Hollis and Comcare (Compensation) - [2019] AATA 772

Hollis and Comcare (Compensation) [2019] AATA 772 (29 April 2019)
Division:GENERAL DIVISION
File Number(s): 2014/4105
Re:Janelle Hollis
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:29 April 2019
Place:Sydney

The decision under review, being the decision of Comcare dated 30 May 2014, is set aside.
The matter is remitted to Comcare for reconsideration with a direction that it is liable to compensate Ms Hollis in respect of the injury, being a major depressive disorder, which she suffered on 11 September 2012.
Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made, Comcare shall pay the costs incurred by Ms Hollis in these proceedings.
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Deputy President J W Constance
CATCHWORDS
WORKERS' COMPENSATION - application for review of decision affirming determination that Respondent not liable to compensate Applicant in respect of claimed injury - whether Applicant suffered "ailment" or "aggravation of such an ailment" - major depressive disorder - whether ailment "contributed to, to a significant degree" by Applicant's employment - whether “disease … suffered as a result of … administrative action taken … in respect of the [Applicant’s] employment” - disease suffered prior to alleged administrative actions - whether injury resulted in “incapacity for work, or impairment” - decision under review set aside and remitted
PRACTICE AND PROCEDURE - proceedings on remittal from Federal Court - where order remitting matter unqualified and unambiguous - whether decision under review to be reconsidered on the merits - unqualified order remitting matter ordinarily to be taken as invitation to Tribunal to begin again statutory task of review
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin (2016) 258 CLR 467
Hollis and Comcare [2017] AATA 49
Hollis v Comcare [2017] FCA 558
Kaluza v Repatriation Commission [2011] FCAFC 97
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Peacock v Repatriation Commission [2007] FCAFC 156
REASONS FOR DECISION
Deputy President J W Constance
29 April 2019
INTRODUCTION

Ms Hollis commenced employment with the Department of Education, Employment and Workplace Relations (the Department) in 2009.
During 2012 and 2013, Ms Hollis was working in the Department’s regional office in Newcastle, New South Wales.
In October 2013, Ms Hollis made a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of anxiety and depression she says was contributed to, to a significant degree, by her employment by the Department. She claims that she suffered an injury in accordance with the Act “over a period of time in 2012.”[1]
[1] Exhibit RR14 at 8.
By decision dated 30 May 2014 (the reviewable decision), Comcare affirmed an earlier decision denying liability to compensate Ms Hollis. Ms Hollis has applied to the Tribunal for review of the reviewable decision.
For the reasons which follow, the reviewable decision will be set aside and the matter will be remitted…

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 Hollis and Comcare (Compensation)

Details

AGLC: Hollis and Comcare (Compensation) [2019] AATA 772
Case: [2019] AATA 772
Decision Date: 29 April 2019

CaseChat Overview and Summary

This matter concerned an application by Ms Hollis for a review of a decision by Comcare that affirmed an earlier determination that Comcare was not liable to compensate Ms Hollis in respect of a claimed injury. The dispute centred on whether Ms Hollis had suffered an "ailment" or an "aggravation of such an ailment" and, if so, whether this was contributed to to a significant degree by her employment. A further question was whether the ailment was a "disease suffered as a result of administrative action taken in respect of the applicant's employment," particularly if the disease was suffered prior to the alleged administrative actions. The court was also required to consider whether the injury resulted in "incapacity for work, or impairment." The decision under review was set aside and remitted.

The legal issues before the court were: (1) whether Ms Hollis suffered an "ailment" or an "aggravation of such an ailment" within the meaning of the relevant Act; (2) if so, whether the ailment or aggravation was contributed to to a significant degree by her employment; (3) if the above were satisfied, whether the disease was suffered as a result of administrative action taken in respect of her employment, and if that action was reasonable and taken in a reasonable manner; and (4) if the previous conditions were not met, whether the injury resulted in "incapacity for work, or impairment." The court also considered the effect of an unqualified order remitting the matter from the Federal Court, determining that such an order ordinarily invites the Tribunal to reconsider the statutory task of review on the merits.

The court's reasoning focused on the medical evidence provided by Dr Allnutt, a Senior Consultant Forensic Psychiatrist. Dr Allnutt's reports and evidence indicated that Ms Hollis manifested a constellation of anxiety and depressive symptoms, which by September 2012 had reached the threshold of a major depressive episode. While acknowledging that Ms Hollis had experienced some symptoms prior to commencing her role in February 2012, Dr Allnutt concluded that her condition deteriorated from February 2012 onwards due to a perceived difficult workplace environment, bullying, and ostracism. The court accepted this evidence, finding that the major depressive disorder suffered by Ms Hollis was contributed to to a significant degree by her employment. The court also determined that the exclusion of the "reasonable administrative action" defence was appropriate in this instance.

The reviewable decision was set aside, and the matter was remitted to Comcare for reconsideration with a direction that Comcare was liable to compensate Ms Hollis in respect of the injury, being a major depressive disorder, which she suffered in 2012.

Orders

Orders of the court

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Background

Background to the litigation

By agreement between the parties, Ms Hollis gave evidence at the hearing before me. The other witnesses called to give evidence were the medical experts to whom I will refer later in these reasons. The transcript of the previous hearing was taken into evidence by consent.BACKGROUND Unless stated otherwise, the findings of fact in these reasons are based on the evidence of Ms Hollis. She provided a statement dated 28 March 2014[3] and two undated statements lodged in the Tribunal on 8 September 2015[4] and 8 October 2015[5]. Ms Hollis gave oral evidence at both hearings.[3] Exhibit AA5.[4] Exhibit AA8.[5] Exhibit AA9.Employment prior to October 2012 Ms Hollis commenced employment with the Department in February 2009 as a contract manager at the APS6 level for Employment Services and Indigenous Programs. In April of the same year she transferred to the Northern Territory as an Assistant Director (EL1 level). In this role she worked on a number of major projects and strategic planning. In 2009 she received the Secretary’s Excellence Award and in the 2009-2010 assessment period her performance appraisal rating was “outstanding”. Her performance appraisal rating for 2010-2011 was “’good’ at the executive level”.[6][6] Exhibit AA8 at [3]. In October 2010, Ms Hollis took leave to return to New South Wales (where she had previously resided) to assist her son who was experiencing health problems. Following her return, she took an extended period of leave and applied for various positions to enable her to stay with her son. In January 2012, Ms Hollis was told that there was a position available for her at the APS5 level in the Indigenous Education and Employment Branch (IEEB). She took up the position in February 2012, although her reduction to the APS5 level did not occur until 6 August 2012. This meant that for the first five months in the IEEB she remained at the EL1 level. Ms Hollis was extremely happy with this appointment as her experience and passion were in this area. Her supervisor was Mr Bissett. Two of her colleagues were Ms Bate and Ms Pearce. Between February 2012 and early September 2012, Ms Hollis was subjected to behaviour of Ms Bate and Ms Pearce which she described as intimidating and demeaning. In her statement filed on 8 September 2015,[7] Ms Hollis described the environment in which she worked from February 2012 until 11 September 2012 as follows:[7] Exhibit AA8.Ms Bate and Ms Pearce shared the position of Mr Bissett whilst he was on leave. They did not include me in teleconferences, meetings or visits to providers. When I requested work, they ignored me. I requested work from my colleagues, Bryan Saunders and Ron Powell instead. They gave me bits and pieces of preparing claims for payments to be sent to the State Office for processing. Having previously worked in high volume workload areas in the Northern Territory and Skills Australia, I was finding it difficult to adjust to a meagre workload of process work. I used my time to learn about the region and the business of the unit in the region. I found Mr Powell to be of like mind, he was a wealth of knowledge in community’s background and we formed a genuine friendship. I showed Ron how to use the Employment Services System. Several times, Ron and Bryan told Ms Bate and Ms Pearce how I had helped them with the system. Despite this, I was still subjected to the same alienation and ostracism from the two women. They would constantly talk over the top of me, ignore me and make comments such as ‘get used to it’ when I inquired as to why reminders for reports were not followed up. I would send them emails of messages I took while I was the only one in the office and they would not respond to the provider, meaning I was the one left to explain to the provider why nothing had been done. I found this conduct to be unacceptable, particularly when the stakeholders were significant employers like Rio Tinto in the Hunter Valley.Other instances of alienation includes comments such as ‘put her in the boot’ when Ron suggested I attend the community visit and disputing me in front of staff and visitors when I gave information to Lake Macquarie City Council about the opportunity to retender for the Indigenous Youth Connections Project which was to be opened again in June 2012. A further occasion was when Mr Bissett asked me to stay back and mind the fort whilst the rest of the team attended information sessions for the program, Indigenous Youth Connections. I recall Mr Taylor inquiring as to why I was always the one left in the office. Other staff members made similar comments. On one occasion, Mr Taylor inquired as to where the rest of the team were. I didn’t know, but a colleague in another team called out that they were all in a teleconference. This embarrassed me and exemplified how I was excluded from the team. On one occasion where I attended a meeting with providers with Ms Bate, she placed me in a very confronting situation where she discussed other provider’s [sic] financial situations and requested the services of the provider for her own business.…On 23 July, Ms Pearce met with me and proceeded to write in her diary a list of the projects that she had. I asked her why she was giving me work now, when I had been asking for work for months. She ignored me and continued to write in her diary. It was clear that the projects Mrs Pearce had listed were those of Bryan Saunders since he left in May. Mr Saunders had handed over all his work to Mr Powell before he left. I offered to help Ron out and he was grateful but annoyed that I had not been given a share of the work by the two supervisors.From this time, Ms Bate made requests for me to mail letters for her and Ms Pearce requested that I make appointments for her. Mr Powell had complained to Mr Bissett about the women treating me as their personal secretary a number of times, however it continued. There was constant snickering between them. I found it humiliating and was constantly on guard. Mr Powell made a point of saying that he had no problem working with me and said he had spoken to Mr Bissett about the way the two women were treating me. He mentioned the day that Mr Bissett and Ms Pearce were standing by the window whispering when there was no one else in ear shot other than myself sitting at my desk. I left the other rather than sit there feeling excluded. I wanted to point out to them that there were plenty of private areas to have discussions.Daniel Jack commenced in the team in August 2012, with Ms Pearce being assigned as his supervisor. Daniel and I formed a friendship as Dan knew friends of mine in Darwin. Daniel was allocated Bryan Saunders region in the Newcastle Region Office Directory before he had commenced and he was provided with business cards, a mobile phone and orientation visits to the communities on commencement. I was never provided with any of this, and I still had no allocation of a region in the directory. Mr Bissett and the two supervisors made no attempt to rectify this issue, when the email was sent around for any changes to be made. I found it to be another form of exclusion and ostracism.The week beginning September 3 2012, was a week of constant intimidation and demeaning behaviour direction toward both myself and Mr Powell. Mr Powell, Mr Bissett and I travelled to the mid North Coast for the community festivals. This was my first travel with the team for work purposes. On return to the office, there were mocking comments from both Ms Bate and Ms Pearce about how they had done some of the grants register, so that Ron and I didn’t have to stress out so much about it. This was not said in a nice way. As a result of this, Ron took the next two days off. It was clear that he was upset at the niggling, demeaning manner the women engaged in.On 6 September 2012, I was supposed to have travelled to the Valley with Ms Bate for a meeting, however Ms Pearce went with her instead. On the morning of 7 September, when I started work, Ms Pearce, Ms Bate and Mr Bissett were standing at the window. Daniel was on the other side of the work station petition [sic]. Ms Bate called out to me ‘what’s all the white shit over the car?’ I asked if she was speaking to me. She replied ‘yes, what is the white shit all over the car, it is in a disgusting state, what did you do to it?’ Ms Pearce was grinning with pleasure. Mr Bissett did nothing to intervene. I replied that I had no idea what she was talking about and left the office area and went to the toilet area to calm down.Not long after, Ms Bate instructed Daniel to wash all the vehicles. She sent an office wide email about the washing of the cars and how they were in a disgusting state. I felt that this was a totally unnecessary action and the sole purpose was aimed at humiliating me after the previous accusations were made. I made a comment to her as to who the last person was to use the vehicle after I had returned it on Wednesday. In fact, it was Ms Bate and Ms Pearce who used the car to travel to the mine site where it would have gotten covered in mine dust. What followed throughout that day were emails that could have easily occurred through normal office conversation. It seemed that I received more emails from these two women on that day than I had received the entire time I had been in the team. An email was sent to me to ‘find a file on Ron’s desk.’ I found it so silly to send an email when she could have simply found it herself or asked me verbally. There was an implied direction in sending an email. The other emails sent on this day included attending training in the Employment Services System which I had been helping both Ron and Daniel with, and who had both commented that I was the one who knew the most about it. Yet Ms Pearce was insisted that I be trained as an APS 5. Mr Powell was not required to attend the training. The final straw was an email sent from Ms Pearce to Ms Bate with a flyer attached. It was for an Aboriginal and Non Aboriginal Women’s Day in Port Stephens. Ms Bate then sent an email to me and copied in Mr Bissett requesting that I book a car. I was about to respond that it didn’t appear to be work related when Ms Pearce replied in the same email trail which showed she had been blind copied into the email. This demonstrated to me that the intention was not to be inclusive but more to humiliate and have a laugh at my expense. I felt I needed to get out of the office before I exploded and said what I really thought about their behaviour. Mr Bissett followed me out of the office. I turned to him and said “I do not have to put up with this and I am not going to any longer.” I left the office.I accept this evidence.

Evidence

Evidence Before The Court

The following issues arise for determination in this application:(1)Did Ms Hollis suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?(2)If yes, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Department?(3)If yes, was the “disease … suffered as a result … of administrative action … taken … in respect of [Ms Hollis’s] employment”?a.If yes, was the administrative action “reasonable” and was it “taken in a reasonable manner”?(4)If no, did the injury result in “incapacity for work, or impairment”?MEDICAL EVIDENCEDr Allnutt, Senior Consultant Forensic Psychiatrist Dr Allnutt assessed Ms Hollis in January 2015 and July 2017 at the request of her solicitors. He provided reports dated 27 January 2015[12] and 4 September 2017[13]. He gave evidence at the Tribunal hearings in December 2015 and March 2018.[12] Exhibit AA1.[13] Exhibit AA15. On 27 January 2015, Dr Allnutt reported that Ms Hollis manifested “a constellation of anxiety and depressive symptoms”. The depressive symptoms were characterised by:·depressed mood with disturbed sleep;·reduced appetite;·reduced energy;·poor concentration;·poor self-esteem;·loss of confidence in decision-making;·loss of pleasure in activities;·suicidal ideation; and·reduced energy and motivation.Her anxiety symptoms were characterised by concern and anxiety about her current circumstances. When Dr Allnutt gave evidence before the Tribunal in December 2015, he said that the major depressive disorder suffered by Ms Hollis “was fully established by the time she began to take leave in September 2012”.[14][14] Exhibit RR15 at 223. Dr Allnut further deposed that, in January 2015, Ms Hollis “continued to complain of a number of depressive type symptoms” which were indicative of a psychiatric condition. In Dr Allnutt’s opinion, at the time he assessed Ms Hollis, she was unfit for work and required further recovery from her depression. She needed treatment from both a psychologist and a psychiatrist and possibly ongoing anti-depressant medication.[15][15] Exhibit RR15 at 224-225. Following his further assessment of Ms Hollis on 12 July 2017, Dr Allnutt reported, in part:Around the time she took on her position in November 2011 she had consulted with her general practitioner because she was depressed, was having sleep disturbance and was feeling anxious about her son, waking up at night and worrying. It is likely that she was suffered, on balance, symptoms of a chronic adjustment disorder at this stage. By this time, she had a psychological condition outside the boundaries of normal mental functioning and behaviour.My impression is that when she started in February 2012 (with IEEB) “the pressure was off” and she was grateful for the new position and did not have to take leave. She was still anxious about her son and continued to experience broken sleep. It is likely that she continued to have chronic adjustment disorder at this stage but with some improvement.In the context of the new position (IEEB) after February 2012 she described a build-up of events related to her perception of a difficult workplace environment and atmosphere, feeling bullied and ostracised by peers, and during that period she experienced a gradual deterioration in her mood.Mental conditions often emerge gradually and it is sometimes difficult to say exactly when a syndrome of symptoms has reached the threshold of a diagnosable psychiatric condition (particularly in retrospect). The position I adopt is that by February 2012 she was experiencing symptoms of depression and anxiety (probably consistent with a chronic adjustment disorder or early symptoms of a developing major depressive condition) and that her condition deteriorated from then on, with the emergence of a major depressive episode between February 2012 to September 2012. So that by September 2012 she would be diagnosed a major depressive episode because by then the diagnostic threshold had been met. Chronic adjustment disorder and major depression lie on the same spectrum.After the [Mr Saunders] incident, she took intermittent leave from November 2012 to mid-January 2013 reducing work time and continued with the antidepressant and there was improvement in her mental state, likely due to reduced stress and increased medication.After May 2013, there was a deterioration in her mental state and major depressive disorder continued by the time she left work in December 2013. Overall, my view is that while there were fluctuations in her mental state after September 2012, but symptoms of depression and anxiety persisted with varied severity and therefore had varied impact on her functioning in that time.

Decision

Reasons for decision

By decision dated 30 May 2014 (the reviewable decision), Comcare affirmed an earlier decision denying liability to compensate Ms Hollis. Ms Hollis has applied to the Tribunal for review of the reviewable decision. For the reasons which follow, the reviewable decision will be set aside and the matter will be remitted to Comcare for reconsideration with a direction that it is liable to compensate Ms Hollis in respect of the injury, being a major depressive disorder, which she suffered in 2012.RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH) Subsection 14(1) of the Act provides: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. “Injury” is defined in subsection 5A(1) to mean:(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. Subsection 5A(2) provides: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. “Disease” is defined in section 5B:(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;(a)the nature of, and particular tasks involved in, the employment;(b)any predisposition of the employee to the ailment or aggravation;(c)any activities of the employee not related to the employment;(d)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.

Ratio Decidendi

Legal Principle Established

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