Gropel and Comcare (Compensation) - [2017] AATA 1290

Gropel and Comcare (Compensation) [2017] AATA 1290 (17 August 2017)
Division:GENERAL DIVISION
File Number: 2015/4390
Re:Natasha Gropel
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Regina Perton, Member
Date:17 August 2017
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
COMPENSATION – employment by Department of Defence – chronic major depression with anxiety, generalised anxiety disorder, panic disorder and post-traumatic stress and anxiety syndrome – allegations of bullying and harassment – whether injury occurred as a result of reasonable administrative action taken in a reasonable manner – whether applicant entitled to compensation for incapacity – decision affirmed

Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A(1), 5A(2), 5B(1), 5B(2), 5B(3), 14(1)
Cases
Comcare v Martin (2016) 153 ALD 167
Comcare v Martinez (No 2) (2013) FCR 272
Comcare v Mooi (1996) 69 FCR 439
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare [2017] FCAFC 64
REASONS FOR DECISION
Regina Perton, Member
17 August 2017

Ms Natasha Gropel was an Executive Assistant (APS4) at the Defence Command Support Training Centre (DCSTC), Department of Defence (DoD) at Simpson Barracks, Macleod in Victoria. She lodged a claim for compensation on 7 October 2014 for a psychological condition that occurred as a result of workplace incidents, including alleged bullying, harassment, lying and collusion, theft of private property, tampering with computer log-ins, prank telephone calls, and inaction by management.
On 4 March 2015 Ms Gropel’s claim was refused by Comcare, which found that her condition of major depressive disorder, single episode did not constitute an ailment as defined in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 26 May 2015 a Comcare reconsideration delegate affirmed the decision on the basis that Ms Gropel suffered an ailment, namely adjustment disorder with symptoms of anxiety that was significantly contributed to by her employment but had arisen from reasonable administrative action taken in a reasonable manner by the DoD. As such, Comcare found that she did not suffer an injury as defined in the SRC Act. On 26 August 2015 Ms Gropel sought review by the Tribunal.
LEGISLATIVE BACKGROUND
Section 14(1) of the SRC Act states:
Compensation for injuries
(1)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
...
Section 5A of the SRC Act states:
Definition of injury
(1)In this Act:
injury means:
(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…

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 Gropel and Comcare (Compensation)

Details

AGLC: Gropel and Comcare (Compensation) [2017] AATA 1290
Case: [2017] AATA 1290
Decision Date: 17 August 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Gropel against a decision by Comcare to refuse her claim for compensation. Comcare had initially rejected her claim on the basis that her condition of major depressive disorder did not constitute an ailment under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). On reconsideration, Comcare affirmed its decision, finding that while Ms Gropel suffered an adjustment disorder with symptoms of anxiety that was significantly contributed to by her employment, this condition arose from reasonable administrative action taken in a reasonable manner, and therefore did not constitute an injury under the SRC Act. The Administrative Appeals Tribunal was asked to review this decision.

The Tribunal was required to determine whether Ms Gropel suffered an injury as defined by the SRC Act. This involved considering whether her diagnosed psychiatric conditions, including chronic major depression with anxiety, generalised anxiety disorder, panic disorder, and post-traumatic stress and anxiety syndrome, constituted an "injury" or "disease" under the Act. Crucially, the Tribunal had to assess whether any such condition was excluded from the definition of injury by the proviso relating to reasonable administrative action taken in a reasonable manner in respect of an employee's employment.

The Tribunal preferred the medical evidence of Dr Weissman, who assessed Ms Gropel closer to the relevant events and provided oral evidence. Based on this evidence, the Tribunal found that Ms Gropel suffered from chronic major depression with anxiety, generalised anxiety disorder, panic disorder, and post-traumatic stress and anxiety syndrome, with the date of the disease being 19 March 2014. However, the Tribunal also made findings regarding reasonable administrative action taken in respect of a meeting on 17 March 2014. Applying the principle from *Hart v Comcare*, which states that a disease suffered as a result of circumstances specified in the exclusionary proviso is not an injury, even if also suffered as a result of other employment-related circumstances, the Tribunal concluded that Ms Gropel was not entitled to compensation.

Consequently, the Tribunal affirmed Comcare's decision under review.

Orders

Orders of the court

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Background

Background to the litigation

On 4 March 2015 Ms Gropel’s claim was refused by Comcare, which found that her condition of major depressive disorder, single episode did not constitute an ailment as defined in the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). On 26 May 2015 a Comcare reconsideration delegate affirmed the decision on the basis that Ms Gropel suffered an ailment, namely adjustment disorder with symptoms of anxiety that was significantly contributed to by her employment but had arisen from reasonable administrative action taken in a reasonable manner by the DoD. As such, Comcare found that she did not suffer an injury as defined in the SRC Act. On 26 August 2015 Ms Gropel sought review by the Tribunal.LEGISLATIVE BACKGROUND Section 14(1) of the SRC Act states:Compensation for injuries(1)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... Section 5A of the SRC Act states:Definition of injury(1)In this Act:injury means:(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.(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:(a)a reasonable appraisal of the employee’s performance;(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;(c)a reasonable suspension action in respect of the employee’s employment;(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. Section 5B of the SRC Act states:Definition of disease(1)In this Act: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.(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:(a)the duration of the employment;(b)the nature of, and particular tasks involved in, the employment;(c)any predisposition of the employee to the ailment or aggravation;(d)any activities of the employee not related to the employment;(e)any other matters affecting the employee’s health.This subsection does not limit the matters that may be taken into account.(3)In this Act:significant degree means a degree that is substantially more than materialAilment is defined in s 4 of the SRC Act as:ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).ISSUES

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Hart v Comcare (2005) 145 FCR 29 the Federal Court of Australia held that, a disease that is suffered as a result of any of the circumstances specified in the exclusionary proviso in the definition of injury in s 4(1) of the SRC Act, is not an injury for the purposes of the SRC Act. It is immaterial whether that disease is also suffered as a result of any other employment-related circumstance. In other words, in order for the proviso to apply, it is sufficient that the relevant condition is suffered as a result of any of the circumstances specified, and it is not necessary that that disease be suffered solely as a result of any of those circumstances. In view of the Tribunal’s findings regarding reasonable administrative action in respect of the 17 March 2014 meeting, Ms Gropel is not entitled to compensation under the SRC Act, and there is no need to consider whether the administrative action in respect of the 24 February 2014 meeting, the Police report, the QA, the mediation, the 8 September 2014 meeting, or the complaint satisfy the criteria for excluding the condition from the definition of injury.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Dr Norman Rose, consultant psychiatrist, stated in a report dated 14 February 2017 that Ms Gropel suffers from a generalised anxiety disorder as a result of her negative interaction with Ms Breadon, commencing during the holiday to China in October 2012 and continuing during subsequent employment. He stated that he agreed with Dr Walton’s assessment that the psychiatric condition likely had reached diagnosable proportions towards the end of 2013, very probably by March 2014 when she sought medical advice, and certainly by September 2014 when she was suffering from panic attacks that precipitated her departure from work. In oral evidence, Dr Rose referred to Ms Gropel’s negative perception of others and said that anything that went against her view of things had the potential to make her believe that those people who held those views contrary to her, were liars. Under cross-examination, he said that in his assessment Ms Gropel already had a psychiatric condition by late 2013, early 2014. CONSIDERATION The medical evidence varies with respect to diagnosis. The Tribunal prefers the opinion of Dr Weissman, who examined Ms Gropel on two occasions and gave oral evidence to the Tribunal and was cross-examined. His first assessment was carried out on 19 October 2015, closer to relevant events than examinations by a number of other medical practitioners. The Tribunal finds that Ms Gropel is suffering from chronic major depression with anxiety, generalised anxiety disorder, panic disorder and post-traumatic stress and anxiety syndrome. Ms Gropel first attended her general practitioner on 19 March 2014 after her psychological symptoms became diagnosable and she was incapacitated for work. In all the circumstances, the Tribunal finds that the date of the disease suffered by Ms Gropel is 19 March 2014. Did Ms Gropel suffer an injury?EVIDENCE CONCERNING THE 17 MARCH 2014 MEETING Ms Gropel In a written statement (undated, but received by Comcare in about August 2015), Ms Gropel described the events that occurred at the meeting on 17 March 2014, when Lt‑Col Sasse opened by outlining his expectations about how people should behave in the workforce, and what needed to happen going forward. She said that this was a brief opening, followed by a statement from Ms Corcoran that there was a mediation option available to her and Ms Breadon, to which she replied that she would like to proceed with that option, while Ms Breadon said I’ll see about that! Ms Gropel said that Mr Cassidy remarked: We’ve got enough HR issues going in this HQ. We don’t need another one. The meeting had lasted only about five minutes and everyone stood up to leave. In her statement, Ms Gropel said that she was shocked by Mr Cassidy’s comment and quickly interjected at that point to Mr Cassidy: By saying you’ve got enough HR issues is sending me an indication that I’m wasting people’s time and my issues do not have the validity to be raised. She said that she was clearly distressed by Mr Cassidy’s comment, and reminded those at the meeting that she did not actively choose to say anything bad about Ms Breadon, but she was constantly getting feedback from others …about the awful things she keeps saying about me. She explained that after she returned to her desk she broke down and burst into tears.