Duffy and Comcare (Compensation)

Case [2016] AATA 546

Duffy and Comcare (Compensation) [2016] AATA 546 (29 July 2016)

Division

GENERAL DIVISION

File Number

2014/5423

Re

Shaun Duffy

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President J W Constance
Date 29 July 2016
Place Sydney

1.    The decision under review, being the decision of Comcare to reject the Applicant’s claim for compensation for an aggravation of ‘major depressive disorder, single episode’, made 30 June 2014, is set aside.

2.    In substitution, it is decided that Comcare is liable to compensate Mr Duffy in respect of the injury.

3.    Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.

.............[sgd]...........................................................

J W Constance
Deputy President

CATCHWORDS

COMPENSATION - workers compensation - aggravation of mental injury - major depressive disorder - whether aggravation was a result of reasonable administrative action taken in respect of the Applicant’s employment - whether the administrative action contributed to the aggravation to a significant degree - decision set aside and substituted.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B, 14(1)

Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)

CASES

Comcare v Sahu-Khan [2007] FCA 15

Comcare v Caldwell [2008] FCA 2015
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Drenth v Comcare (2012) 128 ALD 1
Dunstan v Comcare [2011] FCAFC 108
Hart v Comcare (2005) 145 FCR 29
Wang v Comcare [2012] AATA 242
Wiegand v Comcare [2006] FCA 1620

REASONS FOR DECISION

Deputy President J W Constance

29 July 2016

INTRODUCTION

  1. There is only one main issue between the parties in this application. It has arisen in the following circumstances.

  2. During 2012 and 2013 Mr Duffy was a member of the Commonwealth Public Service.  He is seeking compensation for an aggravation of an underlying depressive condition; the aggravation was suffered by him between 29 October 2012 and 27 June 2013. His claim has been made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).

  3. Comcare accepts that it would be liable to compensate Mr Duffy in respect of the aggravation but for section 5A of the Act which defines “injury” for the purposes of the Act.  Subsection 5A(1) excludes from the definition of injury an “aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.

  4. Comcare has identified one meeting between Mr Duffy and his supervisor which it says was reasonable administrative action taken in a reasonable manner in respect of his employment. Comcare argues that the aggravation suffered by Mr Duffy was suffered as a result of this administrative action.

  5. For the reasons which follow the decision under review will be set aside. In substitution it will be decided that Comcare is liable to compensate Mr Duffy in respect of the injury he has suffered.

    BACKGROUND

  6. Mr Duffy commenced working…

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Details
AGLC
Duffy and Comcare (Compensation) [2016] AATA 546
Case
[2016] AATA 546
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between Mr. Duffy and Comcare concerning a claim for workers' compensation. Mr. Duffy sought compensation for an aggravation of his major depressive disorder, which he alleged was caused by administrative actions taken in respect of his employment with the Department of Defence.

The Tribunal was required to determine whether the aggravation of Mr. Duffy's depressive condition was a result of reasonable administrative action taken in relation to his employment, and if so, whether that administrative action contributed to the aggravation to a significant degree.

Deputy J W Constance P found that the decision under review, which rejected Mr. Duffy's claim, would be set aside. The Tribunal reasoned that it was not satisfied that the aggravation of Mr. Duffy's depressive condition was a result of administrative action taken in relation to his employment. Consequently, the Tribunal substituted its own decision, finding Comcare liable to compensate Mr. Duffy in respect of the injury he had suffered.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow the decision under review will be set aside. In substitution it will be decided that Comcare is liable to compensate Mr Duffy in respect of the injury he has suffered. BACKGROUND Mr Duffy commenced working for the Department of Defence in 2005. On 29 October 2012 he started working in the Directorate of Investment Resource Analysis. His supervisor was Mr McGready. Mr Duffy suffered from depression for many years prior to joining the Directorate. In 2012 the condition was mild and controlled by medication. It did not prevent his working. On joining the Directorate Mr Duffy was employed as an Executive Level 1 Finance Officer. His duties involved managing the financial aspects of the Air Force sustainment budget, tracking financial pressures and arranging the transfer of funding within the total allocated budget. The team managed by Mr McGready consisted of six staff, including Mr Duffy. Shortly after joining, Mr Duffy formed the view that the workplace was “volatile and unhappy”.[1] There was significant tension between staff members, including two who were subject to his supervision. His attempts to relieve the problems by discussion with a particular member of staff were unsuccessful.[1] Exhibit A2 para. 20. Mr Duffy was employed to fill the position of Mr Alex Hodges who planned to retire in February 2013. On a number of occasions shortly after Mr Duffy commenced working in the Directorate Mr McGready informed other staff that “Shaun [Mr Duffy] does not have Alex’s skill set”.[2] Mr Duffy took these comments to be derogatory of him and felt inferior and unwelcome. He felt his depression was worsening. Mr McGready says that he did not intend his comments to be understood in this way and was simply explaining to staff why duties had been rearranged to meet Mr Duffy’s preference not to do some of the work previously undertaken by Mr Hodges.[2] Exhibit A2 para. 27. Mr Duffy consulted his general practitioner on 8 November 2012 and his anti-depressant medication was increased. He was on sick leave from 8 to 18 November 2012 to enable him to adjust to the change in his medication. On his return to work Mr Duffy informed Mr McGready that he was suffering from depression. On this basis his leave was approved by Mr McGready. Difficulties with the working relationship of members of the Directorate staff continued. In January 2013 Mr McGready was on annual leave. He assigned higher duties to Mr Duffy so that he could perform his role during his leave. During 2013 Mr McGready took action to try to improve the relationships between his staff. This included meeting with Mr Duffy to discuss the staff problems. During a meeting on 10 May 2013 Mr McGready and Mr Duffy discussed Mr Duffy’s working relationship with a staff member who reported to Mr Duffy and the worsening situation in the workplace generally. Mr McGready questioned Mr Duffy as to Mr Duffy’s performance in the workplace. They also discussed Mr Duffy’s mental health issues.

Evidence

Evidence Before The Court

In his statement made 2 October 2015[6] Mr McGready annexed a copy of his notes of the meeting. These notes were made on the day of the meeting. The notes are reproduced in full:[6] Exhibit R3.·At about 11:35am (just prior to me sending the DMFP outcomes email to Shambles and Charlie) Kathy came in crying and expressing frustration at not being able to get Shaun to engage/ have a meeting on the mechanics that will be used to execute the financial MSACPs from the DMFP process.·I asked Shaun to come in for a chat, we covered a multitude of issues:oI asked Shaun when he was intending to respond to my request for him to drop in for a chat. I sent that email on Monday to prevent embarrassment that might have occurred if I had have asked that same question in front of his work colleagues.§ Shaun said he tried to see me but I was on the phone and he had been into my office 3 times since then. I asked that on any of those occasions did he ask if I was able to have the chat, he said he did not, but as he did not know what it was about he thought there was nothing to discuss.oShaun started by telling me that I do not understand his medical issue and that I was not fulfilling my responsibilities under the DECA in providing him with the support he needs. At one point he asked me if I had used Google to do any research.§ I agreed that I did not understand although I am aware that men’s mental health is a real issue through the exposure that people such as Jeff Kennett and Defence annual training has given to this issue. I reminded Shaun that the last time we had a chat I asked to get access to some medical documentation/ advice so I could understand and he indicated he was not prepared to do that. Additionally, I reminded him that he stated the issue would not impact his work.§ Shaun let me know that his medication had impacted his work (cited the example of a minute he wrote that needed a major rework from me before on forwarding it to Graham) when his daily dose of XXXXX was 150 milligrams, he was now down to 75 milligrams and was hoping to get down to 30 milligrams. By not sharing his full medical issues with me Shaun is using me as a confidant and effectively puts me in a straight jacket because he says he wants/ needs to work. However, at critical times in the business cycle such as bringing the DMFP to a financial conclusion he needs to have 4 days off and when work performance is raised his health challenges prevent Shaun from answering ‘the mail’. We agreed it was impacting his work, hence he advised he was going on leave and would submit a leave application before he left and asked me to tick the medical intervention box. Unfortunately PMKeyS was down, but Shaun sent me an email to advise that he would check later this evening. oShaun’s perspective is that I am not allowing him to manage the sustainment team and cited the example of Kathy and I going over for a meeting with ASD last Friday and not including him.§ I advised him that meeting was set up the day before when he was not at work and I was under the impression (in the absence of any advice from Shaun) that he would be returning to work on the Mon and that in his absence, in order to expedite a final solution, I had been to HQAC on the Wed and worked with Paul McGee to try and get the DMFP to a balanced bottom line. The meeting with ASD was to ensure that they were ok with the proposed solution. Given the progress that has been made in his absence it was easier for me to finish the task rather than to brief Shaun and hand it back to him. · Additionally, I let Shaun know that I had seen some evidence that he may not have the capability to manage the financial aspects of the DMFP citing examples in the spreadsheet such as CAF04 where the pressure due to AIR7000 was parked as a handback.· We had a brief chat about his handover from Alex during the MYR because I thought that was plenty of time to understand the nuances of the DMFP process including the nuances of the spreadsheet. I reminded him that he advised me earlier in the year that he did not do spreadsheets he had always had staff that did that. We had to make some fundamental changes to the way we did business to accommodate this and that is the reason why Kathy is carrying out most of the spreadsheet workload. We agreed that between us we had placed (potentially unfairly) too much pressure on Kathy.· Shaun advised he was going to initiate a workplace intervention through Graham.§ When Shaun advised me on the Monday that he was going to have 4 days off I assumed that was from Tues to Fri as he did not leave on Monday til mid afternoon so I progressed the DMFP on the assumption that Shaun would return to work on the Monday, not the Friday.· Shaun related that on the Sunday prior to the Monday he took his four day absence he was crying for couple of hours while out on his deck at home drinking glass of wine. This indicates he has a serious issue to deal with and is not in a good space.§ Shaun did not contact me while he was on sick leave and I reminded him that I have not yet seen the medical certificate. He advised it was in his diary and he would get it to me so that I could sight it. This is another example of a mutual obligation shortcoming.§ I was under the impression that Shaun had a doctor’s appointment on the Monday, but the certificate indicates that he went to the doctor on the Thurs, before returning to work on the Fri.§ I observed that the issue had become much larger than it should have due to the lack of effective communication re: the time period of the 4 days of absence.·Our discussion concluded with an agreement that Shaun would take as much leave as he needed. Shaun was keen for this leave application to be used as the mechanism to trigger a medical intervention.oI advised Shaun that I had emailed People Group and the Group Facilitation intervention the previous Friday and would follow up with a phone call later today.oI also highlighted the mixed messages I am getting from him, i.e being at work and busy is good to help Shaun cope but when the pressure comes on, absence from the workplace appears to be his preferred course of action.[7] [7] Exhibit R1, p.600-601.Consideration of evidence as to discussions at meeting

Decision

Reasons for decision

For these reasons I am not satisfied that the aggravation of Mr Duffy’s depressive condition was a result of administrative action taken in relation to his employment. CONCLUSION The decision under review, being the decision of Comcare to reject the Applicant’s claim for compensation for an aggravation of ‘major depressive disorder, single episode’, made 30 June 2014, will be set aside. In substitution, it will be decided that Comcare is liable to compensate Mr Duffy in respect of the injury. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the respondent shall pay the costs of the proceedings incurred by the Applicant.

Ratio Decidendi

Legal Principle Established

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