Dong and Comcare (Compensation) - [2025] ARTA 1236

Dong and Comcare (Compensation) [2025] ARTA 1236 (20 February 2025)
Applicant/s:  Ai Ngoc Thi Dong
Respondent:  Comcare
Tribunal Number:                2023/5175
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:20 February 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that the respondent is liable to pay compensation under the Safety, Rehabilitation and Compensation Act 1988 in relation to the applicant’s adjustment disorder with mixed anxiety and depressed mood which is an aggravation of the applicant’s pre-existing condition.

Damien O’Donovan
........................................................................
Deputy President O'Donovan
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act – aggravation of underlying condition – reasonable administrative action - perception of workplace events induced anxiety – where separate employment related events significantly contributed to the aggravation of applicant’s underlying condition – where some but not all significant contributors were reasonable administrative action – applicant’s adjustment disorder with mixed anxiety and depressed mood not excluded from definition of injury – decision under review set aside and substituted.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5B, 14
Cases
Comcare v Martin [2016] HCA 4
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Lim v Comcare [2017] FCAFC 64
Wiegand v Comcare [2002] FCA 1464
Wonson v Comcare (2020) 276 FCR 613
Statement of Reasons

On 15 March 2023, the applicant submitted a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The claim arose out of a series of interactions at work between the applicant, her co-workers and her supervisors. Comcare accepts that the applicant suffered an aggravation of an underlying psychological condition as a result of the interactions and this resulted in an adjustment disorder with mixed anxiety and depressed mood.[1] Comcare accepts that her condition was contributed to, to a significant degree, by her work. Consequently, the applicant’s condition meets the definition of a ‘disease’ under the SRC Act.
[1] Exhibit R 1 p 1056
However, to be compensable under the SRC Act, the ‘disease’ must also meet the statutory definition of an ‘injury’. A disease that is suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment (referred to from this point as ‘reasonable administrative action’) falls outside of the definition of ‘injury’.[2]
[2] See the definition of injury in section 5A of the SRC Act
Comcare contends that the disease from which the applicant suffers was suffered as a result of reasonable administrative action.
To resolve the issue, it is necessary to identify the events which resulted in the applicant’s underlying psychological condition being aggravated, and then consider whether they amounted to reasonable administrative action.
In the event that some, but not all of the significantly contributing events constituted reasonable administrative action, a question arises as to whether it is sufficient for one or some of the contributing events to amount to reasonable administrative action to exclude the condition from meeting the requirements of a statutory ‘injury’.
Evidence
The evidence before me…

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 Dong and Comcare (Compensation)

Details

AGLC: Dong and Comcare (Compensation) [2025] ARTA 1236
Case: [2025] ARTA 1236
Decision Date: 20 February 2025

CaseChat Overview and Summary

The case of Dong and Comcare (Compensation) involves Ms. Dong, an employee of Services Australia, who sought compensation for an adjustment disorder with mixed anxiety and depressed mood, which she claimed was aggravated by her workplace environment. The matter was heard and determined in the Administrative Appeals Tribunal (AAT). The primary legal issue before the court was whether the aggravation of Ms. Dong's psychological condition was due to reasonable administrative action taken by her supervisors, and if so, whether this would exclude the condition from being considered a statutory 'injury' under the Safety, Rehabilitation and Compensation Act.

The court found that while some of the administrative actions taken by Ms. Dong's supervisors, such as denying her requests to work from home and directing her to undertake testing without providing adequate equipment, constituted reasonable administrative action, these actions did not exclude her condition from being deemed a statutory injury. The court concluded that the applicant's fear of contracting COVID-19 due to perceived lack of hygiene in the workplace was not considered reasonable administrative action and contributed significantly to the aggravation of her condition. The cumulative effect of these events, including the denial of her requests to work from home, being directed to undertake testing without adequate equipment, and a meeting with her supervisor, Ms. Joanna Zhu, all aggravated her psychological condition.

The reasoning of the court was based on the evidence provided by Dr. Malik, who confirmed that each of the identified employment events contributed significantly to the aggravation of Ms. Dong's psychological condition. The court found that the denial of her request to work from home alone met the required level of contribution to a significant degree, even without the other events. Therefore, the court set aside the decision under review and substituted it with a decision that the respondent is liable to pay compensation under the SRC Act for Ms. Dong's adjustment disorder with mixed anxiety and depressed mood, which developed due to an aggravation of her pre-existing condition.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the event that some, but not all of the significantly contributing events constituted reasonable administrative action, a question arises as to whether it is sufficient for one or some of the contributing events to amount to reasonable administrative action to exclude the condition from meeting the requirements of a statutory ‘injury’. Evidence The evidence before me consisted of the following:· Applicant’s statement filed 8 January 2024, located at Tender Bundle tab B5, pages 812-863 (Exhibit A1)· T-Documents, located at Tender Bundle tab A1, pages 1 to 362 (T-Documents)· Briefing letter to Dr Malik dated 12 February 2024, located at Tender Bundle tab C1, pages 1049-1052, and supplementary report of Dr Malik dated 8 March 2024, located at Tender Bundle tab C2, pages 1053-1063 (Exhibit R1)· Briefing letter to Dr Malik dated 2 September 2024, located at Tender Bundle tab C7, pages 1104-1105, and report of Dr Malik dated 3 September 2024, located at Tender Bundle tab C8, pages 1106-1108. (Exhibit R2)· Statement of Joanna Zhu dated 24 May 2024, located at Tender Bundle tab C4, pages 1087-1091 (Exhibit R3)· Statement of Joanna Zhu dated 5 September 2024, located at Tender Bundle tab C5, pages 1092-1096 (Exhibit R4)· Statement of Mitchell Davison dated 15 April 2024, located at Tender Bundle tab C3, pages 1064-1086 (Exhibit R5)· Statement of Mitchell Davison dated 6 September 2024, located at Tender Bundle tab C6, pages 1097-1103 (Exhibit R6) There were some disagreements as between the applicant’s recollection of events and the witnesses who gave their account of the various incidents. I will consider the conflicts in the evidence in the course of making my findings of fact.Findings of Fact The applicant is an employee of Services Australia. She commenced employment there in 1998. She currently works in the Data Online Systems Division, and at the time of her claimed condition was a Senior Developer in the Technology and Digital Programmes Group. The applicant has for some time had a poor relationship with her supervisors, Ms Joanna Zhu and Mr Mitchell Davison. The source of her problems with Ms Zhu date back to 2012, when the applicant believed that Ms Zhu was responsible for identifying her as an appropriate candidate for redundancy.[3] Her poor relationship with Mr Davison developed primarily from what she regarded as inaction on his part in relation to the poor hygiene practices of colleagues which made her feel unsafe at work. In particular, she objected to colleagues coughing at work without covering their mouths. The applicant considered it was Mr Davison’s job to insist on higher standards from her colleagues. Mr Davison, on the other hand was prepared to act on her concerns but only to a limited degree. The applicant was not satisfied with his efforts.[4] [3] Exhibit A1, p 812.[4] Ibid, p 813. While the applicant was almost certainly suffering symptoms of mental illness in various periods from perhaps as early as 2012,[5] her condition deteriorated significantly in early March 2023. It is in relation to this deterioration that the applicant submitted a claim for compensation.[5] Exhibit R1, p 1055.

Decision

Reasons for decision

I do not accept that submission. In Dr Malik’s report, the use of the phrase ‘each event’ makes clear that Dr Malik is commenting on the contribution of each one of the four identified contributors disaggregated from the others. He concludes that ‘each event’ meets the statutory contribution threshold of contributing ‘significantly to the aggravation of [the applicant’s] existing psychological symptoms’. In these circumstances, it is not true to say that the applicant’s ‘request to work from home being denied’ was an event ‘without which [the applicant] would not have suffered a disease’. On the contrary, Dr Malik’s opinion is that even in the absence of that event, the applicant’s psychological condition would have been aggravated by the other employment events. He confirms that each of those events contributed to the aggravation of her ailment to a significant degree. The correct conclusion is that even if the applicant was only exposed to the fear of COVID-19 induced by her workplace, her underlying psychological ailment would still have been aggravated, and that employment event alone meets the required level of contribution, being contribution to a significant degree. Decision I set aside the decision under review and substitute with a decision that the respondent is liable to pay compensation under the SRC Act in relation to the the applicant’s adjustment disorder with mixed anxiety and depressed mood which developed due to an aggravation of her pre-existing condition.

Ratio Decidendi

Legal Principle Established

He responded:Each of the scenarios described contributed to the exacerbation of her pre-existing conditions, and their individual and cumulative effects are considered below:Denial of Requests to Work from Home…Without this denial it is conceivable that her psychological symptoms may not have escalated to the same degree.Being Directed to Undertake Testing Without Adequate Equipment…The feeling of being undervalued and unsupported by her employer likely aggravated her psychological conditions. Meeting with Ms Joanna Zhu on 8 March 2023…Without this meeting, or if the meeting had been perceived as more supportive, the aggravation of Ms Dong’s condition might have been lessened.Fear of Contracting COVID-19 Due to Perceived Lack of Hygiene…Ms Dong’s fear of contracting COVID-19 exacerbated by her observations of inadequate hygiene practices among staff, contributed significantly to her anxiety. This fear was not unfounded…The stress associated with this fear, particularly in a work environment that she perceived as disregarding her health concerns, likely played a significant role in the aggravation of her psychological conditions. Without this specific fear, or if her workplace had implemented and enforced strict hygiene measures, it’s plausible that her anxiety related to this issue would have been substantially reduced. In summary, while it is difficult to definitively state that Ms. Dong would not have suffered from her diagnosed conditions in the absence of these specific events, it is clear that each event contributed significantly to the aggravation of her existing psychological symptoms. The cumulative effect of these stressors, in conjunction with her pre-existing vulnerabilities, amplified the severity and clinical significance of her condition.[28][28] Exhibit R1, p 1058.Consideration As noted at the outset, the respondent accepts that the applicant’s employment contributed to the aggravation of her underlying psychological disorder to a significant degree. However, it contends that in relation to the following incidents, the conduct by the applicant’s supervisors constituted reasonable administrative action:·denial of the applicant’s requests to work from home;·being directed to undertake testing without being provided with the equipment to do so from home; and ·a meeting with Ms Joanna Zhu on 8 March 2023.[29] [29] Respondent’s statement of facts, issues and contentions dated 5 August 2024 at [4.13]. The respondent accepts that the fourth identified employment contributor, the applicant’s fear of contracting COVID-19 ‘does not amount to administrative action’.[30][30] Respondent’s outline of submissions 27 September 2024 at [34] I am affirmatively satisfied that the three incidents identified in paragraph [52] above constituted reasonable administrative action.Denial of the applicant’s request to work from home The first contributing incident identified by the applicant occurred on Thursday, 2 March 2023. On that day, Mr Davison advised the applicant that he expected her to come into the office and undertake testing or take personal leave. He did this in circumstances where the request was consistent with the work from home arrangement that was in place with the applicant and the applicant had not produced a medical certificate that said she was unfit to work in the office. The medical certificate she produced simply stated that she was fit to work from home.