Kennedy and Comcare (Compensation) - [2017] AATA 1271

Kennedy and Comcare (Compensation) [2017] AATA 1271 (11 August 2017)
Division:GENERAL DIVISION
File Numbers: 2013/6328 and 2014/2565
Re:Wendy Kennedy
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:11 August 2017
Place:Melbourne

The Tribunal affirms the decision under review in proceedings 2013/6328 and 2014/2565. The Applicant is not entitled to compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
[sgd]........................................................................
Dr Damien Cremean, Senior Member
COMPENSATION — Medibank employee — Claim for depression, anxiety and stress as a result of bullying and harassment — Whether accepted disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment — Aggravation of mental injury — Adjustment disorder with anxiety — Whether aggravation was a result of reasonable administrative action taken in respect of the applicant’s employment — Whether the administrative action contributed to the aggravation to a significant degree — decisions affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Martin [2016] HCA 43
Comcare v Reardon [2015] FCA 1166
Commissioner of the Australian Federal Police v Zhao (2015) 316 ALR 378
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
Martin v Comcare (2015) 238 FCR 373
Re Ferguson and Commonwealth Bank of Australia [2012] AATA 718
WorkCover Corporation (SA) v Summers (1995) 65 SASR 243
REASONS FOR DECISION
Dr Damien Cremean, Senior Member
11 August 2017
INTRODUCTION

The Applicant, Mrs Wendy Kennedy, made two claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act), both of which are the subject of this review.
Mrs Kennedy’s first claim (in proceeding No 2013/6328) is dated 20 May 2013 and is for Depression, anxiety and stress (primary claim). The Applicant stated that she first noticed this condition on 19 May 2012 and first sought medical treatment for it on 19 June 2012. Mrs Kennedy made a second claim (in proceeding No 2014/2565) on 26 September 2013 for Depression, anxiety stress/Adjustment Disorder with anxiety (secondary claim). The Applicant stated that she first noticed the aggravation of her condition at 10.30am on 2 July 2012 and first sought medical treatment for it on 17 July 2012.
In relation to the primary claim, the Respondent, Comcare, made a determination on 16 August 2013. The Respondent decided that, although Mrs Kennedy had suffered an adjustment disorder with anxiety that was contributed to significantly by her employment (with a deemed date of 19 June 2012), reasonable administrative action reasonably undertaken was the factor that contributed significantly to the development of the condition. Therefore, her primary claim failed because her condition was excluded under section 5A of the Act. On 5 November 2013 a reconsideration of the determination was requested by Mrs Kennedy, but the decision was affirmed.
In response to the secondary claim, the Respondent decided it was not satisfied that Mrs Kennedy had suffered an aggravation of her…

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 Kennedy and Comcare (Compensation)

Details

AGLC: Kennedy and Comcare (Compensation) [2017] AATA 1271
Case: [2017] AATA 1271
Decision Date: 11 August 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Kennedy against a decision by Comcare. Mrs Kennedy sought compensation for an adjustment disorder with anxiety, which she alleged was caused by unfair and unreasonable treatment by her managers and Human Resources personnel at her workplace. The Administrative Appeals Tribunal was required to determine whether Mrs Kennedy had suffered an injury under the relevant Act and, if so, whether that injury was excluded by section 5A(1) of the Act as being the result of reasonable administrative action taken in a reasonable manner.

The Tribunal considered two primary issues: first, whether Mrs Kennedy satisfied section 14 of the Act in respect of her claims; and second, if she did, whether she was excluded from compensation under section 5A(1) of the Act. In assessing Mrs Kennedy's evidence, the Tribunal noted a tendency towards overstatement and amplification, citing phrases used by Mrs Kennedy such as "impending doom," "emotional rape," and "battered wife" as indicative of this tendency. The Tribunal accepted, based on medical reports, that Mrs Kennedy had suffered an injury in the form of an adjustment disorder with anxiety, with the onset around June 2012.

However, the Tribunal found that while Mrs Kennedy perceived the actions of her managers and HR as unfair and unreasonable, these actions constituted reasonable administrative action taken in a reasonable manner in relation to her employment. The Tribunal concluded that being subjected to close scrutiny and regarded as having failed to meet performance expectations, while potentially upsetting, did not amount to bullying or harassment and fell within the scope of section 5A(1) of the Act. Consequently, the Tribunal affirmed the decisions under review.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mrs Kennedy spoke in terms of feeling she had undergone emotional rape in or as a result of the meeting on 2 July 2012and that she was left crying and crying and crying. However, as I have stated above, I see this as an amplification of the events which took place at the 2 July meeting on her part. Mrs Kennedy was subjected to close scrutiny by managers and persons in authority and, rightly or wrongly, she was regarded as having failed to live up to performance expectations. She may take exception to that but that fact does not constitute bullying or harassment. More to the point though, it is conduct within and not beyond the scope of section 5A(1) of the Act. CONCLUSION For the reasons I have given the decisions under review in both proceedings must be affirmed.

Ratio Decidendi

Legal Principle Established

In commenting on Mrs Kennedy’s condition being causally related to her employment, Dr Walton noted that it was certainly her perception that a particular project manager, her manager and a supervising manager, as well as an officer in Human Resources treated her unfairly and unreasonably. The mere perception of that would be sufficient to induce clinically significant anxiety regardless of the objective facts. In Dr Walton’s opinion, the onset of Mrs Kennedy’s adjustment disorder occurred around July 2012.CONSIDERATION There are two clear issues which arise for determination. The first is whether the Applicant satisfies section 14 of the Act in respect of her primary claim and/or in respect of her secondary claim. In the event Mrs Kennedy does satisfy section 14 of the Act, the next issue for me to consider is whether she is excluded under section 5A (1) of the Act on the basis that her injuries were the result of reasonable administrative action taken in a reasonable manner in relation to her employment. I have seen and heard Mrs Kennedy give evidence and I have heard her explanations on various points. In considering Mrs Kennedy’s contentions, I note that I should exercise care in taking her evidence at face value. My reason for exercising caution is that I believe it is reasonable to conclude that Mrs Kennedy is given to overstatement and that her evidence is prone to amplification. In arriving at this conclusion, I refer to the various expressions that Mrs Kennedy has used to describe the workplace events which led to her claims. These expressions include phrases such as impending doom; room spinning; disabled mentally; cried and cried and cried; trapped in a nightmare; palpable pain; battered wife; and emotional rape. Although I can appreciate that these phrases are removed from their context, nonetheless I consider that they are intended to colour or to give emphasis to Mrs Kennedy’s contentions. I therefore conclude that I should take her tendency to overstate into account when assessing her evidence, particularly considering that allegations of harassment and bullying are very serious allegations these days to make of anyone in business. PRIMARY CLAIMENTITLEMENT TO COMPENSATION IN RESPECT OF AN INJURY UNDER SECTION 14(1) OF THE ACT As I have outlined above, pursuant to section 14(1) of the Act, the Respondent is liable to pay compensation with respect to an injury suffered by an employee if the injury results in death, incapacity for work or impairment. Therefore, the first step is to determine whether Mrs Kennedy has suffered an injury or disease under the Act. Has Mrs Kennedy suffered an injury or disease? Mrs Kennedy’s primary claim is for Depression, anxiety and stress. I accept the date of this claim as being 19 June 2012 when she first sought medical treatment, as per the clinical notes of Dr Harrison. As per the first part of section 5A(1)(a) and section 5B(1)(a) of the Act, I am satisfied that Mrs Kennedy suffered an injury, specifically a disease in the form of an ailment suffered. I refer once again to the reports of Dr Harrison and also to the report of Ms Genovese, who spoke of Ms Kennedy’s presentation on 13 June 2012, her reported symptomatic reactions over time and her test results (on the Depression Anxiety and Stress Scale (DASS-21)) as all indicating a diagnosis of Adjustment Disorder with Anxiety (DSM-IV-TR, Code 309.24). Ms Genovese was clear that her presentation in counselling sessions indicated continuing anxiety and agitation related to past events in the workplace.