Day and Comcare (Compensation) - [2019] AATA 3323

Day and Comcare (Compensation) [2019] AATA 3323 (6 September 2019)
Division:GENERAL DIVISION
File Number(s): 2018/1764
Re:Jan Louise Day
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:6 September 2019
Place:Melbourne

The Tribunal affirms the decision under review.
....................[sgd]...............................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – Adjustment Disorder – whether the ailment is classified as an injury or a disease – ailment is a disease – whether the disease was contributed to, to a significant degree, by the Applicant’s employment – significant contribution established – whether reasonable administrative action exclusion applies – condition arose from reasonable administrative action undertaken reasonably – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Bailey v Broadside [2017] FCAFC 219
Comcare v Martinez [2013] FCA 439
Lim v Comcare [2019] FCAFC 104
Prain v Comcare [2017] FCAFC 143
Secondary Materials
Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, American Psychiatric Association (DSM-5)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
6 September 2019
BACKGROUND

Ms Day applied for a review of a decision by a delegate of the Chief Executive Officer of Comcare to affirm a determination dated 10 January 2018 denying liability for her claim for psychological injury suffered at work. Her workplace was the Albury office of the Department of Human Services where Ms Day worked in a customer support role in the Child Support Agency. Ms Day continues to work in this office, and at the time of her claim was an experienced team member of some eighteen years’ service.
The existence of a medical condition was not contested either in the assessment of her claim by Comcare, or at the hearing; although its nature and extent was the subject of evidence. Notwithstanding the broad consensus as to Ms Day’s medical situation, some time was spent at the hearing dealing with her personal medical history. This approach was driven in part by the legislative pathway and in part by the content of expert medical evidence.
The primary area of dispute arose from Ms Day seeking to characterise certain specific incidents at work, and her manager’s approach more broadly, as bullying and/or harassment. Her claim for compensation was rejected on the ground that the specific incidents constituted reasonable administrative action, and the claim of bullying was disputed. There is a significant documentary record, particularly about these incidents, which were the subject of an internal workplace investigation.
The incidents at her workplace arose after Ms Day’s service team was merged with another to form a new telephone service team. Ms Day came under the supervision of a different team leader and, at around the same time, a new IT platform was trialled. There are competing versions of one of the incidents, and her manager’s conduct, and a debate as to the proper scope of the claim.
Ms Day represented herself before the Tribunal. Evidence was given at the hearing by her current and former work colleagues, Ms Day’s former team leader, and one medical witness.…

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 Day and Comcare (Compensation)

Details

AGLC: Day and Comcare (Compensation) [2019] AATA 3323
Case: [2019] AATA 3323
Decision Date: 6 September 2019

CaseChat Overview and Summary

This matter concerned an application for compensation by Ms Day against Comcare. The dispute centred on whether Ms Day's adjustment disorder constituted an injury or a disease, and if it was contributed to by her employment to a significant degree, whether it was excluded by the reasonable administrative action provision. The decision was made by Dr Stewart Fenwick, Senior Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary legal issues. Firstly, whether Ms Day's adjustment disorder should be classified as an injury or a disease under the relevant legislation. Secondly, if classified as a disease, whether it was contributed to, to a significant degree, by her employment. In the alternative, the Tribunal had to consider whether the condition arose from reasonable administrative action taken reasonably, which would exclude it from compensation.

The Tribunal reasoned that an adjustment disorder, characterised by a distinct psychological condition caused by identifiable stressors and of relatively confined duration, could be classified as a disease if it emerged over a longer period. Accepting that Ms Day experienced workplace issues over approximately twelve months, including specific incidents and ongoing stressors such as team mergers and new supervision, the Tribunal found her adjustment disorder to be a disease. While acknowledging the significant contribution of her employment to the condition, the Tribunal ultimately found that the events giving rise to the disorder constituted reasonable administrative action taken reasonably. Consequently, Ms Day's ailment was excluded from compensation under section 5A of the relevant Act. The Tribunal affirmed the decision to reject the Applicant's claim for compensation.

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

Accordingly, I find that while Ms Day’s ailment was contributed to, to a significant degree, by her employment, it was suffered as a result of reasonable administrative action taken reasonably. Therefore, I also find Ms Day’s ailment to be excluded under s 5A. DECISION Under s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 the Tribunal affirms the decision under review to reject the Applicant’s claim for compensation.

Ratio Decidendi

Legal Principle Established

In answer to a question from the Tribunal, the team leader, Ms Day’s manager, confirmed that she voluntarily transferred to another team leader position in the same office, prior to Ms Day’s return to work in 2018.CONSIDERATION Ms Day did not make a written or oral submission about the classification of her condition, in terms of the Act. The Respondent’s representative submitted at the hearing that the condition was properly considered a disease. The Respondent also conceded there had been an aggravation of the ailment, but it further submitted that the evidence did not support a finding that Ms Day’s condition had been contributed to, to a significant degree, by her employment, as required by s 5B(1). In the alternative, the Respondent submitted that the relevant events at work amounted to reasonable administrative action, and so Ms Day’s condition was to be excluded under s 5A(1). There is no dispute in the medical evidence that Ms Day suffered an adjustment disorder, albeit that its particular characteristics vary to some degree between the medical reports. The particular issue that requires determination then is whether it should be characterised as a disease or an injury. There is a good deal of legal authority including on the nature of psychological conditions, however in essence the task involves examining the evidence in order to determine the nature and incidents of the change which gave rise to the condition.[1] The relative speed with which a condition arises, or has developed as a distinct and identifiable change, are also considered relevant, but not necessarily required, in cases of psychological conditions.[2][1] Prain v Comcare [2017] FCAFC 143 at 76.[2] Bailey v Broadside [2017] FCAFC 219 at 115. I understand the diagnosis of an adjustment disorder to involve the identification of a distinct psychological condition, caused by identifiable stressors, and being of relatively confined scope in terms of its duration. I accept that Ms Day reported experiencing issues at work over a period of time, extending to perhaps twelve months. Indeed, the ultimate origins of her issues in the workplace were the merger of two work teams, and coming under the supervision of a new team leader. This is consistent with the diagnostic criteria, which encompasses ongoing stressors, as well as specific stressors. In summary, I accept that her experience overall in the workplace in the time leading up to her departure, and punctuated by the June and October incidents, was the cause of her condition. I am therefore satisfied that Ms Day’s adjustment disorder is to be classified as a disease, because, whilst representing an identifiable change in her mental state, it emerged over a relatively long period of time. However, I must also be satisfied that Ms Day’s condition was contributed to, to a significant degree, by her employment. Identifying factors leading to the diagnosis, as I have done, is subject to consideration of the factors specified in s 5B(2) that may be taken into account when examining this question. There was significant attention devoted at the hearing to understanding Ms Day’s prior medical history. There was also evidence given, including by Ms Day, as to her social activities, her performance at work in the context of other ailments, and activities external to work.