FXWZ and Comcare

Case [2011] AATA 364

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 364

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2008/4416

GENERAL ADMINISTRATIVE DIVISION )
Re   FXWZ

Applicant

And

  COMCARE

Respondent

DECISION

Tribunal

Ms N Isenberg, Senior Member

Dr I Alexander, Member

Date30 May 2011  

PlaceSydney

Decision Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975,    the Tribunal publishes the attached summary of its Reasons for Decision

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

Ms N Isenberg

Presiding Member

CATCHWORDS

COMPENSATlON – confidentiality - ASIO employee - claim for psychological injury - employment by intelligence agency - whether applicant suffers a mental disorder – whether applicant's condition contributed to in a material degree by his employment - decision under review set aside

Administrative Appeals Tribunal Act 1975 (Cth): s 35, 35(2)
Safety, Rehabilitation and Compensation Act 1988 (Cth): s 14

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2009) 181 FCR 130
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Alister v R (1994) 154 CLR 404
Church of Scientology v Woodward (1982) 154 CLR 25
Comcare v Canute (2005) 148 FCR 232
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Kahn (2007) 156 FCR 536
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
R v Lodhi (2006) 199 FLR 270
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR
Re Y and Commissioner for Superannuation (1982) 4 ALD 499
Sankey v Whitlam (1978) 142 CLR 1
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Tucker v Minister for Immigration and Citizenship [2011] FCAFC 16
Wiegand v Comeare (2002) 72 ALD 795

REASONS FOR DECISION

30 May 2011 Ms N Isenberg, Senior Member
Dr I Alexander, Member

CONFIDENTIALITY

Background

1.FXWZ worked for the Australian Security Intelligence Organisation ("the Agency") between 1965 and 1979.  In 2007 FXWZ submitted a claim for compensation for psychological injury pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Comcare rejected his claim at first instance and on reconsideration. Dissatisfied with that result, FXWZ applied for review by this Tribunal.

2.The Tribunal made its decision on 1 March 2011, setting aside the decision under review. In substitution, the Tribunal decided that the Respondent is liable to pay compensation to the Applicant in respect of an injury (in the form of a mental disorder) pursuant to s 14 of the SRC Act.

3.The Tribunal published its reasons in full to the parties but sought submissions as to whether there might be reasons why the decision should not be published in the ordinary course, given that, on the Agency‘s application, the hearing had been conducted in private and many documents produced in the proceedings were subject to confidentiality orders. 

4.The Agency made written submissions that the decision should not be published in full on the basis that publication would likely be prejudicial to national security and impact on the Agency’s ability to fulfill its statutory functions.  It was initially submitted that the facts and evidence in the matter were so interwoven…

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FXWZ and Comcare [2011] AATA 364
Case
[2011] AATA 364
Decision Date

CaseChat Overview and Summary

In the case of FXWZ and Comcare, the applicant, FXWZ, sought compensation from Comcare for a psychological injury allegedly arising from his employment with the Australian Security Intelligence Organisation (ASIO). The dispute was heard and determined by the Administrative Appeals Tribunal. The central legal issues revolved around whether FXWZ suffered from a mental disorder and, if so, whether this condition was materially contributed to by his employment with ASIO.

The Tribunal carefully considered the evidence presented by both parties, including medical reports from various practitioners, FXWZ's personal accounts, and the Respondent's submissions that other personal factors might have contributed to FXWZ's condition. Notably, FXWZ provided extensive testimony over several days and was subject to rigorous cross-examination, despite being unrepresented and in need of regular psychiatric care. The Tribunal found that FXWZ's evidence was sincere and reliable, taking into account his medical condition and the circumstances of the hearing.

After thorough deliberation, the Tribunal concluded that FXWZ did indeed suffer from a compensable mental disorder that arose out of his employment with ASIO. The decision set aside the previous determination by Comcare and ruled that Comcare was liable to pay compensation to FXWZ under section 14 of the Safety, Rehabilitation and Compensation Act 1988. The Tribunal's decision was based on the clear evidence of FXWZ's psychological condition and the connection to his employment, dismissing the Respondent's arguments regarding alternative contributing factors.

Orders

Orders of the court

Pursuant to section 35 of the Administrative Appeals Tribunal Act 1975, the Tribunal publishes the attached summary of its Reasons for Decision

Background

Background to the litigation

When it became apparent that no evidence from a psychiatrist was to be called by either party, we decided we would be assisted by hearing evidence from FXWZ's treating psychiatrist and the Tribunal summonsed him to appear. The Respondent subsequently called Dr Klaas Akkerman, consultant psychiatrist, who is a friend of FXWZ. His evidence, discussed below, related mainly to a chance meeting with FXWZ nearly four years ago and whether he had known FXWZ had worked for the Agency, and therefore was not in the nature of medico-legal or treating doctor evidence.BACKGROUND: FXWZ’S WORK FOR THE AGENCY FXWZ commenced work for the Agency in 1965. The background to his work for the Agency is contained in the Respondent's Statement of Facts and Contentions and was broadly not in dispute. FXWZ ceased working for the Agency in December 1979. Thereafter he had no further contact with the Agency until 2000.APPLICANT’S CONTENTIONS FXWZ's case, in summary, relied on events he experienced and aspects of his work for the Agency as giving rise to his condition. FXWZ gave evidence and was cross-examined about these events and experiences. The Agency's documents provided contemporaneous accounts of FXWZ's concerns and provided some useful insight into his work for the Agency.OTHER POSSIBLE FACTORS IN FXWZ’S CONDITION The Respondent contended that if FXWZ suffered a psychiatric condition, there were a number of other matters, related to his personal relationships, particularly his marriage, and non-work related medical conditions, that might have been responsible. FXWZ was cross-examined at length about these other matters.MEDICAL EVIDENCE The Tribunal received evidence from the following medical practitioners: (either by way of records produced or evidence given to the Tribunal):·An Agency psychologist;·Dr Vogt, FXWZ’s General Practitioner between 1989 and 2002;·Dr McKeough, Consultant Psychiatrist who FXWZ attended on several occasions between May and August 1999;·Dr Meyerowitz, FXWZ’s General Practitioner from 2002;·Dr George Jacobs, FXWZ’s current treating psychiatrist;·Dr Akkerman, a friend of FXWZ;·Dr Norman Rose, a consultant psychiatrist who examined FXWZ on behalf of the Respondent on two occasions; and·Dr Fernando Roldan, neuropsychologist who examined FXWZ on behalf of the respondent on one occasion.CONSIDERATIONTHE APPLICANT’S EVIDENCE It was the Respondent's submission that there were a large number of serious inconsistencies in FXWZ's evidence that make it unreliable and, in any event, it should not be preferred to the contemporaneous evidence. It was further submitted that he was "highly evasive and non-committal" in his responses in cross-examination. In this regard we note that FXWZ was unrepresented in a hearing that lasted seven days, was subjected to cross-examination for about three of those days, and is a person who is medicated and requires psychiatric care fortnightly. Taking account of these factors we formed the view that FXWZ was being sincere in giving his answers and making his representations to the Tribunal.LEGISLATIVE CONTEXT

Evidence

Evidence Before The Court

The Respondent contended that if FXWZ suffered a psychiatric condition, there were a number of other matters, related to his personal relationships, particularly his marriage, and non-work related medical conditions, that might have been responsible. FXWZ was cross-examined at length about these other matters.MEDICAL EVIDENCE The Tribunal received evidence from the following medical practitioners: (either by way of records produced or evidence given to the Tribunal):·An Agency psychologist;·Dr Vogt, FXWZ’s General Practitioner between 1989 and 2002;·Dr McKeough, Consultant Psychiatrist who FXWZ attended on several occasions between May and August 1999;·Dr Meyerowitz, FXWZ’s General Practitioner from 2002;·Dr George Jacobs, FXWZ’s current treating psychiatrist;·Dr Akkerman, a friend of FXWZ;·Dr Norman Rose, a consultant psychiatrist who examined FXWZ on behalf of the Respondent on two occasions; and·Dr Fernando Roldan, neuropsychologist who examined FXWZ on behalf of the respondent on one occasion.CONSIDERATIONTHE APPLICANT’S EVIDENCE It was the Respondent's submission that there were a large number of serious inconsistencies in FXWZ's evidence that make it unreliable and, in any event, it should not be preferred to the contemporaneous evidence. It was further submitted that he was "highly evasive and non-committal" in his responses in cross-examination. In this regard we note that FXWZ was unrepresented in a hearing that lasted seven days, was subjected to cross-examination for about three of those days, and is a person who is medicated and requires psychiatric care fortnightly. Taking account of these factors we formed the view that FXWZ was being sincere in giving his answers and making his representations to the Tribunal.LEGISLATIVE CONTEXT For the purposes of this matter "injury" is defined as:injury means(a) a disease suffered by an employee, or(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment, or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment, but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment For the purposes of this matter, "disease" is defined as:disease means(a) any ailment suffered by an employee; or(b) the aggravation of any such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation Ailment is defined as follows:ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)DOES FXWZ SUFFER FROM A MENTAL DISORDER?

Decision

Reasons for decision

The Tribunal is satisfied that FXWZ has a compensable injury within the meaning of the Act.DECISION The Tribunal sets aside the decision under review and in substitution the Tribunal decides that the Respondent is liable to pay compensation to the Applicant in respect of an injury (in the form of a mental disorder) pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.Signed: ..............[sgd]....................................................................... AssociateDate/s of Hearing 9, 10, 11, 12, 26 August, 11, 12 November 2010Date of Decision 1 March 2011Appearance for the Applicant Self representedCounsel for the Respondent Mr P JonesSolicitor for the Respondent Mr C Hutchins, Australian Government Solicitor

Ratio Decidendi

Legal Principle Established

The Tribunal received evidence from the following medical practitioners: (either by way of records produced or evidence given to the Tribunal):·An Agency psychologist;·Dr Vogt, FXWZ’s General Practitioner between 1989 and 2002;·Dr McKeough, Consultant Psychiatrist who FXWZ attended on several occasions between May and August 1999;·Dr Meyerowitz, FXWZ’s General Practitioner from 2002;·Dr George Jacobs, FXWZ’s current treating psychiatrist;·Dr Akkerman, a friend of FXWZ;·Dr Norman Rose, a consultant psychiatrist who examined FXWZ on behalf of the Respondent on two occasions; and·Dr Fernando Roldan, neuropsychologist who examined FXWZ on behalf of the respondent on one occasion.CONSIDERATIONTHE APPLICANT’S EVIDENCE It was the Respondent's submission that there were a large number of serious inconsistencies in FXWZ's evidence that make it unreliable and, in any event, it should not be preferred to the contemporaneous evidence. It was further submitted that he was "highly evasive and non-committal" in his responses in cross-examination. In this regard we note that FXWZ was unrepresented in a hearing that lasted seven days, was subjected to cross-examination for about three of those days, and is a person who is medicated and requires psychiatric care fortnightly. Taking account of these factors we formed the view that FXWZ was being sincere in giving his answers and making his representations to the Tribunal.LEGISLATIVE CONTEXT For the purposes of this matter "injury" is defined as:injury means(a) a disease suffered by an employee, or(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment, or(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment, but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment For the purposes of this matter, "disease" is defined as:disease means(a) any ailment suffered by an employee; or(b) the aggravation of any such ailment, being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation Ailment is defined as follows:ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)DOES FXWZ SUFFER FROM A MENTAL DISORDER? The evidence of FXWZ first seeking medical attention for a work-related psychological condition was a meeting with an Agency psychologist which occurred on 30 March 2006. In relation to diseases the Act provides at s 7(4):For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:(a) the employee first sought medical treatment for the disease, or aggravation, or