Kelly and Comcare (Compensation) - [2021] AATA 2575

Kelly and Comcare (Compensation) [2021] AATA 2575 (29 July 2021)
Division:GENERAL DIVISION
File Number(s): 2019/4966
Re:Peter Kelly
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:29 July 2021
Place:Sydney

The reviewable decision made 19 June 2019, being the decision of Comcare to affirm its earlier determination denying liability to compensate Mr Kelly in respect of the claimed injury, is affirmed.
...............................[SGD].........................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – liability to pay compensation – whether the Applicant suffered an ailment – reasoning in Comcare v Mooi – whether Applicant suffered a condition outside the boundaries of normal mental functioning and behaviour – Tribunal not satisfied on the balance of probabilities that the Applicant suffered an ailment – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Comcare v Mooi [1996] FCA 1587
Richardson and Comcare [2010] AATA 245
REASONS FOR DECISION
Deputy President J W Constance
29 July 2021
A: INTRODUCTION

Mr Kelly was employed as a Media Adviser to former Senator Brian Burston from November 2016 until March 2018. On 7 March 2018, Mr Kelly’s employment was terminated by email.
In December 2018, Mr Kelly lodged a claim for compensation[1] in respect of a psychological injury caused by the termination of his employment. He described the injury as:
Damage caused by the false accusation of my employer (later withdrawn), which has caused me great distress, psychological issues and associated upset.[2]
His claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”).
[1] Exhibit R1 at 118.
[2] Exhibit R1 at 119.
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Mr Kelly requested this be reconsidered. On 19 June 2019 Comcare decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In August 2019, Mr Kelly applied to the Tribunal to review the reviewable decision.
[3] Exhibit R1 at 176.
For the reasons which follow, the reviewable decision will be affirmed.
B: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) 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…

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 Kelly and Comcare (Compensation)

Details

AGLC: Kelly and Comcare (Compensation) [2021] AATA 2575
Case: [2021] AATA 2575
Decision Date: 29 July 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Kelly against a decision of the Administrative Appeals Tribunal (AAT) which affirmed Comcare's determination denying liability to compensate Mr Kelly for an injury. The dispute centred on whether Mr Kelly suffered an "ailment" as defined by the relevant legislation, specifically in the context of his dismissal from employment. The decision was made by Deputy President W Constance.

The primary legal issue before the court was whether the AAT had erred in finding that Mr Kelly had not suffered an ailment within the meaning of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This required the court to consider whether Mr Kelly's condition constituted a psychiatric injury outside the boundaries of normal mental functioning and behaviour, as interpreted by the reasoning in *Comcare v Mooi*.

The court considered evidence from a consultant psychiatrist, Dr Ventura, who assessed Mr Kelly and provided a report. Dr Ventura opined that while Mr Kelly experienced disappointment and a sense of injustice regarding his dismissal, his reported symptoms were not outside the realm of a normal reaction to stress. She stated that for a psychiatric disorder to be diagnosed, symptoms must be pervasive and lead to a change in a person's capacity to conduct their life from their normal baseline. The court noted that Mr Kelly continued to engage in activities such as studying law, spending time with grandchildren, and bushwalking, which did not indicate a pervasive anxiety or depressed mood.

Ultimately, the court affirmed the AAT's decision. It found that the AAT was not satisfied on the balance of probabilities that Mr Kelly had suffered an ailment within the meaning of the Act, and therefore Comcare's earlier determination denying liability 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

In her notes of 22 August 2018 Ms Pauncz refers to having discussed with Mr Kelly his PTSD symptoms. The trauma noted by Ms Pauncz in respect of this condition did not include any reference to the termination of his employment.[24][24] Ibid at 37.Evidence of Dr Ventura, Consultant Psychiatrist Dr Ventura assessed Mr Kelly on 1 February 2021 at the request of Comcare’s Solicitors. She provided a report dated 4 February 2021[25] and gave evidence at the hearing.[25] Exhibit R3. Under the heading Summary and Assessment, Dr Ventura reported:Mr Kelly is a 65-year-old man who presented with a long history of interpersonal difficulties and psychosocial stressors. He reported disappointment and a sense of injustice when discussing the events around his dismissal from his position of parliamentary advisor in 2018. He does not however report symptoms which are outside the realm of a normal reaction to stress. In my opinion, which is confirmed by a contemporaneous psychiatric report, Mr Kelly did not develop a psychiatric injury following the 2018 dismissal. He has received psychological treatment, however a review of the psychologist notes revealed that the therapy was to help him deal with non-work-related issues.[26][26] Ibid at 10. When she gave evidence Dr Ventura expressed the opinion that “in order to have a psychiatric disorder rather than stress and symptoms, the symptoms need to be pervasive.”[27]There is a need for symptoms, impairment and for a person to come within a certain clinical class before a diagnosis of a psychiatric disorder can be made.[27] Transcript, 19 May 2021 at 70. When asked if there was anything she would have looked for that may have indicated that Mr Kelly had developed a diagnosable condition outside the ordinary bounds of human behaviour, Dr Ventura responded:Yes, look absolutely ………. So the main thing is that there was no real change in his psychiatric symptom - in his symptoms. He did not report any change in sleep, appetite, energy or anything that really affected his capacity to conduct his life, so his energy was good, he was studying law, he was active with his grandchildren, he was active bushwalking, so there's just nothing there that would indicate that he had a pervasive anxiety disorder. He did not report pervasively depressed mood, he was quite specific about that. There was no evidence that he had psychological anxiety and I would struggle to sort of try to work out, you know, I certainly did not examine him for psychosis but certainly his mental state examination was such that he did not appear psychotic.……….If you are going to lose your job and you don't expect that I would expect the person to feel angry and humiliated. However in order to actually have what we call a "pathological response" to that, you know, they would be feeling depressed all the time or anxious all the time to the point where their activities of daily living and, you know, ability to function would change from the normal base line.[28][28] Transcript, 19 May 2021 at 71.Reasoning

Decision

Reasons for decision

As I have found that Mr Kelly did not suffer an ailment within the meaning of the Act, this issue does not arise.F: CONCLUSION The reviewable decision made 19 June 2019, being the decision of Comcare to affirm its earlier determination denying liability to compensate Mr Kelly in respect of the claimed injury, will be affirmed.

Ratio Decidendi

Legal Principle Established

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