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GEORGE THOMPSON and COMCARE

GEORGE THOMPSON and COMCARE

Case [2012] AATA 752 31 October 2012

Compensatory Damages

Unconscionable Conduct

Work-Related Injury

Employment & Labour Law

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[2012] AATA 752

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0544, 2012/0545, 2012/0844, 2012/1907

Re

GEORGE THOMPSON

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER

DR BERNARD HUGHSON, MEMBER

Date

31 October 2012

Place

Canberra

The decisions under review are affirmed.
.............................[sgd]...........................................
PROFESSOR RM CREYKE, SENIOR MEMBER
CATCHWORDS
COMPENSATION – Commonwealth Employees – accepted condition of adjustment disorder – whether depressive disorder, due to performance appraisal – whether employee entitled to incapacity payments from a work-related condition – whether liability for work-related condition excluded because the condition was due to reasonable administrative action undertaken in reasonable manner
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 5B
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331
Comcare v Chenhal (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181
Kioa v West (1985) 159 CLR 550
Kucks v CSR Ltd (1996) 66 IR 182
Re Fox and Comcare (unreported, Member Webb, 5 April 2012)
Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009)
Re Lynch and Comcare (2010) 114 ALD 394
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
Swisse Vitamins Pty Ltd v Complaints Resolution Panel [2012] FCA 536
SECONDARY MATERIALS
American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4^th edition, text revision) (DSM IV – TR)
Department of Finance and Deregulation Collective Agreement 2009 – 2011)
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER
1.   Mr George Thompson has a claim for workers’ compensation for a condition described as ‘adjustment reaction with mixed emotional features’. Liability for the claim was accepted on 31 March 2010, with date of injury being 24 September 2009.
2.   On 24 August 2011, Comcare denied liability for incapacity in the periods 1 – 5 August 2011, and 9 – 10 August 2011, on the basis that this claim related to a new condition, namely, major depressive disorder, recurrent episode. That is matter 2012/0844.
3. The decision was reviewed on 8 February 2012 and it was determined that Mr Thompson was entitled to $399.18 in incapacity payments for the period 1 – 5 August 2011, and $239.51 for the period 8 – 10 August 2011, under section 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). That is matter 2012/0544.
4.   However, on 22 February 2012, following an own motion reconsideration, Comcare revoked the decisions dated 24 August 2011 and 8 February 2012. The Independent Review Officer (IRO) decided that Mr Thompson had no entitlement to incapacity payments for the periods in August 2011 on the ground that his ability to earn meant his entitlement was zero. That is matter 2012/0844.
5.   On 17 April 2012, Comcare decided that Mr Thompson was no longer incapacitated by his accepted injury and hence was no longer entitled to compensation for incapacity for work for the period from 8 June 2011 in respect of ‘adjustment reaction with mixed…

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 GEORGE THOMPSON and COMCARE

Details

AGLC: GEORGE THOMPSON and COMCARE [2012] AATA 752
Case: [2012] AATA 752
Decision Date: 31 October 2012

CaseChat Overview and Summary

In the Federal Court of Australia, the case between George Thompson and Comcare, the Commonwealth insurer, concerns an employee's claim for incapacity payments resulting from a work-related mental condition. Thompson, an employee of the Australian Taxation Office, sought compensation for a depressive disorder he claimed was caused by a performance appraisal conducted in a particular manner. Comcare argued that the condition was not work-related because it resulted from reasonable administrative action taken in a reasonable manner.

The primary legal issue was whether Thompson's depressive disorder, which Comcare accepted as an adjustment disorder, was a work-related condition for which he could claim incapacity payments. The court had to determine if the condition was triggered by reasonable administrative action, which would exclude Comcare's liability under the relevant legislation. The court also needed to assess whether the depressive disorder was a distinct condition from the accepted adjustment disorder.

The court held that Thompson's depressive disorder was not a separate work-related condition but rather an aspect of the adjustment disorder that arose due to the performance appraisal. The court found that the appraisal process, while not ideal, was reasonable administrative action undertaken in a reasonable manner. Consequently, Comcare's liability for the condition was excluded. The court ruled that the depressive symptoms were part of the adjustment disorder, and since the adjustment disorder was accepted as work-related, the depressive disorder was also considered work-related. However, because the action that led to the disorder was reasonable, Comcare was not liable for the condition.

The court dismissed Thompson's claim for incapacity payments from Comcare, affirming that the depressive disorder was not a separate work-related condition. The court's decision hinged on the nature of the administrative action and its reasonableness, ultimately concluding that Comcare's liability was excluded under the circumstances.

Orders