Graham and Comcare (Compensation)

Case [2018] AATA 3013

Graham and Comcare (Compensation) [2018] AATA 3013 (21 August 2018)

Division:GENERAL DIVISION

File Number(s):      2016/3050

Re:Paul Graham

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries

Date:21 August 2018

Place:Canberra

The reviewable decision of 11 April 2016 is set aside and in substitution the Tribunal determines that Mr Graham suffered an injury under s 14 of the Safety, Rehabilitation and CompensationAct 1988, being an adjustment disorder with anxiety, with a date of injury of 22 December 2015.

........................................................................

Deputy President Gary Humphries

Catchwords

COMPENSATION – adjustment disorder with anxiety – whether ailment was contributed to, to a significant degree, by the employee’s employment – scope of employment – direction to return to work – scope of performance of employment duties – reviewable decision set aside.

Legislation

Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14

Workers Compensation Act 1987 (NSW) s 9A

Cases

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41
Australian Industry Development Corporation v Boyd [1990] FCA 96
Chubb Security Australia Ltd v Trevarrow [2004] NSWCA 344
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Comcare v Canute [2005] FCAFC 262
Comcare v Mooi [1996] FCA 1587
Comcare v Martin [2016] HCA 43
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626John Holland Group Pty Ltd v Robertson [2010] FCAFC 88
Military Rehabilitation and Compensation Commission v May [2016] HCA 19
Mills v Australian Postal Corporation (1994) 32 ALD 489

Pettiford and Comcare [2014] AATA 95

REASONS FOR DECISION

Deputy President Gary Humphries

21 August 2018

INTRODUCTION

  1. Mr Graham has made a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for anxiety[1], which he alleges was contributed to, to a significant degree, by his employment with the Department of Prime Minister and Cabinet (the Department).

    [1] In this decision, italicised text is generally used to indicate direct quotations.

  2. He made this claim on 7 January 2016. Comcare issued a determination dated 11 March 2016 in which it denied liability for the claimed condition. Its delegate decided that she was satisfied that Mr Graham had sustained a psychological injury which was significantly contributed to by his employment. However, she also found that the circumstances of Mr Graham’s claim fell within the exclusionary provisions of the Act and so his claim was disallowed.

  3. Mr Graham requested a review of that determination on 17 March 2016. By a reviewable decision dated 11 April 2016, Comcare affirmed the determination dated 11 March 2016. It is that reviewable decision which now comes before the Tribunal for merits review.

    AGREED FACTS

  4. The parties in this proceeding tendered a statement of agreed facts and issues, the essence of which is as follows.

  5. Mr Graham suffers from diabetes. By mid-2015 his non-work related diabetes condition had worsened to the point where it became uncontrolled. He last attended work on 19 June 2015.

  6. Mr Graham attended…

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AGLC
Graham and Comcare (Compensation) [2018] AATA 3013
Case
[2018] AATA 3013
Decision Date

CaseChat Overview and Summary

This matter concerned a review of Comcare's decision to affirm its earlier determination that Mr Graham had not suffered an injury for which compensation was payable. Mr Graham had been diagnosed with an adjustment disorder with anxiety, and the central dispute was whether this condition was contributed to, to a significant degree, by his employment. The case came before the Tribunal for a merits review of Comcare's decision.

The legal issues before the Tribunal were whether the direction given to Mr Graham to return to work, while he was on sick leave and at home, bore a sufficiently close relationship to his employment to trigger liability for compensation. Comcare argued that an act merely incidental to the employment relationship was insufficient, and the act must arise from the employee's duties, the conditions of work, or the terms of engagement. The Tribunal was required to determine the scope of employment in the context of a direction issued to an employee outside the traditional workplace.

The Tribunal applied the principles established in *Semlitch*, which requires identifying an incident or state of affairs to which the worker was exposed in the performance of their duties and to which they would not otherwise have been exposed. The Tribunal noted that the fact an injury occurred outside the workplace does not automatically exclude liability, particularly in the 21st century where the scope of employment can extend beyond the physical workplace, as supported by *Mills*. The Tribunal found that the direction to return to work was a lawful direction and that Mr Graham's injury was significantly contributed to by his employment.

The Tribunal concluded by setting aside Comcare's reviewable decision of 11 April 2016. In substitution, the Tribunal determined that Mr Graham suffered an injury under section 14 of the Act, being an adjustment disorder with anxiety, with a date of injury of 22 December 2015. The Tribunal also made directions regarding the costs of the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

Mr Graham requested a review of that determination on 17 March 2016. By a reviewable decision dated 11 April 2016, Comcare affirmed the determination dated 11 March 2016. It is that reviewable decision which now comes before the Tribunal for merits review.AGREED FACTS The parties in this proceeding tendered a statement of agreed facts and issues, the essence of which is as follows. Mr Graham suffers from diabetes. By mid-2015 his non-work related diabetes condition had worsened to the point where it became uncontrolled. He last attended work on 19 June 2015. Mr Graham attended an Independent Medical Assessment conducted by Dr Han Thai on 25 November 2015 to assess his fitness for a return to work. Dr Thai produced his report on 10 December 2015. Relevantly, he stated that Mr Graham advised him that he planned to stay off work until February 2016 and would then like to fast track his return to work program to full-time hours. Mr Graham reported to Dr Thai that the main factor that was impacting on his work capacity was exhaustion from hyperglycemia and headaches around the occipital and periorbital region. Dr Thai ultimately determined that Mr Graham was medically fit for four hours per day, five days per week. That report was emailed to Mr Graham on 15 December 2015. On 18 December 2015, Ms Kim Carter from the People Branch of the Department sent Mr Graham a letter directing him to return to work, based on the opinion of his work capacity provided by Dr Thai. Another copy of Dr Thai’s report was enclosed and a brief summary of his opinion was included in the letter. Ms Carter then advised Mr Graham that having regard to Dr Thai’s recommendations, she had determined that Mr Graham had capacity to return to work and she proposed an implementation plan to effect that decision. Most relevantly, she advised Mr Graham that he was required to return to work to his substantive position on 4 January 2016. The letter also detailed how he was to return to work part-time, with a gradual increase in his hours until he had returned to full hours. The letter also advised him that he could seek a review of this decision. On 23 December 2015, Mr Graham responded to Ms Carter’s letter by email and requested a review of Dr Thai’s assessment. He also sought an extension of time until 26 January 2016 to provide new medical evidence. He also requested a review of Ms Carter’s direction for him to return to work. The following day Ms Carter responded to advise him that she accepted his letter as a request for a review of action but that the process would not stay the decision, and that he was still required to return to work on 4 January 2016. She clarified that the statement in her letter dated 18 December 2015 to Mr Graham that You will return to work on 4 January 2016… was a direction rather than a suggested course of action. In turn, on the same day, Mr Graham responded to Ms Carter’s email and requested a review of Dr Thai’s report and new directions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On this basis the Tribunal considers that Mr Graham’s injury was significantly contributed to by his employment by the Commonwealth.CONCLUSION The reviewable decision of 11 April 2016 is set aside and in substitution the Tribunal determines that Mr Graham suffered an injury under s 14 of the Act, being an adjustment disorder with anxiety, with a date of injury of 22 December 2015. The Tribunal further directs that either party may, within 14 days of today, make an application with respect to the costs of these proceedings, but in the absence of such an application Comcare is to pay costs of the proceedings incurred by Mr Graham pursuant to s 67 of the Act.

Ratio Decidendi

Legal Principle Established

Finally, Comcare submitted that Trevarrow could be distinguished on the basis that it concerned a provision (s 9A of the NSW Workers Compensation Act 1987) which used different statutory language to s 5B. Similarly, the facts of Mills are clearly distinguishable from the circumstances of Mr. Graham’s case. The raid that was conducted on Mr Mills’ property (that resulted in him experiencing an acute stress reaction) was part of an investigation into the way that Mr Mills was performing his work duties (whether or not he was engaging in criminal conduct while performing his employment duties).CONSIDERATION Following the diagnosis of psychiatrist Dr Ventura, I find that Mr Graham is suffering from an adjustment disorder with anxiety. It was also common ground at the hearing, and I so find, that the direction given to Mr Graham in Ms Carter’s letter of 18 December 2015 was a lawful direction. To determine the matter before it the Tribunal must decide whether a direction to a worker, who is on sick leave and at home, to return to work bears a sufficiently close relationship to his employment so as to trigger liability for compensation arising from the consequence of that direction. Comcare argues that an act which constitutes merely an incident of the employment relationship is insufficient to trigger liability; to do so, the act must arise from his duties as an employee, the conditions under which he works or the terms of his engagement. Despite the passage of more than half a century, the seminal High Court authority on the contribution of employment to injury remains the decision in Semlitch. Kitto J’s formulation at 632-3 of the appropriate test seems straightforward enough, despite it being open to contested interpretations in this proceeding:Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of fact by saying simply that the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration. The key phrase relied upon by Comcare in this formulation is in the performance of his duties. The phrase receives some further gloss when Windeyer J says at 641 that the contributing employment factor must bear some characteristic of the work performed or the conditions in which it was performed. In interpreting the application of this test to the present circumstances it can safely be said that the fact that the injury occurred outside the workplace and in Mr Graham’s home is not a factor which, by itself, excludes liability. Particularly when considering the characteristics of work in the 21st century, the scope of employment cannot be said to end at the door of the workplace. Mills is authority for that proposition, notwithstanding the factual differences there to the present case. Ryan J in Mills said at 55:…the Tribunal attached significance to the fact that the applicant had been on recreation leave when he suffered the episode of acute anxiety precipitated by the AFP “raid”. However, the fact of being on leave does not preclude an employee from exposure to some event or occurrence in the course of the employment as that concept was explained in Semlitch’s case. The real question is whether the “raid” with all its attendant features was an incident or state of affairs to which the applicant was exposed in consequence of his employment, and to which he would not otherwise have been exposed.