Hamilton and Comcare (Compensation) - [2017] AATA 1139

Hamilton and Comcare (Compensation) [2017] AATA 1139 (14 July 2017)
Division:GENERAL DIVISION
File Number(s): 2015/5110
Re:Julie Hamilton
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:14 July 2017
Place:Sydney

The reviewable decision dated 12 August 2015 is set aside. In substitution the Tribunal finds that the applicant suffered psychological injury as a consequence of incidents/events in 2012 and 2013 that:
a)occurred in the course of the applicant’s employment; or
b)were contributed to, to a significant degree, by the applicant’s employment; and
c)were not reasonable administrative action taken in a reasonable manner.

The respondent is liable to pay compensation for an injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988. The matter is remitted to the respondent for determination of the applicant’s entitlement to compensation under the Act. The respondent is to pay the applicant’s professional costs and disbursements incurred as a result of this application, as agreed or taxed.
........................[sgd]................................................
Senior Member A Poljak
CATCHWORDS
COMPENSATION – workers compensation – section 14 the Safety, Rehabilitation and Compensation Act 1988 (Cth) – psychological condition – aggravation of an ailment – disease – home-based work – bullying and harassment – reasonable administrative action – code of conduct investigation – inadequate supervision – home visit – decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14
CASES
Commonwealth Bank of Australia v Reeve and Another [2012] 199 FCR 463
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
SECONDARY MATERIALS
Department of Human Services Agreement 2011-2014, Part F
REASONS FOR DECISION
Senior Member A Poljak
14 July 2017
INTRODUCTION AND BACKGROUND

Ms Julie Hamilton (“the applicant”) is of indigenous descent.
In 2005, the applicant suffered psychological injury as a result of a violent home invasion and was diagnosed with post-traumatic stress disorder, bringing to an end the applicant’s then career in social work attending disadvantaged youth in custody.
The applicant commenced employment with the Department of Human Services (“DHS”), in February 2006, as a customer service advisor on a full-time basis at DHS’s Tweed Heads Smart Centre.
In about July 2009 the applicant developed Meniere’s disease attributable to prolonged headset use and in or about October 2009 was medically assessed by DHS in relation to this and her ongoing psychological disorder. On the basis of this medical assessment DHS determined to reassign the applicant. The applicant was transferred to a processing role at DHS’s Varsity Lakes Smart Centre in early 2010. This role entailed processing of electronic files accessed through online delivery and electronic reporting without direct customer contact.
In October 2011, the applicant’s mother suffered a health emergency rendering her there after more dependent and requiring intensive domestic supervision. The burden for increased supervision fell largely upon the applicant and encroached upon her work performance, affecting attendance and causing intermittent work disturbance.
At all material times, the applicant was her mother’s primary carer.
By application dated 8 August 2013, the…

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.

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Details

Case: [2017] AATA 1139
Decision Date: 14 July 2017

CaseChat Overview and Summary

This matter concerned an application for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) by an employee against her employer, Comcare. The applicant alleged that she suffered a psychological condition, specifically an aggravation of a pre-existing ailment, which was contributed to to a significant degree by her employment. The dispute centred on whether the applicant's condition constituted an "injury" as defined by the Act, and whether any such injury was excluded by the provision relating to reasonable administrative action. The decision was made by A Poljak SM.

The court was required to determine several key issues. Firstly, whether the applicant suffered from an "ailment" or an "aggravation" of an "ailment" as defined by the Act, and whether this condition was significantly contributed to by her employment, thereby meeting the definition of a "disease" and consequently an "injury" under section 5A(1)(a). Secondly, the court had to consider whether any such disease was suffered as a result of "reasonable administrative action" taken in a reasonable manner, which would exclude it from the definition of an injury. Finally, the court needed to determine if Comcare was liable to pay compensation for an injury under section 14 of the Act.

The Senior Member considered extensive medical evidence, including expert opinions on the evolution of psychological conditions. While acknowledging the applicant's history of PTSD and adjustment disorder stemming from a 2005 home invasion, the Senior Member found that these conditions had been significantly resolved by September 2009. The evidence indicated that the applicant's mental health deteriorated around November 2012, with her general practitioners noting that she specifically identified work-related issues as the significant aggravating factor. These issues included disputes over home-based work arrangements, time recording, and perceived bullying and harassment by superiors. The Senior Member accepted that these work-related events constituted an aggravation of the applicant's psychological condition, to which her employment had significantly contributed. The Senior Member also considered whether the actions taken by the employer, such as the denial of home-based work, meetings held, and a home visit, constituted reasonable administrative action taken in a reasonable manner.

The Senior Member found that the applicant had suffered an "injury" for the purposes of section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The decision of the delegate of the respondent was set aside and substituted with a finding that the respondent was liable to pay compensation to the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By notice dated 12 August 2015, a delegate of the respondent affirmed the original decision (“the decision”). This is the decision under review in these proceedings. The applicant contends that the psychological condition was contributed to, to a significant degree, by the applicant’s employment with DHS in particular the behaviour of supervisors towards the applicant in relation to home-based work arrangements and disputes over record keeping, which the applicant perceived as being unjust bullying and harassment. There are four significant events allegedly giving rise to the applicant’s injury. Namely, the events leading up to and the denial of home-based work; meetings that were held on 7 December 2012 and 9 January 2013; and a home visit by one of the applicant’s superiors, Ms Ward, on 3 March 2013. The applicant further contends that the compensability of the psychological condition is not excluded by the ‘reasonable administrative action’ exclusion in s5A(1), because the ‘administrative action’ taken in connection with refusal of home-based work, the meetings held on 7 December 2012 and 9 January 2013 and the home visit by Ms Ward, were either not administrative action and/or not reasonable and/or were not taken in a reasonable manner. Accordingly the respondent is liable to pay compensation to the applicant in accordance with s14 of the SRC Act.ISSUES The issues to be determined in these proceedings are whether the applicant has an ‘injury’ for the purposes of s14 of the SRC Act, and, specifically: ·whether the applicant suffers an “ailment”, or an “aggravation” of an “ailment” as defined in s4 of the SRC Act, that was contributed to, to a significant degree, by her employment with DHS, such that she has a “disease” under s5B(1) of the SRC Act, which may therefore meet the definition of “injury” in s5A(1)(a), and;·whether any “disease” was suffered as a result of a “reasonable administrative action” taken in a reasonable manner with respect to the applicant’s employment, such that it is excluded from the definition of “injury” in s5A(1), and;·whether the respondent is liable to pay compensation for an injury under s14 of the SRC Act.Does the applicant suffer from an “ailment”, or an “aggravation” of an “ailment” as defined in s4 of the SRC Act, that was contributed to, to a significant degree, by her employment with DHS? There is a significant amount of medical evidence before me, all of which I have read and considered, some of which I have relevantly summarised below. The applicant has been taking antidepressants since 2005. On 8 June 2005, Dr Joshua Devsam, a general practitioner, notes that psychologist and psychiatrist Dr Maxwell Katz had diagnosed the applicant with “adjustment disorder with mixed depression and anxiety” and records diagnosis as post-traumatic stress disorder (“PTSD”). From 28 March 2006, the applicant was working full-time. A pre-employment medical report dated 28 March 2006, noted that the applicant had a history of “anxiety or stress reaction or depression”. The medical adviser confirmed that the applicant’s medical capacity was assessed to determine if she could perform her job requirements. The applicant was certified as medically suitable for the duties that she would be required to perform at the present time. The medical adviser recommended under the heading ‘Other comments’, “supportive supervision”.

Ratio Decidendi

Legal Principle Established

At hearing, Dr Curtis Gray advised that an adjustment disorder can “evolve” into major depressive disorder. He said that the evolution involved a person’s symptom profile changing over time. Dr Gray opined that in early 2013, there was a difference in symptomology and that the applicant’s symptoms at that time were not predominantly PTSD; he said diagnoses of major depressive disorder were being made around that time. In cross examination Dr Grey elaborated on the process of the “evolution” of adjustment disorder to major depressive disorder and accepted that it was “not the usual course” but said adjustment can occur over time, particularly if other things happen.Consideration I acknowledge that the applicant suffered a horrific home invasion in 2005 following which she was diagnosed with and treated for PTSD and an adjustment disorder. I accept that the applicant has been taking antidepressant medication since 2005. I also acknowledge that the applicant had other factors in her life at that time that may have impacted on her mental health condition such as a separation from her husband. Having reviewed the medical evidence, I am satisfied that the applicant’s PTSD and adjustment disorder were significantly resolved and treated by September 2009, when she was assessed by Dr Gray. The applicant was working full-time since 28 March 2006. It is not in contention that the applicant’s mother had a significantly high need for care which fell predominantly on the applicant. In October 2011, the applicant’s mother suffered a significant downturn and the care required of the applicant increased. I acknowledge that there is a scattering of comments in some of the clinical notes, contemporaneous to that time, that the applicant was sometimes ‘stressed’. There does not however appear to be a significant downturn in the applicant’s mental health until about November 2012. Having regard to the medical evidence, it appears that the applicant was initially diagnosed with some form of adjustment disorder with mixed anxiety and depressed mood which has ‘evolved’ into a major depressive disorder in early 2013 which became more evident after a series of events surrounding her work. I accept that from about 2011, the applicant had a number of potential stressors in her life such as some unrelated health issues and the responsibility of caring for her ailing mother. However, when the applicant attended her general practitioners and reported her worsening symptoms in 2013, she specifically identified work issues as the significant aggravating factor. The GP notes of Dr Brickley and Dr Myhill record in some detail contemporaneous notes about work-related issues that the applicant faced at that time. Particularly in regards to issues surrounding home-based work, time recording, and a perception of bullying and harassment by superiors. These events accord with an aggravation of the applicant’s psychological condition of which work significantly contributed.