Emma Hand and Comcare
[2015] AATA 238
•21 April 2015
[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, 3rd 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 visibly upset during that meeting particularly as she was told that she victimised herself.
Ms Hand obtained a report from a psychologist, Dr Vivienne Sullivan, which she left on Ms Da Silva’s desk on 30 January 2014. She sent Ms Da Silva an email on the same day telling her that the letter was under her keyboard. Although Ms Da Silva had informed Ms Hand that she had a right to appeal the decision not to approve another RHA, Ms Hand had not done so. When Ms Hand returned to the office on 3 February 2014 and met with Ms Da Silva she became very upset claiming that the letter from Dr Sullivan had been disregarded.
On 7 April 2014 Ms Hand completed a claim for workers’ compensation. She claimed she suffered an adjustment disorder with mixed features (anxiety and major depression), chronic pain and a differential diagnosis of somatic symptoms and related disorder. She first sought medical treatment for that psychological injury on 20 February 2014 from Dr Tung Nguyen, a psychiatrist. In her claim she noted that what caused her injury was the treatment she received by management and chronic pain from epicondylitis, her original arm injury.
There was no dispute in this matter that Ms Hand suffered from a condition outside normal mental functioning and behaviour. Dr Nguyen initially found Ms Hand suffering from chronic adjustment disorder with mixed features, which included depressed mood and anxiety. Dr Nguyen’s differential diagnosis was a major depressive episode with significant anxiety in the context of chronic pain from her work-related injuries and difficulties with her employer and getting funding for treatment. This diagnosis was later revised to major depression with anxiety. Dr Norman R Rose, a psychiatrist, examined Ms Hand on 17 November 2014. He diagnosed Ms Hand as suffering from adjustment disorder with mixed anxiety and depressed mood.
The issues which I am required to determine are:
(a)whether Ms Hand’s mental injury arose out of, or in the course of, her employment;
(b)if the answer to (a) is in the affirmative, whether her condition resulted from reasonable administrative action taken in a reasonable manner; and
(c)whether the exclusionary provision in s. 5A (1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) applies to Ms Hand regardless of the fact that her mental injury was contributed to by her work-related injuries.
THE CLAIM IN CONTEXT
In order to properly understand the nature of Ms Hand’s claim, I need to briefly set out other physical problems from which she suffered at the time the claimed psychological injury occurred. Although Ms Hand did not state in her claim for compensation the date on which she was injured or when she first noticed that she was ill, she indicated that she sought treatment on 20 February 2014 from Dr Nguyen. Therefore, I have considered all of the events which may have given rise to her mental injury which was apparent on or about 20 February 2014.
In October 2012 Ms Hand suffered a compensable forearm injury. That claim was described as epicondylitis and was accepted by Comcare. At the time Ms Hand suffered from the psychological injury, she was on a GRTW plan. Ms Hand also claimed she suffered from a wrist injury for which compensation had been denied. She made an application to the AAT in respect of that injury (2014/3794) which was resolved by agreement made on 30 January 2015. However, at the time she suffered her mental injury, the claim for her wrist injury had not been resolved.
As a result of her elbow and wrist injuries, Ms Hand suffered from a chronic pain condition for which she received treatment from Dr V Sullivan, a psychologist. Ms Hand also experienced associated anxiety and stress as a consequence of the chronic pain.
In November and December 2013, her GRTW plan required her to work a total of 21 hours per week, being part days on Monday, Tuesday and Thursday. However, she was not meeting that work schedule. In fact, her attendance at work during that period was sporadic. She was not managing to work 21 hours per week during that period.
CESSATION OF THE REGULAR HOURS AGREEMENT (RHA)
Pursuant to s. 172 of the Fair Work Act 2009 (Cth), employers and employees may enter into an enterprise agreement dealing with their conditions of employment. The Secretary of the Department of Human Services as employer entered into an agreement with all persons employed by the Department, save for some exceptions which are not relevant for the purposes of this matter, in 2011. That agreement was known as the Department of Human Services Agreement 2011 – 2014 (the Workplace Agreement). The relevant clauses dealing with the negotiation of working hours provide:
F7.1 An employee and their direct supervisor will together design and reach agreement on the employee’s working hours, genuinely negotiating where necessary. These working hours may take the form of a pattern of ordinary hours of duty or a regular hours agreement.
F7.2 In designing or negotiating a pattern of ordinary hours or regular hours agreement, the direct supervisor will make all reasonable efforts to accommodate an employee’s requests.
F7.3 A regular hours agreement may be requested by an employee and, if approved, will apply for a specified period of 12 months unless a shorter period is requested by the employee.
F7.4 An employee who requests a regular hours agreement will be advised in writing of the outcome of their request. Agreements will be jointly reviewed at the end of the period.
…
F7.9 Where an employee and their direct supervisor cannot reach agreement on a pattern of ordinary hours or a regular hours agreement, the employee will continue to work in accordance with their existing pattern of ordinary hours or regular hours agreement until the end of the current settlement period.
F7.10 At the end of the current settlement period, if agreement cannot be reached, the employee may choose:
(a)to work in accordance with a default regular hours option; or
(b)to continue their existing pattern of ordinary hours or regular hours agreement for a further settlement period, after which time the employee will work in accordance with a default regular hours option.
F7.11 Default regular hours (for a full-time employee) will apply in accordance with the options listed below that the Secretary determines best suits the work area:
(a)8.30 am to 5.00 pm with 60 minute lunch break.
(b)commencement 15 minutes before the opening time of the workplace or 7.45 am (whichever is the later), with a lunch break of 30, 45 or 60 minutes; or
(c)finish 15 minutes after close of a customer contact period or 5.15 pm (whichever is the earlier), with a lunch break of 30, 45 or 60 minutes.
Ms Hand first applied for and was granted a RHA for the period 3 August 2009 to 30 October 2009. That agreement required her to work four days per week, Monday – Thursday, for 9 hours and 15 minutes per day. Working those extended hours on each day enabled her to have every Friday off.
The first RHA was extended on 9 September 2009 so as to apply from 1 October 2009 to 1 October 2010. The hours and days to be worked by Ms Hand remained as above. Her RHA continued to be extended up until 29 January 2014.
On 16 December 2013 Ms Da Silva, who was at that time Ms Hand’s team leader, met with her to review her RHA. In her statement of evidence, Ms Da Silva said that it was standard practice to review part-time and regular hours agreements with staff at least two settlement periods (one settlement period being a four-week work cycle) notice prior to the expiration of a current agreement. According to Ms Da Silva, this was in accordance with clause F7.12 of the Workplace Agreement. It provides that employees will have at least four weeks’ notice of a change in arrangements unless the employee agrees to a lesser timeframe. In fact, clause F7.15 provides:
The employee and their supervisor will meet and discuss the regular hours arrangements a month before the end date of the current regular hours agreement to enable discussion on continuing the regular hours agreement for a further 12 months or to negotiate new regular hours arrangements.
Ms Da Silva said she advised Ms Hand that a new RHA would not be supported following the expiration of the current agreement, from 30 January 2014, according to the provisions of the Workplace Agreement clauses F7.9 and F7.10. Ms Da Silva told Ms Hand that she would be required to return to standard hours work being between
8.30 am and 5.00 pm from Monday to Friday. Ms Da Silva confirmed this in an email sent to Ms Hand on 19 December 2013. In that email she also referred to clause F7.8 which provides:
Where a direct supervisor cannot accommodate an employee’s request in respect of a pattern of ordinary hours or a regular hours agreement, the direct supervisor will:
(a)discuss the reasons for the decision with the employee; and
(b)provide written reasons for the decision, if requested by the employee.
As to the reasons for not continuing to support Ms Hand’s RHA, Ms Da Silva said:
We have a duty of care to provide a safe and comfortable work environment for you at all times. It is not reasonably safe for the organisation to expect you to be at work for an extended period throughout the day i.e. 7.30am – 5.00pm while you are on a Graduated Return to Work (GRTW) plan. You have been on a GRTW plan since November 2012 and have not maintained the reduced hours of the plan having had a high amount of unscheduled absences over the past 12 months since December 2012.
Ms Da Silva also stated that Ms Hand was entitled to request, in writing, a review of that decision pursuant to s. 33 of the Public Service Act 1999 (Cth).
Ms Da Silva met with Ms Hand on 7 January 2014 where the decision regarding her RHA was again discussed. According to Ms Da Silva, Ms Hand was extremely emotional throughout the meeting claiming she felt she was being targeted and treated unfairly because of her injury. She did not believe anybody was considering her personal circumstances and apparently said that everyone was trying to get another person off a RHA. In her evidence in chief, Ms Da Silva described Ms Hand as being noticeably tense, stressed and sometimes aggressive. Ms Da Silva said she clarified her reasons as to why a new RHA would not be supported and again explained to her the procedure for requesting a formal review of that decision. Ms Hand apparently asked that negotiations for a new RHA be postponed for three months allowing her time to liaise with her hand surgeon and Comcare to determine whether her hand surgery would be approved. Ms Da Silva said she would look into her request and advise her in due course.
In the course of her examination in chief, Ms Da Silva was referred to a report prepared by Dr Sullivan dated 26 November 2013. In that report Dr Sullivan referred to Ms Hand being seen on 26 November 2013. The letter is addressed to: To Whom It May Concern. When asked if she had seen that report prior to the hearing on that day, Ms Da Silva said she had not. She also did not believe that anybody else at the Child Support Agency had been given that the letter. According to Ms Da Silva, the letter was obtained from the consultant conducting the GRTW plan. I accept that statement because the letter explains that Ms Hand was dealing with an increase in stress which had an impact on her experiences of pain. Dr Sullivan said that this may have an effect on her ability to carry out certain tasks in her role and as such she should be given consideration around the tasks assigned for the week following. She said that Ms Hand was capable of carrying out duties which were not likely to increase stress and, as such, her pain.
Ms Da Silva again met with Ms Hand on 9 January 2014 and advised her that after considering her request to postpone negotiations for a RHA, the original decision made not to extend the new agreement would stand. According to Ms Da Silva, Ms Hand became extremely emotional stating she could not deal with her mental stress as well as the pain from her injuries. She apparently said she could not cope and was sick and tired of always having to cry at work. She then asked who held the delegation to make the decision regarding her RHA and upon being told by Ms Da Silva that as her team leader, she had that authority, Ms Hand suddenly walked out of the meeting. Ms Da Silva then sent Ms Hand an email on that date confirming the discussion at the meeting. In that email Ms Da Silva again explained that if Ms Hand wanted to appeal the decision, she should do so in writing either directly to Human Resources or to her via email.
Ms Da Silva testified that she met again with Ms Hand at her request on 10 January 2014. As that day was a Friday, and Ms Hand did not work on Fridays, Ms Hand disputed that the meeting took place. Essentially, the difference between that claimed meeting and the previous meeting on 9 January 2014 was the fact that a third party was present as an observer. Ms Da Silva identified that person as Ms Robyn Cook. She also referred to an email sent by Ms Hand following that meeting stating she was distressed and felt physically ill for the rest of the day but that the agency did not care how premature decisions affect her life and her injury. Although the email is said to be from aaron petts, Ms Hand agreed that email was sent from her husband’s computer.
Whether or not there was a further meeting on 10 January 2014 does not appear to be significant, particularly as the description of that meeting offered by Ms Da Silva is almost identical to the one on the previous day. In fact, given the apparently identical nature of that meeting together with the email from Ms Hand on 10 January 2014, which was a Friday, I am of the view that Ms Hand is probably correct about the fact that there was no meeting on that day. I suspect Ms Da Silva’s account was triggered by the date on the email. Perhaps the only significance of the email of 10 January 2014 from Ms Hand is the fact that she acknowledged previous statements made by Ms Da Silva about the review process, saying that she would let her know if she wished to proceed.
On 13 January 2014 Ms Da Silva received an email from Ms Prochazka, Ms Hand’s rehabilitation case manager, following Ms Prochazka’s telephone discussion with Ms Hand on that day. Ms Prochazka identified Ms Hand as being very emotional on the telephone. She informed Ms Da Silva that in her view, this was heading in the direction of a stress claim. In addition to claiming she had been treated very badly in her workplace, Ms Hand also told Ms Prochazka that she and her husband had numerous appointments which they needed to attend and they did that on Fridays. Apparently Ms Hand explained that she acts as a support person for her husband and wanted to be able to attend his appointments with him. She also claimed that her Hand Therapist and Psychologist believed that having an extra day off was beneficial to her recovery. I did not have any evidence from the Hand Therapist or Dr Sullivan to that effect.
In her witness statement and evidence in chief Ms Da Silva said that she had cause to speak with Ms Hand and another staff member on 16 January 2014 after witnessing them having a verbal altercation at work in the presence of the team. She said Ms Hand did not handle the conversation well and was defensive, becoming quickly upset and angry. Ms Da Silva said Ms Hand claimed the conversation was biased against her. Ms Da Silva denied that was the case and told Ms Hand that she should not victimise herself every time feedback was provided to her. Apparently Ms Hand was particularly offended by that statement even though Ms Da Silva apologised and explained that what she meant was that Ms Hand took feedback as a personal attack against her character. She said Ms Hand appeared too distraught to accept the explanation or apology. Ms Da Silva said that no warning letters were issued to either staff members regarding the workplace incident.
In her witness statement, Ms Hand said that the sequence of events described by Ms Da Silva were grossly inaccurate. She claimed that the meeting on 16 January 2014 was a scheduled return to work meeting where she brought up the incident referred to by Ms Da Silva. According to Ms Hand, this was confirmed in Ms Da Silva’s email on 16 January 2014 to Ms Sevasti Athiniotis, who was Ms Hand’s new internal rehabilitation case manager. With respect to Ms Hand, I find nothing said by Ms Da Silva in her email to be inaccurate. In that email, Ms Da Silva said she saw Ms Hand stand up to speak with another staff member over the top of her desk partition at about 11.15 am. She then said:
Each party insisted quite heatedly that the other party was incorrect in what they were saying. I could see the argument was getting out of hand and distracting other staff so I walked over and asked both staff members to stop arguing. The other staff member immediately complied.
Emma continued to argue with me in front of other team members that the other staff member was wrong. I explained that according to our procedures and guidelines he was actually correct. She shook her head at me in a motion of exasperation and sat down.
Ms Da Silva then said that immediately after that altercation, she spoke with the other staff member in a private room about the incident. She had planned on speaking with Ms Hand about it but as she had a GRTW meeting scheduled with Ms Hand and Ms Prochazka at 12.30 pm on that day, she decided to wait until after the meeting to do so. According to Ms Da Silva, at the beginning of the GRTW meeting, Ms Hand brought up the incident and said she wanted to discuss it before moving on to other matters. Ms Hand then complained about the fact that she saw the staff member and Ms Da Silva return from the meeting (that was immediately after the altercation) and that they were laughing. Ms Da Silva explained to Ms Hand that what they were laughing about was totally unrelated to her or the incident that morning. Ms Da Silva then said that she told Ms Hand, as she told the other person involved, that they should not have had a verbal altercation in the presence of other staff. It was not the correct forum to do so and it was extremely upsetting for the staff who witnessed it and for the staff member involved. There was also a disagreement about whether the other staff member swore at Ms Hand, Ms Da Silva claiming she did not hear the other staff member swear despite the fact that she sat between both of them and heard the entire conversation.
On 21 January 2014, although Ms Da Silva was not at work on that day, she was told by Ms Cook that Ms Hand did not complete any of her rostered phone shifts. She was also overheard making numerous personal telephone calls at her desk. According to Ms Cook, the telephone calls were very emotional, loud and disruptive and resulted in complaints from other staff members. In her evidence in chief Ms Da Silva described those discussions being about Ms Hand’s WorkCover claim with Comcare and the personnel department regarding pay issues. Ms Hand did not consider those topics to be personal but rather work-related.
On 30 January 2014 Ms Da Silva received an email from Ms Hand advising her that Ms Hand had placed a letter from her psychologist, Dr Sullivan, dated 30 January 2014, under her keyboard. This letter has some significance because, according to Ms Hand, Ms Da Silva ought to have taken that into account when refusing to grant a further RHA to Ms Hand. This is despite the fact that by that date, her RHA had expired.
In her letter, Dr Sullivan referred to Ms Hand having been diagnosed with a chronic pain condition and injuries in her elbow and wrist. She said that adding to the burden of her injuries was the stress associated with making a WorkCover claim. Dr Sullivan was of the opinion that any other stressors be minimised while Ms Hand was going through the process of adjusting to her injury, making a WorkCover claim and getting treatment. She also noted that Ms Hand was currently on reduced work capacity and was extremely upset by the decision to change her regular hours. Dr Sullivan then said:
I would advise that any decisions about changes to her regular hours agreement be postponed until after Ms Hand’s WorkCover claim has been resolved and her injury has been fully treated. Any decisions about her regular hours are creating unhelpful and unnecessary stress for Ms Hand at this time. Her ability to address and cope with this proposal is significantly impeded by her physical health issues and the associated psychological stress.
Ms Da Silva responded to the issues raised in Dr Sullivan’s letter in an email sent to Ms Hand on 31 January 2014, which was a Friday. Ms Hand was not work on that day. Ms Da Silva pointed out that Dr Sullivan’s letter in itself was not a formal request to appeal the decision not to extend her RHA. Ms Da Silva then repeated what she had previously said about Ms Hand’s right to seek review of that decision.
On Monday 3 February 2014, Ms Hand confronted Ms Da Silva regarding her email response to Dr Sullivan’s letter. According to Ms Da Silva, Ms Hand was very irate, loud and disruptive to staff who witnessed the confrontation. She said Ms Hand balled her fists angrily in front of her and said do I have to top myself in order to be taken seriously around here. Ms Da Silva also said that she was sitting at her desk during the conversation while Ms Hand stood over her. She said she asked Ms Hand to go into a private room to continue the conversation and that Ms Hand declined, stating that she was going home. According to Ms Da Silva, when asked what leave she planned to take for the day, she replied psychiatric leave and left. Ms Da Silva said that at about 12.30 p.m. she called Ms Hand to conduct a welfare check because of her behaviour. She said her husband answered stating that Ms Hand was completely devastated by what had happened and would be on compensation leave for the rest of the day. Apparently Ms Hand’s husband phoned Ms Da Silva later in the afternoon advising that Ms Hand had consulted her doctor and was certified unfit for work for the rest of the week, from
3 February 2014 to 7 February 2014 due to a psychiatric crisis.
In cross-examination, Ms Hand agreed that Ms Da Silva had advised her about her right to seek a review of the decision not to extend her RHA and that she had not made such a request. In response to a question regarding why she did not appeal, Ms Hand said she did not have the ability to do that, which I understood meant her current emotional state did not allow her to proceed with an appeal. Ms Hand also agreed that Dr Sullivan’s letter did not constitute a request for a review of the decision.
When cross-examined about the confrontation which occurred on 3 February 2014, she agreed that she was distraught and angry at that time. She also said that her statement that she was taking psychiatric leave was simply a sarcastic comment. In addition, in a written statement made by Ms Hand which is undated and which was included in the
s. 37 documents, she confirmed she was visibly upset when she met with Ms Da Silva on 31 January 2014 because she was disregarding Dr Sullivan’s letter and that her RHA had been cancelled. In fact, the period of that RHA had by then concluded. She confirmed the other comments regarding leave made in the course of the meeting.
Following that meeting, Ms Hand had four weeks away from work as a consequence of sick leave. She provided weekly doctor’s certificates for that period. However, because Ms Hand did not have an accepted compensation claim for a psychological injury, Ms Da Silva recorded her leave as personal leave rather than compensation leave which Ms Hand had claimed.
On 3 March 2014 Ms Hand left a voice message for Ms Da Silva stating she had a medical certificate certifying she was able to work three hours per day, three days per week from 1 March 2014 to 14 March 2014. Ms Da Silva had scheduled a meeting with Ms Hand on her first day back at work to explain why her leave had been coded as personal leave instead of compensation leave and that her work hours had reverted back to standard hours. On arriving at work, Ms Hand said she wanted to have that meeting immediately because she had started to stress too much. Ms Da Silva’s evidence was that she told Ms Hand that the meeting would proceed at 12 p.m. as arranged because she had arranged for a person to record the meeting. This caused further upset to Ms Hand.
Ms Da Silva testified that, immediately following the meeting, Ms Hand returned to her desk where she heard her speaking on the telephone to her Comcare manager. She became highly emotional during that telephone conversation, crying almost hysterically to the point where other staff had become distressed. Because Ms Da Silva considered the 3 February 2014 incident and Ms Hand’s later conduct to be a breach of the APS Values and Code of Conduct, she reported it to Mr Chris Nunan, who described himself as her two-up manager. Mr Nunan subsequently followed this matter up with an invitation to Ms Hand to meet on Thursday, 6 March 2014 and suggested that Ms Hand bring a support person along if she wished. Mr Nunan also asked Ms Da Silva to attend as the team leader and scribe.
In his witness statement which was taken into evidence, Mr Nunan said that it was common and accepted practice that a formal counselling session be convened by an Executive Level officer with the person’s APS 6 team leader in such circumstances.
That meeting took place on 6 March 2014 and Ms Jodie Waldron attended as a support person and scribe for Ms Hand. I had in evidence the notes taken by Ms Da Silva in the course of that meeting. There appeared to be no contention about what was said. The subject matter of the meeting concerned the events which took place on 3 February 2014 which I have described above. Apparently Ms Hand said during the course of the meeting that she was not attempting to excuse her behaviour, and was now receiving medication, but stated that the incident would not have occurred if the letter from Dr Sullivan had been taken into consideration in making the decision regarding her RHA. Apparently Mr Nunan repeated the advice of Human Resources that Dr Sullivan’s letter of 30 January 2014 was not part of the review of the RHA decision process which had been communicated to Ms Hand on a number of occasions prior to that letter being produced. As I understood it, because the period for operation of the RHA had expired on 29 January 2014, there was nothing further that could be done. The decision was required to be made prior to expiry of that period and that is what occurred.
Despite Mr Nunan suspecting that Ms Hand’s conduct on 3 February 2014 may have constituted a breach of the APS Code of Conduct, he was nevertheless of the view that no formal action should be taken. Mr Nunan also expressly stated he did not make any findings of fact or a finding that she had breached the Code.
The evidence I have referred to above leads me to find that the events I have described caused Ms Hand to suffer a mental injury which is properly described as having arisen out of her employment with DHS.
COMPENSATION FOR INJURY
An employee to whom the SRC Act applies may be entitled to receive compensation in accordance with that Act in respect of an injury if the injury results in death, incapacity for work or impairment (s. 14).
The word injury is defined in s. 5A of the SRC Act. It provides:
5A. (1) In this Act:
injury means:
(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.
(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.
In this case, we are principally concerned with the exclusion clause dealing with reasonable administrative action taken in a reasonable manner.
REASONABLE ADMINISTRATIVE ACTION
The first matter which needs to be determined by me is whether DHS’s decision not to allow Ms Hand to work under a RHA following the settlement period ending 29 January 2014 is properly described as administrative action.
Under the Workplace Agreement, a RHA may be requested by an employee and, if approved, it applies for a specified period of 12 months unless a shorter period is requested by the employee (clause F7.3). Ms Hand had reached agreement to work approximately 9.25 hours for four days per week, Monday to Thursday. Following approval, the RHA is to be jointly reviewed at the end of the period (clause F7.4). Employees are entitled to have at least four weeks’ notice of a change in working hours unless the employee agrees to a lesser timeframe (clause F7.12). Furthermore, the employee and their supervisor must meet and discuss the RHA a month before the end of the current agreement with a view to continuing that RHA for a further 12 months or to negotiate a new RHA (clause F7.15).
The Full Court of the Federal Court of Australia (Gray, Rares and Tracey JJ) in Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 explained in some detail the meaning which should be given to the expression administrative action. Gray J, in his reasons for decision, explained the effect of the amendment to the SRC Act in April 2007 of the definition of injury. His Honour referred (at 466–7) to the Regulation Impact Statement which included the following statement:
The SRC Act aims to prevent compensation claims being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of reasonable disciplinary action or a failure to obtain a promotion, transfer or benefit in connection with the employee’s employment.
…
It was the original intention of the legislation to ensure that there is a close connection to employment as the cause, aggravator or contributor of a worker’s disease or injury, before eligibility for workers’ compensation can be established.
A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation.
When explaining the proper construction of the exclusion clause, Gray J said, at 473:
The central word in the exclusion is the noun “action”.… The action itself is qualified in two ways. It must have a relationship with (“in respect of”) employment, not just of any person but of a particular person (“the employee’s”). The other qualification of the word “action” is by means of the adjective “administrative”.…
The limits of the exclusion therefore appear to lie in the word “employment” and the word “administrative”. In the context of the exclusion, the word “employment” appears to be used in the sense of the “action or process of employing; the state of being employed” (Oxford English Dictionary) or “the act of employing” or “the state of being employed” (Macquarie Dictionary), rather than “that on which one is employed (an alternative meaning given in both dictionaries).… It is not action with respect to the duties that an employee is employed to carry out that is the subject of the exclusion, but action with respect to the employee as employee and his or her employment relationship with the employer.
… The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed.
Rares and Tracey JJ explained the difference between administrative action and other kinds of action in the following way, at 482–3:
However, in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in
s. 5A (1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.…
The qualification in the final phase (sic) of the exclusion in s. 5A (1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s. 5A (1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. 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 or, as
s. 5B (2)(b), provided “the nature of, and particular tasks involved in, the 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:…
Returning to Ms Hand’s case, the action taken by DHS was a decision to take no action. Ms Hand’s settlement period regarding her RHA was about to expire and DHS decided not to continue that agreement for a further period of 12 months or for any other period. That was a decision in respect of Ms Hand’s employment conditions rather than a decision about the activities she normally undertook in the course of working for DHS. It could also be seen as a decision which had the effect of denying Ms Hand the retention of a benefit which had been accorded to her by reason of being able to work a four day week. It was not what may be described as an operational decision. For those reasons, I find that the action taken by DHS to refuse to continue Ms Hand’s RHA for another settlement period was administrative action for the purposes of the SRC Act.
The next question which I must answer is whether the administrative action taken by DHS was reasonable. While I accept that the adverb reasonable can take its meaning from the circumstances in which it is used, it would not be exceptional in the circumstances of Ms Hand’s case to give it the following meaning found in The Shorter Oxford English Dictionary: 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate ME.
As a signatory to the Workplace Agreement, DHS is bound by the terms and conditions of employment covered in that document. The default regular hours of an employee are 7.5 hours per day or 37.5 hours per week (F7.11). Employees also have the option, depending upon requirements, to commence 15 minutes before the opening time of the workplace or 7.45 a.m. (whichever is the later) with a lunch break of 30, 45 or 60 minutes; or finish 15 minutes after the close of a customer contact period or 5.15 p.m. (whichever is the earlier) with a lunch break of 30, 45 or 60 minutes.
In addition to negotiating a pattern of ordinary hours to which I have referred above, an employee may be able to negotiate an agreement (a RHA) based on working a 37.5 hour week. In designing or negotiating a RHA an employee’s direct supervisor is required to make all reasonable efforts to accommodate an employee’s requests. Ms Hand’s agreement required her to work between 7.30 a.m. and 5.22 p.m. on Mondays and Tuesdays, and between 7.30 a.m. and 5.23 p.m. on Wednesdays and Thursdays. She had Fridays off work.
When designing or negotiating a RHA, as well as considering the employee’s needs and preferences, the parties must take into account the capacity and needs of a team, workplace, or business line to meet its internal or external delivery requirements (F7.5).
An RHA remains in place for a specified period, not beyond 12 months (F7.3). The Workplace Agreement requires the employee and their supervisor to meet and discuss the RHA one month before the end date of that agreement. This is so as to enable discussion on whether the RHA should be continued for a further 12 months or to negotiate new regular hours arrangements (F7.15).
It should be clear from the events I have described above, which were not controversial, when Ms Da Silva called for a meeting with Ms Hand on 16 December 2013 to review her RHA which was due to end on 29 January 2014, that was not only standard practice as stated by Ms Da Silva, but it was a requirement under the Workplace Agreement. Its purpose was to enable ongoing discussions regarding continuance of a RHA or to negotiate a new arrangement. As Ms Da Silva said in her written statement of evidence, she told Ms Hand that her current RHA would not be continued beyond 29 January 2014. Furthermore, Ms Da Silva provided Ms Hand with reasons for her decision in writing in her email dated 19 December 2013 and pointed out to her that it was her right to request a review of that decision pursuant to s. 33 of the Public Service Act.
The reasons given by Ms Da Silva for declining to continue Ms Hand’s RHA were that it was not reasonably safe for DHA to expect her to be at work for an extended period throughout the day while she was on a GRTW plan. Furthermore, she had been on that plan since November 2012 and was not able to maintain the reduced hours provided in the plan, having had a high number of unscheduled absences over the 12 month period from December 2012.
I had in evidence records of Ms Hand’s attendance at work from 8 November 2012 to 16 December 2013 when the first meeting took place. It supports what Ms Da Silva said about Ms Hand failing to meet the required working hours in the course of her GRTW plan. Other than the first two weeks of commencing that plan and the week commencing 23 September 2013, Ms Hand did not meet the required working hours in any of the remaining weeks over that period. The GRTW plan work hours were moderate, commencing at 5 hours for the first week; 10 hours from the week commencing 19 November 2012; 15 hours from the week commencing 11 March 2013; 16.5 hours per week from 22 April 2013; 17 to 18 hours per week from 6 May 2013; 20.49 hours per week from 3 June 2013; reduced to 18 hours per week from 17 June 2013; 21 hours per week from 19 August 2013 through to 16 December 2013.
In addition to the hours of work, the nature of the work which Ms Hand was required to perform also altered. She had Dragon Software installed so as to reduce her need to use a keyboard when at her computer. The phone shifts which she was required to work in the mornings and afternoons were reduced to 2 hours.
From the oral evidence I heard from Ms Hand and from statements she had made in writing when responding to events involving meetings and interaction between her and Ms Da Silva following the 16 December 2013 meeting, it appears to me that Ms Hand’s main complaint about DHS’s refusal to continue her RHA was the fact that Ms Da Silva had ignored what Dr Sullivan said in the letter dated 30 January 2014 regarding her mental health. In addition to the passage I have quoted above at [31], Dr Sullivan said:
It is my strong opinion that any other stressors be minimised for Ms Hand while she is going through the process of adjusting to her injury, making a WorkCover claim and getting treatment (and dealing with the uncertainty of all these). She has indicated that her workplace has suggested a change in her roster (regular hours) even though she is currently on a reduced work capacity. Not surprisingly, Ms Hand is extremely upset by this decision as it impacts on her quality of life.
With respect to Ms Hand, this letter did not come to the attention of Ms Da Silva until after 30 January 2014 which is after the RHA had expired. Plainly, it could not have been considered in the course of negotiations or discussions between December 2013 and the end of January 2014. Furthermore, it is not apparent from Dr Sullivan’s letter that she was aware that Ms Hand had fallen far short of meeting the hours she was required to work under the GRTW plan. What was being proposed by DHS was to spread her required working hours over a five day period rather than four days, thereby limiting her exposure to the sometimes stressful work environment for each day. It is difficult to describe that as being an unreasonable proposal. The only basis upon which I understand Ms Hand considered it to be unreasonable was the fact that she was deprived of a three day weekend which had altered her work/personal life balance.
Ms Hand was also critical of the fact that no genuine negotiations took place regarding her RHA in December 2013. As I understood Ms Hand, that was a requirement under the Workplace Agreement. Clause F7.1 of that document refers to the employee and their direct supervisor getting together to design and reach agreement on the employee’s working hours, genuinely negotiating where necessary. What Ms Hand seems to have ignored is the qualifying expression, where necessary. Also, clause F7.2 makes it clear that in designing or negotiating a RHA, the direct supervisor must make all reasonable efforts to accommodate an employee’s request. It plainly does not state that the direct supervisor must acquiesce to the request. As clause F7.5 states, in the course of negotiating such an agreement, the direct supervisor must take into account not only the employee’s needs and preferences, but also the needs of the workplace including the team or the business line so that it can meet its internal or external service delivery requirements. Plainly, the decision cannot be based simply on one party’s preferences.
Ms Da Silva gave oral evidence regarding the effect of Ms Hand’s limited capacity to work, particularly dealing with inbound calls, on remaining team members. She said that other staff would need to be allocated to that duty when they could be doing other duties. Those staff might come from the team or from others at DHS. She said that resulted in extra stress on those other staff. Ms Da Silva was also asked about whether absences on a Friday would cause problems. She said that in the past few years this had become an increasing problem as had Mondays, due to unscheduled sick leave taken on those days by employees. Therefore DHS was trying to avoid approving those two days of the week.
It is unfortunate that Ms Hand appears to have formed the view that, to work a four day week, having every Friday off, had become established and therefore would continue. It is clear from the terms and conditions set out in the Workplace Agreement that Ms Hand’s only right was to request such an arrangement. Where it was possible to meet that preference, an employer could do so but was certainly not bound to do so even if negotiations took place. There was no evidence of any negotiations taking place and Ms Hand was critical of that. Negotiations could have been initiated by either party on the understanding that negotiations involve giving up something to get something else. There was no evidence that Ms Hand was prepared to give up anything. She simply wanted Fridays off. Furthermore, she was having significant difficulties in meeting the GRTW plan hours and it is difficult to envisage a realistic basis for negotiating a different working arrangement.
The evidence to which I have referred above leads me to find that the decision made by DHS not to continue Ms Hand’s RHA beyond 29 January 2014 was a reasonable administrative decision. It was a decision about refusing to allow Ms Hand to retain the benefit of her RHA following its expiry.
The remaining question I must address is whether the reasonable administrative action taken by DHS was taken in a reasonable manner in respect of Ms Hand’s employment.
ACTION TAKEN IN A REASONABLE MANNER
The courts have made it plain that whether administrative action is reasonable is a question of fact. As a consequence, there is little guidance to be obtained from the case law. I should however mention a South Australian Supreme Court (Full Court) decision in Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42. The judgments in that case have been cited with approval by the Federal Court of Australia in Comcare v Martinez (No 2) (2013) 212 FCR 272 (at 293) and Comcare v Martin [2015] FCA 4 (8 January 2015) (at paragraphs [66]–[70]). Lander J said, at 47– 8:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
In addition, Bleby J said this, at 63:
In this case, whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
The first point I should make is that there cannot be said to be anything unreasonable about the fact that with the approaching end of the current period of Ms Hand’s RHA, DHS sought to consider whether that existing work arrangement should continue for another period. In fact, the Workplace Agreement mandates a meeting one month before the end date of the current RHA to facilitate discussion regarding continuing that arrangement or to negotiate a new arrangement (clause F7.15).
According to Mr Nunan’s witness statement dated 2 March 2015 which was taken into evidence, discussions regarding the likelihood of the RHA being reviewed commenced while Mr Barry Tyrell was Ms Hand’s team leader. Mr Nunan testified that Ms Hand’s poor attendance record came to his attention in 2012 and he asked Mr Tyrell on 17 November 2012 to determine whether it was appropriate for Ms Hand to work long hours each day in order to have a day off each week when she was not able to demonstrate a pattern of being able to work those longer hours.
By that time, in the eight years Ms Hand worked for DHS, she had accumulated and used all of the approximately 30 weeks personal leave (sick leave) allocated to her under the Workplace Agreement. In her oral evidence, Ms Hand did not dispute that figure. Mr Nunan said that a review was needed to address whether working longer hours over a four day week may have been contributing factor. He testified that Mr Tyrell conducted discussions with Ms Hand and, when he retired in December 2012, those discussions were continued by Ms Kate Summers. When Ms Da Silva became Ms Hand’s team leader, she continued those discussions.
The evidence given by Mr Nunan is supported by notes made by Dr Sullivan whom Ms Hand consulted for psychological assistance. A note made by Dr Sullivan on 27 September 2013 indicates she was worried that her RHA may have been under threat. It is reasonably clear that by September 2013, Ms Hand had been made aware that DHS was sufficiently concerned by her work attendance under the RHA, taking into account her physical injuries and the impact her chronic pain had on her ability to work, to be considering reducing the hours she spent at work per day but increasing her working week from four days to five days. In fact in notes made by Dr Sullivan on
26 November 2013 Ms Hand had indicated the stress she experienced in performing two 2-hour shifts on the phone and the need to be replaced by an extra support shift when she could not cope. Dr Sullivan also noted that if Ms Hand became too stressed due to her pain to be on the phone, she needed to go home. In my opinion, the logical conclusion to be drawn from Ms Hand’s inability to cope for any length of time with stressful clients is that she needed to reduce the time spent at work in any one shift.
In a document described by Mr Nunan as a supplementary employer’s statement in relation to Ms Hand’s claim for compensation dated April 2014, he referred to two issues raised by Ms Hand, including how DHS managed her RHA. Mr Nunan referred to an incident in 2013 where Ms Hand was told she had not complied with the DHS standards of dress. She claimed she had a medical certificate regarding her footwear which DHS found objectionable. Apparently an independent medical examiner (not named in the statement) who reviewed the reasons provided by Ms Hand, also conducted a review of her fitness for continuing duty. According to Mr Nunan, the medical examiner said:
As she (sic) unable to work normal hours at present, it would not be safe or appropriate to recommend Ms Hand work longer than standard hours.
In his April 2014 statement, Mr Nunan said that in the discussions leading up to the decision not to continue her RHA, Ms Hand did not provide any new information regarding why the RHA should not be changed. Rather, she provided the letter from Dr Sullivan about why the decision should not be taken at the particular time it was. As I understand that statement, it is a reference to the letter provided to DHS by Dr Sullivan dated 30 January 2014, which was after Ms Hand’s current RHA had expired. In fact the notes made by Dr Sullivan which precede the decision made by DHS indicate clearly that Ms Hand had other personal reasons, in particular relating to her partner, for wishing to maintain the hours worked under her then current RHA. There was no evidence before me that any of these matters were raised by Ms Hand prior to the expiry of her RHA on 29 January 2014.
Furthermore, as early as 19 December 2013 in her email to Ms Hand, Ms Da Silva expressly stated that she was entitled to request a review under s. 33 of the Public Service Act. That email also explained what should be contained in that application. In her email of 9 January 2014 Ms Da Silva again informed Ms Hand that if she wished to appeal the decision regarding her RHA, she should do so in writing either directly to Human Resources or to her via email and that she would forward the appeal to the authorising delegate on her behalf. After reading Dr Sullivan’s letter of 30 January 2014, Ms Da Silva sent Ms Hand an email on 31 January 2014 acknowledging receipt of that letter and indicating that it was not a formal appeal against the decision not to extend or continue her RHA. She also said if she wished to appeal the decision, she should submit a Review of Action in writing to the People Support Team. She suggested that Ms Hand attach a copy of Dr Sullivan’s letter in support of her request for review. Despite being provided with advice regarding the appeal process following the decision not to continue her RHA, Ms Hand did not avail herself of that process.
The evidence before me indicates that the meetings Ms Hand had with the various team leaders regarding whether her RHA would be continued after the end of its current period were held in private. At the 7 January 2014 meeting with Ms Da Silva, Ms Hand requested that negotiations for a new RHA be postponed for a period of three months to allow her time to liaise with her hand surgeon and Comcare to determine whether her hand surgery would be approved. At the subsequent meeting which took place on 9 January 2014, Ms Da Silva said she had considered Ms Hand’s request to postpone negotiations. Ms Da Silva’s evidence was that she looked into the possibility of postponement but, after receiving advice from Human Resources and Workers Compensation, she was advised not to do so. On that evidence, it cannot be said that the request for postponement was ignored. I find it was properly considered before deciding that postponement was inappropriate.
The email from Ms Prochazka to Ms Da Silva on 13 January 2014 sets out in some detail what Ms Hand considered was her complaint about not being listened to regarding her RHA. Ms Hand’s concerns included that she felt insulted by continuous reference being made to her inability to work more than 21 hours a week and how that related to the continuation of her four-day RHA. She did not consider it right that she should resume standard hours simply because she was on reduced hours due to a compensable injury. She was also concerned that no consideration was given to her and her husband, both of whom were employed by DHS, and the increased difficulty and expense caused when they could not go to work together as well as the effect on their work/life balance. Ms Hand also complained that she and her husband had numerous appointments which they needed to attend and they did that on Fridays.
It is clear from the evidence that Ms Da Silva did take into account the matters which Ms Prochazka recorded in her email. It is also clear that Ms Hand, rather than seeking to balance work/personal life considerations, was only concerned with the effect a five-day working week would have on her personal life. She appears to have totally discounted the fact that her employer was entitled to attempt to reduce her mental stress as a consequence of the sometimes difficult work required to be performed. Furthermore, her employer is entitled to have an employee return to full working hours in the shortest possible period after an injury and, if necessary, to have a sufficient number of employees available for the full five day working week. Balancing the requirements does require concessions to be made by both parties. In my opinion, the evidence discloses that Ms Da Silva attempted to do just that. The hours Ms Hand was being required to work under the GRTW plan were not to be altered but rather spread out over five days instead of four.
I have already referred to the meeting which took place on 16 January 2014 and the verbal altercation which took place in the presence of the entire team. I have no criticism of Ms Da Silva’s actions taken in respect of the confrontation or the subsequent meeting. Contrary to what Ms Hand said, there is no evidence that Ms Da Silva lied or misled her about that incident.
When Ms Da Silva returned to work on 3 February 2014, Ms Hand was waiting for her to discuss the email she sent to Ms Hand regarding Dr Sullivan’s letter of 30 January 2014. The discussion commenced at Ms Da Silva’s desk, she being seated and Ms Hand reportedly standing over her. Ms Da Silva described Ms Hand’s manner to be threatening and aggressive. Appropriately, in my opinion, Ms Da Silva asked Ms Hand to go into a private room to continue the conversation. Ms Hand declined and said that she was going home. When Ms Da Silva asked her what leave she planned to take for the day, Ms Hand was reported to have said psychiatric leave. Although Ms Hand in her Statement of Facts, Issues and Contentions suggested that the account given by Ms Da Silva was inaccurate, in the course of the cross examination, she agreed that she used the expression psychiatric leave but that it was put in a sarcastic way.
What followed was a period where Ms Hand took sick leave, returning to work on 3 March 2014. While there are recorded a number of issues regarding medical certificates during this period, I need say nothing further about that.
In my opinion, the evidence does not disclose anything which might be described as exceptional regarding the manner in which the administrative action was taken regarding Ms Hand’s RHA. In fact, I find that the reasonable administrative action was taken in a reasonable manner in respect of her employment.
OTHER CAUSES OF CLAIMED INJURY
Ms Hand’s claim for compensation was for adjustment disorder with mixed features (anxiety and major depression), chronic pain and a differential diagnosis of somatic symptom and related disorder. When stating on her claim form what caused her injury, Ms Hand included chronic pain from original injuries in addition to the treatment she said she received from management. Therefore, I need to examine the remaining claimed causes of her injury, those being chronic pain and possibly somatic pain.
I have referred to the report prepared by Dr Nguyen dated 17 March 2014, where he diagnosed Ms Hand as suffering from chronic adjustment disorder with mixed features with a differential diagnosis of a major depressive episode with significant anxiety in the context of chronic pain from her work-related injury. I have also referred to the report from Dr Rose, a psychiatrist, dated 17 November 2014. He diagnosed Ms Hand as suffering from a psychological or psychiatric condition, being adjustment disorder with mixed anxiety and depressed mood. In answer to a question about which factor or factors may have caused or contributed to her condition, Dr Rose mentioned the conflict about the hours of work and denial of liability for her wrist injury. He considered the contribution to her condition from those factors as being substantial.
The legal question which arises is, given that Ms Hand’s chronic pain from work-related injuries is said to have contributed significantly to the mental injury which has been diagnosed and which was not in dispute, whether the exclusionary provision nevertheless applies to exclude that claim. The Full Court of the Federal Court of Australia (Branson, Conti and Allsop JJ) in Hart v Comcare (2005) 145 FCR 29 dealt with this issue. The primary judge had allowed an appeal from the Tribunal concluding that it was incumbent on the Tribunal to conclude that the aspects of the application, interview and promotion processes identified as the material contributing factors to the condition were an aspect of, and not distinct from, the appellant’s failure to obtain a promotion. The Court noted that its task was one of statutory construction of a beneficial statute. It said, at 33:
In order to succeed, the appellant must assert, as she does, that operative causes are not excluded and that given the provision’s purpose some modifier should be read into the words to restrict the effect of the exclusion to circumstances where there were no other employment related causes. We do not agree. The operation of the provision had the evident purpose of removing from the field of compensation a disease, injury or aggravation which was a result of something. We see no evident purpose to remove from the field of compensation a disease, injury or aggravation which was only a result of that thing. The words do not readily admit that construction.
In other words, if a disease or injury which would otherwise fall within the statutory definition of injury is caused by an exclusionary provision such as failure to obtain a promotion, it did not fall within the definition and it was immaterial that other employment related causes may also have contributed to the claimed injury. The construction of the exclusionary provision by the Full Court in Hart was cited with approval by a subsequent Full Court of the Federal Court of Australia in: Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463 at 472.
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.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Egon Fice ...........................[sgd].............................................
Associate
Dated 21 April 2015
Date(s) of hearing 10 - 11 March 2015 Applicant In person Counsel for the Respondent Mr J Wallace Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Employment Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Causation
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Remedies
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Procedural Fairness
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