GSBX and Comcare (Compensation) - [2016] AATA 404

GSBX and Comcare (Compensation) [2016] AATA 404 (17 June 2016)
ReviewNumber: 2015/0299

Division

GENERAL DIVISION

File Number

2015/0299

Re

GSBX

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 17 June 2016

Place Sydney
The Tribunal sets aside the decision under review and substitutes for it the decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act1988 to compensate the applicant for the injury that is the subject of these proceedings.
...........................[sgd].............................................
Senior Member J F Toohey
Catchwords
COMPENSATION – psychological condition – aggravation – whether employment contributed to a significant degree – whether reasonable administrative action – decision under review set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B(1), 5B(2), 5B(3), 14
Cases
Comcare v Mooi 69 (1996) FCR 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Dean v Australian Postal Corporation and Another [2010] FCA 680
Hart v Comcare [2005] FCAFC 16
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Senior Member J F Toohey
17 June 2016
BACKGROUND

GSBX has been employed by the Department of Human Services (DHS) since March 2006. In 2012, while on maternity leave, she sustained a triple fracture of the ring finger on her left hand. Three K-wires were inserted into her finger in June 2012 and removed on 6 August 2012, delaying her return to work by several weeks.
GSBX returned to work on restricted duties at the Parramatta office of the DHS on 9 August 2012. A rehabilitation provider was assigned to help with her return to work. These proceedings concern events which GSBX claims occurred after her return to work, in particular from around November 2012 to February 2013.
GSBX ceased work at the Parramatta office in February 2013 and did not work again until December 2013 when she worked at the Merrylands office of the DHS for approximately three months. She has not worked since February 2014.
On 27 March 2014, GSBX claimed compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) for anxiety and depression which she said commenced on approximately 1 November 2012. She claimed her injury was the result of harassment and unfair treatment by her managers when she did not recover from her finger injury as anticipated.
Comcare contends that GSBX’s employment did not contribute, to a significant degree, to her condition. In particular, Comcare contends that GSBX suffers from borderline personality disorder, an effect of which Comcare says is her altered perception of events. In the alternative, Comcare contends that, to the extent, if any, that her employment had a bearing on her condition, it was the result of reasonable administrative action, taken in a reasonable manner, in respect of her employment.
The question for determination in these proceedings is whether Comcare is liable under s 14 of the SRC Act to compensate GSBX for anxiety and depression.
LEGISLATION
By s 14 of the SRC Act, Comcare is liable to compensate an employee…

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 GSBX and Comcare (Compensation)

Details

AGLC: GSBX and Comcare (Compensation) [2016] AATA 404
Case: [2016] AATA 404
Decision Date: 17 June 2016

CaseChat Overview and Summary

This matter concerned an appeal by GSBX against a decision by Comcare to refuse compensation for a psychological condition. The dispute centred on whether GSBX's employment had contributed to a significant degree to her condition, and whether any administrative actions taken by her employer were reasonable. The case was heard by J F Toohey SM.

The court was required to determine two primary legal issues. Firstly, whether GSBX's employment contributed to a significant degree to the development or aggravation of her psychological condition. Secondly, if any reasonable administrative action taken by her employer contributed to her injury, whether that action was taken in a reasonable manner.

The court's reasoning was informed by extensive medical evidence from several psychiatrists and other medical professionals. While acknowledging the complexity and long-standing nature of GSBX's psychological condition, including a diagnosis of borderline personality disorder, the court was satisfied that workplace stress was a significant contributing factor to her anxiety and depression. The court applied the principles from *Wiegand v Comcare Australia* and *Dean v Australian Postal Corporation*, finding that even if GSBX's perceptions of workplace events were influenced by her pre-existing condition, the incidents she complained of had occurred and her perception of them contributed materially to her condition or its aggravation. Furthermore, the court found that the decision to refuse GSBX leave for a motorcycle course was not undertaken in a reasonable manner, was not in accordance with usual practice, and lacked apparent foundation.

Consequently, the court set aside the decision under review. It substituted a decision that Comcare was liable under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* to compensate GSBX for her psychological injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the circumstances, Ms Carey’s decision to refuse GSBX leave was not in accordance with usual practice and was without apparent foundation, and it was not reasonable.Medical evidence In her reports Dr Popova described GSBX’s reported symptoms which, she said, “occurred in the context of a conflict at her workplace” and she noted that GSBX was to see someone “about the stressor at work”. Dr Popova did not offer an opinion as to the relationship between stress and her employment. Dr Rees reported that GSBX had presented with onset of anxiety and depression late in 2012 in the context of her perception that she was treated unfairly in the workplace related to the management of her fractured finger injury. Dr Whetton gave evidence that events occurring within the workplace caused the onset of major depressive disorder, against the background of reported borderline personality disorder. As he was not present at the time, he could not say whether GSBX overreacted to events at work but, from the history she gave him, her employment contributed. Dr Hong gave evidence that GSBX’s borderline personality disorder was “predominantly constitutional” and that both it and workplace issues contributed to her adjustment disorder. He thought, on the information he had, that the workplace issues “seem like overall a minor contribution” but said he was not an expert in assessing industrial issues. He agreed there was no known event that led to the flare-up of GSBX’s condition other than the workplace issues although he had read of “competing non-work factors”. He agreed that, assuming she had borderline personality disorder, it would make her more vulnerable to work events and that it was reasonable to assume that the work events, including her perceptions of them, were “the primary driver”.Consideration Ms Carey and Ms Goldsmith deny acting with any “animus” towards GSBX and I accept their evidence about that. However, both their written statements and their oral evidence evidenced a degree of frustration with GSBX’s slow recovery. They were both surprised at how long her injury was taking to resolve despite neither having any medical qualifications and despite continuing medical certificates restricting her duties. I accept that factors outside GSBX’s employment were a source of stress around November 2012. However, I am satisfied that her employment contributed to a significant degree to her condition. In Wiegand v Comcare Australia [2002] FCA 1464, von Doussa J said at [27]:If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material to agree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled It is possible that GSBX was sensitive about events at work and it is possible that her perception of things said and done was affected by her borderline personality disorder. However, I am satisfied, on the information before me, that the incidents she complained of actually occurred. I am satisfied that the weight of the medical evidence supports the conclusion that the workplace stress was a contributing factor, to a significant degree, to the extent that they created a perception in her mind, I am satisfied that the perception caused her condition, or contributed to a significant degree, to the aggravation of her condition (and see Dean v Australian Postal Corporation and Another [2010] FCA 680).

Decision

Reasons for decision

The decision to refuse GSBX’s leave to undertake the motorcycle course was not undertaken in reasonable manner. It was not for reasons of the efficient management of the office. It was not in accordance with usual practice and was without apparent foundation.Conclusion For these reasons, I am satisfied that GSBX’s employment, contributed to a significant degree, to her psychological injury. Insofar as any reasonable administrative action contributed to her injury, I am not satisfied that it was taken in a reasonable manner. The Tribunal sets aside the decision under review and substitutes for it the decision that the respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act1988 to compensate the applicant for the injury that is the subject of these proceedings.

Ratio Decidendi

Legal Principle Established

On 5 February 2015, Dr Deepa Malik, consultant psychiatrist, saw GSBX for assessment. He reported to Dr Sira that she described “a long history of depressive symptoms, which became worse when she had problems at work”. Dr Malik noted an “impression” of depression and borderline personality traits.Consideration It is clear from the medical evidence that GSBX’s psychological condition is complex and long-standing. I accept Dr Whetton’s opinion that a diagnosis of borderline personality disorder requires more than one interview. However, as I understand his evidence, he did not discount the possibility of that diagnosis; rather, that it would ordinarily require more time. In any event, Dr Rees, who saw GSBX several times, concluded that she had borderline personality disorder For GSBX, it is submitted that a diagnosis of major depression or adjustment disorder may be more appropriate than borderline personality disorder. Given that a number of the doctors arrived at mixed diagnoses, it may be that both are appropriate. I am reasonably satisfied, taking into account the number of psychiatrists and others who diagnosed borderline personality disorder, that GSBX suffers from that condition (now in remission). I am satisfied that she had suffered it for some time before the events complained of. I am satisfied that she suffered from anxiety and depression around the time of the events complained of. Dr Whetton and Dr Hong both agreed that borderline personality disorder may affect a person’s perceptions. However, as I understand their evidence, neither said that altered perception is a necessary feature of borderline personality disorder. Dr Whetton’s evidence was that perceptions may be altered at times of crisis when a person could also be hypersensitive to criticism. Dr Hong said the condition is “typically associated” with interpersonal hypersensitivity and distorted thinking around trust issues. Theirs is the only evidence concerning the effect of borderline personality disorder on perceptions. For the reasons that follow, I am satisfied that, even if GSBX’s perceptions are sometimes altered by reason of her borderline personality disorder, they were not so altered in relation to the events in dispute that they do not reflect reality. If they were altered at all, I am satisfied it made no material difference to what actually occurred. Also for the reasons that follow, I am satisfied that GSBX’s employment contributed, to a significant degree, to the development or aggravation of her condition.DID GSBX’S EMPLOYMENT CONTRIBUTE TO A SIGNIFICANT DEGREE TO HER INJURY? For GSBX, it is submitted that, regardless of which diagnosis is accepted, the Tribunal can be satisfied that the necessary causal connection to her employment is made out on the evidence. It is submitted that, if she has long-standing borderline personality disorder, that condition was aggravated by the events that occurred between the time she returned to work and when she stopped work in February 2013; alternatively, that she suffered a condition which arose out of, or in the course of, her employment.Dr Sira’s records

Division	GENERAL DIVISION
File Number	2015/0299
Re	GSBX
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	17 June 2016
Place	Sydney