrative action taken in a reasonable manner” is (conditionally) excluded from the definition of injury for the purposes of s 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act

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AGLC
Costantine and Comcare (Compensation) [2015] AATA 645
Case
[2015] AATA 645
Decision Date

CaseChat Overview and Summary

The case of Costantine and Comcare (Compensation) involved the claimant, Ms Costantine, who sought workers' compensation for a relapse or aggravation of her major depressive disorder, which she attributed to various employment-related events. Comcare, the respondent, rejected her claim, determining that the events in question were reasonable administrative actions taken in a reasonable manner and were thus excluded from the definition of "injury" under the Safety, Rehabilitation and Compensation Act 1988 (Cth). Ms Costantine appealed Comcare's decision to the Administrative Appeals Tribunal (AAT), which ultimately affirmed the decision under review.

The central legal issue before the AAT was whether the events that Ms Costantine claimed led to her injury could be considered "reasonable administrative action taken in a reasonable manner" within the meaning of section 5A(1) of the SRC Act. This provision excludes certain actions from being categorised as a "relevant injury," effectively precluding compensation for injuries arising from these actions. Specifically, the court had to determine if the changes in workplace team structures, the allocation of higher duties, and the isolation she felt were reasonable actions that could trigger the exclusion under section 5A(1).

The AAT, after considering the evidence and arguments presented, concluded that the changes in team structures and the allocation of higher duties were indeed reasonable administrative actions taken in a reasonable manner. The Tribunal found that Ms Costantine was not available for higher duties during the periods in question, and thus the allocation to others was justified. Additionally, the Tribunal held that even if other factors contributed to her condition, the significant contribution of the reasonable administrative actions was sufficient to preclude her claim under section 5A(1). Consequently, the AAT affirmed Comcare's decision, rejecting Ms Costantine's appeal.

In affirming the decision, the AAT upheld Comcare's determination that the workplace events in question were reasonable administrative actions, thereby falling within the exclusionary provision of the SRC Act. This ruling effectively means that Ms Costantine's claim for compensation is denied based on the findings that the actions were reasonable and thus excluded from the definition of "injury."

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At that time Mr Curcio thought they would be able to work through the problems Ms Costantine perceived. The opportunity to do so was limited by the fact that Ms Costantine did not attend a meeting he arranged for Friday 7 December 2012. (She took leave until early February 2013.) It was only in the deferred meeting, on 5 February 2013, that Mr Curcio became more fully aware of Ms Costantine’s claims that she had not been given sufficiently “value added” work commensurate with her abilities and aspirations.COMCARE’S DECISION Comcare’s April 2013 refusal decision did accept that four employment related events had occurred. These were that that Ms Costantine (a)had not been appointed to act in Ms Slattery’s position, on unspecified occasions during 2012 (b)was admonished in July 2012 by a senior officer over an email she had sent(c)in a discussion (on about 30 October 2012) was suggested by Ms Slattery to have forgotten removing her proposed annual leave period from an informal office spreadsheet(d)had come to feel isolated at work, because of her perceptions about the allocation of work within the BI&IM team. Comcare accepted - based on the psychiatric diagnosis Dr Burke reported in April 2013 - that Ms Costantine’s relevant injury was the relapse or aggravation of a Major Depressive Disorder. Comcare determined that the relevant date of her injury was 5 November 2012. That finding was based on Dr Burke’s report that Ms Costantine had consulted him on that day. It took into account SRC Act s 7(4). Comcare also accepted that Ms Costantine’s interpretation of, and reaction to those events, could give rise to a relevant “injury” for the purposes of the SRC Act, even if her perception of events was objectively unreasonable: see Wiegand v Comcare [2002] FCA 1464; (2002) 72 ALD 795. However Comcare rejected Ms Costantine’s complaint that she had been “overlooked for higher duties” in acting in Ms Slattery’s position. Comcare’s position was that Ms Costantine had simply not been available in, or least not for the whole of, the specific periods of Ms Slattery’s relevant absences. In those circumstances the allocation of HD opportunities to others had been objectively reasonable in both fact and manner. Consequently SRC Act s 5A(1) applied to exclude Ms Costantine’s complaint from being categorised as a relevant injury. Comcare also considered that the HD issue was a significant contributing factor to the development of her condition. That significant contribution was sufficient to preclude the success of her claim, even if the other matters about which she complained had also played a role in the relapse of her condition: see Hart v Comcare [2005] FCAFC 16. Comcare’s reviewable decision of 25 June 2013 came to essentially the same result. It concluded that both the general instances where the BI&IM team structures and roles had changed, and Ms Costantine’s more specific complaints about the allocation of HD opportunities, constituted “reasonable administrative action taken in a reasonable manner”, and consequently attracted the “injury” exclusion provision in SRC Act s 5A(1).THE BCIM AND BI&IM STRUCTURES AND CHANGES

Ratio Decidendi

Legal Principle Established

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