Duffy and Comcare (Compensation)
[2016] AATA 546
•29 July 2016
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 PresidentCATCHWORDS
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 1620REASONS FOR DECISION
Deputy President J W Constance
29 July 2016
INTRODUCTION
There is only one main issue between the parties in this application. It has arisen in the following circumstances.
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).
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”.
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.
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.
On 16 June 2013 Mr Duffy reduced his dose of medication. In order to cope with the effects of this change he took leave from 17 June 2013 until and including 20 June 2013. He attended work on 17 June to inform Mr McGready of the reason for his absence from work. During their discussion Mr Duffy felt that Mr McGready did not want to understand the situation in which he (Mr Duffy) was placed. Mr Duffy returned to work on 21 June 2013.
On the morning of 27 June 2013 there was an exchange between Mr Duffy and one of the staff members who reported to him. Mr Duffy describes this incident as a verbal attack on himself following which the staff member “fled to Martin’s office to speak with him”.[3] About 30 minutes later Mr McGready asked Mr Duffy to come to his office which Mr Duffy did. It was this meeting which Comcare says was the reasonable administrative action which excludes the aggravation of Mr Duffy’s condition from the definition of an injury for which compensation would otherwise be payable under the Act.
THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
[3] Exhibit A1 para.80.
Subsection 14(1) of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 5A(2) provides:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is also defined:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).[4]
[4] Section 4(1).
THE ISSUES
To decide the question of whether the aggravation of Mr Duffy’s condition is excluded by section 5A it is necessary to determine the following:
(1) Was the meeting of 27 June 2013, or any of the discussions during that meeting, “administrative action taken in respect of [Mr Duffy’s] employment”?
(2) If so, was the administrative action “reasonable”?
(3) If so, was the action “taken in a reasonable manner”?
(4) If so, was the aggravation suffered “as a result of” the administrative action?
REASONING
By reason of the central importance of the meeting of 27 June 2013 I set out in full the versions of the event given by Mr Duffy and Mr McGready in their respective written statements filed in these proceedings.
Mr Duffy’s statement
Upon entering Martin’s office he closed the door, and opened the conversation with words to the effect of “how are you and I going?”
I explaining [sic] “I don't feel we have a good relationship. You have continually failed to understand the health issues I am facing due to the DIRA workplace”. I gave him the example of his response to our 17 June discussion when he said to me “I just don't get it”. Martin said “I do not remember saying those words”. He then questioned me about my hours off the previous week. He said “I am frustrated because you were at work on the Friday when I did not thinking [sic] you would be”. I explained “my planned personal leave was from Monday to Thursday. I came to work Monday morning to speak to you about it in person rather than a telephone conversation or leave a voicemail message”.
I then asked him “Are we were [sic] going to discuss what Kathy Davis had just spoken to him about”. He asked me “what happened?” and I described the incident as outlined above. I said “I told Kathy that her behaviour was inappropriate in the work place.” He said “so are you going to report her to the external intervention team?” I replied “no I am not, as I think that would be contradictory as I believe she is being poorly managed. She is being directly tasked by you. In my opinion she did not know who she worked for or who she was accountable to. I will support Kathy in any external intervention as management had let her down”. The Director did not respond to me, he just stared at me.
He then changed the discussion to my performance in the workplace. He said, “your absences from the workplace have occurred at critical times and you have not been present to carry out the work”.
I asked him “are you aware of your responsibilities under the DWRM as a supervisor when an employee was suffering a medical condition?” He replied “I am not aware".
He appeared to me to be angry saying “I didn't know when you would be returning to work last week”. I asked “why didn't you telephone me?” He did not answer me. I then asked him “have you investigated the causes of depression/anxious disorder and the effects of medication on individuals”. He said “no I have not”.
I said “I feel I have tried to explain my health to you and the effects of my medication. After numerous conversations I believe you are unwilling to understand. Some sort of intervention needs to occur, so you can be educated on my current health which I believe is caused by the workplace”. I told him “I am going to take 10 days leave. I want you to tick the “intervention required” button when approving the leave on PMKEYS”.[5]
[5] Exhibit A2, p.12.
Mr McGready’s statement
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
Having listened to both Mr Duffy and Mr McGready give evidence I am satisfied that both were honest witnesses who each recounted his recollection of the meeting to the best of his ability. It would be unusual if there had not been different emphasis on the topics discussed, depending on the priorities of each individual concerned. I am satisfied that all of the matters referred to in both statements were discussed. On the evidence before me there was no major difference as to what was said at the meeting.
Issue 1: Was the meeting of 27 June 2013, or any of the discussions during that meeting, “administrative action taken in respect of [Mr Duffy’s] employment”?
In Commonwealth Bank of Australia v Reeve and Another[8] the Full Court of the Federal Court said:
The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment… Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
…
Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).[9]
[8] (2012) 199 FCR 463; [2012] FCAFC 21.
[9] Paras. 60 and 62.
The meeting in question was a series of discussions about a number of related topics. In this case the holding of the meeting was not of itself relevant “administrative action”. Rather some of the discussions related to what the Federal Court referred to as operational matters; other discussions are properly described as administrative actions “in respect of” Mr Duffy’s employment. To treat the whole meeting as relevant “administrative action” is to place greater emphasis on the meeting itself than is warranted.
Discussions as to the following were not administrative action in respect of Mr Duffy’s employment as they did not relate to the employment relationship itself:
·the discussion as to the working relationship between themselves;
·the discussion as to the timing of the meeting;
·Mr McGready’s understanding of Mr Duffy’s medical condition and his manner of managing it;
·Mr Duffy’s management of the staff reporting to him and his perception that Mr McGready was attempting to undermine his authority with those he was supervising;
·the confusion which had arisen as to the days on which Mr Duffy was to be absent from work during the previous week.
In my view these are properly described as operational issues.
The following discussions related to the terms of Mr Duffy’s employment and were administrative actions taken in relation to that employment:
·the discussion about Mr Duffy’s performance in the workplace, particularly at times of critical workloads;
·Mr McGready’s telling Mr Duffy that there was evidence that he did not have the capability to manage the financial aspects of some of his areas of work;
·the discussion concerning Mr Duffy’s failure to provide a medical certificate in relation to his absences from work;
·the discussion as to the effect of Mr Duffy’s depression on his performance at work
Issue 2: Was the administrative action taken in respect of Mr Duffy’s employment, “reasonable”
The action Mr McGready took was to discuss his concerns as to Mr Duffy’s employment with him in a confidential and informal meeting. He did not seek to escalate the matters of concern by instituting a formal performance management process under the Public Service Act 1999 (Cth).
Mr Duffy has argued that Mr McGready lacked an understanding of the appropriate procedures for managing his depression in the workplace and therefore did not manage the situation properly. Mr McGready readily admitted that he was not fully conversant with the detailed processes set out in the Department’s Resource Guide on the Prevention & Management of Psychological Injury in the Workplace.[10]
[10] Exhibit R1 p.267.
However Mr McGready’s actions in relation to Mr Duffy’s requests for leave prior to 27 June 2013 indicate that he had a reasonable understanding of the problems faced by Mr Duffy and made appropriate allowances for them. In reaching this conclusion I have taken into account that Mr Duffy provided Mr McGready with limited information as to his condition (as was his right) and that on 16 May 2013 he informed Mr McGready that his condition was not impacting on his work.[11]
[11] Transcript 02/03/16 p-22.
On this basis, I am satisfied that the administrative action taken by Mr McGready on 27 June 2013 was reasonable.
Issue 3: Was the administrative action taken in a “reasonable manner”?
The only suggestion that there was anything inappropriate in the manner in which Mr McGready conducted the discussion was that he became angry when referring to the misunderstanding as to when Mr Duffy had intended to return to work the previous week. Mr McGready denies this.
I have no doubt that the discussion may have been robust at times. However, the requirement is that it be conducted in a “reasonable” manner, not that it be faultless. Although Mr Duffy was suffering depression at the time, both he and his doctor considered he was fit to be at work. He was 46 years old and an experienced public servant and a former naval officer. He reported directly to Mr McGready – there was not a substantial difference in their respective levels of seniority.
In these circumstances I am satisfied that the administrative action was taken in a “reasonable manner”.
Issue 4: Was the aggravation of Mr Duffy’s ailment suffered “as a result of” the administrative action?
Mr Duffy described the effect of the events of the meeting as follows:
As a result of Martin’s actions over the period I had worked under him and his lack of support, the toxic work environment in the DIRA and the work pressures I was under, my depression and anxiety had become worse and worse to the point where I felt unable to continue working. The meeting with Martin on 27 June 2013 was the final straw but by then it was a build up of my depression and anxiety had become so bad that I couldn’t continue working.[12]
[12] Exhibit A2, p.13.
I am satisfied that the aggravation of Mr Duffy’s depression was a result of a series of events in the workplace which occurred over almost the whole of the time Mr Duffy worked in the Directorate. Both parties agree with this proposition.
On the basis of the evidence of Mr Duffy I am satisfied that the aggravation of his depression was partly a result of the discussions which took place between himself and Mr McGready on 27 June 2013. However, as I have already found, only some of those discussions were administrative action in respect of his employment.
Comcare’s argument
It was put on behalf of Comcare that:
The Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007, inserted ss 5A and 5B into the SRC Act. It made the test for disease more stringent. Section 5B of the SRC Act defines a disease as an ailment ‘that was contributed to, to a significant degree, by the employee’s employment’. Previously the degree of contribution necessary to found liability was material.
By contrast, s 5A, which defines injury to include disease, excludes from the definition of injury diseases ‘suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment’. Had the intention been to apply the exclusion only when the reasonable administrative action had contributed to the condition to a significant degree, s 5A could have used the same formula as s 5B.[13]
[13] Respondent’s Submissions p.7-8.
Counsel referred me to the judgements of the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve and Another and in Hart v Comcare.[14] The submission then continued:
Consistent with Gray J’s statement, the Full Court in Hart, and the plain words of the SRC Act, the respondent submits that the Tribunal is not required to make a funding that the contribution of the meeting on 27 June 2013 was ‘material’ or ‘significant’, or indeed had any other specific degree of proximity, to the development of the applicant’s condition. The Tribunal need only find a commonsense causal connection.
Further, it does not matter for the purposes of the SRC Act that an RAA [reasonable administrative action] is at face value a minor incident. If it is an administrative action and it has a causal connection with the development of the condition it may enliven the exclusion in s 5A.
In any event, in this matter we say the meeting of 27 June 2013 upon which Comcare relies, was a significant contributing factor.
Nor does it matter whether the meeting considered both operational matters and administrative matters.[15]
[14] (2005) 145 FCR 29.
[15] P. 8-9.
Mr Duffy’s argument
Counsel for Mr Duffy argued that it must be established on the balance of probabilities that the contribution of the administrative action to the aggravation of his ailment was at least a contribution to a “significant degree” before it can be found that the aggravation was suffered “as a result of” the administrative action.
Counsel referred me to the reasons I gave for my decision in the matter of Wang v Comcare[16] in support of this argument. I will refer to this decision later in these reasons.
[16] [2012] AATA 242.
Discussion
The Tribunal has published several decisions dealing with this issue. There has been a significant difference of opinion between Members, reflected in the opposing arguments put by Counsel in this matter.
Prior to an amendment to the Act in 2007 the definition of “disease” read:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
For the purposes of this discussion the relevant change in 2007 was the substitution of “significant” for “material”: see the present definition of “injury” set out in paragraph 18 of these reasons.
The definition of “injury” was also amended in 2007. Prior to the amendment the definition read:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
The present definition of “injury” is set out in paragraph 18 of these reasons. None of the changes are relevant to the issue under consideration. It is to be noted that the words “as a result of” were not changed in the provision relating to the exemption. This indicates that Parliament did not intend to change the meaning which had been attributed to these words in the context of the Act.
The question under consideration in this matter also arose in Wang and Comcare[17]. In my reasons for that decision I said:
The exclusionary provision of the definition of injury in subsection 5A(1) refers to a “disease, injury or aggravation suffered as a result of reasonable administrative action...”. This subsection does not include the requirement that the contribution of the reasonable administrative action be to a “significant degree”. However there is nothing in the Act which suggests that it was the intention of Parliament that an employee be required to show that the events relied upon to base a finding that his or her employment contributed to a disease to a significant degree, but that Comcare could then rely upon conduct to activate the exclusionary provision of subsection 5A(1) without that conduct being required to meet the same standard, i.e. that the reasonable administrative action contributed to the disease, injury or aggravation to a significant degree.
An interpretation which permits the exclusion to operate when the action relied upon is not shown to contribute to the disease to a significant degree would not be logical and would be an interpretation inconsistent with the beneficial nature of the legislation.
A consideration of decisions of the Federal Court supports the interpretation I have decided upon. In Hart v Comcare the Full Court considered the definitions of injury and disease prior to the present definitions being inserted in 2007.The 2007 amendments were not significant for the purposes of this discussion, other than the contribution of the excluded action was required to be “material” rather than “significant”. The Full Court held that once it was concluded that the disease or injury was suffered as a result of excluded action it followed that the disease or injury was not an “injury” as defined, “irrespective of the other so-called operative and ‘non-excluded’ causes.” However the Full Court made it clear that this conclusion was based on the factual finding that “the failure to obtain the promotions materially contributed to the adjustment disorder for which compensation was claimed ...”
Later the Full Court said:
It will in any case be for the Tribunal to examine the facts, assess the reasons for the disease, injury or aggravation and come to conclusions in respect thereof. Whether in any given case, those findings allow a conclusion that the condition was suffered as a result of one or more of the matters referred to in the proviso, may be a factual question, or perhaps a legal question. Here, however, the findings were clear. The failure to obtain the promotions materially contributed to the condition and there is no issue but that the condition was suffered as a result of the failure to obtain the promotion. (emphasised added)
In Wiegand v Comcare[18] Finn J. considered the degree of contribution necessary in deciding whether the disease suffered by Mr Weigand was a result of a failure to be promoted and/or a failure to obtain requested leave. His Honour held that the degree of contribution required was the same as he had set out in an earlier decision of Comcare v Sahu-Khan[19]. The latter decision dealt with the degree of contribution imposed by the adjective “material” in the definition of disease.
[17] [2012] AATA 242.
[18] [2006] FCA 1620.
[19] [2007] FCA 15.
I have carefully considered the argument put on behalf of Comcare in this matter. Having done so I maintain the views I expressed in Wang.
In considering the definition of “injury” (prior to the 2007 amendment), in Comcare v Caldwell [20] the Federal Court said:
The necessity for the disciplinary process to contribute to the injury in a material degree in order to be excluded from the definition of “injury” was established by this Court’s decision in Weigand [sic] v Comcare Australia (No 2) (2007) 94 ALD 154. (Emphasis added).
[20] [2008] FCA 2015 at para.5.
In Dunstan v Comcare[21] the Full Court of the Federal Court referred to the finding of the Tribunal that Mr Dunstan’s failure to obtain a transfer to another section of the Tax Office had materially contributed to an aggravation of his claimed injury being depression. The Tribunal had concluded that as a result Comcare was not liable for compensation by reason of the proviso to the definition of “injury”. The Court did not comment adversely on this finding.
[21] [2011] FCAFC 108 at paras. 53-54.
Counsel for Comcare referred to comments in obiter made by the Full Federal Court in its judgements in Commonwealth Bank of Australia v Reeve[22] and Drenth v Comcare.[23]
[22] (2012)FCR 463.
[23] (2012) 128 ALD 1.
In Commonwealth Bank of Australia v Reeve Rares and Tracey JJ. said:
The assessment of whether a disease, injury or aggravation has been suffered as a result of reasonable administrative action within the meaning of s 5A(1), involves the formation of a judgement as to causation. This requires a tribunal of fact to ascertain whether the disease, injury or aggravation is the, or a, commonsense, consequence of what is identified as reasonable administrative action by the employer in respect of the employee’s employment.[24]
[24] Para. 65.
In a separate judgement, Gray J. said:
As is pointed out in [24] above, it is difficult to find in the words “suffered as a result of” some limitation as to the proximity of the relationship between the condition and the action. Whether the necessary causal relationship exists will be a question of fact in each case, but the words chosen by the legislature to describe the causal relationship do not lend themselves readily to confinement to a direct result, or a result with any particular degree of proximity. Similarly, the words used to describe the relationship between the action and the employment (“in respect of”) do not appear to be restrictive of the kind of connection that is envisaged.[25]
[25] Para.29.
Counsel referred me to the following passage in Drenth v Comcare[26]:
The significance of identifying whether “reasonable administration action” was “a cause” of the compensation complainant’s condition follows from the decision of the Full Court in Hart v Comcare (2005) 145 FCR 29… The court held that if any factor that had been excluded as a cause of an injury or aggravation for which compensation was payable under the SRC Act, then even though there may have been one or several other operative causes at work, no compensation was payable at all. Thus, if any “reasonable administrative action” were found to be an operative cause of the aggravation of Ms Drenth’s pre-existing condition, she was not entitled to compensation as explained in Reeve at [54]–[56].
[26] (2012) 128 ALD 1 at para. 29.
It was argued that “it would be wrong to infer from the use of the adjective ‘operative’ in these passages that s 5A of the SRC Act (post 2007) contained a specific requirement that a decision maker must make a finding that an administrative action was an ‘operative’ cause.”[27]
[27] Respondent’s submissions para.67.
Of the several judgements referred to, it was only in the matter of Wiegand that a decision as to the degree of contribution was part of the ratio decidendi. On this basis I am bound to follow what the Federal Court said in that judgement. This approach is consistent with what the Fall Court said in Comcare v Caldwell and Dunstan v Comcare.
I do not consider that the obiter in Commonwealth Bank of Australia v Reeve and Drenth v Comcare necessarily indicates that the Court was taking a different view to that expressed in Wiegand. In both matters the Court was referring to the proximity of the administrative action to the claimed condition rather than to the degree of contribution of the administrative action to the condition. These are different concepts. The former refers to the degree of separation of the administrative action from the condition, the latter refers to the extent to which the administrative action contributed to the condition.
Further, the reference in the Commonwealth Bank case to the requirement to ascertain a “commonsense” consequence of the reasonable administrative action indicates that the court did not intend that the only consideration should be the proximity of the cause.
In my view it would be contrary to the purpose of the legislation as amended if an injured worker could be denied compensation by reason of a discussion during a meeting which canvassed a number of issues without evidence that that particular discussion contributed to the illness to a significant degree. This is particularly the case when, as in this matter, the injury was a psychological one which developed over an extended period of time. This is highlighted by Mr McGready’s evidence that he could not recall the reason for his initial request to Mr Duffy that they meet. I am satisfied that it was not to discuss the terms of Mr Duffy’s employment. Had it been so it is likely Mr McGready would have made a note of this and would recall the reason for his request.
For these reasons I have come to the conclusion that the aggravation of Mr Duffy’s depression was not “as a result of” administrative action unless it can be shown on the balance of probabilities that the action made a significant contribution to the aggravation suffered.
Did the administrative action contribute to the aggravation to a “significant” degree?
Mr Duffy described the meeting of 27 June 2013 as the “last straw”. However he went on to say that there had been a “build up” of his depression and anxiety which had become so bad that he could not continue working. He did not express an opinion as to the contribution that the meeting made, nor is he qualified to do so.
It was argued on behalf of Comcare that the aggravation of Mr Duffy’s underlying depression occurred on 27 June 2013 as result of the meeting. It was put that the depressive disorder was worse in November 2012 but, by late May 2013 it had improved and that it became incapacitating for a significant period only on 27 June 2013. Fluctuations in Mr Duffy’s condition in 2012 were a result of other factors unrelated to his employment.
The report of Dr Martin of 18 January 2014 indicates that Mr Duffy symptoms had “escalated over a maximum of three months prior to his consultation”.[28] This consultation took place on 8 November 2012, just over a week after Mr Duffy commenced employment at the Directorate.
[28] Exhibit R1, p.547.
I am satisfied on the evidence that the severity of Mr Duffy’s depression did fluctuate during the time he worked at the Directorate. This is not in dispute and is consistent with the history of the condition as related by Mr Duffy. However, I am satisfied that the aggravation of his condition as a result of his employment was not limited to 27 June 2013, but occurred as a result of a series of incidents in the workplace on that day and over the preceding months.
In his report of 18 January 2014[29] Dr Martin responded to a question raised by Comcare as to the specific incidents and all factors that caused, contributed to or aggravated Mr Duffy’s condition. He referred to a number of factors, including that in mid-2013 Mr Duffy felt his supervisor was intimidating and was bullying/harassing him. He indicated that this had a significant impact on his condition. Dr Martin did not refer specifically to the meeting of 27 June 2013.
[29] Exhibit R1, p.547.
Mr Duffy was referred by Dr Martin to Dr White, Consultant Psychiatrist, in November 2013. On 16 December 2013 Dr White reported that Mr Duffy “had stresses at work in Canberra with his supervisor persistently bullying him over an eight month period. He felt his boss was bullying, belittling and intimidating him. Shaun felt there could not cope with this. He took sick leave. He felt better when he was away from work.”[30]
[30] Exhibit R1, p.79.
At the time of the report Dr White diagnosed Mr Duffy as suffering a chronic Major Depressive Disorder and considered that his pre-existing condition had been significantly aggravated by stresses at work in the public service in the Department of Defence.[31]
[31] Exhibit R1 p.80.
Mr Duffy was assessed by Dr Hundertmark, Consultant Psychiatrist, on 16 October 2013. This assessment was done at the request of the Department of Defence.
Dr Hundertmark provided a report dated 29 October 2013.[32] In his opinion Mr Duffy had a Mood Disorder “which may well have been triggered at least in part by his interaction with the supervisor.”[33] Dr Hundertmark did not refer to the meeting of 27 June 2013.
[32] Exhibit R1 p.28.
[33] at p. 34.
Mr Duffy was also assessed by Dr Parsonage, Consultant Psychiatrist. This assessment was carried out on 7 July 2015 at the request of Mr Duffy’s solicitors. Dr Parsonage provided a report dated 9 July 2015.[34]
[34] Exhibit A1.
Dr Parsonage expressed the opinion that Mr Duffy’s employment in the Directorate was a substantial contributing factor to the aggravation of his depression. He reported Mr Duffy’s perception was that “he was being bullied and unfairly treated at work”. He put the onset of Mr Duffy’s current problems as late 2012. In his opinion Mr Duffy had not been completely free of the symptoms of depression since that time. Dr Parsonage did not refer to the meeting of 27 June 2013 as a contributing factor.
Comcare arranged for further assessment of Mr Duffy. This occurred on 22 May 2015 by Dr Bertucen, Consultant Psychiatrist. He provided a report dated 29 May 2015.[35]
[35] Exhibit R2.
Dr Bertucen reported that at the time of his assessment Mr Duffy was suffering chronic and fluctuating major depressive disorder which had been in remission since January/February 2015. From the history given by Mr Duffy and from previous reports Dr Bertucen formed the view that the depressive condition developed in approximately mid-2010. However it should be noted that Dr Bertucen did not take a history of Mr Duffy’s condition prior to that time and noted that Mr Duffy denied any history of depressive episode, anxiety disorders or other psychiatric diagnoses prior to 2010. In view of Mr Duffy’s evidence in this matter, it seems unlikely that he would have told Dr Bertucen this. There may have been some misunderstanding when the history was taken.
Dr Bertucen further reported:
In my opinion Mr Duffy’s former employment with the Department of Defence has not been the substantial contributing factor to his mental health diagnosis. He appears to have suffered from a pre-existing depressive condition not substantially related to work, which was nonetheless aggravated by circumstances of his employment between November 2012 in June 2013.
……
……I consider that Mr Duffy’s former employment with the Department of Defence was a significant aggravating factor to his current condition is however not the substantial contributing factor to the condition.[36]
[36] Exhibit R2, pp 5-6.
Neither party called any of the medical practitioners to give evidence. Having considered all of the reports there is no evidence to support a conclusion that the meeting of 27 June 2013, or any of the discussions that took place during that meeting, contributed to a significant degree to the aggravation of Mr Duffy’s depressive condition.
The evidence in the reports does support my conclusion that the aggravation of Mr Duffy’s condition was caused by a series of events during his employment in the Directorate and not solely by the meeting of 27 June 2013.
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.
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
............[sgd]............................................................
Associate
Dated 29 July 2016
Dates of hearing 2-3 March 2016 Date final submissions received 22 April 2016 Counsel for the Applicant Mr M Inglis Solicitors for the Applicant Mr B Langler; MBT Lawyers Counsel for the Respondent Mr A Dillon Solicitors for the Respondent Ms B Audsley; Australian Government Solicitor
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