Indra Thappa and Comcare - [2013] AATA 629

[2013] AATA 629

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/1668

Re

Indra Thappa

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 3 September 2013

Place Canberra
The decision under review is affirmed.
.................[sgd]...........................................
Mr S. Webb, Member
WORKERS’ COMPENSATION – psychological injury claim – significant employment contribution – disease – reasonable administrative action – undertaken in a reasonable manner -
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Hart v Comcare [2005] FCAFC 16
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
REASONS FOR DECISION
Mr S. Webb, Member
3 September 2013

Indra Thappa is employed by the Australian Agency for International Development (AusAID), an agency of the Commonwealth. He claimed compensation in respect of an injury. Comcare rejected the claim by primary determination and on reconsideration. Mr Thappa applied for review. His application was not progressed within a reasonable time, and it was dismissed. Subsequently, Mr Thappa made a fresh application for review, out of time. The Tribunal granted an extension of time, permitting the application commencing these proceedings.
At the outset of the hearing, I was informed that Comcare accepts that Mr Thappa suffered an ailment in the form of an Adjustment Disorder with features of anxiety and depression to which his employment contributed to a significant degree, meeting the description of a ‘disease’ for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
The issue in dispute to be determined is whether Mr Thappa’s disease meets the test of an ‘injury’ under s 5A of the Act. It cannot do so, and Mr Thappa’s claim must fail, if the disease resulted from ‘reasonable administrative action undertaken in a reasonable manner’ in respect of Mr Thappa’s employment. Conversely, if the disease meets the test of an ‘injury’, it is necessary to determine the date of the injury, applying s 7(4) of the Act.
The brief facts follow.
In 2008, Mr Thappa was employed in AusAID’s Program, Quality and Review section (the PQR section) of the Papua New Guinea Branch at the APS 6 level. I note that he acted in higher duties from May to July 2008.
In September 2008, Mr Thappa and the (then) Director of the PQR section, Michelle Lowe, were involved in a mission to evaluate an AusAID program in Papua New Guinea – the Gazelle Roads East New Britain Project. Issues arose in respect of Mr Thappa’s conduct when dealing with a consultant to the mission, Ian Scales (an academic expert), about which Mr Thappa and Ms Lowe have differing views. Mr Thappa maintains that the consultant made a racist remark[1] and that his contract was not being complied with or managed in a manner that conformed to the National Procurement Guidelines of the Commonwealth[2]. Ms Lowe says that Mr Thappa behaved inappropriately, raising his voice aggressively and making derogatory remarks about AusAID personnel, in an exchange with Mr Scales that she witnessed. These matters were discussed in a…

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 Indra Thappa and Comcare

Details

AGLC: Indra Thappa and Comcare [2013] AATA 629
Case: [2013] AATA 629
Decision Date

CaseChat Overview and Summary

Indra Thappa lodged a claim with Comcare for workers' compensation following a diagnosis of Adjustment Disorder, attributing the condition to various incidents during his employment. The Federal Circuit and Family Court of Australia was tasked with determining whether the Adjustment Disorder constituted an injury under the relevant workers' compensation legislation. The court needed to examine the specific causes of the disorder and whether they fell within the exclusions outlined in the legislation.

The primary legal issue was whether the Adjustment Disorder was an injury as defined by the Workers Rehabilitation and Compensation Act 1988. This required a detailed analysis of the causes of the disorder and whether any of these causes were exempt from compensation under the Act. Specifically, the court had to consider whether certain reasonable administrative actions taken in respect of Thappa's employment constituted an exclusion under section 5A(1) of the Act.

In reaching its decision, the court found that the Adjustment Disorder was indeed significantly contributed to by incidents during Thappa's employment. However, two of these incidents involved reasonable administrative actions taken in a reasonable manner, which fell under the exclusionary terms of section 5A(1). Consequently, these actions did not qualify as compensable injuries. The court concluded that since the disorder was attributable to both compensable and non-compensable causes, it did not meet the criteria of being solely an injury for the purposes of the Act. Therefore, Thappa's claim for compensation was rejected, and the decision under review was affirmed.

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

Once again, I do not accept Mr Thappa’s characterisation of Ms Callan’s action as unfair or unjust. It was action taken in accordance with the procedures set out in cl 67.1 of the Collective Agreement to assist performance improvement on Mr Thappa’s part. It did not extend to a formal warning or any other sanction. To my mind, it was proportionate and reasonable action to take in the circumstances.CONCLUSION Mr Thappa’s Adjustment Disorder was significantly contributed to by incidents of his employment. It meets the description of a ‘disease’. Unfortunately for Mr Thappa, even though his Disorder resulted from several employment causes over a period from September 2008, two of those causes are within the exclusionary terms of s 5A(1), being reasonable administrative actions undertaken in a reasonable manner in respect of his employment. It follows that Mr Thappa’s Adjustment Disorder is not an ‘injury’ for the purposes of the Act, and he is not entitled to compensation. His claim must be rejected and the decision under review affirmed.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1668
Re	Indra Thappa
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	3 September 2013
Place	Canberra