Emma Hand and Comcare - [2015] AATA 238

[2015] AATA 238

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2014/4555

Re

Emma Hand

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member Egon Fice

Date 21 April 2015

Place Melbourne
The decision under review is affirmed.

......................[sgd]..................................................
Senior Member Egon Fice
Catchwords
WORKERS COMPENSATION – Particular injuries, diseases and disabilities – Mental and nervous disorders – Entitlement to compensation – Exclusions – Stress injuries resulting from reasonable administrative action by employer – Decision under review affirmed
Legislation
Fair Work Act 2009 (Cth) s 172
Public Service Act 1999 (Cth) s 33
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
Cases
Comcare v Martin [2015] FCA 4 (8 January 2015)
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42
Secondary Materials
Department of Human Services Agreement 2011 – 2014 < Little, H W Fowler and Jessie Coulson, The Shorter Oxford English Dictionary (Oxford University Press, 3^rd revised ed, 1983) vol 2
REASONS FOR DECISION
Senior Member Egon Fice
21 April 2015

Ms Hand commenced employment with the Department of Human Services (DHS) (Child Support Agency) on 27 March 2006. In 2009 she entered into a Regular Hours Agreement (RHA) with her employer pursuant to which she worked the normal full week’s hours in four days, having every Friday off.
In October 2012 Ms Hand suffered an injury to her forearm. Comcare accepted liability for that injury. She commenced a Graduated Returned to Work (GRTW) plan in November 2012. While on the GRTW plan, on 19 December 2013 Ms Hand was notified that her employer would not continue to support a RHA for her from 30 January 2014. Ms Jo Da Silva, a team leader in the Child Support Smart Centres Division, explained that DHS had a duty to provide a safe and comfortable work environment for her at all times and it was not reasonably safe to expect her to be at work for an extended period throughout the day while on a GRTW plan. That was said to be particularly so given that Ms Hand had not maintained the reduced hours of the plan over the previous 12 month period.
Ms Hand then asked whether negotiations for a new RHA could be postponed. In an email dated 9 January 2014 from Ms Da Silva, Ms Hand was notified formally that the decision would not be postponed and following the expiration of her current RHA on 29 January 2014, her agreement would not be renewed. Accordingly, Ms Hand was informed that she would be required, after a further settlement period, to work in accordance with a default regular hours option. Effectively, that required Ms Hand to work a five day week.
On 16 January 2014 Ms Hand attending a meeting with Ms Da Silva and her external rehabilitation case manager, Ms Libby Prochazka, to discuss her GRTW plan. Ms Hand became…

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 Emma Hand and Comcare

Details

AGLC: Emma Hand and Comcare [2015] AATA 238
Case: [2015] AATA 238
Decision Date: 21 April 2015

CaseChat Overview and Summary

Emma Hand, a former employee, brought a claim against Comcare for workers' compensation in respect of a mental injury sustained during her employment with the Department of Human Services. The dispute centred on whether the injury was caused by reasonable administrative action taken by the employer, which would exclude her from compensation under section 5A(2)(f) of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The matter was heard and determined in the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether Ms Hand's mental injury was excluded from compensation by the statutory exclusionary provision. This involved interpreting the exclusionary provision and assessing whether the administrative action taken by her employer was reasonable and whether it constituted the primary cause of her mental injury. The Tribunal also needed to determine whether the presence of chronic pain, which arose from an employment injury, influenced the application of the exclusion.

In its decision, the Tribunal found that the primary cause of Ms Hand’s mental injury was the reasonable administrative action taken by her employer, specifically the decision not to renew her Remote Handling Arrangement (RHA). This decision was deemed to be made in a reasonable manner and fell within the exclusionary provisions of the statute. Despite acknowledging that her mental injury was also significantly caused by chronic pain resulting from an employment injury, the Tribunal held that this did not negate the applicability of the exclusion. The Tribunal concluded that the decision by Comcare to deny the compensation claim was correct and affirmed the decision made on 15 August 2014.

The Tribunal's decision was affirmed, and as a result, Ms Hand's claim for workers' compensation was dismissed. The Tribunal found no basis to overturn the determination that her claim was excluded by the statutory provisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Given the construction of the exclusionary provision to which I have referred above, and the fact that this Tribunal is bound by that construction, it follows that despite Ms Hand’s mental injury having been also caused or contributed to, to a significant degree, by her work-related chronic pain, it does not assist her in these circumstances where the exclusionary provision applies to her.CONCLUSION I have found that the primary cause of Ms Hand’s mental injury was reasonable administrative action taken by her employer, DHS. Furthermore, I have also found that the reasonable administrative action, that is declining to continue her RHA following the expiry of its current term, was taken in a reasonable manner. Her failure to retain or to continue her RHA was, in my opinion, a failure to retain a benefit. It falls within the exclusionary provisions set out in s. 5A(2)(f) of the SRC Act. I have also found that despite her mental injury also being caused by or contributed to by chronic pain or somatic pain arising out of an employment injury; the exclusionary provisions nevertheless apply thus excluding her claim. I find that the decision made on 15 August 2014 by a Review Officer engaged by Comcare was correct. I affirm that decision.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/4555
Re	Emma Hand
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member Egon Fice
Date	21 April 2015
Place	Melbourne