Gropel v Comcare
[2018] FCA 1146
•3 August 2018
FEDERAL COURT OF AUSTRALIA
Gropel v Comcare [2018] FCA 1146
Appeal from: Gropel v Comcare [2017] AATA 1290 File number: VID 1006 of 2017 Judge: DAVIES J Date of judgment: 3 August 2018 Catchwords: ADMINISTRATIVE LAW – appeal from Administrative Appeals Tribunal – liability to pay compensation under section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – when “disease” suffered within meaning of the term as defined in section 5B – whether exclusion in definition of “injury” under section 5A engaged – nature of causal connection required by exclusionary phrase in section 5A(1) Legislation: Safety, Rehabilitation and Compensation Act 1988 (Cth) Cases cited: Comcare v Martin (2016) 258 CLR 467
Lim v Comcare (2017) 250 FCR 298
Smith v Comcare (2013) 212 FCR 335
Date of hearing: 13 June 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 25 Counsel for the Applicant: Mr N Horner with Mr R Ternes Solicitor for the Applicant: Adviceline Injury Lawyers Counsel for the Respondent: Mr J Wallace Solicitor for the Respondent: Comcare – Claims and Liability Management ORDERS
VID 1006 of 2017 BETWEEN: NATASHA GROPEL
Applicant
AND: COMCARE
Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
3 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The order made by the Administrative Appeals Tribunal be set aside.
3.The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
4.Subject to order 5, the respondent is to pay the applicant’s costs to be taxed in default of agreement.
5.Liberty to the parties to apply within five days to set aside or vary order 4.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The applicant has appealed the decision of the Administrative Appeals Tribunal (“the Tribunal”) affirming the decision of the respondent (“Comcare”) that Comcare is not liable to pay compensation to the applicant under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”).
Legislation
By s 14(1) of the Act, Comcare is liable to pay compensation to an employee in respect of an “injury” suffered by the employee, if that “injury” results in incapacity for work and the “injury” was not suffered by the employee “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.
Section 5A of the Act defines “injury” as follows:
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 Act defines “disease” as follows:
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 material.
Section 4 defines “ailment” to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
Tribunal decision
The “injury” for which the applicant sought compensation was a psychological condition.
There was no dispute before the Tribunal that the applicant suffers from a psychological condition or that her psychological condition is an “ailment” which was contributed to, to a significant degree, by her employment at the Department of Defence and a “disease” within the meaning of that term as defined in s 5B of the Act. It was also not in dispute that the applicant’s psychological condition resulted in incapacity for work. In issue before the Tribunal, however, was when the applicant suffered the “disease”. The determination of that issue was relevant to determining whether the exclusion to the definition of “injury” applied, namely whether the psychological condition suffered by the applicant was “as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.
Both parties led medical evidence from consultant psychiatrists which varied as to when the condition first became diagnosable. According to Dr David Weissman the applicant had symptoms that were troubling and distressing her in December 2013 but, in his opinion, “they were not necessarily diagnosable to the extent that they had an impact on her occupational functioning or social interpersonal functioning until March 2014”. It was the view of Dr Lester Walton that the applicant’s 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 the assessment of Dr Norman Rose, the applicant likely had the psychiatric condition by late 2013 or early 2014. The Tribunal preferred Dr Weissman’s opinion, reasoning that he examined the applicant on two occasions and that his first assessment was carried out in October 2015, which was closer to relevant events than the examinations by the other consultant psychiatrists. The Tribunal found that the “date of the disease” suffered by the applicant was 19 March 2014, being the date on which the applicant first consulted a medical practitioner “after her psychological symptoms became diagnosable and she was incapacitated for work”.
The Tribunal also found that:
(a)the applicant would not have suffered her psychological condition if a work related meeting on 17 March 2014 had not taken place;
(b)the 17 March 2014 meeting constituted reasonable administrative action; and
(c)the reasonable administrative action was taken in a reasonable manner.
The Tribunal accordingly affirmed the decision under review on the basis that the applicant’s condition fell within the exclusion in the definition of an “injury” under s 5A of the Act.
Grounds of appeal
The applicant’s amended notice of appeal raised eight questions of law. At the hearing, counsel for the applicant advised that only three of the questions of law were pressed, namely:
2Whether the Tribunal made an error of law when relying upon s 7(4)(a) of the [Act], in determining when the applicant sustained an injury being a disease or an aggravation of a disease?
…
12Whether the Tribunal made an error of law when it found that the applicant would not have sustained an injury being a disease or an aggravation of a disease if the 17 March 2014 event had not taken place because it applied the wrong test of causation when determining if the exclusion in s 5A of the [Act] applied?
13Whether the Tribunal’s reasons are inadequate in that they fail[ed] to state why the medical and lay evidence that the applicant had sustained an injury, being a disease, or an aggravation of a disease, prior to 19 March 2014 was rejected, and on what evidence it had relied to conclude that the applicant would not have sustained an injury, being a disease, or an aggravation of a disease, if the 17 March 2014 event had not taken place?
Ground 2
Section 7 of the Act contains provisions relating to diseases. Section 7(4) provides:
(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
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
In Smith v Comcare (2013) 212 FCR 335 (“Smith)”, the Full Court held that the deeming provision in s 7(4) operates for the limited purpose of establishing the date from which compensation may be payable to an employee, once it is established that the employee has suffered an injury that is a “disease” which is compensable under s 14 of the Act. The Tribunal was found in that case to have fallen into legal error because it determined when the employee was taken to have sustained the “injury” for the purposes of s 7(4) before determining whether the employee’s working conditions made a material contribution to the aggravation of the employee’s ailment. The error lay in making a finding about a matter which arose under s 7(4) of the Act without any foundation for the consideration of that section by a prior finding of liability under s 14 or by way of assumption.
Counsel for the applicant submitted that the Tribunal committed the same legal error in that the Tribunal impermissibly used s 7(4) to determine when the applicant suffered the disease and, it was argued, by finding that the disease was sustained on 19 March 2014, “the Tribunal has fallen into a post hoc ergo proctor hoc fallacy that the condition was due to the meeting that took place on 17 March 2014”.
The present case is, however, distinguishable from Smith. In Smith, the employee had the medical condition before he commenced with the Commonwealth. During the time of his employment that condition was aggravated and, unlike this case, it was in issue as to whether the employee’s work made a material contribution to the aggravation of his ailment. In the present case, Comcare conceded that the applicant’s psychological condition was contributed to, to a significant degree, by her employment with Comcare: reasons at [6]. The dispute was about whether her psychological condition was suffered as a result of administrative action. There were seven incidents of administrative action identified by Comcare spanning the period between 24 February 2014 and 15 September 2014. The applicant’s case was that she suffered her psychological condition in December 2013 and her psychological condition had no causal connection at all with any of the incidents of administrative action identified by Comcare: submissions [18], [33], [40], [45], [52], [67]. The Tribunal was asked by the applicant to find on the basis of the evidence of Dr Weissman, Dr Walton and Dr Rose that she suffered her psychological condition in December 2013. Comcare’s case, on the other hand, was that the seven incidents of administrative action it identified, either singularly or collectively, were factors in the development or aggravation of the applicant’s psychological condition. Thus, when the applicant suffered her psychological condition was a contentious factual issue bearing upon liability under s 14, which the Tribunal properly identified as an issue for determination and addressed in paras [7] to [32] of the reasons. At [31]–[32] under the heading “Consideration”, the Tribunal stated:
31.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 Ms Gropel is suffering from chronic major depression with anxiety, generalised anxiety disorder, panic disorder and post-traumatic stress and anxiety syndrome.
32.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.
(emphasis added)
In my view, the fair reading of those paragraphs shows that the error identified in Smith was not an error made by the Tribunal in this case. The Tribunal does not refer to s 7(4) but, more particularly, it is clear from the Tribunal’s process of reasoning that the Tribunal gave consideration to the medical evidence and made the factual finding based upon that evidence, not upon the deeming provision in s 7(4). Whilst there was evidence that the applicant may have already had a psychological condition towards the end of 2013, it was open to the Tribunal to prefer the evidence of Dr Weissman that her psychological symptoms were not necessarily diagnosable until March 2014. The finding in par 32 that the date of the disease was 19 March 2014 should be read in a plain and common sense way. It is clear in my view that the basis of the reasoning for fixing upon that date was not the application of the s 7(4) statutory fiction, as the chain of analysis leading to par 32 was otherwise unnecessary. Although the reasons could have been more clearly expressed, it is sufficiently evident that the basis of the reasoning was that by 19 March 2014, when the applicant visited her doctor for stress, her psychological symptoms had become diagnosable.
Accordingly, ground 2 has not been made out.
Ground 12
This ground is directed at paragraph [44] of the Tribunal’s reasons and the Tribunal’s finding that the applicant would not have suffered the medical condition if the 17 March 2014 event had not taken place. The Tribunal reasoned as follows:
… the Tribunal takes into account the evidence that after the 17 March 2014 meeting, [the applicant] consulted her general practitioner on 19 March 2014, and was given three days off work after complaining of stress. This is supported by the medical evidence, including Dr Weissman’s evidence, that in his opinion the 17 March 2014 event contributed to [the applicant’s] medical condition because the feeling that she was not being taken seriously, not valued, and not supported about important matters, would contribute or be one of the contributing factors to her medical condition. The Tribunal finds that [the applicant] would not have suffered the medical condition if the 17 March 2014 event had not taken place.
I accept the submission for the applicant that there was an error of law in the Tribunal’s conclusion that the applicant would not have suffered her psychological condition had the 17 March 2014 meeting not taken place. The error of law lies in the application of the causal test and the connection required.
In Comcare v Martin (2016) 258 CLR 467 (“Martin”), the High Court considered what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a). The Court stated at [43]–[47] as follows:
Within a statutory context which includes ss 5A and 5B, the exclusionary phrase "as a result of" in s 5A(1) is naturally read, not as imposing its own separate and free‑standing test of causation, but rather as referring relevantly to the test of causation spelt out in s 5B(1).
The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee's employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee "as a result of" reasonable administrative action taken in a reasonable manner in respect of the employee's employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee's employment which answers that description of reasonable administrative action.
When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
…
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.
Thus, whilst it is necessary for the administrative action to be a cause that, of itself, is not sufficient for the requisite “causal connection” to be met. What must be shown is whether, but for the “administrative action”, the employee would not have suffered the disease as defined by s 5B(1). If the causal connection is met, the question then arises whether the administrative action taken was reasonable and taken in a reasonable manner.
In Lim v Comcare (2017) 250 FCR 298 (“Lim”), the Full Court held that where there are a number of employment related events that contributed significantly to the development of the condition, the exclusion in s 5A(1) will only be satisfied if it is shown that the condition would not have been suffered if the particular identified reasonable administrative action had not been made. In that case, Comcare had identified two other employment related events that contributed significantly to the development of the employee’s condition and the Tribunal indicated that other employment related events may have contributed to her condition to a greater extent than the relevant administrative action in question. The Full Court held that given that the only causal factors identified in the employee’s case were employment related factors, the exclusion in s 5A(1) would only be satisfied in her case if the Tribunal was satisfied that the employee would not have suffered her adjustment disorder if the particular administrative action had not been taken. As the Tribunal simply found that the particular administrative action contributed to the development of the employee’s condition but did not address the question whether or not the employee would have suffered the condition if the administrative action had not been taken, the Court accordingly concluded that the Tribunal’s decision involved legal error in the application of the causal connection in the exclusion in s 5A(1).
In the present case, the Tribunal found that there was a causal connection between the meeting on 17 March 2014 and the development of the applicant’s psychological condition based on the evidence that two days after the meeting the applicant consulted her medical practitioner because of stress and was given three days off work after complaining of stress, and on the medical opinion of Dr Weissman that the 17 March meeting contributed to her medical condition. Those matters plainly supported a finding that the 17 March meeting was a contributor to the applicant’s psychological condition, but the conclusion reached by the Tribunal that this administrative action was the cause of the applicant’s psychological condition is not supported in this case by those factors alone. The Tribunal did not make a finding that the applicant’s psychological condition was triggered by the meeting and Dr Weissman’s evidence, as recited, was simply that the 17 March meeting contributed to her psychological condition. Nor is a finding that the applicant’s psychological condition was triggered by the meeting necessarily inferred from the Tribunal’s finding that 19 March 2014 was the “date of the disease”. It does not necessarily follow that because the applicant’s psychological condition was diagnosable by 19 March 2014 that she suffered the condition because of the 17 March 2014 meeting.
In substance, the Tribunal only addressed whether the 17 March 2014 meeting contributed to her condition, not whether it was the cause, and that failure to address the statutory question was an error of law. As the Full Court in Lim noted, in Martin the High Court identified as “critical” the Tribunal’s finding that returning to her substantive position was a direct and foreseeable consequence of the decision in her mind and that this triggered the deterioration of her mental condition. In Lim, there was no finding of that kind. The Tribunal found simply that the performance appraisal contributed to the development of the employee’s psychological condition and the Full Court held that the Tribunal’s decision involved legal error in the application of the causal connection. So too in the present case. As Martin and Lim make clear, it is insufficient merely to find that the administrative action was a cause. As the findings made were insufficient to enable a determination to be made on the correct legal test, the matter should be remitted to the Tribunal for its reconsideration in accordance with the law.
Ground 13
The applicant did not advance this ground as a ground separate from grounds 2 and 12 but in aid of the contention that there were other employment related factors that contributed to the applicant’s condition which should have been, but were not, considered by the Tribunal in determining whether the causal test was satisfied. Whether that is so is a matter for the Tribunal to consider on remittal, and not for this Court.
Conclusion
The appeal should be allowed and the matter remitted to the Tribunal for determination according to law.
I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 3 August 2018
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