Doobree and Comcare (Compensation) [2022] AATA 3564 (26 October 2022)
Division:GENERAL DIVISION
File Number(s):2020/3696
Re:Keeshan Doobree
APPLICANT
AndComcare
RESPONDENT
Decision
Tribunal:L M Gallagher, Member
Date:26 October 2022
Place:Perth
The reviewable decision, being the decision of a delegate of the Respondent dated 21 April 2020 that the Respondent was not liable under section 14 of the Safety Rehabilitation and Compensation Act 1988 for the Applicant’s claimed condition, is affirmed.
.............[Sgd]...........................................................
L M Gallagher, Member
Catchwords
COMPENSATION – Commonwealth employee – adjustment disorder – whether adjustment disorder syndrome contributed to, to a significant degree, by employment -reasonable administrative action – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4(1), 5A, 5A(1), 5B, 5B(1)(a), 7(4), 14, 14(1) 16, 19, 37
Cases
Comcare v Mooi (1996) 69 FCR 439
Comcare v Stewart [2019] FCA 365
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 63
Georges and Telstra Corporation [2009] AATA 731
Hart v Comcare (2005) 145 FCR 29
Keen v Workers’ Rehabilitation and Compensation Corporation [1998] SASC 7056
Lim v Comcare (2017) 250 FCR 298
Martin v Comcare [2015] FCAFC 169
Prowse v Comcare [2019] AATA 411
Re Cross and Comcare [2018] AATA 52
Re Lynch and Comcare [2010] AATA 38
Von Stieglitz and Comcare [2010] AATA 263Wiegand v Comcare [2002] FCA 1464
Secondary Materials
REASONS FOR DECISION
L M Gallagher, Member
26 October 2022
the application
On 14 October 2019, a delegate of the Respondent determined that the Respondent was not liable under section 14 of the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) for the Applicant’s claimed condition of “anxiety, flashbacks, sleep disorders, restlessness and loss of confidence”[1] (the Claimed Condition) (the Original Decision).[2]
[1]The Respondent’s delegate at first instance, and later on review, characterised the Applicant’s claim as one for “adjustment reaction” (R1, T23 and T33). The Claimed Condition refer to those listed in the Applicant’s claim for workers’ compensation (R1, T11, p 60) and however characterised subsequently.
[2]R1, T23.
On 21 April 2020 the Respondent affirmed the Original Decision (the Reviewable Decision).[3]
[3]R1, T33.
The Applicant seeks review of the Reviewable Decision.
issues
The issue for the Tribunal is whether the Respondent is liable under s 14 of the SRC Act to pay compensation to the Applicant for the Claimed Condition. This in turn requires the Tribunal to determine:
(a)whether the Applicant suffered from an “ailment” as defined in s 4 of the SRC Act, or aggravation of such an ailment, for the purposes of the definition of “disease” in s 5B of the SRC Act;
(b)if so, whether the ailment or an aggravation of the Applicant’s ailment was contributed to, to a significant degree, by his employment for the purpose of the definition of “disease” in s 5B of the SRC Act and may therefore be an “injury” for the purposes of s 5A(1)(a) of the SRC Act;
(c)if so,…
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- AGLC
- Doobree and Comcare (Compensation) [2022] AATA 3564
- Case
- [2022] AATA 3564
- Decision Date
CaseChat Overview and Summary
The Tribunal was tasked with determining four key issues. Firstly, whether the Applicant suffered from an "ailment" as defined by the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act), or an aggravation of such an ailment. Secondly, if an ailment was present, whether it was contributed to to a significant degree by the Applicant's employment, thereby constituting an "injury" under the SRC Act. Thirdly, the Tribunal had to consider whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner, which would exclude it from the definition of "injury". Finally, if all preceding conditions were met, the Tribunal needed to determine the date of onset of the condition.
The Tribunal found that the Applicant's claimed condition was an ailment within the meaning of the SRC Act, relying on medical reports diagnosing adjustment disorder with symptoms of depression and anxiety. Crucially, the Respondent accepted that the Applicant's condition was contributed to to a significant degree by his employment, identifying regular appraisals of underperformance, reasonable counselling, and formal performance management meetings as contributing factors. The Tribunal noted that the Respondent did not contend that the disease was suffered as a result of reasonable administrative action taken in a reasonable manner. The Tribunal affirmed the decision that the Respondent was liable to pay compensation to the Applicant for the claimed condition.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.CONSIDERATION As noted above, the issue for the Tribunal is whether the Respondent is liable under s 14 of the SRC Act to pay compensation to the Applicant for the Claimed Condition. This in turn requires determination of each of the sub-issues set out at para [4] above.Whether the Applicant suffered from, at the relevant time and/or continues to suffer from an ailment, and if so, the appropriate diagnosis of that ailment The parties accept[46] and the Tribunal finds that the Applicant’s Claimed Condition is an ailment in accordance with the definition of “ailment” in ss 4(1) of the SRC Act[47] and for the purposes of subsection 5B(1) of the SRC Act. [46]See, for example, R8 [4.1].[47]An ailment being a condition outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi [1995] FCA 508; (1996) 69 FCR 439]. See also the discussion of ‘ailment’ in the SRC Act in the context of psychological conditions in Prowse v Comcare [2019] AATA 411 at [68]-[70] (Prowse). In making this finding, the Tribunal relies on Dr Spear’s report dated 12 September 2019,[48] which diagnosed the Applicant with adjustment disorder with symptoms of depression and anxiety.[49] Dr Spear’s diagnosis is maintained in his later report of 21 September 2020,[50] and is consistent with Mr Hwee’s observations of the Applicant in his various reports.[51]Whether the Applicant’s adjustment disorder is a disease, that is, an ailment that was contributed to, to a significant degree, by his employment with the Agency[48]R1, T20.[49]See [25] above.[50]See R12.[51]See A11, document 7; R1, T10 and T15. Having satisfied itself of the existence of an ailment, the next matter that falls for the Tribunal’s consideration is whether, as at and from 21 April 2020 (being the date that Comcare initially denied liability under section 14 of the SRC Act), the Applicant’s Claimed Condition was contributed to, to a significant degree, by his employment with the Agency.[52][52]The Tribunal refers to the thorough discussion of the meaning of “contributed to, to a significant degree” in paragraphs 128 to 135 of the decision of Re Cross and Comcare [2018] AATA 52. The Respondent’s position is that it accepts that the Applicant’s Claimed Condition was contributed to, to a significant degree, by his employment with the Agency. The Respondent identified those significantly contributing factors as being:[53] (a)Regular and reasonable appraisals of the Applicant’s underperformance in completing EA work.(b)Reasonable counselling action taken by Mr Black and Mr Coleman in respect of the Applicant’s employment.(c)Actions reasonably taken in connection with the performance appraisals and counselling action, including the arrangement of formal performance management meetings. [53]R8, [4.2].