Fairall and Comcare (Compensation) - [2020] AATA 27

Fairall and Comcare (Compensation) [2020] AATA 27 (14 January 2020)
Division:GENERAL DIVISION
File Number(s): 2017/6784
Re:Laura Fairall
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:M J McGrowdie, Senior Member
Date:14 January 2020
Place:Sydney

The reviewable decision of 4 October 2017 is set aside and instead a decision be substituted that the Applicant suffered a compensable injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), namely psychological injury by way of an adjustment disorder for limited periods on or about 13 October 2016, 18 January 2017 and 22 March 2017;
The Respondent is to pay the Applicant’s costs of the proceedings.
...........................[sgd].............................................
M J McGrowdie, Senior Member
CATCHWORDS
WORKERS' COMPENSATION — psychological condition – liability to pay compensation – whether stressors in employment constituted injury – whether actions of employer administrative actions – whether Applicant’s claimed condition excluded from the definition of injury
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7, 14
CASES
Comcare v Martin [2015] FCA 4
Comcare v Power [2015] FCA 1302
Commonwealth Bank of Australia v Reeve [2012] 199 FCR 463
REASONS FOR DECISION
M J McGrowdie, Senior Member
14 January 2020
INTRODUCTION
The Applicant, Laura Fairall, born in 1976, makes this Application seeking a determination that the Respondent, Comcare, is liable to pay compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for psychological injury.
In a reviewable decision dated 4 October 2017, Comcare affirmed its earlier determination of 10 July 2017 that Comcare was not liable for the claimed psychological injury.
ISSUES
The issues which arise in respect of the claim are:-
(1)whether the Applicant suffered a work-related psychological condition that was an ailment or an aggravation that was contributed to in a material degree by her employment; and
(2)whether any such ailment or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment so that there is no liability to pay compensation.
BACKGROUND
The Applicant commenced employment with the Department of Human Services in late August 2007 as a Client Services Representative. A large part of her work was processing applications for social security benefits. Her last date of active service was on 21 March 2017. She resigned in May 2018 and took up other employment.
Prior to the present claim which relates to events in 2016 and 2017, she had a claim for compensation in late 2011 for anxiety and depression arising from various work issues. That claim was initially accepted by Comcare. The Applicant, after some time off work, returned to work in accordance with a return to work plan and with some regard to the disabilities which the Applicant suffered, namely, dyslexia and an anxiety condition.
In respect of these disabilities the Applicant completed a Request for Reasonable Adjustment which, according to the Applicant, would excuse her from processing any paper claims for benefits unless already digitized and to be seated in an area with…

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 Fairall and Comcare (Compensation)

Details

AGLC: Fairall and Comcare (Compensation) [2020] AATA 27
Case: [2020] AATA 27
Decision Date: 14 January 2020

CaseChat Overview and Summary

This matter concerned a claim for workers' compensation by the Applicant, Ms Fairall, against her employer, Comcare, for a psychological condition. The Applicant alleged that stressors in her employment contributed to her condition, while Comcare contended that any such ailment or aggravation was a result of reasonable administrative action taken in a reasonable manner, thereby excluding liability. The case was heard by Senior Member M J McGrowdie.

The primary legal issues before the court were whether the Applicant suffered a work-related psychological condition that constituted an ailment or aggravation materially contributed to by her employment, and alternatively, whether any such condition arose from reasonable administrative action taken in a reasonable manner, which would negate Comcare's liability to pay compensation.

Senior Member McGrowdie found that the Applicant did suffer a psychological injury, specifically an adjustment disorder, on limited occasions between October 2016 and March 2017. The court determined that while the Applicant had a history of psychological conditions and some personal stressors, the events and changes in her employment, particularly concerning proposed team and workstation alterations from August 2015 onwards, contributed to her condition. The court set aside the reviewable decision of 4 October 2017 and substituted a decision that the Applicant suffered a compensable injury pursuant to section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Comcare was ordered to pay the Applicant's costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

The issues which arise in respect of the claim are:-(1)whether the Applicant suffered a work-related psychological condition that was an ailment or an aggravation that was contributed to in a material degree by her employment; and(2)whether any such ailment or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment so that there is no liability to pay compensation.BACKGROUND The Applicant commenced employment with the Department of Human Services in late August 2007 as a Client Services Representative. A large part of her work was processing applications for social security benefits. Her last date of active service was on 21 March 2017. She resigned in May 2018 and took up other employment. Prior to the present claim which relates to events in 2016 and 2017, she had a claim for compensation in late 2011 for anxiety and depression arising from various work issues. That claim was initially accepted by Comcare. The Applicant, after some time off work, returned to work in accordance with a return to work plan and with some regard to the disabilities which the Applicant suffered, namely, dyslexia and an anxiety condition. In respect of these disabilities the Applicant completed a Request for Reasonable Adjustment which, according to the Applicant, would excuse her from processing any paper claims for benefits unless already digitized and to be seated in an area with non-fluorescent lighting, that is, an area which also had natural light. From all accounts this is how the Applicant proceeded with her duties. When the Applicant was working overtime, she could simply not do paper based claims and put them back in the system without that being counted against her performance. Paper based claims were generally added claims to applications for social security benefits. Add on claims for Rent Assistance and Shared Care Claims were paper based claims so the Applicant could put the primary claims with the ‘add-ons’ back into the system. Also, the Applicant could choose claims to process which did not appear to have any “add-ons”. Compensation payments for the 2011 claim ceased in February 2015 upon the basis that Comcare determined the Applicant no longer suffered from the effects of the compensable injury. In a report dated 27 January 2015, Dr Eliza Butt considered that the Applicant was in remission in regards to her severe depression and anxiety. The Applicant had regular counselling sessions with Mrs Roz Hamilton, Psychologist, over the years in respect of the condition. Even if in remission from her major depressive episode, it is clear that the Applicant was not without certain stressors in her life. The Applicant was concerned about debt problems which she had, a prolonged issue she had with a former employer, relationships as well as some difficulties in her employment with the Department of Human Services.DISCUSSION From about August 2015, the Applicant came to have particular problems at work. It appears that the Applicant had had quite sympathetic Team Leaders and her special needs were accommodated over an extended period. At that time there were changes proposed in relation to teams and the work station of the employees, including the Applicant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DECISIONM J

Further, the Applicant suffered psychological injury as a result of an incoming call from a client on 18 January 2017 necessitating a day or so off work and any related medical treatment.DECISION The reviewable decision of 4 October 2017 is set aside and instead a decision be substituted that the Applicant suffered a compensable injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), namely psychological injury by way of an adjustment disorder for limited periods on or about 13 October 2016, 18 January 2017 and 22 March 2017. The Respondent is to pay the Applicant’s costs of the proceedings.

Ratio Decidendi

Legal Principle Established

Established by: DECISIONM J

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