Hollis and Comcare (Compensation) [2017] AATA 49 (24 January 2017)
Division:GENERAL DIVISION
File Number(s): 2014/4105
Re:Janelle Hollis
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:24 January 2017
Place:Sydney
The decision under review is set aside. The Applicant’s 11 October 2013 claim is remitted to Comcare for reconsideration in accordance with these reasons for decision.
COMPENSATION – anxiety and depression – ailment – pre-existing depressive condition – major depressive episode – whether “aggravation” of underlying condition – whether contributed to by employment – whether reasonable administrative action – meaning of “suffered as a result of” – code of conduct investigation – termination of employment – decision under review set aside and remitted for reconsideration
Ms Hollis challenged Comcare’s 30 May 2014 rejection of her October 2013 compensation claim. The review of that decision, in which Ms Hollis has…
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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AGLC
Hollis and Comcare (Compensation) [2017] AATA 49
Case
[2017] AATA 49
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by Ms Hollis against a decision by Comcare regarding her claim for compensation for an ailment, specifically anxiety and depression. The dispute centred on whether Ms Hollis' depressive condition was an "ailment" suffered as a result of her employment, particularly in light of a pre-existing depressive condition and the termination of her employment following a code of conduct investigation. The decision was made by Mr P W Taylor SC, Senior Member, of the Tribunal.
The legal issues before the Tribunal were whether Ms Hollis suffered an "aggravation" of an underlying depressive condition, whether this aggravation was contributed to by her employment, and whether the termination of her employment constituted "reasonable administrative action" that did not cause her ailment. The Tribunal was required to determine the meaning of "suffered as a result of" in the context of employment and administrative actions.
The Tribunal reasoned that Ms Hollis' evidence indicated she suffered a major depressive episode after receiving notice of her termination, which she viewed as a consequence of voicing concerns about unethical behaviour. The Tribunal concluded that the termination decision, being administrative action, became an operative cause of her resultant depressive condition after approximately 24 December 2013. Crucially, the Tribunal found that Ms Hollis suffered an aggravation of an ailment in September 2012, to which her employment made a significant contribution. This aggravation was deemed an injury for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth).
Consequently, the Tribunal set aside the decision under review and remitted Ms Hollis' October 2013 claim to Comcare for reconsideration in accordance with the Tribunal's reasons. The Tribunal deferred making any order in relation to costs, allowing the parties an opportunity to consider the decision and potentially resolve the matter by agreement, or to agree on a timetable for further submissions if agreement could not be reached.
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
Ms Hollis’ evidence was that she was shocked by the decision to terminate her employment, and that she “could not believe that I was being terminated for voicing my concerns about unethical behaviour”. She reported to Dr Himmelhoch feeling perplexed, struggling emotionally and by early January 2014 she ceased work and went on sick leave. In those circumstances, the proper conclusion is that after about 24 December 2013, when she had received notice of the termination of her employment, Ms Hollis’ ongoing depressive ailment had acquired that termination decision, which plainly was administrative action, as another operative cause of her resultant depressive condition.CONCLUSION Ms Hollis suffered the aggravation of an ailment in about September 2012 to which her employment made a significant contribution. That aggravation constituted an injury for the purposes of SRC Act ss 5A, 5B, 14 and 16. The date of that injury, for the purposes of SRC Act s 7(4) was 11 September 2012. That conclusion means that the decision under review must be set aside, and Ms Hollis’ October 2013 claim must be remitted to Comcare, for determination in accordance with these reasons. Ms Hollis’ submissions sought an order for costs under SRC Act s 67(8), in the event that the decision under review was set aside. However neither those submissions, nor those of Comcare, addressed the possibility of an outcome where the decision under review was set aside, but only in relation to one aspect of the injury on which the claim had been based, and where Comcare had substantially succeeded in relation to the matters raised in the review proceedings. In those circumstances I will defer making any order in relation to the costs of the proceedings until the parties have had an opportunity to consider these reasons and the review decision. If the matter of costs cannot be resolved by agreement between the parties, they should agree on a timetable for further submissions, and request the Tribunal to make appropriate directions consistent with that agreed timetable.