Graham and Comcare (Compensation)

[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 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.

7. That report was emailed to Mr Graham on 15 December 2015.

8. 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.

9. 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.

10. After the Christmas shutdown Mr Graham attempted to attend work on 4 January 2016 by presenting to the work location but he was unable to enter the premises as he was too anxious. He met with his rehabilitation case manager and explained that he was unfit to attend work.

11. On the same date, he attended his general practitioner, Dr Ben Martin, whose consultation note records:

    Patient reports bout of anxiety/depression 1-2 years ago. Saw psychologist at that stage and things seemed to settle – felt it wasn’t a problem at all for over a year or more now. Has been off work for a while – trying to get diabetes under control. Work have been supportive up until xmas. Had independent medical assessment which suggested there was nothing wrong with him and had to come back to work today (4th Jan). Report was inaccurate and gave the wrong impression of his condition. Patient very worried about going back to work – doesn’t feel well enough at this stage. Report seems dismissive of his current state. On examination: anxious, sweaty, clouded thinking, tight throat and chest, difficulty breathing, worried about getting back to work now, concentration affected. Went to work today – called manager when in the building who agreed wasn’t medically well. Blood sugars now increased.

    Impression: anxiety.

12. On 7 January 2016, Mr Graham signed a Claim for Workers’ Compensation for anxiety which he stated he first noticed on 22 December 2015. Attached to the Claim was a statement in which he stated that:

    Before receiving the correspondence dated 18 December 2015 my anxiety was in remission and I was not experiencing symptoms. I believe that all of the anxiety symptoms I am currently experiencing are as a result of the 18 December correspondence and the subsequent actions and attitude from my workplace.

13. On 12 January 2016, Dr Steven Kennealy, general practitioner certified Mr Graham as unfit for work from 15 to 22 January 2016 due to Mr Graham suffering from anxiety. Dr Kennealy stated that based on the information available to me, this was caused by: receiving letter stating patient was required to return to work for the 4th January 2016 when not medically well enough. The patients [sic] concerns were subsequently dismissed and was given the option to return to work, which was not successful. That opinion was confirmed in a further report of Dr Kennealy dated 18 February 2016.

14. On 13 January 2016, Ms Susan Pelengaris, psychologist, provided a report in which she relevantly stated:

    I have today seen Paul who is an extremely distressed state following work directives issued prior to close of business at work in the Department of Prime Minister and Cabinet, requesting him to return to work on 4 January 2016 as per a report from an occupational physician (Dr Thai) employed by the Department to determine Paul’s capacity to return to work.

    Given the poor nature, in the way Paul was directed back to the workplace without consultation with his treating physicians; given very tight time lines (4 days) for a response, the stress and anxiety this directive has provoked has had serious health consequences for Paul and on his Anxiety.

15. Comcare arranged for Mr Graham to be assessed by Dr Antonella Ventura, Consultant Forensic Psychiatrist. In her report dated 29 February 2016, Dr Ventura opined that Mr Graham was suffering from an Adjustment Disorder with anxiety and that the process around the attempted return to work following Dr Thai’s assessment at the end of 2015 contributed to his current claimed condition. In a further report dated 27 July 2017, Dr Ventura stated the receipt of the letter on 18 December and read by Dr Graham on 22 December 2015, contributed to a significant degree to his adjustment disorder with anxiety.

    ALL THE RELEVANT LEGISLATION

16. An employee’s entitlement to compensation under the Act is laid out in s 14, which provides:

    Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

17. Injury is defined in s 5A to mean:

    (a)       a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;

    but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

18. The term disease is, in turn, defined in s 5B as follows:

    “disease” means:

    (a)       an ailment suffered by an employee; or

    (b)       an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee…

19. Ailment is defined in s 4(1) as follows:

    …any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    THE ISSUES

    Findings on which the parties agreed

20. Having regard to the agreed facts outlined above, the parties put to the Tribunal that it should be able to make the following findings:

    (a)At all relevant times, Mr Graham was employed by the Department, and therefore, the Commonwealth.

    (b)Mr Graham suffered from a condition outside the boundaries of normal mental functioning and behaviour (Comcare v Mooi [1996] FCA 1587).

    (c)Accordingly, Mr Graham suffered from an ailment, being a mental ailment, as that term is defined in s 4(1) of the Act.

    (d)Receipt, by Mr Graham, of Ms Carter’s letter dated 18 December 2015 and the medical report of Dr Thai contributed, to a significant degree, to Mr Graham’s mental ailment.

    (e)Mr Graham’s mental ailment cannot be regarded as an injury (other than a disease) and accordingly cannot be considered to come within the description of injury under s 5A(1)(b) or (c) of the Act.

    (f)While sending the letter amounted to reasonable administrative action, it was not taken in a reasonable manner. Accordingly, no reliance is placed on the reasonable administrative action exclusion to the definition of injury in s 5A(1) of the Act.

21. Based on the evidence before me, including the reports of Drs Kennealy and Ventura and Ms Pelengaris, I am satisfied as to the matters referred to in subparagraphs (a)-(e) in the preceding paragraph, and I make findings to that effect.

22. During the hearing I put to the parties that I did not have sufficient evidence before me to find on the balance of probabilities that Ms Carter’s letter of 18 December 2015 was reasonable administrative action not taken in a reasonable manner. Counsel for Comcare submitted that the exclusionary provision in s 5A(1) is a matter that Comcare may choose to invoke in reaching a decision concerning liability, or in defending such a decision in proceedings before the Tribunal; in this case, it chose not to invoke the provision, and as such the Tribunal is not required to consider its applicability. I accept that submission, and make no finding as to whether the letter constituted reasonable administrative action taken in a reasonable manner.

    The matter in dispute

23. In light of the foregoing, only one element of Mr Graham’s claim to have suffered a compensable injury under s 5A(1) remains to be considered: did the receipt of the letter fall within the scope of his employment by the Commonwealth, as that phrase is used in s 5B(1), such that it may be said that his mental ailment was contributed to, to a significant degree, by that employment. If it did, the Tribunal must determine that he suffered an injury (that is, an ailment) within the terms of the Act.

    MR GRAHAM’S SUBMISSIONS

24. Counsel for Mr Graham cited the following passage from the judgement of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632-33:

    The second ground treats the word “employment” in the definition as something distinct both from the fact of the employment of the worker and from any consequence of the employment, and confines it (if I understand the notion correctly) to the inherent features or essential incidents of the employment, to the exclusion of occurrences in the course of the work. With all respect, I think that to take this view is to refine upon the word too much and by so doing to miss what the definition is manifestly intending to say. 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. It is in that sense that I should understand the language of the definition.

25. Counsel submitted that his Honour was, in this passage, rejecting the logic used by Else-Mitchell J in the court below which sought to make a distinction between the employment relationship between a worker and their employer on the one hand, and the events that the worker experiences during their work performed for the employer on the other. This same distinction was the one now being advanced, erroneously, by Comcare as a basis for excluding liability.

26. Reference was also made to Chubb Security Australia Ltd v Trevarrow [2004] NSWCA 344. There, the NSW Court of Appeal held that the claimant attending upon her employer’s premises to make a complaint about her co-worker was (at 33-34):

    …if not directly part of her usual employment activities, certainly part of it in an incidental or ancillary sense. Ms Trevarrow’s employment was an instigating factor (being a characteristic of the conditions in which her work was performed) in her attendance at the Ashfield premises, where she sustained the injury. It is misconceived to attempt to interpret employment as confined essentially to Ms Trevarrow walking her beat around the IBM premises at Baulkham Hills to which she was assigned to guard. The respondent’s written submissions correctly criticise this as an attempt to resurrect a narrow interpretation which was rejected by the High Court in respect of s 4 in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626.

27. Counsel contended that Ms Carter’s letter to Mr Graham, giving rise to his mental injury, was a direction rather than a proposal or invitation to discussion. Ms Carter had no grounds to issue such a direction other than as a condition of Mr Graham’s employment. While the direction to return to work was not part of Mr Graham’s day-to-day experience of work, it was part of his employment at least in the incidental or ancillary sense referred to in Trevarrow. This is because it involved his employer exercising its power as an employer to make binding directions as to the actions that he should carry out. Similarly to the circumstances in Trevarrow, in Mr Graham’s case the employment was an instigating factor in the circumstances which led to the contraction of the claimed injury. Absent his employment, Mr Graham would not have been exposed to the circumstances which gave rise to the claimed injury.

28. Counsel cited Mills v Australian Postal Corporation (1994) 32 ALD 489. In his judgment, Ryan J stated at 497:

    Nor does the fact that the aggravating incident occurred at the employee’s home, or away from his place of employment, preclude it from being an aspect or incident of the employment. Thus, a visit or telephone call by the employer to the employee’s home may be sufficiently connected to the employment relationship to satisfy the element of the requirement of contribution by the employment which is erected by the definition of “disease”.

    COMCARE’S SUBMISSIONS

29. Comcare contended that Mr Graham’s receipt of the letter causing his injury does not fall within the scope of his employment by the Commonwealth, as that phrase is used in s 5B(1), such that it may be said that his mental ailment was contributed to, to a significant degree, by that employment.

30. This contention was made on the basis that:

    (g)Mr Graham received the letter while he was at home during a period when he was on non-work related sick leave;

    (h)accordingly, he did not receive the letter while he was in the performance of his duties (Semlitch per Kitto J at 633); and

    (i)Mr Graham’s receipt of the letter was not some characteristic of the work performed or the conditions in which it was performed (Semlitch per Windeyer J at 641).

31. Comcare contended that the expression employment by the Commonwealth does not include Mr Graham’s receipt of the 18 December letter. The expression is a narrow one and encompasses only that which the employee does in the performance of the employee’s duties. The construction urged by Mr Graham, it submitted, is too wide and does not fit harmoniously with the language of the statute, in particular the starkness of the expression employment by the Commonwealth.

32. Comcare cited several authorities on the question of how statutory interpretation should be undertaken. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 Brennan CJ, Dawson, Toohey and Gummow JJ observed that:

    …the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be though to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as [reference to reports of law reform bodies], one may discern the statute was intended to remedy: Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, 315.

33. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41 Hayne, Heydon, Crennan and Kiefel JJ observed at [47]:

    This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of the legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

    (References omitted.)

1. Importantly for present purposes, Comcare contended, the High Court (French CJ, Bell, Gageler, Keane and Nettle JJ) said in Comcare v Martin [2016] HCA 43 at [42]:

   Causation in a legal context is always purposive… The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. ... It has been said more than once in this Court that it is doubtful whether there is any “common sense” approach to causation which can provide a useful, still less universal, legal norm.

2. Counsel for Comcare emphasised that the word employment had different meanings in ss 5A and 5B of the Act. The distinction creates a different level of employment connection: Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [54].

3. The difference between the two tests had been earlier explained by French and Stone JJ in Comcare v Canute [2005] FCAFC 262 as follows at [63]:

   In respect of injuries other than diseases the injury, whether it be physical or mental, must be one ‘arising out of or in the course of the employee’s employment. This does not always necessitate a causal connection between injury and employment. As appears from s 6(1)(b)(i), where an injury which is a disease, a causal connection is always necessary between the employment and the contraction of the disease. That causal connection is defined by the words ‘contributed to in a material degree by the employee’s employment by the Commonwealth (s 4)…

4. It was contended that the test posed by s 5B requires a direct relationship between the ailment and the employment, not merely a causal or temporal connection. The use of the narrow focus on the employee’s employment with the Commonwealth may be contrasted with the use of the term employment in the reasonable administrative action exclusion to the s 5A(1) definition of injury. The test in s 5B then raises the question, what was the employee employed to do? What were the duties of the employee, rather than the incident of the employment relationship? The sending and receipt of the 18 December letter was an incident of the employment relationship between the Commonwealth and Mr Graham but it was an effort to have Mr Graham return to that employment, not the duties of his employment. Mr Graham was not undertaking his employment or performing the duties of that employment when he received the letter.

5. Comcare referred the Tribunal to the decision of Dowsett J, with whom Spender J agreed, in John Holland Group Pty Ltd v Robertson [2010] FCAFC 88 at [66] where his Honour, in considering the use of employment in s 8(10) of the Act, said:

   However, in my view, guidance is to be found in other sections of the Act. In s 4 the term “place of work” is defined as including “any place at which an employee is required to attend for the purpose of carrying out the duties of his or her employment”. This definition suggests that the term “employment” encompasses the duties which an employee is engaged to perform. The term “injury” is defined in s 5A. The word means, inter alia, “an injury suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment”. A similar formula is used in defining “aggravation” of an injury and, in s 5B, in defining the term “disease”. If the Act contemplates a connection between an injury or disease and the employee’s employment, then it must be possible to determine the ambit of such employment, and whether the circumstances in which the injury arose were within that ambit. This suggests a focus on what was done rather than upon trade, calling or any system of classification.

6. His Honour summarised his conclusions at [73] by saying:

   Although none of this is definitive, it seems to be more consistent with the purpose of the Act to treat the word “employment”, when used in the Act, as describing rather more than a trade, calling or classification of employees. The Act is very much concerned with conditions in which employees work and their terms of engagement, rather than how they may be classified.  [Emphasis that of Comcare]

7. Counsel for Comcare also cited the passage from the judgement of Kitto J in Semlitch quoted at paragraph 24 above. She further referred to the decision of Windeyer J, where his Honour stated at 641:

   When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.

8. Comcare argued that these authorities require that to be considered employment as that word is used in s 5B(1), the “disease” must have been suffered while Mr Graham was “in the performance of his duties” or was significantly contributed to by “some characteristic of the work performed or the conditions in which it was performed”.

9. Support for this proposition was said to be found in two decisions. In Australian Industry Development Corporation v Boyd [1990] FCA 96, Ms Boyd was informed, whilst at her place of employment that her contract of employment was to be terminated according to its terms. The Tribunal below had held that the circumstances under which she was informed of this warranted the conclusion that her employment by the Corporation was a contributing factor to the aggravation of her psychiatric condition. On the Corporation’s appeal Neaves J concluded at [60]:

   Such an event cannot, in my view, properly be described as an incident or state of affairs to which the worker is exposed ‘in the performance of his duties’. Nor can it properly be described as a characteristic of the work performed or a condition in which the work was performed in the sense in which those expressions are used in Federal Broom Co Pty Ltd v Semlitch.

10. In the second decision, Pettiford and Comcare [2014] AATA 95, Ms Pettiford claimed that her anxiety condition had been aggravated by, among other things, Centrelink’s failure to comply with relevant rehabilitation guidelines and her treatment by Centrelink in the period since she ceased work. Comcare rejected the claim on the basis that Ms Pettiford’s condition was caused by Centrelink’s action in notifying her in writing on 13 March 2012 that a consultant psychiatrist, Dr Burek, was of the opinion that she was not fit to return to work. In that letter, a rehabilitation case manager advised that, subject to consultation with Ms Pettiford’s treating psychiatrist, a return to work plan would be developed. Comcare contended at the hearing that any aggravation of her psychological condition was not contributed to, to a significant degree by her employment and that the action of notifying her of Dr Burek’s opinion and the provisional decision that she was to return to work was not related to employment as that term is used in the definition of disease within the Act.

11. After considering Semlitch, the Tribunal in Pettiford concluded at [92]-[94]:

    While undeniably a decision about the employment relationship, the more difficult question is whether, as Ms Pettiford contends, it could be said to constitute ‘employment’ within the definition of disease used in the Act. Kitto J in Federal Broom was not, as I understand Ms Pettiford to argue, referring to an incident or state of affairs relating to ‘work’, to use a neutral term, but to ‘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’ [emphasis added]. That qualification was echoed by the comments made by Windeyer J: ‘some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed’.

    I accept as argued by Ms Pettiford that ‘but for’ the fact that she was an employee of Centrelink she would not have been exposed to the decision about her return to work. However that is not the test imposed by s 5B of the Act to determine whether the necessary causal relationship exists between the claimed ailment and the employee’s employment. Rather the applicable test is whether the employee’s ‘employment’ in the narrow sense employed by Kitto and Windeyer JJ, contributed to that ailment, or its aggravation.

    For these reasons I conclude that the communication of the offending decision did not fall within the scope of the phrase ‘the employee’s employment with the Commonwealth’ as used in s 5B of the Act.

12. 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

13. 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.

14. 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.

15. 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.

16. 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.

17. 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 21^st 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.

18. Trevarrow is also authority for that proposition. I do not accept Comcare’s submission that there is a material difference, in this regard, between s 5B of the Act and s 9A of the NSW Workers Compensation Act, such as to render the court’s finding in Trevarrow regarding the temporal connection between employment and injury irrelevant to this proceeding.

19. It is clear that acts or events which occur in the context of employment may fall outside the necessary relationship. An accident in the staff cafeteria or a fall on the workplace stairs while heading home may well be incidents that occur in the course of employment, and thereby attract liability for an injury (other than a disease) under s 5A(1)(b) or (c), but it is doubtful that any ailment so created has been significantly contributed to by the employment under s 5B.

20. However, in my opinion the feature of the incident on 18 December 2015 which lifts it out of this category and into one within the scope of the employment relationship pursuant to s 5B is the fact that the letter clearly constituted a lawful direction given to Mr Graham by his employer. A direction to return to work following sick leave is an act based directly and ineluctably on the employment relationship. The giving of a direction of this quality to an employee thus clearly relates to the performance of his duties (per Kitto J in Semlitch). Direction or instruction to an employee is the basis on which the employee performs his or her duties. It also defines the conditions in which [employment is] performed (per Windeyer J in Semlitch). I consider that nothing said by the Federal Court in Robertson derogates from this approach.

21. I do not think the words in the performance of his duties used by Kitto J carry some notion necessarily of the employee acting in the course of his duties, as opposed to the employee passively receiving direction as to the performance of those duties. The two elements are part and parcel of the same concept: performance pursuant to the terms of employment. Take the example of a fireman instructed by his supervisor to enter a burning building; there can be no question that a mental injury caused by that instruction is an injury to which his employment has significantly contributed. There is, in my opinion, no material difference between the case of the fireman and the case of Mr Graham instructed to come forward to perform the duties of his office. Indeed, it is difficult to conceive of the circumstances where a lawful direction to an employee would not constitute an act in relation to the performance of the employee’s duties.

22. Counsel for Comcare placed some emphasis on the language of Windeyer J in Semlitch, where his Honour said at 641:

    When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.  (Emphasis added.)

    Comcare’s position, as I understood it, was that these words connote performance at work, rather than instruction with respect to performance. With respect, however, this emphasis ignores the earlier part of the sentence, where his Honour specifies an alternative test, namely that the contributing factor is some event or occurrence in the course of the employment.

23. It must be conceded that the decision of Neaves J in Boyd is on its face not easy to reconcile with this position. Counsel for Mr Graham submitted that Boyd related to injury suffered as a result of the termination of the employment relationship. The current case relates to a direction to carry out an employment activity (attendance upon Mr Graham’s place of work), which is an incident in Mr Graham’s continuing employment. In addition, the Tribunal was told, it appears that Boyd has not been applied elsewhere.

24. I also consider that Boyd is distinguishable, but for different reasons. There the act which occasioned Ms Boyd’s injury was the receipt of unwelcome news regarding her employment; here, it is a direction given by Mr Graham’s employer regarding the performance of his duties. The former may be said to be an incident of the employment relationship, whereas the latter relates directly to the manner and form of the performance of the employee’s duties. Pettiford can be distinguished on a similar basis, in that Ms Pettiford’s injury arose from a letter from her employer informing her that a psychiatrist had assessed her as fit to return to work and that a return to work program would now be developed. No direction from the employer was involved.

25. On this basis the Tribunal considers that Mr Graham’s injury was significantly contributed to by his employment by the Commonwealth.

    CONCLUSION

26. 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.

27. 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.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries

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

Associate

Dated: 21 August 2018

Date(s) of hearing:	Friday, 18 May 2018
Date final submissions received:	Friday, 18 May 2018
Counsel for the Applicant:	Mr Paul Menzies QC Mr Steven Whybrow
Solicitors for the Applicant:	Slater and Gordon Lawyers
Counsel for the Respondent:	Ms Kate Slack
Solicitors for the Respondent:	McInnes Wilson Lawyers