Jones and Comcare (Compensation)

Case [2023] AATA 2476

Jones and Comcare (Compensation) [2023] AATA 2476 (30 June 2023)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2019/1961
General Division )

Re: Philip Jones
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  Senior Member Damien O’Donovan

DATE OF CORRIGENDUM:            10 July 2023

PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

1.Delete ‘During August 2017’ from paragraph 3 and replace with ‘During October 2017’.

2.Delete ‘September 2017’ from paragraph 60 and replace with ‘October 2017’.

3.Delete ‘March 2017’ from paragraph 75 and replace with ‘March 2018’.

4.Delete ‘In her report’ from paragraph 87 and replace with ‘In his report’.

5.Delete the references to Dr Adesanya as ‘She’ from paragraph 90 and replace with ‘He’.

6.Delete the references to Dr Adesanya as ‘She’, ‘she’ and ‘her’ from paragraph 108 and replace with ‘He’, ‘he’ and ‘his’.

……………………[sgd]…………………
Senior Member Damien O’Donovan

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2019/1961
General Division )

Re: Philip Jones
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:  Senior Member Damien O’Donovan

DATE OF CORRIGENDUM:            3 July 2023

PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application.

1.The reference to ‘The respondent answered…’ in paragraph 153 be deleted and replaced with ‘The applicant answered…’.

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

Senior Member Damien O’Donovan

Division:GENERAL DIVISION

File Number(s):      2019/1961

Re:Philip Jones

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member O'Donovan

Date:30 June 2023

Place:Canberra

The decision under review dated 26 February 2019 is set aside and in substitution it is decided that the respondent is liable to pay compensation in accordance with the SRC Act in respect of the psychological ailment suffered by the applicant – being an adjustment disorder with features of anxiety and depression – which resulted in incapacity for work and the need for medical treatment in the period from 15 August 2017 to approximately 1 August 2018.

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

Senior Member O'Donovan

CATCHWORDS

WORKERS' COMPENSATION - initial liability - employee suffered stress reaction to new work system - whether reaction outside bounds of normal mental functioning - whether precipitating events constitute employment - whether employment contributed to a significant degree - whether liability excluded by a wilful and false representation - whether any of the precipitating events reasonable administrative action - denial of liability set aside

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 s 4(1), 5B, 7(7)

CASES

Bailey v Broadsword Marine Contractors Pty Ltd [2017] FCAFC 219

Comcare v Mooi (1996) 69 FCR 439
Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626
Linfox Australia Pty Ltd v O'Loughlin [2018] FCAFC 173

National Australia Bank Limited v Georgoulas [2013] FCA 1412

REASONS FOR DECISION

Senior Member O'Donovan

30 June 2023

  1. Towards the end of 2016 the Department of Human Services (DHS) changed its help desk arrangements for dealing with…

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AGLC
Jones and Comcare (Compensation) [2023] AATA 2476
Case
[2023] AATA 2476
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Jones against a decision by Comcare to deny him workers' compensation. Mr Jones claimed he suffered a psychological ailment, specifically an adjustment disorder with mixed anxiety and depressed mood, due to his employment with the Department of Human Services. Comcare had denied liability, and the Administrative Appeals Tribunal was required to determine whether Mr Jones' condition constituted a compensable injury under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act).

The Tribunal was tasked with determining several legal issues. Firstly, it had to ascertain whether Mr Jones suffered a condition outside the boundaries of normal mental functioning and behaviour, thereby qualifying as an 'ailment' under the SRC Act. If an ailment was established, the Tribunal needed to determine if Mr Jones' employment contributed to this ailment to a significant degree, thus constituting a 'disease' for the purposes of the Act. Further, the Tribunal had to consider whether the ailment was a result of reasonable administrative action taken in a reasonable manner, which could exclude liability. Finally, if these criteria were met, the Tribunal had to assess whether Mr Jones' liability was excluded by section 7(7) of the SRC Act, which pertains to wilful and false representations about pre-existing conditions.

In its reasoning, the Tribunal accepted the diagnosis of adjustment disorder with mixed anxiety and depressed mood, finding that Mr Jones' condition was outside the boundaries of normal mental functioning and behaviour, as required by case law. The Tribunal found that the changes to the IT system, which required senior technical staff like Mr Jones to handle basic help desk queries, significantly impacted his work and contributed to his condition. It was also determined that the events precipitating the ailment were part of his employment and not excluded by the reasonable administrative action provisions. Crucially, the Tribunal found that Mr Jones' answer to a question regarding pre-existing conditions was not wilfully false, thereby not triggering the exclusion under section 7(7) of the SRC Act.

Consequently, the Tribunal set aside Comcare's decision and found that Mr Jones was entitled to compensation for his psychological ailment, which resulted in incapacity for work and the need for medical treatment between 15 August 2017 and approximately 1 August 2018. Mr Jones was also advised to make any application for costs within 28 days of the decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Jones gave evidence about the development of his psychological condition. He did his best to give an account of his subjective state of mind at various points in time during 2017 and 2018. While I do not doubt he was doing his very best to tell the truth, it is not an easy thing to recall the exact nature of one’s emotional state several years prior at a particular point in time. For that reason, to the extent that there is variation in the description given about Mr Jones’ emotional state in contemporaneous medical records and Mr Jones’ evidence on the subject, I have generally preferred the contemporaneous medical records.Facts The following represent my findings of fact. To the extent that they are controversial I have referenced the evidence on which they are based. Mr Jones was born on 4 July 1952 and grew up in Australia. He has worked most of his adult life in mainframe computing. In terms of his mental health, he had sporadic history of depression associated with the ending of his marriage and a difficult period of employment, but prior to his work for the Commonwealth had never been referred to a psychiatrist. In 2011 the applicant accepted a job in Canberra working for the Department of Human Services. From February 2015 the applicant worked in the Mainframe Infrastructure Team. The work required the applicant to be on an on-call roster which was disruptive to the applicant’s sleep. Eventually the applicant was prescribed temazepam to help with this sleep disturbance.[2] However, over time the applicant felt that the on-call roster was not working fairly. The roster moved from an on-call group of more than 15 with 3 or 4 staff available at a time, to only one person being on-call. The applicant decided that he was ‘not going to do it’ when the roster moved to him being on it one week in four. In his evidence Mr Jones said that he ‘removed himself from the roster’ although strictly speaking that is not what occurred.[3] The applicant actually attended his GP and obtained a medical certificate indicating that he was unfit for the work, and it was on this basis that he was removed from the roster. His supervisor Peter Cottrell was supplied with a medical certificate which stated that Mr Jones was not fit to engage in on call duties for the following 12 months.[4] Mr Jones however is adamant that he was exasperated with the roster and staffing levels rather than psychologically unfit for work.[5][2] ST25 p 136.[3] Transcript p 25.[4] See T46 p 179 and ST1 p 20.[5] See applicant’s Submission on Reasonable Administrative Action (RAA) and the Carfi EIAP Report at paragraph 14. This reveals that Mr Jones was both willing and able to obtain medical certificates to deal with issues which were not strictly speaking medical. The events which led to the applicant’s workers compensation claim have their origin in decisions made prior to the start of 2016. At the end of November 2016, the Department began a trial of the system for handling queries from internal users of its IT system. It was called the Infrastructure Urgent Escalation Channel (IUEC). In broad terms the new system altered what had previously been a help desk model where staff could ring in and have their IT problems solved, to a system whereby problems were logged and triaged. The effect of the introduction of the system was that senior people in the Service Operations Branch, like the applicant, were required to answer help desk type calls and log them rather than solve them. This was new work for people like the applicant who was a technical expert who worked on bigger problems which required deeper concentration.

Evidence

Evidence Before The Court

Finally, if all of those questions are answered favourably to the applicant, I must consider whether section 7(7) of the SRC Act operates to exclude liability for any injury. The 7(7) exclusion operates when a person has at any time for purposes connected with their employment made a wilful and false representation that they did not suffer or had not previously suffered from a disease.Evidence The following material was taken into evidence:(a)The ‘T-Docs’, paginated 1-350 (Exhibit 1);(b)The ‘ST-Docs’, paginated 1-228 (Exhibit 2);(c)The parties’ agreed Tender Bundle, pages 1-179 (Exhibit 3);(d)The applicant’s bundle of relevant documents, pages 1-459 (Exhibit 4);(e)The applicant’s supplementary bundle of documents, pages 1-13 (Exhibit 5);(f)The applicant’s bundle of additional documents filed 31 July 2022 (Exhibit 6);(g)A witness statement of Ms Peta Hawkesbury dated (Exhibit 7);(h)The relevant summonsed documents from Services Australia (Exhibit 8);(i)The relevant summonsed documents from Carfi (Exhibit 9); and(j)The report of Ms Kym Robinson dated 27 July 2022 (Exhibit 10). The following witnesses were called to give evidence and were cross-examined:(k)Phil Jones;(l)Peter Cottrell;(m)Dr Luke Murphy;(n)Dr Thanh Trinh; and(o)Peta Hawkesby. On the medical side, psychiatrist Dr Murphy appeared and was cross examined at length by Mr Jones. Mr Jones’ GP Dr Trinh also appeared and was cross examined. Mr Jones gave evidence about the development of his psychological condition. He did his best to give an account of his subjective state of mind at various points in time during 2017 and 2018. While I do not doubt he was doing his very best to tell the truth, it is not an easy thing to recall the exact nature of one’s emotional state several years prior at a particular point in time. For that reason, to the extent that there is variation in the description given about Mr Jones’ emotional state in contemporaneous medical records and Mr Jones’ evidence on the subject, I have generally preferred the contemporaneous medical records.Facts The following represent my findings of fact. To the extent that they are controversial I have referenced the evidence on which they are based. Mr Jones was born on 4 July 1952 and grew up in Australia. He has worked most of his adult life in mainframe computing. In terms of his mental health, he had sporadic history of depression associated with the ending of his marriage and a difficult period of employment, but prior to his work for the Commonwealth had never been referred to a psychiatrist. In 2011 the applicant accepted a job in Canberra working for the Department of Human Services. From February 2015 the applicant worked in the Mainframe Infrastructure Team. The work required the applicant to be on an on-call roster which was disruptive to the applicant’s sleep. Eventually the applicant was prescribed temazepam to help with this sleep disturbance.[2] However, over time the applicant felt that the on-call roster was not working fairly. The roster moved from an on-call group of more than 15 with 3 or 4 staff available at a time, to only one person being on-call. The applicant decided that he was ‘not going to do it’ when the roster moved to him being on it one week in four. In his evidence Mr Jones said that he ‘removed himself from the roster’ although strictly speaking that is not what occurred.[3] The applicant actually attended his GP and obtained a medical certificate indicating that he was unfit for the work, and it was on this basis that he was removed from the roster. His supervisor Peter Cottrell was supplied with a medical certificate which stated that Mr Jones was not fit to engage in on call duties for the following 12 months.[4] Mr Jones however is adamant that he was exasperated with the roster and staffing levels rather than psychologically unfit for work.[5][2] ST25 p 136.[3] Transcript p 25.[4] See T46 p 179 and ST1 p 20.[5] See applicant’s Submission on Reasonable Administrative Action (RAA) and the Carfi EIAP Report at paragraph 14.

Decision

Reasons for decision

I am satisfied therefore that his answer to Question 14 was not false, and certainly not wilfully false. I am not satisfied that the provision should be applied to disentitle the applicant.Decision In light of these findings, I set aside the decision under review and find that the respondent is liable to pay compensation in accordance with the SRC Act in respect of the psychological ailment suffered by the applicant – being an adjustment disorder with features of anxiety and depression – which resulted in incapacity for work and the need for medical treatment in the period from 15 August 2017 to approximately 1 August 2018. If the applicant wishes to make an application for costs, he should do so within 28 days of the date of this decision.

Ratio Decidendi

Legal Principle Established

The applicant was seen by Dr Smith at his lawyer’s request on 27 November 2018. Dr Smith diagnosed the applicant as suffering from an ‘adjustment disorder with mixed anxiety and depressed mood’.[60] Dr Smith justified the diagnosis on the basis that the applicant described a development of marked anger and anxiety with associated panic symptoms and insomnia in the context of workplace difficulties throughout 2017, continuing through 2018. The symptoms were significant as evidenced by his occupational impairment, his presentation to the Canberra Hospital with panic symptoms, his need for a referral to a psychiatrist and his persistent anger and distress. He indicated that based on his examination, the preferable diagnosis was adjustment disorder with mixed anxiety and depressed mood, although major depressive disorder was a differential diagnosis.[60] T64 p 265.Consideration As noted at the outset there are four issues to be determined in this matter. First, whether Mr Jones suffered a condition outside the boundaries of normal mental functioning and behaviour such as to constitute an 'ailment' for the purposes of s 4(1) of the SRC Act. If he did, it is necessary to identify when this occurred and what was the cause of it. If the applicant's condition did amount to an ailment, the next question which arises is whether any ailment was contributed to, to a significant degree, by Mr Jones' employment with the Commonwealth so as to constitute a 'disease' for the purposes of section 5B of the SRC Act. The determination of this question requires a close analysis of whether the causative incidents formed part of the applicant's employment or are outside of his employment because of the weak or non-existent relationship between the applicant's duties and the activities in which he engaged. If the applicant's condition did satisfy the primary criteria for a disease, the next question is whether the disease is nonetheless not compensable because it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment. Finally, if all of those questions are answered favourably to the applicant, I must consider whether section 7(7) of the SRC Act operates to exclude liability for any injury. The 7(7) exclusion operates when a person has at any time for purposes connected with their employment made a wilful and false representation that they did not suffer or had not previously suffered from that disease.Outside the boundaries of normal mental functioning In Comcare v Mooi the Federal Court accepted that to establish the presence of an ailment where the condition complained of is a psychological one: [61]…so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is…essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.[61] (1996) 69 FCR 439.