Harris and Comcare (Compensation)

Case [2018] AATA 3095

Harris and Comcare (Compensation) [2018] AATA 3095 (27 August 2018)

Division:GENERAL DIVISION

File Number(s):      2016/3505

Re:Shane Harris

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Mark Hyman, Member

Date:27 August 2018

Place:Canberra

The decision under review is affirmed.

.......................[sgd]........................

Mark Hyman, Member

Catchwords

COMPENSATION – school Business Manager – relations with new Principal - psychological condition – scope of the claim – whether contributed to, to a significant degree, by employment – whether contributing events were reasonable administrative action taken in a reasonable manner – whether direction to return to school fell within the scope of the claim – whether exacerbation of symptoms constituted an aggravation – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 38AA

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14, 16, 19, 71

Cases

Abrahams and Comcare [2006] FCA 1829

Australian Postal Corporation v Sellick [2008] FCA 236

Comcare vBromham [2017] FCA 174

Comcare v Martinez (No 2) [2013] FCA 439

Comcare v Mooi [1996] FCA 1587

Comcare v Muir [2016] FCA 346

Comcare v Power [2015] FCA 1502

Commonwealth Bank v Reeve [2012] FCAFC 21

Dean v Australian Postal Corporation [2010] FCA 680

Durham and TNT Australia [2011] AATA 802

Hart v Comcare [2005] FCAFC 16

Kennedy v Comcare [2014] FCA 82

Kirkpatrick v Commonwealth (1985) 62 ALR 533

State Transit Authority of NSW v Chemla [2007] NSWCA 249

Szabo v Comcare [2012] FCAFC 129

Wiegand v Comcare [2002] FCA 1464

REASONS FOR DECISION

Mark Hyman, Member

27 August 2018

  1. This decision is about whether Mr Shane Harris, the applicant, should receive compensation for a psychological condition that he said began, or was precipitated by events occurring on, 3 June 2014. Mr Harris claimed compensation on 1 March 2016[1], and Comcare denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for the condition in a determination dated 29 April 2016[2], on the basis that the precipitating events constituted reasonable administrative action taken in a reasonable manner. Mr Harris sought review of that decision, and on 26 May 2016 Comcare issued a reconsideration determination[3] affirming its initial decision, on the same basis. Mr Harris applied to this tribunal[4] for review of the reconsideration determination.

    [1] T3.1 folio 14.

    [2] T12 folio 99.

    [3] T18 folio 189.

    [4] T1 folio 1.

  2. The tribunal held a hearing on 2 July 2018. Mr Harris is self-represented; he appeared at the hearing in person and gave evidence, supported by his daughter. Comcare was represented by Ms Sarah Wright of Counsel. Comcare called two of Mr Harris’s colleagues, Mr Bruce McCourt and Mr Paul van Campenhout, as witnesses, and Dr Frank Chow, a psychiatrist, as an expert witness. Mr McCourt and Mr van Campenhout appeared in person; Dr Chow gave evidence by telephone.

  3. The documentary evidence before the tribunal comprised the documents submitted by Comcare (the “T-documents” and supplementary T-documents) under sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (the…

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AGLC
Harris and Comcare (Compensation) [2018] AATA 3095
Case
[2018] AATA 3095
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Harris against a decision by the Safety, Rehabilitation and Compensation Commission (Comcare) to deny him compensation. Mr Harris, employed as a Business Manager by the ACT Education and Training Directorate, alleged that a deteriorating working relationship with a new principal, Mr Bruce McCourt, led to a psychological condition. He contended that Mr McCourt's conduct, including critical comments, taking credit for his work, and disagreements over financial and administrative matters, systematically and consistently undermined him. Comcare argued that Mr Harris's condition was not a compensable injury.

The primary legal issues before the Tribunal were whether Mr Harris suffered from a compensable ailment, and if so, whether his employment contributed to it to a significant degree. Specifically, the Tribunal had to consider whether the alleged conduct of Mr McCourt constituted reasonable administrative action taken in a reasonable manner, which would exclude compensation under the relevant legislation. The Tribunal also needed to determine the date of injury, should compensation be awarded.

The Tribunal considered the medical evidence, which consistently diagnosed Mr Harris with a significant psychiatric disorder, including major depressive disorder and adjustment disorder with anxiety. While Comcare argued that Mr Harris's delayed seeking of medical help and lodging of a report indicated he did not suffer an ailment, the Tribunal found that his condition reached clinical significance in January 2015, making that the date of injury. The Tribunal noted that the events of 3-4 June 2014 were a major trigger, but the condition only became potentially compensable later.

Ultimately, the Tribunal affirmed the decision under review, finding that Mr Harris was not entitled to compensation. While acknowledging the existence of a psychiatric disorder and the negative impact of the events at work, the Tribunal did not make findings on all the issues raised, as its conclusion on entitlement rendered them unnecessary. The Tribunal expressed regret that opportunities to assist Mr Harris in his recovery were not taken.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It is apparent from sections 5A and 5B that the distinction between an injury (other than a disease) and a disease is important, as the nexus between a claimant’s condition and employment is different: the test for an injury (other than a disease) is that it arises out of or in the course of the person’s employment, whereas that for a disease is that it was contributed to, to a significant degree, by the person’s employment. It is also plain that the words “injury” and “disease” have technical meanings that require that in both cases the condition has already been found to be compensable (although the picture is complicated by the appearance of “injury” in both a technically defined sense (the chapeau of subsection 5A(1)) and a natural sense (in paragraph 5A(1)(b)). In the interests of simplicity and clarity I will refer in this decision to a disease yet to be tested against the criterion in subsection 5B(1) as an “ailment”.THE FACTS Mr Harris was employed by the ACT Education and Training Directorate (the Directorate) as a Business Manager. This role is one that is attached to each school and the duties are administrative support for the school, especially with regard to management of the school’s finances, administrative staff, security, buildings, property and grounds[5]. The Business Manager is a member of the school’s executive team and acts as administrative officer to the School Board. Mr Harris joined the Directorate permanently in 1999[6] (he was employed on a casual basis for approximately the previous two years) and was promoted to the Business Manager role in 2008 (he acted as Business Manager at Kambah High School for six months before moving to Calwell High School[7]). He worked in that position at Calwell until leaving in 2015 after incidents the subject of the present claim. [5] T15.1, folio 112.[6] Section 71 documents, folio 1.[7] T 17.1, folio 116. In 2008 Mr Harris sought and received approval from the Directorate for a second job[8], as a cleaner. Throughout the period in question he worked four hours each weekday as a cleaner at another ACT school.[8] Section 71 documents, folio 7.A new principal For much of the time covered by this decision the Principal at Calwell was Mr Peter Sollis. In 2013 a new Principal, Mr Bruce McCourt, came to the school. It is fair to say that while Mr Harris had a good working relationship with Mr Sollis, at no stage did he have a good working relationship with Mr McCourt. It is part of Mr Harris’s case that Mr McCourt treated him poorly in a manner that was systematic and consistent over time. Mr Harris says that he and Mr Sollis worked well together, identifying priorities in improving the physical environment of the school (furniture, whiteboards, painting) and managing the relevant improvement programs within school resources[9]. Despite this, Mr Harris says he was sometimes frustrated in that his workload prevented him from being able to perform with the thoroughness he expected of himself or to perform at the standard he wished[10]. He and Mr McCourt were not able to work together as successfully. Mr Harris documented a list of issues on which he and Mr McCourt had not seen eye to eye. These included, in Mr Harris’s account[11]:·explicitly or implicitly critical comments by Mr McCourt about the state of the school at the time of his arrival as its principal; ·implicitly disparaging comments by Mr McCourt about staff; ·Mr McCourt taking credit himself for Mr Harris’s work and ideas;·Mr McCourt’s criticism of Mr Harris’s skill level;·differences of view over payment of invoices and related financial issues;·disagreement about the processes to be followed in some activities, such as travel;·workload issues, including Mr Harris being given responsibility for the school’s participation in a copyright survey, taking responsibility for all his staff’s performance development plans (without delegation), taking on a school-based apprentice; and·decisions taken by Mr McCourt without consultation while others taken by Mr Harris were challenged even where proper process had been followed.[9] T17.1, folios 117-18.[10] T3.3, folio 21.[11] T3.3 folios 21-24; T17.1 and attachments, folios 115-188.

Evidence

Evidence Before The Court

Mr Harris states that the above events led to his breaking down and needing to leave the workplace, and says that at this time “I reached out for help to the Directorate and medical practitioners” and that he took leave[27]. The records confirm that it was at this time that Mr Harris first sought medical attention with respect to the effects of the incidents described above.[27] Exhibit A1.Medical evidence – psychiatric condition Mr Harris saw Dr Balaji Pillalamarry, a general practitioner, on 27 January 2015. The note of that consultation[28] records that Mr Harris was teary, not able to go back to work after six months away “due to issues with Principal at school”, and that he had seen the Employee Assistance Program. About a week later, on 2 February 2015, the same doctor notes that he was still extremely stressed, “particularly work related” and that even just seeing emails from work made him stressed, so much so that he had panic attacks before he could read them. On 10 February 2015 Mr Harris saw another general practitioner, Dr David Sutherland, who noted[29] “more emotional than usual”, “easily stressed and very anxious about thought of return to work”, “almost panic reaction to bosses name” [sic]. On 6 February Mr Harris completed a referral form for a mental health plan[30] and Dr Sutherland added the same information as that noted immediately above. A record for 13 March 2015[31] notes that because of depression Dr Sutherland had prescribed an anti-depressant, Efexor. A record for 14 April 2015 notes that Efexor was causing agitation, and that Dr Sutherland had referred Mr Harris to a psychiatrist.[28] T19, folio207.[29] T19, folio 206.[30] ST3, folio 7.[31] T19, folio205. An occupational therapist, Ms Vicki McWhirter, saw Mr Harris on 22 April 2015. In a report to Dr Sutherland dated 28 April[32] she noted Mr Harris’s ongoing symptoms of anxiety: “an inability to go places without distress and is frequently teary”. She noted that Mr Harris wanted to return to his workplace and could move to a different school. Ms McWhirter suggested a trial of a different anti-anxiety/antidepressant drug and recommended a telepsychiatry service that (evidently) bulk-billed its services. She noted that Mr Harris had already had four sessions with a psychologist, Ms June Staunton.[32] ST7, folio 22. Dr Sutherland wrote a referral to the telepsychiatry service, the Lawson Clinic, on 26 May 2015[33]. He noted Mr Harris’s symptoms, that he had trialled Efexor and Zoloft “to minimal effect”, that Zoloft had caused palpitations, and that he had stopped any of these medications. Dr Ann Joseph, a psychiatrist at the Clinic, evidently saw Mr Harris (by Skype), and she recommended that he take quetiapine[34]. At her direction, the Clinic undertook a number of tests, including a “Mood Assessment Program” Report[35] dated 5 June 2015, which found that Mr Harris was probably suffering from melancholic depression according to the algorithm used (although it was noted that a false positive result of this type can occur when a patient has either high levels of anxiety or a chronic non-melancholic depression), and that he was severely depressed, had severely impaired functioning and had been suffering from depression for a year. Apparently Mr Harris had at most a short-lived contact with the clinic, as Dr Joseph discharged him on 15 December 2015, having not seen him since May.[33] ST8, folio 23.[34] ST9, folio 25.[35] ST10, folio 35.

Decision

Reasons for decision

Given the above findings, the other matters listed above under “issues” no longer need to be resolved, but for completeness I would note that the major trigger for Mr Harris’s condition was the events of 3-4 June 2014, but the condition reached clinical significance, and therefore became potentially compensable, only in January 2015 (on the basis of the course of events and Dr Chow’s evidence in particular). The date of first consultation with a doctor over the condition, namely 27 January 2015, would therefore become the date of injury.CONCLUSION Mr Harris said at the beginning of the hearing that he was seeking “closure”. It is indeed to be hoped that this decision, while it does not grant him compensation, might nevertheless provide him with a clean end to the events that have distressed him. Mr Harris is not entitled to compensation, but it appears to me that opportunities to help him recover from the original injury were not taken. That is unfortunate, as it appears that the ACT school system lost a productive worker who could have made a continuing contribution. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Ms Wright, for Comcare, argued that:·Mr Harris did not suffer an ailment, because he did not undertake any action to obtain medical help until late January 2015 and did not submit an injury report until April 2015;·In the alternative, employment did not make a significant contribution to his condition, because other factors, which Mr Harris failed to disclose to his expert examiners, especially his abuse of alcohol over many years and during critical periods in the present matter, and his longstanding use of cannabis, make it doubtful that the condition can be regarded as employment-related (applying subsection 5B(2) of the SRC Act);·In the alternative, the critical action taken by Mr McCourt on 3-4 June 2014 was an administrative action under subsection 5A(2), it was reasonable for Mr McCourt to take it and it was taken in a reasonable manner; and therefore·Mr Harris is not entitled to compensation.CONSIDERATIONWhat was the diagnosis of Mr Harris’s psychiatric condition? A number of expert psychiatrists saw Mr Harris. None of them took the view that he was well psychologically, and all diagnosed a psychiatric condition. Dr Reutens diagnosed major depressive disorder, with differential diagnosis of adjustment disorder with mixed anxiety and depressed mood; Dr Ventura diagnosed major depressive disorder with some melancholic and possible psychotic features; and Dr Chow diagnosed adjustment disorder with anxiety. All three therefore diagnosed a real and significant psychiatric disorder. Dr Chow stated, in response to Comcare’s question, that Mr Harris’s psychiatric state was outside the boundaries of normal mental functioning behaviour. From Dr Ventura’s report it seems very probable that she too would have reached that conclusion if asked (“Mr Harris currently has reduced work capacity of approximately two hours per day”; “he is not currently fit to interact with other workers or with the public”). Comcare argues that Mr Harris did not actually suffer from an ailment, as he did not seek medical help until late January 2015, and did not lodge an accident/incident report until April 2015, and a claim for compensation until March 2016. He continued his work at Calwell until Term 3 of 2014 and for that term worked, apparently without problem, at Hawker College before taking leave for Term 4. Meanwhile he was managing to work in his second job as a cleaner for four hours each day without problem. The only medical evidence regarding him during the second half of 2014 is a single consultation with his general practitioner on 21 June 2014, for epigastric pain with no mention of psychiatric symptoms. Mr Harris took no sick leave over this period. Mr Harris argued that although he managed to continue working during much of the second half of 2014, this did not mean he was not suffering from a psychological condition. He spent a long time denying his mental health issues. The reality was that his condition, which, if things had been managed properly could have been avoided, had transformed him from a strong, capable, confident worker into a person who was weak, old and tired and may never fully recover.