Julie Kennedy and Comcare - [2014] AATA 557

[2014] AATA 557

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/3140; 2012/1258

Re

Julie Kennedy

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Ms J Toohey, Senior Member
Dr M Couch, Member

Date 12 August 2014

Place Sydney
The Tribunal affirms the decision under review.
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Ms J Toohey, Senior Member
CATCHWORDS
COMPENSATION – whether applicant suffered an injury in 2009 – psychological condition – whether events in 2009 aggravated a previous injury – decision under review affirmed

LEGISLATION
Safety Rehabilitation and Compensation Act 1988 s 5A(1), 14
CASES
Julie Kennedy and Comcare [2013] AATA 696

Kennedy v Comcare [2014] FCA 82

Comcare v Mooi (1996) 137 ALR 690
REASONS FOR DECISION
Ms J Toohey, Senior Member
Dr M Couch, Member
BACKGROUND – THE TRIBUNAL’S FIRST DECISION

On 27 September 2013 the Tribunal, as presently constituted, affirmed a decision of the respondent denying liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) to compensate Ms Julie Kennedy for an adjustment disorder and consequential injuries: Julie Kennedy and Comcare [2013] AATA 696.
The focus of Ms Kennedy’s claim was on events said to have occurred at her workplace in 2007 and 2010 and, to a lesser extent, on events said to have occurred in the second half of 2009.
In affirming the decision under review, we found Ms Kennedy’s account of events in 2007 unreliable, although not because of any dishonesty on her part. We were not satisfied that her employment contributed to a significant degree to her condition. We decided that, in any event, the conduct of her supervisor which was said to have caused her condition constituted reasonable administrative action taken in a reasonable manner in respect of her employment within the meaning of the Act with the result that her claim would be excluded by s 5A(1).
In relation to events in April 2010, being a visit to Ms Kennedy’s home by staff of the respondent, and a meeting with her supervisor, it was not in dispute, and we were satisfied, that the events of which she complained contributed to a significant degree to her condition. However, we found her claim excluded because these events constituted reasonable administrative action taken in a reasonable manner in respect of her employment within the meaning of the Act.
Ms Kennedy sought review of the Tribunal’s decision by the Federal Court. On 18 February 2014, the Court allowed her appeal in part: Kennedy v Comcare [2014] FCA 82.
THE ISSUES ON APPEAL
Before the Federal Court, the only issue was whether Ms Kennedy suffered an injury in 2009 for which the respondent was liable, in particular whether the Tribunal had failed to deal with a submission advanced on her behalf that she suffered an aggravation of her psychiatric disorder in the latter half of 2009 for which the respondent was liable to compensate her.
Judge Katzmann referred at [34] and [35] to the outline of closing submissions for Ms Kennedy which, she said, did not contain submissions that…

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 Julie Kennedy and Comcare

Details

AGLC: Julie Kennedy and Comcare [2014] AATA 557
Case: [2014] AATA 557
Decision Date

CaseChat Overview and Summary

Julie Kennedy and Comcare was a case before the Administrative Appeals Tribunal (AAT) concerning the eligibility of Julie Kennedy for workers' compensation. The central issue was whether Ms Kennedy suffered an injury during her employment that entitled her to compensation under section 14 of the Safety Rehabilitation and Compensation Act. Specifically, the dispute focused on events in 2009 when Belinda Oostendorp, Ms Kennedy's team leader, allegedly subjected her to increased scrutiny and criticism, which Ms Kennedy claimed aggravated her pre-existing condition. The Tribunal needed to determine if Ms Kennedy's condition was indeed aggravated during this period, based on the evidence provided.

The legal issues the court had to resolve included whether the evidence supported Ms Kennedy's claim of an aggravation of her condition in 2009 and if her account was reliable and consistent with other evidence. The court examined Ms Kennedy's written and oral statements, her interactions with Ms Oostendorp as documented in her contemporaneous notes, and the clinical records from the time. The Tribunal also considered the absence of any significant impairment in Ms Kennedy's functioning for approximately two to three years after her initial complaints were addressed in 2007.

The AAT found that while Ms Kennedy may have been uncomfortable with Ms Oostendorp's actions, there was insufficient evidence to conclude that her condition had aggravated in 2009. Ms Kennedy's account was not supported by the contemporaneous notes or clinical records, and there was no indication of a deterioration in her condition as might be expected if an aggravation had occurred. The only evidence in support of an aggravation was Ms Kennedy's own account and a later, very general record by Dr Skinner, which relied heavily on Ms Kennedy's account. Consequently, the Tribunal was not satisfied that Ms Kennedy suffered an injury in mid to late 2009 that entitled her to compensation. The Tribunal affirmed the original decision under review, rejecting Ms Kennedy's claim for compensation.

The final orders of the Tribunal were to affirm the decision under review, meaning that Ms Kennedy's claim for compensation for the period in question was dismissed. The Tribunal concluded that the evidence did not support the claim that her condition had aggravated during the specified period, and therefore she was not entitled to compensation for that time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence about events in 2009 was summarised at [88] to [90] of our previous decision. Because we misapprehended Ms Kennedy’s claim, the summary was brief. The evidence is set out in more detail below together with parties’ present submissions. EVIDENCE AND SUBMISSIONS ABOUT EVENTS IN 2009 In a lengthy written statement to the respondent in July 2010, Ms Kennedy detailed the events which she said gave rise to her injuries. She described how, in September 2007, she took her complaints about her then supervisor to her manager, Helen Oberg, as a result of which Ms Oberg convened a meeting with Ms Kennedy and her supervisor. After that, Ms Kennedy stated “the bullying/harassment issues in the workplace seemed to be ongoing” but she was “relieved” they were no longer directed at her. Her written statement was consistent with her oral evidence to the effect that, after that meeting, the problems she had been having with her supervisor resolved. It is conceded on her behalf that there is no evidence of any impairment in functioning “for some two to three years” after the meeting. In early 2008, Belinda Oostendorp started work in Ms Kennedy’s unit. At some point in 2009, she became Ms Kennedy’s team leader. Ms Kennedy claims that, although their relationship was positive to start with, around mid-2009 Ms Oostendorp started criticising her work in front of others, commenting on how many calls she was taking and how she was entering data on her computer. Further, when it came out that their call centre had the highest level of unplanned leave, Ms Oostendorp targeted her because of her high level of unplanned leave and instructed her to move her desk closer where she could be closely supervised. Ms Kennedy claims she was not given the same support with her unplanned leave as others and, in particular, she was not given a “work-life balance plan”, as the procedure for unplanned leave required. Ms Kennedy’s written statement In her written statement in July 2010, Ms Kennedy described events in 2009 as follows:In June 2009 Belinda began making more frequent comments about my performance metrics in front of other staff and seemed to flit around the place one minute she was there in the next gone. Coaching became less focused and she would normally ask me to fill in the information and forward it to her rather than to spend the allocated hour with me and other staff commented that this was occurring for them also. She was involved in a number of other activities within the Call Centre and had less and less time to focus on individual coaching as a result usually turning up for the last 10 minutes to collect my information.From July 2009 her erratic behaviour and the comments in front of others began to make me more uncomfortable and on edge. My personal metrics and length of people support break times were being openly discussed in front of other staff in a manner that was embarrassing in public and which should been discussed in coaching. Other team colleagues noticed this and commented that the way she spoke to me was inappropriate. Justin who sat directly next to me also commented that she had no right to speak to me the way she was.I saw my doctor throughout this time and sought support by using the reference material, cognitive therapy methods and other learned assistance provided to me by my Psychologist previously to help me cope. I turned my focus to involvement in [social policy work in the workplace] … which helped give me something positive during that time.

Decision

Reasons for decision

We accept Ms Kennedy may have disliked some of what happened in 2009 when Ms Oostendorp was supervising her closely but the evidence does not support the conclusion that she suffered an aggravation of her previous condition. There is nothing to suggest a degree of distress, or frustration, or upset that might be expected if an aggravation occurred (as it did in 2010). Ms Kennedy’s complaints about Ms Oostendorp are not borne out in the contemporary notes of their dealings over much of that period, there is no evidence that her functioning or capacity for work was impaired, and the contemporary clinical notes do not bear out a deterioration in her condition. The only evidence in support of an aggravation is her own account, which we do not consider reliable, and what Dr Skinner recorded in very general terms approximately three years later which relied almost entirely on Ms Kennedy’s account CONCLUSION For these reasons we are not satisfied that Ms Kennedy suffered an injury in mid to late 2009 which entitles the applicant to compensation under s 14 of the Safety Rehabilitation and Compensation Act. We affirm the decision under review.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/3140; 2012/1258
Re	Julie Kennedy
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Ms J Toohey, Senior Member Dr M Couch, Member
Date	12 August 2014
Place	Sydney