DNJN and Comcare (Compensation)

Case [2015] AATA 928

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

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. Both parties agreed that I should re-hear the matter.

  6. 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

  7. The following 11 paragraphs are taken from my decision of 24 April 2014.  The facts set out are not in dispute.

  8. The Applicant grew up in country Victoria.  She was a healthy child who enjoyed sports and…

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Details
AGLC
DNJN and Comcare (Compensation) [2015] AATA 928
Case
[2015] AATA 928
Decision Date

CaseChat Overview and Summary

The case involves the applicant, who suffered from Chronic Fatigue Syndrome (CFS), and Comcare, an Australian government agency responsible for providing workers' compensation. The applicant sought compensation for the aggravation of her CFS, which she claimed was caused by reasonable administrative action taken in a reasonable manner in respect of her employment. The court was required to determine whether the aggravation of CFS was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment. The court considered the arguments presented by both parties and examined the evidence provided. The applicant argued that the administrative action of the transfer was complete when the decision to grant the transfer request was made, and it was the duties she had to perform that aggravated her condition. Comcare argued that the transfer and the duties that came with it were part of the same administrative action and therefore fell within the exclusionary provision of the definition of injury. The court found that the applicant's evidence was credible and accepted that the aggravation of her CFS was caused by the realisation that her duties in the new position included the assessment of marriage-like relationships. The court found that the alternative arguments put by Comcare failed to meet the crucial requirement of the exclusionary provision of the definition of injury, which requires that the disease, injury or aggravation be suffered "as a result of" the relevant administrative action. The court set aside the reviewable decision made by Comcare and decided that Comcare is liable to compensate the applicant for the claimed injury.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.