Francis and Comcare (Compensation)

Case [2016] AATA 772

Francis and Comcare (Compensation) [2016] AATA 772 (30 September 2016) 

Division

GENERAL DIVISION

File Numbers

2014/4987; 2014/6015

Re

Thompson Francis

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Dr P McDermott RFD
Date 30 September 2016
Place Brisbane

The reviewable decisions of 29 July 2014 and 1 August 2014 are set aside and in substitution it is decided that the applicant is entitled to compensation under ss 14 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for the claimed condition of major depressive disorder. The assessment of incapacity payments is remitted to the respondent. For the purposes of s 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) the applicant should be taken to have sustained an injury on 22 November 2012, which was aggravated on or about 5 March 2013. The respondent is ordered to pay the applicant’s costs and disbursements in respect of these proceedings pursuant to s 67(9) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

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

Deputy President Dr P McDermott RFD

CATCHWORDS

COMPENSATION – Commonwealth employees – compensation for injuries – compensation for injuries resulting in incapacity – date of injury – injury caused by work – whether reasonable administrative action – whether action administrative – whether carried out in a reasonable manner – respondent ordered to pay the applicant’s costs and disbursements – set aside and substituted

COMPENSATION – Commonwealth employees – compensation for injuries resulting in incapacity – assessment of incapacity payments – set aside and remitted

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7, 14, 19, 60, 62, 64, 67
Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43

CASES

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Migge v Wormold Brothers Industries Ltd [1972] 2 NSWLR 29
National Australia Bank Ltd v KRDV (2012) 204 FCR 436
Repatriation Commission v Warren (2008) 167 FCR 511

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

30 September 2016

INTRODUCTION

  1. Mr Thompson Francis (“the applicant”) seeks compensation under ss 14 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for a mental health condition arising from his employment with the Australian Taxation Office (“ATO”). Comcare (“the respondent”) accepts that the condition of the applicant was contributed to by the applicant’s employment. I have to determine whether the condition was contributed to by “reasonable administrative action” and so is not a compensable injury under the Act.

    PRIOR DETERMINATIONS

    Liability under s 14 of the Act

  2. On 8 July 2013 the applicant lodged a claim for workplace anxiety and depression which he stated was caused by workplace bullying and harassment.[1] On 2 October 2013 a determination was made which accepted liability for major depressive disorder, single episode, and generalised anxiety disorder under s 14 of the Act with a date of injury of 22 November 2012.[2] On 29 July 2014 the respondent revoked this determination. The respondent found that the applicant’s injuries were excluded from compensation under s 14 of…

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AGLC
Francis and Comcare (Compensation) [2016] AATA 772
Case
[2016] AATA 772
Decision Date

CaseChat Overview and Summary

This matter concerned an application by an engineer for review of decisions made by Comcare. The applicant sought review of decisions dated 29 July 2014 and 1 August 2014, which related to compensation for injuries resulting in incapacity. The applicant had been employed as an engineer and was placed in a Test Team for an E-Tax project. Following a meeting on 21 November 2012, and a subsequent meeting on 5 March 2013, the applicant developed a psychiatric condition.

The primary legal issues before the Tribunal were whether the applicant suffered from a disease within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and if so, whether that disease was contributed to in a significant degree by his employment. The Tribunal also considered the definition of "reviewable decision" under the Act, which included decisions made under section 62, concerning the reconsideration, affirmation, revocation, or variation of an initial determination.

The Tribunal found that the applicant suffered from major depressive disorder and generalised anxiety disorder, which constituted a disease within the meaning of the Act. It relied on the medical opinion of a consultant psychiatrist, Dr Takyar, who concluded that these conditions were contributed to in a significant degree by the applicant's employment, specifically by the meetings of 21 November 2012 and 5 March 2013. The Tribunal noted that there was no prior history of psychiatric illness and that the workplace incidents appeared to be the sole cause of the applicant's condition.

The Tribunal set aside the reviewable decisions of Comcare and substituted its own decision. The respondent was ordered to pay the applicant’s costs and disbursements.

Orders

Orders of the court

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Background

Background to the litigation

This Tribunal has jurisdiction to review a “reviewable decision” pursuant to s 64(1) of the Act and s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth). The phrase “reviewable decision” is defined under s 60(1) of the Act to include a decision made under s 62 of the Act. A decision made under s 62 of the Act is a decision, on reconsideration, affirming, revoking or varying the initial determination.[10] The applicant has sought a review of the reviewable decisions of the respondent dated 29 July 2014 and 1 August 2014.[11][10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62(5).[11] Exhibit A, T-Documents, T1 at pp. 2-3.BACKGROUND The applicant is an engineer who gained his electronics and telecommunication engineering degree in India and has postgraduate qualifications from Australia in information technology (“IT”), and engineering and project management.[12] He has worked for management companies and has prior experience as an IT officer with the Queensland State Government.[13][12] Exhibit E, Witness Statement of T Francis signed 3 September 2015 at p. 1.[13] Ibid. In July 2012 Ms Welsh was appointed as the Director of the E-Tax team.[14] An important responsibility was to develop E-Tax software to enable taxpayers with Mac computers to lodge their returns for the 2012/2013 financial year.[15][14] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 1.[15] Ibid. In September 2012 the E-Tax Team was structured into three teams. Team three was the Test Team (“the Team”) into which the applicant was placed.[16] He accepted an offer of Test Lead of the E-tax for Mac project on a trial basis for one month.[17] [16] Ibid at pp. 2-3.[17] Ibid at pp. 2-3. On 16 October 2012 Ms Welsh advised the Team that the applicant would not have a permanent EL1 position but would remain in that team at his substantive APS6 position.[18] On 17 October 2012 the applicant requested to be released into the Business Analyst Team as soon as possible.[19] Ms Welsh advised him that he would not be moved back to the Business Analyst Team.[20] He also requested to be placed on the Corporate Mobility Register.[21] On 18 October 2012 the applicant sent his handover notes for the project to Mr Lewis and Ms Paw who would manage the Test team.[22] [18] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at pp. 3-4 and attachment 2; Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 1.[19] Exhibit A, T-Documents, T15 at pp. 423-424; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4.[20] Exhibit A, T-Documents, T15 at pp. 423-424; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4 and attachment 3.[21] Exhibit A, T-Documents, T15 at pp. 423; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4 and attachment 3.[22] Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 2 and attachment 2. On 5 November 2012 Ms Paw held a team meeting and subsequently allocated tasks to members of the Team.[23] Each member of the Team had to complete five tests each day. The applicant was allotted responsibility for Mac 10.6. Ms Paw in her statement remarked:[24][23] Ibid at p. 3.[24] Ibid.Mr Francis was assigned all of Mac 10.6 and managing all the defects. I told the team that when testing commences, Mr Francis would be managing the defects identified and for that reason he was not allocated any test scripts to test so that he would have enough time to manage the defects.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 1 August 2014 the respondent revoked the determinations of 7 November 2013, 13 November 2013, 20 December 2013, 28 May 2014 and 9 July 2014.[9] [9] Exhibit A, T-Documents, T1 at pp. 16-20.Reviewable decisions This Tribunal has jurisdiction to review a “reviewable decision” pursuant to s 64(1) of the Act and s 25(4) of the Administrative Appeals Tribunal Act 1975 (Cth). The phrase “reviewable decision” is defined under s 60(1) of the Act to include a decision made under s 62 of the Act. A decision made under s 62 of the Act is a decision, on reconsideration, affirming, revoking or varying the initial determination.[10] The applicant has sought a review of the reviewable decisions of the respondent dated 29 July 2014 and 1 August 2014.[11][10] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 62(5).[11] Exhibit A, T-Documents, T1 at pp. 2-3.BACKGROUND The applicant is an engineer who gained his electronics and telecommunication engineering degree in India and has postgraduate qualifications from Australia in information technology (“IT”), and engineering and project management.[12] He has worked for management companies and has prior experience as an IT officer with the Queensland State Government.[13][12] Exhibit E, Witness Statement of T Francis signed 3 September 2015 at p. 1.[13] Ibid. In July 2012 Ms Welsh was appointed as the Director of the E-Tax team.[14] An important responsibility was to develop E-Tax software to enable taxpayers with Mac computers to lodge their returns for the 2012/2013 financial year.[15][14] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 1.[15] Ibid. In September 2012 the E-Tax Team was structured into three teams. Team three was the Test Team (“the Team”) into which the applicant was placed.[16] He accepted an offer of Test Lead of the E-tax for Mac project on a trial basis for one month.[17] [16] Ibid at pp. 2-3.[17] Ibid at pp. 2-3. On 16 October 2012 Ms Welsh advised the Team that the applicant would not have a permanent EL1 position but would remain in that team at his substantive APS6 position.[18] On 17 October 2012 the applicant requested to be released into the Business Analyst Team as soon as possible.[19] Ms Welsh advised him that he would not be moved back to the Business Analyst Team.[20] He also requested to be placed on the Corporate Mobility Register.[21] On 18 October 2012 the applicant sent his handover notes for the project to Mr Lewis and Ms Paw who would manage the Test team.[22] [18] Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at pp. 3-4 and attachment 2; Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 1.[19] Exhibit A, T-Documents, T15 at pp. 423-424; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4.[20] Exhibit A, T-Documents, T15 at pp. 423-424; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4 and attachment 3.[21] Exhibit A, T-Documents, T15 at pp. 423; Exhibit H, Witness Statement of D Welsh signed 17 March 2015 at p. 4 and attachment 3.[22] Exhibit F, Witness Statement of R Paw signed 16 March 2015 at p. 2 and attachment 2.

Ratio Decidendi

Legal Principle Established

The term “significant degree” is defined in s 5B(3) of the Act as meaning “a degree that is substantially more than material”.CONSIDERATIONAilments of the applicant The respondent accepts that the applicant suffers from a psychiatric condition of major depressive disorder, single episode and generalised anxiety disorder. While there are differing diagnoses of the conditions of the applicant, the predominant medical opinion is that the applicant has a psychiatric condition. There is medical opinion to support this concession of the respondent which I consider to have been properly made. The applicant attended an appointment with Mr Gerhardt, clinical psychologist, on 2 July 2013. In his report of 1 August 2013, Mr Gerhardt expressed his opinion that when he saw the applicant he met the criteria under DSM-IV-TR for a mixed anxiety depressive disorder.[61][61] Exhibit A, T-Documents, T9. Dr Takyar, consultant psychiatrist, in his report of 30 August 2013, which was commissioned by the respondent has diagnosed the applicant as having a major depressive disorder and generalised anxiety disorder using diagnostic criteria from DSM V.[62] I rely upon that report of Dr Takyar to find that the applicant suffers from major depressive disorder and generalised anxiety disorder which are ailments within the meaning of disease in s 5B of the Act.[62] Exhibit A, T-Documents, T18 at p. 511.Ailments were contributed to in a significant degree by the applicant’s employment The respondent accepts that the condition of the applicant was contributed to by the applicant’s employment. I consider that the predominant medical opinion supports the concession of the respondent. I place reliance upon the report of Dr Takyar, consultant psychiatrist, who reported to the respondent that the applicant began to suffer from major depressive disorder and generalised anxiety disorder after the initial incident in November 2012 which accelerated after the second incident in March 2013.[63] Dr Takyar was of the opinion that the applicant had a change in his mental state after the first event after which he commenced antidepressant medication.[64] I rely upon that report of Dr Takyar to find that the major depressive disorder and generalised anxiety disorder of the applicant was contributed to, in a significant degree, by his employment with the Commonwealth and specifically was contributed to by the meetings of 21 November 2012 and 5 March 2013. [63] Exhibit A, T-Documents, T18 at pp. 509-510.[64] Ibid at p. 510. The evidence before me is that the “precipitating cause”[65] for the condition of the applicant was the meeting of 21 November 2012. Mr Gerhardt considered that there was a causal link between the condition of the applicant and the events in his workplace.[66] This is confirmed by Dr Takyar’s report of 30 August 2013 in which he stated that the applicant began to suffer clinically identifiable symptoms soon after the initial incident in November 2012.[67] Dr Takyar reported that the condition accelerated after the second incident in March 2013. Dr Takyar has reported that the two incidents appear to be the sole cause of the applicant’s condition.[68] Dr Takyar (as did Mr Gerhardt) also reported that the applicant had no previous history of psychiatric illness prior to the episodes.[69] The condition of the applicant persisted for some time after the first meeting. Professor Macleod reported on 21 March 2014 that he had concerns as to whether a return to work could be successfully achieved.[70] Having regard to this evidence I find that the major depressive disorder ailment of the applicant was contributed to, to a significant degree, by the applicant’s employment by the Commonwealth.[65] Cf Migge v Wormold Brothers Industries Ltd [1972] 2 NSWLR 29 at 48 per Mason J.A.[66] Exhibit A, T-Documents, T10 at p. 82.[67] Exhibit A, T-Documents, T18 at p. 509.[68] Ibid p. 512.[69] Exhibit A, T-Documents, T10 at p. 82; T18 at p. 511.[70] Exhibit A, T-Documents, T30 at p. 570.