DNJN and Comcare (Compensation)
[2015] AATA 928
•2 December 2015
DNJN and Comcare (Compensation) [2015] AATA 928 (2 December 2015)
Division
GENERAL DIVISION
File Number
2012/4514
Re
DNJN
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Deputy President JW Constance
Date 2 December 2015 Place Melbourne 1. The reviewable decision, being the decision of Comcare made 12 September 2012 that the Applicant is not entitled to compensation for aggravation of Chronic Fatigue Syndrome, is set aside.
2. In substitution it is decided that:
(i)in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay compensation to the Applicant in respect of an injury being an aggravation of Chronic Fatigue Syndrome;
(ii)the injury arose out of the Applicant’s employment by the Commonwealth; and
(iii)in accordance with subsection 7(4) of the Act, the Applicant is taken to have sustained the injury on 23 July 2010.
...........................[SGD].............................................
Deputy President JW Constance
CATCHWORDS
COMPENSATION - compensation for injuries - aggravation of chronic fatigue syndrome - whether aggravation contributed to, to a significant degree by the applicant's employment - whether the aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment - decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 7(4), 14(1)
CASES
DNJN and Comcare [2014] AATA 237
Commonwealth Bank of Australia (ACN 123 123 124 v Reeve and Another [2012] FCAFC 21
Comcare v Martin [2015] FCA 4
REASONS FOR DECISION
DEPUTY PRESIDENT JW CONSTANCE
2 December 2015
INTRODUCTION
The Applicant was employed in the Australian Public Service from 2002 until August 2014. In 2012 she made a claim for compensation for an injury she suffered, which she claimed was caused by her employment. In her claim form the Applicant described the injury as “Aggravation of chronic fatigue syndrome (injury) aggravation of depression and anxiety”.[1]
[1] Exhibit R1 p.87.
On 12 September 2012 Comcare decided to affirm an earlier determination denying liability to compensate the Applicant. The Applicant sought a review of this decision by the Tribunal.
I heard the application in November 2013 and February 2014. On 24 April 2014 I published a decision affirming Comcare’s denial of liability to compensate the Applicant.
On appeal, the Federal Court of Australia set aside my decision and remitted it to the Tribunal to be reheard according to law. I will refer later in these reasons to the basis for the Court’s decision as it affects the scope of the matters which I must consider in these reasons.
Both parties agreed that I should re-hear the matter.
For the reasons which follow the reviewable decision made by Comcare will be set aside and in substitution it will be decided that Comcare is liable to compensate the Applicant for the claimed injury.
BACKGROUND
The following 11 paragraphs are taken from my decision of 24 April 2014. The facts set out are not in dispute.
The Applicant grew up in country Victoria. She was a healthy child who enjoyed sports and outdoor activities and at the same time was an excellent student.
In 1992 the Applicant took a course of Roaccutane, a drug prescribed by her general practitioner for the treatment of acne. Immediately following her taking the drug the Applicant suffered a number of acute symptoms, including mental fatigue, insomnia, sore throat, swollen glands, sinus pain and headache.
At the time of the onset of these symptoms the Applicant was studying at University. After some time the acute symptoms subsided but the sinus pain and sore glands continued in a mild state. She was able to complete her study and graduate with the Degree of Bachelor of Arts in Criminal Justice Administration. Following graduation the Applicant worked in several jobs.
In 2003 the Applicant commenced employment with Centrelink ……. In 2005 she was working in the Fraud Investigation Team when she suffered anxiety and depression arising, in part at least, from the type of investigative work she was undertaking. After some time off work the Applicant was able to continue working and to manage the symptoms of her condition. Her health issues caused her to take substantial, but not excessive, sick leave.
For part of 2008 the Applicant worked in a claims processing role. As she was experiencing some difficulties in this position she had a fitness for duties examination and was moved into the Disability Processing Team.
In April 2010 the Applicant took part in a coaching meeting with her team leader, Mr Parisi. A week later she had a discussion with her manager, Mr Barillaro. Following these meetings the Applicant formed the view that she may be made the subject of an unsolicited redundancy notice. A short time later she applied for a position in the Random Sample Team. Her application was successful and she commenced working in that team on 21 June 2010.
Soon after she commenced in the new position the Applicant’s health deteriorated and she decided that the work she had been undertaking in her previous position in the Disability Processing Team was more suited to her. On 2 August 2010 the Applicant informed her employer that she wished to return to the Disability Processing Team.[2] At about the same time she spoke to the Manager in that team who advised her that there was not a vacancy available for her in the team.
[2] Exhibit A7 p.166.
The person to whom the Applicant spoke on 2 August 2010 was Ms Eyre of the Human Resources Team.[3] Her notes of this conversation read, in part:
[The Applicant] rang back the same day and stated the following:
She had applied for a permanent position with BI RSS (from Processing at ANC) had been here since late June. She wanted to go back to her previous job and had spoken to staff at ANC who said they needed her because they were understaffed however the Manager says, due to budget constraints, they are not taking on anyone.
I explained that this was the case in most areas – they are often not advertising and not filling vacancies as they occur.
[The Applicant] asked about being transferred back on medical grounds. I explained this would need to be assessed by the Workplace Health Team and she would need a certificate from her treating doctor.
[The Applicant] stated she had a certificate but it had information on it she didn’t want her workplace to see. I suggested she contact the doctor and either ask to have another certificate without that information or make another appt. She advised she had REC leave for 2 weeks at the end of this week so would arrange it then.[4]
I am satisfied that this is an accurate record of the conversation which took place.
[3] Exhibit R3 para.6.
[4] Exhibit R3 attachment C.
On 4 August 2010 the Applicant sent an email to Mr Barillaro which read, in part:
Further to my email sent the other day. I would like to advise that I would like to be considered for a compassionate transfer back to DSM. This is due to health reasons.[5]
[5] Exhibit A7 p.170.
The Applicant was on recreation leave from 4 August 2010 until 23 August 2010. On 16 August 2010, while she was on leave, the Applicant again spoke to Ms Eyre and asked her “how you got on with my transfer”.[6] Ms Eyre again advised the Applicant that she should arrange for a certificate to be issued by her treating doctor and that she should contact her team leader. The Applicant stated that she would do this. She said also that she did not wish to return to her position in the Random Sample Team.[7]
[6] Exhibit R3 attachment C.
[7] Exhibit R3 attachment C.
The Applicant was not transferred back to the Disability Processing Team. Her employer arranged for her to work away from the Random Sample Team. On 28 July 2011 the Applicant went on leave and has not returned to work since. [She was retired on medical grounds in August 2014].
TRIBUNAL HEARING IN NOVEMBER 2013 AND FEBRUARY 2014
The Applicant was not legally represented at the previous hearing nor did she have anyone to assist her. On many occasions I asked the Applicant to clarify her answers so I could better understand the case she was making.
At the commencement of the hearing the Applicant confirmed that she was proceeding only with a claim for an aggravation of chronic fatigue syndrome.
During the hearing the following exchanges took place.
DNJN: …. my case is that my CFS was actually aggravated when I changed team so when I moved from the Disability Processing Team in June 2010, so it was that moving team and moving duties that caused the aggravation and not anything that happened later.
DEPUTY PRESIDENT: So you put it down to that one event of moving – of being moved?
DNJN: Yes, because that was – and I refer later to the medical notes but that was when the symptoms became worse and that was when I was found to be – I had to reduce my hours due to the illness.
DEPUTY PRESIDENT: Just so I’m clear. So you’re saying that the aggravation came about solely as result of that moving in June 2010; is that right?
DNJN: Yes.[8]
[8] Transcript 25.11.13 at p.12.
THE APPLICANT’S APPEAL TO THE FEDERAL COURT
On appeal the Tribunal’s decision affirming Comcare’s decision was set aside and the matter was remitted to be heard according to law. The Court allowed the appeal on the basis that “the applicant was not put on notice that the Tribunal might find that the transfer was a causative, reasonable administrative action and so did not have an opportunity to make submissions that the Tribunal should find otherwise.”[9]
[9] Attachment to the Order of the Federal Court made 7 October 2014 in matter No. (P) VID281/2014
LEGISLATION
Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Injury is defined in subsection 5A(1) of the Act. The relevant part of the definition reads:
injury means:
a disease suffered by an employee …
…
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Disease is defined in section 5B to mean:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
In subsection 4(1) ailment is defined:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
THE ISSUE FOR DETERMINATION AT THE HEARING ON REMITTAL
For the purposes of this hearing the parties accept the findings in my previous reasons for decision that the Applicant suffers Chronic Fatigue Syndrome and did so in 2010 and for a considerable period prior to that. It was accepted also that “the Applicant suffered the aggravation of her condition between 21 June 2010 (when she commenced with the Disability Processing Team) and 4 August 2010 (when she sought a transfer back to the Random Sample Team for health reasons).”[10]
[10] [2014] AATA 237 paras 38 & 49.
The following issue arises for determination:
Was the aggravation of Chronic Fatigue Syndrome “suffered as a result of reasonable administrative action taken in a reasonable manner in respect of” the Applicant’s employment by the Commonwealth?
THE APPLICANT’S EVIDENCE
The Applicant provided a statement dated 12 March 2015[11]. She also gave evidence when she confirmed the accuracy of the matters contained in the statement.
[11] Exhibit AA1.
In the statement the Applicant said:
6. The transfer to the Random Sample Team was a positive experience for me in the early days. My CFS was not aggravated at all by the transfer itself. …… The change in teams, getting to know the people who had already been in the team for some time, and also getting to know the new people who started with me, had no real impact on my health.
7. I had no problems whatsoever adjusting to the work in the first fortnight or so. I was capable of doing the work and felt capable and confident at that time.
……
9. It was around 23 July 2010 that I began to feel that things were going wrong, after I learned that my role in the Random Sample Team involved investigative work relating to marriage-like relationships. I was told that the assessment of living arrangements and associated debt-raisings were part of my role in the new team and that we did not (as we had done before) send those assessments to the MLR Team in Geelong. Finding out that I would have to do these assessments was a substantial blow, because it took me back to the work I had been doing in 2005, when I became very ill. I did not think I could function in debt-raising role at all. It pulled the rug out from underneath me, and triggered the onset of worsening symptoms of chronic fatigue, panic attacks, headaches and insomnia. I developed a phobia about debt-raising altogether.
10. I refer to the evidence which I gave to the Tribunal on 25 November 2013 in which I state on page 12 of the transcript:
“… My case is that my CFS was actually aggravated when I changed teams so when I moved from the Disability Processing Team in June 2010, so it was that the moving team and moving duties have caused the aggravation of anything that happened later”.
What I meant by these words was that if I had not transferred to the new team I would not have found myself faced with the duties which made me ill. The “later” period I was referring to was the period commencing after I applied to go back to the Disability Processing Team.
11. …… I regarded the transfer and the duties as being synonymous and I saw no reason to separate them. When the Deputy President was talking about the transfer I assumed that he was also including the duties that came with the transfer.
THE APPLICANT’S ARGUMENT
It was argued on behalf of the Applicant that the administrative action of the transfer from one position to another was complete in May 2010 when the decision to grant the Applicant’s request for a transfer was made. The Applicant’s performance of her duties in the new position was separate from the transfer. It was the duties the Applicant had to perform which aggravated her condition and this performance is not subject to the exemption contained in the definition of injury in section 5A of the Act.
COMCARE’S ARGUMENT
Comcare accepts that the aggravation of the Applicant’s condition was caused by the duties she was required to perform and that the performance of those particular duties was a consequence of her having been transferred to her new position in the Random Sample Team. It was argued that:
(i)the administrative action of the transfer included the performance of duties consequent upon that transfer; or alternatively,
(ii)the aggravation was “a result of” the administrative action constituted by the transfer and therefore falls within the exclusionary provision of subsection 5A(1).
CONSIDERATION
The Applicant was not cross-examined on the evidence she gave at the hearing on remittal or on her statement of 12 March 2015. I am satisfied that the Applicant was an honest witness. I accept her evidence and make findings of fact in accordance with her statement.
In particular I am satisfied, on the basis of that evidence, that the aggravation of her chronic fatigue disorder was caused by the realisation that her duties in the new position included the assessment of marriage-like relationships. I accept too her evidence given on 25 November 2013 that at the time she was transferred it had not occurred to her that she would be expected to do that work.[12]
[12] Transcript 25/11/13 p.26.
In my view the alternative arguments put by Comcare state the same proposition in two different ways and both arguments fail to meet a crucial requirement of the exclusionary provision of the definition of injury in subsection 5A(1) – the requirement that the disease, injury or aggravation be suffered “as a result of” the relevant administrative action.
In Commonwealth Bank of Australia (ACN 123 123 124) v Reeve and Another[13] Gray J. considered that the more broadly the exclusion in subsection 5A(1) is construed, the more injured workers will be excluded from compensation under the Act. His Honour went on to say:
… it is difficult to find in the words “suffered as a result of” some limitation as to the proximity of the relationship between condition and the action. Whether the necessary causal relationship exists will be a question of fact in each case, but the words chosen by the legislature to describe the causal relationship do not lend themselves readily to confinement to a direct result, or a result with any particular degree of proximity. Similarly, the words used to describe the relationship between the action and the employment (in respect of) do not appear to be restrictive of the kind of connection that is envisaged.
The limits of the exclusion therefore appear to lie in the word “employment” and the word “administrative”. … It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.[14]
[13] [2012] FCAFC 21.
[14] At pp.191-192.
Rares and Tracey JJ. put it this way:
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. …… This suggests that the parliament intended that the exclusionary action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties and tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be.[15]
[15] At p.201.
In this matter I am not satisfied that there is the necessary causal link between the Applicant’s transfer to the Random Audit Team and the aggravation of her condition. The requirement to undertake assessment of marriage-like relationships cannot be said to be a direct result of the transfer. Rather it was a part of the everyday duties allocated to her and which she was required to undertake.
The situation in which the Applicant found herself is exactly the situation referred to by Gray J. as an example of the undue width of the exclusion should the argument advanced by Comcare be accepted. He said:
Some examples surfaced in the course of argument on the appeal. It could be argued that an injury to an employee in falling downstairs at his or her workplace was a result of administrative action in directing that employee to work at that workplace. ….. Counsel for the CBA disclaimed any intention to argue for such an interpretation of the exclusion. They did not attempt to offer a way in which the words “as a result of” might be confined to a causal relationship of sufficient proximity to prevent the exclusion having that kind of operation, if the words “administrative action” were to be given a broad construction of the kind which Counsel for the CBA contended.
Here, the interpretation for which Comcare contends would have the consequence that an injury caused by any duties carried out by an employee in a new position would be subject to the exclusion. Counsel for Comcare was unable to assist me with a means of determining when the duties carried out by an employee became too remote from the employee’s appointment to the position for the exclusion to operate.
In my view, the principles set out in Reeve are applicable in this matter. The administrative action in transferring the Applicant to the Random Audit Team did not include the performance of the duties by the Applicant in her new position nor was the aggravation of her condition a result of that administrative action.
Counsel for Comcare also referred me to the decision of Comcare v Martin.[17] I do not consider that that decision supports Comcare’s argument in this matter, but rather highlights differing results which arise from different fact situations.
[17] [2015] FCA 4.
In Martin the administrative action in question was a decision not to offer Ms Martin the opportunity to move from the position she was occupying. Griffiths J. referred to the facts found by this Tribunal as follows:
… the Tribunal considered that Ms Martin’s anxiety at the prospect of returning to work under Mr Mellett’s supervision arose from the decision not to promote her to the permanent position of cross-media reporter. Indeed, the Tribunal expressly found at [61] that, in Ms Martin’s mind, the prospect of returning to work under Mr Mellett’s supervision was “a direct and foreseeable consequence” of the promotion decision. That was a finding of fact, which was plainly open to be made on the evidence. [Emphasis added].
…..
Furthermore, and importantly by way of emphasis, the distinction which Ms Martin seeks to draw between direct or unintended consequences of the decision not to promote her, and the decision itself, sits uncomfortably with the Tribunal’s findings of fact which indicate that the Tribunal saw these matters as being inextricably linked. The Tribunal consider that there were concurrent operative causes of Ms Martin’s adjustment disorder.[18]
[18] At pp.30-31.
Having decided that the Applicant suffered a compensable injury, it is necessary to decide when that injury occurred.
Subsection 7(4) of the Act 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 …. first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
The Applicant gave evidence that she consulted her general practitioner, Dr Small, on 23 July 2010. On that occasion the Applicant stated that she “felt awful” and Dr Small recorded that she “looked pale and unwell”.[19] I am satisfied that this was the first occasion on which the Applicant sought medical treatment for the aggravation and that prior to this date she had not suffered incapacity for work nor impairment. As such, I find that the Applicant is taken to have sustained the injury on 23 July 2010.
[19] Transcript 25/11/2013 at p.28.
CONCLUSION
The reviewable decision, being the decision of Comcare made 12 September 2012 that the Applicant is not entitled to compensation for aggravation of Chronic Fatigue Syndrome, will be set aside.
In substitution it will be decided that:
(i)in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay compensation to the Applicant in respect of an injury being an aggravation of Chronic Fatigue Syndrome;
(ii)the injury arose out of the Applicant’s employment by the Commonwealth; and
(iii)in accordance with subsection 7(4) of the Act the Applicant is taken to have sustained the injury on 23 July 2010.
I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of ...........................[SGD].............................................
Associate
Dated 2 December 2015
Date of hearing 14 August 2015 Date final submissions received 14 August 2015 Counsel for the Applicant Mr M Carey Solicitors for the Applicant Saines Lucas Solicitors Counsel for the Respondent Mr R Seit Solicitors for the Respondent Sparke Helmore
[16] At pp. 190- 191.
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