Don Nufable and Comcare - [2012] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL )
)No. 2011/0198

GENERAL ADMINISTRATIVE DIVISION )

Re: Don Nufable

Applicant
And: Comcare

Respondent
TRIBUNAL:            Deputy President J W Constance
DATE:                     29 February 2012
PLACE:                   Melbourne
CORRIGENDUM TO DECISION [2012] AATA 82
Pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 the Tribunal directs the Registrar to amend the decision dated 14 February 2012, by deleting paragraph 59 and inserting in its place:
59.Under s14(1) of the Act Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.

.....[sgd J W Constance]..........
Deputy President
[2012] AATA 82

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/0198

Re

Don Nufable

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 14 February 2012

Place Melbourne
The reviewable decision denying liability to compensate Mr Nufable in respect of depression and anxiety related symptoms, made by Comcare on 29 November 2010, is affirmed.
............................(sgd J W Constance)...............................
Deputy President J W Constance
COMPENSATION - depression and anxiety - whether or not the conduct which resulted in the disease suffered by the employee was reasonable administrative action taken in a reasonable manner - decision under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7(4), 14(1)
Sami and Telstra Corporation Limited [2012] AATA 41
REASONS FOR DECISION
INTRODUCTION
1.Mr Nufable commenced working for the Child Support Agency as a Customer Service Officer in April 2009. His duties included dealing with telephone enquiries and accessing and recording information on a computer. Prior to commencing with the Agency he had been employed in the Australian Taxation Office for four years in a position which included telephone contact with taxpayers.
2.Mr Nufable claims that in April 2010 he suffered depression and anxiety related symptoms caused by his employment by the Agency.
3.The question to be decided in this application is whether Mr Nufable is entitled to compensation in respect of this condition under the Safety, Rehabilitation and Compensation Act 1988(Cth). He is not entitled to compensation if the condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of his employment. The definition of an injury which is compensable under the Act excludes a condition suffered in such circumstances.
4.Comcare has decided that it is not liable to compensate Mr Nufable. For the reasons which follow this decision will be affirmed.

EVIDENCE AND FINDINGS OF FACT
5.For the first six months of employment Mr Nufable was on probation. For the first four months he was engaged in classroom based training which involved a group of approximately 30 people; it was followed by two month’s “on-the-job” training.
6.The evidence of Mr Nufable as to the events which occurred in his workplace between the beginning of April 2009 and the time he took extended leave in July 2010 was confused and his memory of events was poor. On the other hand the evidence given by Mr…

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.

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Details

Case: [2012] AATA 82
Decision Date: 14 February 2012

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Don Nufable, a Commonwealth employee, sought compensation for depression and anxiety-related symptoms from Comcare, the insurer. Nufable alleged that he was injured due to administrative action taken by his employer, which exacerbated his pre-existing psychological condition. Comcare denied his claim, arguing that the administrative actions were reasonable and did not aggravate his condition.

The court needed to determine if Nufable's condition worsened due to actions taken by his employer that were not reasonable, thereby constituting a compensable injury under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary focus was on whether the administrative actions taken post-14 April 2010, the date from which an injury would need to be traced, were unreasonable and contributed to the aggravation of Nufable's condition.

The court examined the evidence and found that Nufable did not suffer an aggravation of his condition from administrative actions taken in a reasonable manner. The court concluded that the actions taken by Nufable's employer were reasonable and did not contribute to the worsening of his condition. Therefore, Comcare's decision to deny liability for compensation was upheld.

The Federal Circuit Court of Australia affirmed Comcare's decision, denying Nufable's claim for compensation for his depression and anxiety-related symptoms. The court found that the administrative actions taken by Nufable's employer were reasonable and did not result in an aggravation of his pre-existing condition.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 13 April 2010 Mr Stanley met with Mr Nufable. On this occasion Mr Stanley provided further information to Mr Nufable as to his failure to meet the standards required of his position. Mr Nufable was given a document setting out details of the conduct discussed and offered the opportunity to respond. Mr Nufable did not take this opportunity. Mr Nufable was told also that the period of his Getting Back on Track Plan would be extended by three months. At the conclusion of this meeting it was agreed that Mr Nufable would work with Ms Carey in order to make a “fresh start”. Ms Carey did assist Mr Nufable with his work. The Plan was not extended.Ms Carey (nee Mohren)’s evidence Ms Carey was appointed Acting Team Leader of Mr Nufable’s team on 12 April 2010. Following the meeting of 13 April 2010 Mr Nufable took personal leave of one week. On 22 April 2010 Mr Nufable requested that the decision to extend the Getting Back on Track Plan be reviewed by the Australian Public Service Commission.[11] At a meeting on 27 April 2010, attended by Mr Nufable, his support person, Ms Carey and her Assistant Operations Manager (Ms Pito), it was agreed that the Plan would be finalised with a “no result” and a new Plan put in place to allow Mr Nufable to make a fresh start. It was agreed further that a new Performance Agreement Record and a new Individual Development Plan would be prepared. Mr Nufable said that in future he wished to have correct procedure followed.[11] Exhibit A17. On 29 April 2010 Ms Carey met with Mr Nufable and his support person. Mr Nufable told Ms Carey that he agreed with the expectations of him set out in Performance Agreement Record. He agreed also to complete the Individual Development Plan by the end of the following day which he did.[12][12] A copy of the minutes of this meeting is at p.158 of Exhibit T1. On 13 May 2010 another meeting was held at which Ms Pito congratulated Mr Nufable on having completed the Performance Agreement Record and the Individual Development Plan so quickly and advised him that a Getting Back on Track Plan would not be implemented at that stage. Mr Nufable again requested that he be transferred to Brisbane. Ms Pito advised him that such requests could take several months to finalise and required negotiations between the two offices concerned. In her statement of 27 October 2011 Ms Carey said:… I recall one occasion on 19 May 2010 when I pulled the Applicant aside to address an urgent performance issue. I told the Applicant that a meeting would be held on 25 May 2010 to implement a Getting Back on Track (GBOT) plan because it had been brought to my attention by another CSO that he had made negative remarks about the CSA, that the general tone of his conversations with customers had not been professional and that he had been dancing at his desk. The Applicant replied ‘no, no, no’ in a dismissive tone, so I asked if he was disputing the allegations, to which he stated that he would neither confirm nor deny them. The Applicant stated that, pursuant to HR Policy ‘Managing Underperformance’, he would not sign a GBOT plan due to his stress levels and that he did not have to. I told the Applicant that I was not aware of any such right and he said that he would show me where it was written, but he never did.[13][13] Exhibit R2, paragraph 14.

Decision

Reasons for decision

In the findings of facts set out earlier in these reasons I have found facts which occurred after 14 April 2010, being the date on which Mr Nufable would have been taken to have suffered an injury if the depression he suffered had come within the definition of injury under the Act. I have considered those facts to determine whether Mr Nufable may have suffered an aggravation of his condition which did not result from reasonable administrative action taken in a reasonable manner. I am satisfied that he did not suffer such an aggravation.CONCLUSION The reviewable decision denying liability to compensate Mr Nufable in respect of depression and anxiety related symptoms, made by Comcare on 29 November 2010, will be affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/0198
Re	Don Nufable
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President J W Constance
Date	14 February 2012
Place	Melbourne