Henderson and Comcare Australia

[2010] AATA 700

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 700

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3654

GENERAL ADMINISTRATIVE DIVISION		)
Re		JUDITH ANNE HENDERSON

Applicant

And COMCARE AUSTRALIA

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date15 September 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..................[signed]......................

Senior Member

COMPENSATION – occupational health and safety manager – adjustment disorder – feedback and performance reviews – whether injury occurred as a result of reasonable administrative action

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 5A(1), 5A(2), 5B(1), 14(1)

Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16

Comcare v Mooi (1996) 69 FCR 329

Hart v Comcare (2005) 145 FCR 29

Re Lynch and Comcare [2010] AATA 38

Re von Stieglitz and Comcare [2010] AATA 263

Workcover Corporation of South Australia v Summers (1995) 65 SASR 243

REASONS FOR DECISION

15 September 2010  G. D. Friedman, Senior Member

1.      Judith Henderson is an occupational health and safety professional who joined the Defence Science and Technology Organisation (DSTO) in 1998.  On 11 November 2007 she lodged a claim for compensation for work related anxiety caused by bullying and harassment, unfair criticism and a lack of support in the workplace.  Her claim for compensation for a work-related adjustment disorder was refused by the respondent on the grounds that her condition had arisen from reasonable administrative action in the form of performance feedback and counselling.

LEGISLATIVE BACKGROUND

2. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) that came into effect on 13 April 2007 provides:

(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 provides:

5A  Definition of injury

(1)       In this Act:

injury means:

(a)       a disease suffered by the employee; or

(b)an injury (other than a disease) suffered by the 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.

5B  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.

…

3. The relevant sections of the SRC Act that were in effect in 2006 and up to 13 April 2007 are:

14Compensation 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 4(1) of the SRC Act in effect in 2006 includes the following definitions:

…

injury means:

(a)      a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

…

disease means:

(a)      any ailment suffered by an employee; or

(b)      the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

ISSUES

4.      There was no dispute that Ms Henderson suffers from an adjustment disorder which is an ailment that was contributed to, to a significant degree, by her employment with the DSTO, and constitutes an injury for the purposes of s 5B of the SRC Act. The issues before the Tribunal are:

·When did Ms Henderson sustain the injury?  If it was sustained after 13 April 2007:

·Was the injury suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment such as would exclude her from receiving compensation in accordance with s 5A(1) of the SRC Act as it would not come within the definition of injury?  This involves consideration of the following:

·What was the administrative action taken by DSTO?

·For each administrative action:

oWas the administrative action reasonable and taken in a reasonable manner?  If so:

oWas the administrative action taken in respect of Ms Henderson’s employment?  If so:

oWas the injury suffered as a result of the administrative action so as to exclude Ms Henderson from receiving compensation?

WHEN DID MS HENDERSON SUSTAIN THE INJURY?

5.      By way of background Ms Henderson told the Tribunal that after completing a degree in applied science she worked as a medical scientist in the private and public sectors between 1970 and 1987.  She then obtained a graduate diploma in occupational hygiene and worked in that field for 14 months before becoming a rehabilitation consultant and worksite assessor, and returned to her former employment as a medical scientist.  On 13 January 1998 she joined DSTO as an occupational hygienist where her duties included identification of hazards in the workplace.  In 2002 she was promoted to the position of Manager Safety & Wellbeing in the Melbourne office.  This section was part of the People Strategy area of Science Management.  Ms Henderson told the Tribunal that her employment-related adjustment disorder began in late 2006 and extended to November 2007 when she ceased work with DSTO.

6.      In relation to the period from December 2006 to 13 April 2007 she explained that from December 2006 her workload had increased and that she was under considerable pressure.  She was working long hours and taking work home.  She referred to a meeting on 11 December 2006 at which she said that she was criticised publicly by a senior officer for the late delivery of the agenda, when others were responsible.  Ms Henderson said that she felt humiliated by the criticism and was unsupported by her supervisor Mr G Cavanagh, National Manager of Occupational Health and Safety, and by Ms M Ludvik, Director of Executive Management, with whom she had irregular contact on Occupational Health and Safety (OHS) issues.

7.      Ms Henderson said that in February 2007 Ms Ludvik criticised her preparation of a report about safety concerns at DSTO.  Ms Henderson explained that she formed the view that transparent reporting of safety issues was being discouraged, and that Ms Ludvik was openly hostile towards her, displaying a totally unreasonable attitude and a lack of understanding of her role in OHS issues.  She told the Tribunal that after a meeting with Ms Ludvik on 1 March 2007 she felt bullied and harassed by Ms Ludvik, and felt physically distressed and unwell.  She said that she was made to feel worthless, and could not cope with further interaction with Ms Ludvik.  She avoided Ms Ludvik whenever possible, and took measures such as covering the glass pane on her office and locking the door.

8.      Subsequently she made contact with a Comcare OHS compliance officer to discuss the alleged bullying, and on 2 March 2007 attended a meeting with Safety and Wellbeing Section, also attended by Ms T Lindley, Director of People Strategies (Mr Cavanagh’s supervisor).  Ms Henderson stated that Ms Lindley acknowledged the problem but only suggested that Ms Henderson develop a strategy for dealing with Ms Ludvik.  She said that she felt frustrated and disappointed with the outcome, particularly as Ms Ludvik’s attitude towards her did not change, and that Mr Cavanagh acknowledged that Ms Ludvik was a bully yet provided no real support or suggested action, even though he was aware that the issue was adversely affecting Ms Henderson’s health.  Ms Henderson noted that on 2 March 2007 Ms Ludvik also directed her to prepare a report within one week about identifying safety risks associated with a planned re-location of a store.  Ms Henderson stated that this was an unrealistic timeframe and was only extended when she protested to Ms Ludvik.

9.      In relation to a number of other events in early 2007 Ms Henderson said that she remained emotionally distressed by these and her continual complaints to senior management that the question of role clarity in respect of her position in the organisation was never addressed satisfactorily.  She also pointed to an incident in which OHS concerns in February 2007 about the on-site canteen might have led to the closure of the canteen, and that she been accused of being unhelpful in her actions in dealing with the issue, when in fact she contributed to the swift resolution of the problem.

10.     Ms Henderson said that at a meeting on 30 March 2007 she attempted to speak, but Ms Ludvik had rudely held up her hand to prevent her from continuing.  Ms Henderson said that she felt humiliated and distressed, and on 11 April 2007 she attended her doctor, who diagnosed workplace stress and recommended time away from work, so she took several weeks’ annual leave in April/May 2007.  Ms Henderson maintained that these events demonstrate that by 13 April 2007 she was suffering from the adjustment disorder.

11.     The clinical notes from Dr F Habib, Ms Henderson’s treating general practitioner, show no attendances between 29 July 2006 (when he recorded headaches) and 11 April 2007, when he noted tiredness, ear ache and sore throat but no complaints of stress or anxiety symptoms until 9 October 2007, when Ms Henderson complained of stress at work.  Under cross-examination Ms Henderson disagreed with the records made by Dr Habib and stated that she recalled telling him about work-related issues as early as 11 April 2007 and definitely before 9 October 2007.  In a letter dated 5 February 2008 Dr Habib stated that Ms Henderson reported some workplace-related concerns in early 2007 including symptoms of anxiety, although he first diagnosed work related anxiety on 29 November 2007 and adjustment disorder with depression on 5 February 2008.  In a report dated 26 October 2009 Dr N Rose, consultant psychiatrist, suggested that Ms Henderson’s adjustment disorder began in late 2006 or early 2007, based on a history given by Ms Henderson.  In her claim for compensation Ms Henderson stated that her work related anxiety was first suffered on 8 October 2007.  Her leave records for 2007 show that her first personal leave with medical certificate was for 25 July 2007.

12.     The Tribunal believes that contemporaneous records of events provide the most reliable indication of the onset of Ms Henderson’s adjustment disorder.  The Tribunal prefers to rely on Ms Henderson’s own information contained in the claim for compensation, and the clinical notes prepared by Dr Habib following her consultations, as well as his diagnoses on 29 November 2007 and 5 February 2008 and the records of her personal leave.  For these reasons the Tribunal finds that on 29 November 2007 Ms Henderson suffered from a psychological condition that is outside the boundaries of normal medical functioning and behaviour (Comcare v Mooi (1996) 69 FCR 329) and that this date is after 13 April 2007.

WHAT WAS THE ADMINISTRATIVE ACTION TAKEN BY DSTO?

13.     Ms Henderson said that a number of relevant events occurred after 13 April 2007 and before she ceased employment on 28 November 2007.  Despite staff shortages in her section, in 2006 her team won the Corporate Support Award for Outstanding Support to the Divisions.  She noted that her performance reviews had consistently rated her as fully effective.  Ms Henderson explained that she began to gain a distinct impression that managers at DSTO were not taking their OHS obligations seriously, and that a number of her suggestions and recommendations had not been accepted.  There was no overall plan for health, safety and wellbeing.  She stated that Mr Cavanagh did not agree with her approach and preferred to take a reactive view in dealing with problems as they occurred.

14.     On her return to work in May 2007 after a period of leave she felt that nothing had changed, and many of her recommendations regarding safety in the workplace had been ignored.  She said that on 11 July 2007 she had a telephone conversation with Ms Ludvik, during which Ms Ludvik was rude and aggressive towards her.  She felt that she was being judged and blamed unfairly for the lack of clarity in her role and in the role of her section within the organisation.  She also stated that she outlined her concerns to Mr Cavanagh in an email but that nothing was done to address these issues.

15.     In respect of the first event, Ms Henderson provided details of an incident on 23 July 2007, in which a senior manager (Mr M Taylor) had complained to Mr Cavanagh that she had not returned a telephone call in March 2007 when Mr Cavanagh was on leave, allegedly causing Mr Taylor to be unprepared for a meeting as she had not provided information that he required.  She said that Mr Taylor had threatened to cancel her proposed salary progression, and that Mr Cavanagh had relayed the threat to her in a meeting with her on 25 July 2007 (the 25 July meeting).  She disputed Mr Taylor’s complaint, and said that she obtained proof from telephone records that she had in fact returned his call and left a message, although she said that she did not pass on this information to Mr Cavanagh.  Ms Henderson said that at the meeting she had expressed her view that Ms Ludvik had exerted undue influence and was probably the source of any negative feedback from senior management about her performance.  She added that she was distressed and hurt and felt extremely unwell.

16.     In evidence to the Tribunal Mr Cavanagh stated that as Ms Henderson’s manager, he had been requested by senior management to provide feedback in respect of aspects of her behaviour, particularly regarding Mr Taylor’s complaint.

17.     In Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 Doyle CJ stated at 247:

[T]he words … “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties…

In Re Lynch and Comcare [2010] AATA 38 Senior Member Professor Creyke concluded that administrative action must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer.  She stated at [97]:

What amounts to ‘administrative action’ is defined only to the extent of the examples given in section 5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and 'anything done in connection with' any of these examples. The examples are not exhaustive and the words 'in connection with' have been interpreted as words which 'have an ambulatory significance capable of a wide range of applications.’ These indications imply that ‘administrative action’ is capable of having a broad meaning.

18.     In the circumstances the Tribunal concludes that the decision by Mr Cavanagh to convene a meeting with Ms Henderson to provide feedback on Mr Taylor’s complaint and other performance issues at the request of senior management was a specific and lawful action by management in the course of Ms Henderson’s employment, so the 25 July meeting constitutes administrative action by DSTO for the purposes of the SRC Act.

19.     The second event arose from an occurrence on 2 October 2007 when compliance officers from Comcare made a site visit and held a meeting with safety staff, and two days later Comcare advised that safety issues were of such concern that further attention by Comcare was warranted.  Ms Henderson said that on 8 October 2007 a meeting was arranged to discuss the Comcare visit (the 8 October meeting), but Mr Cavanagh had told her she was not to attend, and that she was to be counselled by him and Ms Lindley because she did not seek permission for the Comcare visit.  She said that she felt excluded and isolated, particularly as he had asked her to invite Comcare to the site.  Mr Cavanagh told the Tribunal that the purpose of the meeting was for senior managers to discuss alleged failures by Ms Henderson to brief management properly about the visit and to conduct the visit adequately, so she was excluded from the meeting.

20.     In the circumstances the Tribunal concludes that the decision by senior management to conduct a meeting about alleged failures by Ms Henderson in respect of the site visit by Comcare was a specific and lawful action by management in the course of Ms Henderson’s employment, so the 8 October meeting constitutes administrative action by DSTO for the purposes of the SRC Act.

21.     In respect of the third event, Ms Henderson told the Tribunal that on 9 October 2007 she attended Dr Habib with symptoms of anxiety.  She said that on 12 October 2007 Mr Cavanagh told her that she was to be counselled about the protocols of inviting non-Defence personnel onto the DSTO site, and she explained that he had sent her an email on 15 October 2007 clarifying that the meeting would not be considered to be formal counselling.  However its purpose later changed to include her work performance under the Defence Collective Agreement 2006-2009 (DeCA).  She said that the meeting was eventually scheduled for 24 October 2007 (the 24 October meeting).

22.     Mr Cavanagh told the Tribunal that Ms Lindley had asked him to meet with Ms Henderson to discuss concerns regarding the outcomes of the Comcare visit and feedback from a number of people about her behaviour generally, and he informed Ms Henderson on 15 October 2007.  He said that Ms Henderson requested to have a representative accompany her, and the meeting eventually occurred on 24 October 2007.

23.     In the circumstances the Tribunal concludes that the decision by senior management to ask Mr Cavanagh to convene a meeting with Ms Henderson about concerns following the site visit by Comcare and about feedback on Ms Henderson’s behaviour generally, was a specific and lawful action by management in the course of Ms Henderson’s employment, so the 24 October meeting constitutes administrative action by DSTO for the purposes of the SRC Act.

24.     In respect of the fourth event, Ms Henderson told the Tribunal that as a result of these actions she took two days off work as sick leave, but felt anxious and unwell when she resumed work.  She sought help from Workforce Transition Services and a case manager was appointed.  She lodged a claim for compensation on 11 November 2007 for work-related anxiety that occurred or was first noticed on 8 October 2007 … at 3.30pm approx.  She applied for leave from 14 November 2007 to 17 December 2007 but was persuaded to withdraw the leave application because of a section meeting planned for December 2007 (the leave issue).  Mr Cavanagh stated that when he discussed Ms Henderson’s workload with her and asked for further information about the tasks that needed to be done in her proposed absence, she took this to mean that he was denying her the leave, which was not true.

25.     In the circumstances the Tribunal concludes that the request for information was part of a general discussion between Ms Henderson and Mr Cavanagh about the proposed leave, and was not a specific action by management in the course of Ms Henderson’s employment, so the 24 October meeting does not constitute administrative action by DSTO for the purposes of the SRC Act.

WAS THE ADMINISTRATIVE ACTION IN RESPECT OF THE 25 JULY MEETING REASONABLE AND TAKEN IN A REASONABLE MANNER?

26.     Ms Henderson stated that the administrative action was not reasonable because the meeting did not constitute a discussion about her performance but arose directly from the complaint by Mr Taylor to Ms Lindley about Ms Henderson’s alleged failure to return a telephone call, which was untrue, and the meeting had taken place without any enquiry about the facts leading to Mr Taylor’s threatened action.  Mr Taylor had also suggested that he had received negative feedback about Ms Henderson, and had threatened to veto her salary progression, when in fact he had no power under DeCA to interfere with her salary progression, and the threat was irresponsible.

27.     Ms Henderson said that the meeting was not conducted in a reasonable manner because the only source of negative feedback could have been Ms Ludvik, who was biased and hostile towards her.  She said that she felt distressed by Mr Taylor’s threats to veto her salary progression as relayed by Mr Cavanagh during the meeting, and she made her feelings known later that evening in a telephone call to Ms Lindley.  She acknowledged that she was crying during the call, and said that the consequence of the meeting with Mr Cavanagh was that she felt unwell, despondent and worthless, despite an assurance from Ms Lindley that Mr Taylor had no role in her appraisal or salary progression.

28.     Mr Cavanagh stated that the administrative action was reasonable because, as Ms Henderson’s supervisor, he was obliged to provide counselling by means of feedback from senior officers over a number of issues including Mr Taylor’s complaint about alleged failure to return a telephone call and a view that Ms Henderson perceived her role to be supporting staff rather than as a policy adviser to senior management, plus the question of role clarity.  Mr Cavanagh produced his contemporaneous diary notes which recorded that that Mr Taylor …is inclined to recommend no salary progression unless you can demonstrate an improvement in the relationship with Executives etc… Mr Cavanagh noted further that …she felt unsupported & not valued.

29.     Mr Cavanagh said that the meeting was conducted in a reasonable manner because his diary notes include a record of discussion about feedback, mentoring for Ms Henderson and delegating responsibilities, together with possible solutions over the broad range of issues such as meetings with Ms Ludvik, consultancy roles and relationships with other sections of the organisation.  Mr Cavanagh acknowledged that Ms Henderson was upset at the feedback during the meeting, but maintained that the meeting was held in private, and included an agreement that Ms Henderson should consider what had transpired and that they should discuss the matters further.  He said that one outcome was that some of the suggested solutions could be included in Ms Henderson’s performance review and that she could show the necessary improvement in her performance by November 2007.

30.     In Re von Stieglitz and Comcare [2010] AATA 263 Senior Member Professor Creyke observed at [67]:

Whatever administrative action is to be taken must be ‘reasonable’.  Reasonableness is a chameleon-like concept, tailored to the circumstances.  As a minimum, to be reasonable the action must be lawful.  What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall.  Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state of the employee concerned.  There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’.

31.     In Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 the Full Federal Court held at [79]:

There are elements of rationality and proportionality in the relevant definitions of reasonably...The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court…

32. Section 5A(2) of the SRC Act lists examples of action that might be described as reasonable administrative action for the purposes of s 5A(1) of the SRC Act, but is preceded by the words without limiting that subsection.  The Tribunal accepts Mr Cavanagh’s evidence that after receiving the complaint from Mr Taylor he was required, as Ms Henderson’s supervisor, to discuss the matters with her and to provide the necessary feedback on these and other concerns that had been raised by senior management.  The Tribunal concludes that the administrative action in holding the meeting to provide informal counselling and to discuss the complaint and other aspects of feedback on Ms Henderson’s performance was lawful and appropriate in the circumstances.  Therefore the Tribunal finds that the 25 July meeting was reasonable administrative action.

33.     The Tribunal accepts that during the meeting Ms Henderson became upset and was distressed at the nature of the complaints by Mr Taylor and by the feedback provided by Mr Cavanagh more generally about issues raised by senior management.  However after hearing evidence from Ms Henderson and Mr Cavanagh, and examining his contemporaneous diary entries, the Tribunal is satisfied that the meeting was conducted in a professional manner and was held in private.  Discussion of the issues that had been raised by senior management was conducted in a rational manner and Mr Cavanagh had given Ms Henderson adequate opportunity to respond.  The diary notes suggest that the meeting covered areas where improvements could be made to Ms Henderson’s performance and included a range of possible solutions such as mentoring and improved communications.  Ms Henderson’s telephone call to Ms Lindley later that day appeared to be based on the substance of Mr Taylor’s complaint and other issues rather than the conduct of the meeting.  For these reasons the Tribunal finds that the administrative action was taken in a reasonable manner.

WAS THE ADMINISTRATIVE ACTION TAKEN IN RESPECT OF MS HENDERSON’S EMPLOYMENT?

34.     The 25 July meeting was held within working hours and on the premises of Ms Henderson’s employer.  The subject matter consisted of issues relevant to her employment with DSTO.  For these reasons the Tribunal finds that the administrative action was taken in respect of Ms Henderson’s employment.

WAS THE INJURY SUFFERED AS A RESULT OF THE ADMINISTRATIVE ACTION SO AS TO EXCLUDE MS HENDERSON FROM RECEIVING COMPENSATION?

35.     Ms Henderson told the Tribunal that Mr Cavanagh’s action in relaying the threat to her salary progression was upsetting, and this, rather than anything else discussed at the meeting, was the only reason for her to be distressed later that evening in her telephone call to Ms Lindley.  She conceded that this was among the actions taken by her employer which contributed to the aggravation of her anxiety and depressive condition, and stated that there was no medical evidence that anything other than discussion of the salary progression at the meeting was a material contributor to the injury.

36.     The Tribunal accepts that Ms Henderson was distressed at the nature of the complaint by Mr Taylor regarding the threat to her salary progression.  However, as Mr Cavanagh’s diary notes demonstrate, she was also upset and felt unsupported by senior management over the range of issues raised by Mr Cavanagh as relayed by management.  The Tribunal concludes that, based on the evidence including reports by relevant medical professionals, the matters discussed at the 25 July meeting including the complaint by Mr Taylor and feedback on other issues raised by senior management contributed directly to her adjustment disorder.  Therefore the Tribunal finds that the condition was suffered as a result of the administrative action.

CONCLUSION

37.     In view of its findings the Tribunal is satisfied that, in respect of the 25 July meeting, the condition suffered by Ms Henderson resulted from reasonable administrative action taken in a reasonable manner in respect of her employment, so it does not come within the definition of injury in the SRC Act.

38.     In Hart v Comcare (2005) 145 FCR 29 the Federal Court of Australia held that, provided that a disease 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, that disease is not an injury (as defined in s 4(1) and later applied to s 5A of the SRC Act), and 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 25 July meeting, Ms Henderson is not entitled to compensation under the SRC Act, and there is no need to consider whether the administrative action in respect of the 8 October meeting or the 24 October meeting satisfies the criteria for excluding the condition from the definition of injury.

DECISION

39.     The Tribunal affirms the decision under review.

I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision of:

G. D. Friedman, Senior Member

Signed: …………………….[signed]……………………………….

Grace Horzitski  Associate

Dates of hearing:  7 and 8 December 2009, 3, 4, 6 and 7 May 2010,

26, 27 and 28 July 2010, 3 September 2010

Date of decision:  15 September 2010

Counsel for the applicant:            Mr M. Carey
Solicitor for the applicant:            Clark Toop & Taylor
Counsel for the respondent:        Mr J. Wallace
Solicitor for the respondent:        Thomsons Lawyers