Doobree and Comcare (Compensation)

Case [2022] AATA 3564

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 263

Wiegand v Comcare [2002] FCA 1464

Secondary Materials

REASONS FOR DECISION

L M Gallagher, Member

26 October 2022

the application

  1. 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.

  2. On 21 April 2020 the Respondent affirmed the Original Decision (the Reviewable Decision).[3]

    [3]R1, T33.

  3. The Applicant seeks review of the Reviewable Decision.

    issues

  4. 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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Details
AGLC
Doobree and Comcare (Compensation) [2022] AATA 3564
Case
[2022] AATA 3564
Decision Date

CaseChat Overview and Summary

This matter concerned an application for compensation by an employee of the Department of Human Services (the Applicant) against Comcare (the Respondent) for an adjustment disorder. The Applicant sought review of the Respondent's decision to affirm its original decision denying liability for the claimed condition. The Administrative Appeals Tribunal was required to determine whether the Applicant suffered from an ailment, whether that ailment was contributed to to a significant degree by his employment, and whether the condition was excluded from the definition of injury due to being suffered as a result of reasonable administrative action taken in a reasonable manner.

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

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, whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment for the purpose of s 5A(1) of the SRC Act and is therefore excluded from the definition of “injury” under s 5A(1) of the SRC Act; and (d)if so, the date of onset of the condition having regard to section 7(4) of the SRC Act.BACKGROUND In 2010, the Applicant commenced working in the Compliance Division of the Department of Human Services.[4] In December 2015, the Compliance Division became part of the Department of Health (the Agency).[5][4]A1 [7]; A7 [2].[5]A1 [7]; A7 [2]. In April 2018, the Applicant commenced in the Investigation Business Management (IBM) team of the Agency as an APS6 Senior Business Management Officer.[6][6]A1 [11]; A7 [6]. On 10 May 2018, the Applicant and his manager, Mr Damon Coleman, Assistant Director (Mr Coleman), met to discuss the requirements of the role.[7] At this meeting, the Applicant was advised that:[8]…he would be undertaking only Entity Analysis (EA) and not the additional APS6 work (reporting, Senate Estimates, media enquiries, Question on Notice, Question Time Briefs, Dashboard reporting) until such a time he settles in and becomes familiar with the work. This was to ensure he was best placed to complete the EA work prior to the additional APS6 requirements of the role. [7]A1 [66]; R1, T16 p 89.[8]R1, T16, p 89. On 6 September 2018, Mr Jeffrey Moon, Acting Assistant Director (Mr Moon) sent an email to several staff members, including the Applicant:[9]As part of the entity analysis processes within IBM, there is a requirement to complete 3 EA cases per week. For those staff that are brand new to the team there will be a little bit of transition with this especially with getting access to systems and used to the processes that are in place.With everything that goes on with the team and with the various tasks that we undertake, we realise that there are occasions where three cases being completed isn’t possible.At the end of the week, if you have completed your three EA cases, can you please send through an email to your manager indicating that you have completed your cases.Where you don’t complete three EA cases, can you please send an email to your manager indicating why you haven’t been able to complete the three cases.This needs to be done at the end of each week as completing the cases forms part of your PDS management.If you have any concerns with this, please speak to your manager, [Mr Coleman], or I.[9]R4, Attachment A.

Evidence

Evidence Before The Court

The matter was heard in Perth on 7 and 8 December 2021. The Applicant was represented by Mr Patrick Mullally of Workclaims Australia. Comcare was represented by Counsel, Mr Tom Offer. Mr Offer was instructed by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers.EVIDENCE BEFORE THE TRIBUNAL The Tribunal received the following evidence:·Applicant’s witness statement filed on 4 February 2021 (“A1”);·Index to Applicant’s Book of Documents filed on 4 February 2021 (“A2”);·Applicant’s Book of Documents filed on 4 February 2021 (“A3”);·Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 26 July 2021, filed on 27 July 2021 (“A4”);·Applicant’s second witness statement filed on 27 July 2021 (“A5”);·Applicant’s Second Book of Documents filed on 27 July 2021 (“A6”);·Applicant’s Revised Statement of Facts, Issues and Contentions, filed on 8 October 2021 (“A7”);·Letter to Dr Selepe dated 16 September 2021 and filed 8 October 2021 (“A8”);·Applicant’s third witness statement dated 7 October 2021 and filed 08 October 2021 (“A9”);·Applicant’s fourth witness statement dated and filed 29 November 2021 (“A10”);·Index to Applicant’s Documents – Pursuant to Directions of 16 September 2021 and filed 29 November 2021 (“A11”);·Index to Applicant’s Documents – Pursuant to Directions of 15 June 2021 and filed 29 November 2021 (“A12”); ·Respondent’s T-Documents (T1-T36, 373 pages) filed on 17 July 2020 (“R1”);·Respondent’s Supplementary T-Documents (ST1-ST8, pages 1-906) filed on 1 April 2021 (“R2”);·Respondent’s Supplementary T-Documents filed on 22 September 2021 (ST9-ST10, pages 907 - 1022) (“R3”); ·Witness statement of Jeffrey Moon dated 29 June 2021 (“R4”);·Witness statement of Jamie Black dated 29 June 2021 (“R5”); ·Respondent’s Statement of Facts, Issues and Contentions filed 23 August 2021 (“R6”);·Witness statement of Damon Coleman dated 30 August 2021 (“R7”);·Respondent’s Amended SFIC filed 23 September 2021 (“R8”);·Respondent’s Index of Documents (“R9”);·Respondent’s Statement of Issues filed 23 August 2021 (“R10”);·Briefing letter to Dr Spear dated 8 September 2021 (“R11”); and·Supplementary Report of Dr Spear dated 22 September 2021 (“R12”). At hearing, oral evidence was given by Dr Spear, Mr Coleman and Mr Moon. The witnesses’ reports and statements were provided prior to the hearing as follows:oThe Applicant, in person – A1, A5, A9, A10 and numerous documents within R1.oMr Hwee, by telephone – A11, document 7; R1, T10 and T15.oDr Spear, by telephone – R1, T20; R12.oMr Black, by telephone – R5.oMr Coleman, by telephone – R7.oMr Moon, by telephone – R4. 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

Decision

Reasons for decision

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, whether the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment for the purpose of s 5A(1) of the SRC Act and is therefore excluded from the definition of “injury” under s 5A(1) of the SRC Act; and (d)if so, the date of onset of the condition having regard to section 7(4) of the SRC Act.BACKGROUND In 2010, the Applicant commenced working in the Compliance Division of the Department of Human Services.[4] In December 2015, the Compliance Division became part of the Department of Health (the Agency).[5][4]A1 [7]; A7 [2].[5]A1 [7]; A7 [2]. In April 2018, the Applicant commenced in the Investigation Business Management (IBM) team of the Agency as an APS6 Senior Business Management Officer.[6][6]A1 [11]; A7 [6]. On 10 May 2018, the Applicant and his manager, Mr Damon Coleman, Assistant Director (Mr Coleman), met to discuss the requirements of the role.[7] At this meeting, the Applicant was advised that:[8]…he would be undertaking only Entity Analysis (EA) and not the additional APS6 work (reporting, Senate Estimates, media enquiries, Question on Notice, Question Time Briefs, Dashboard reporting) until such a time he settles in and becomes familiar with the work. This was to ensure he was best placed to complete the EA work prior to the additional APS6 requirements of the role. [7]A1 [66]; R1, T16 p 89.[8]R1, T16, p 89. On 6 September 2018, Mr Jeffrey Moon, Acting Assistant Director (Mr Moon) sent an email to several staff members, including the Applicant:[9]As part of the entity analysis processes within IBM, there is a requirement to complete 3 EA cases per week. For those staff that are brand new to the team there will be a little bit of transition with this especially with getting access to systems and used to the processes that are in place.With everything that goes on with the team and with the various tasks that we undertake, we realise that there are occasions where three cases being completed isn’t possible.At the end of the week, if you have completed your three EA cases, can you please send through an email to your manager indicating that you have completed your cases.Where you don’t complete three EA cases, can you please send an email to your manager indicating why you haven’t been able to complete the three cases.This needs to be done at the end of each week as completing the cases forms part of your PDS management.If you have any concerns with this, please speak to your manager, [Mr Coleman], or I.[9]R4, Attachment A.

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].