KRISTINE CLEMENT and COMCARE - [2013] AATA 638

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/3449
2013/0722

General Administrative Division )
Re: Kristine Clement
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:             Professor RM Creyke, Senior Member
DATE:   17 September 2013
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 these applications in the following way: at paragraph 1, replace “Mr Kristine Clement” with “Ms Kristine Clement”.
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Professor RM Creyke, Senior Member

[2013] AATA 638

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2010/3449, 2013/0722

Re

KRISTINE CLEMENT

APPLICANT

And

COMCARE

RESPONDENT

Decision

Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER

Date 9 September 2013

Place Canberra
The decisions under review are affirmed
.....................................[sgd]...................................
Professor RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employees – rehabilitation program – whether reasonable to close program – whether rehabilitation authority should have chosen alternative provider following breakdown of relationship between employee and provider – application for alternative provider made some 17 years after closure of program – employee has not been employed since 1994
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 34F, 34H, 37
Cases
Chang v Comcare (1997) (unreported, FCA 97/823, 25 June 1997)
Re Clement and Comcare [2010] AATA 296.
Clement v Comcare [2012] FCA 166.
Clement v Comcare [2012] FCAFC 118.
Comcare v Chang (1996) 24 AAR 120
Re Fox and Department of Defence [1995] AATA 387
Rana v Military Rehabilitation and Compensation Commission [2011] FCAFC 80
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
9 September 2013

Mr Kristine Clement, born 1950, has an accepted claim for work related stress induced reactive depression which was deemed to have occurred on 4 September 1991. There are two decisions under review: to close Ms Clement’s Return to Work Plan (Matter 2010/3449); and a decision as to choice of rehabilitation provider (Matter 2013/0722). These matters have a considerable history, some of which is recounted in these reasons.
In late 1992 Ms Clement was referred to Health Access Pty Ltd to undergo an initial rehabilitation assessment with a view to development of a Return to Work Plan (RTWP). That plan was proposed on 29 December 1992. The RTWP was signed in February 1993. She returned to work for a short period soon after.
Ms Clement’s general practitioner, Dr Anna Ostberg, in a letter of 29 March 1993 recommended that her RTWP exclude further counselling with the Health Access team. In a letter of 2 April 1993 to Comcare, copied to the ABS, Ms Clement requested a reconsideration of the choice of provider, Health Access Pty Ltd, as she had no confidence in them as a provider and she claimed rehabilitation services by them were having an adverse impact on her.
Following a breakdown in negotiations between Ms Clement and Health Access Pty Ltd, the RTWP was closed in May 1993, due to her desire not to involve Health Access Pty Ltd as her provider. On 1 April 1993, Ms…

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 KRISTINE CLEMENT and COMCARE

Details

AGLC: KRISTINE CLEMENT and COMCARE [2013] AATA 638
Case: [2013] AATA 638
Decision Date

CaseChat Overview and Summary

Ms Kristine Clement commenced proceedings against Comcare in the Administrative Appeals Tribunal, seeking compensation for a psychiatric injury sustained during her employment with the Australian Bureau of Statistics (ABS). Ms Clement claimed that she discovered data security issues within the Foreign Trade Section of the ABS, which led to her transfer from her position in September 1991. She further contended that she was not provided with a satisfactory rehabilitation program after her transfer, which exacerbated her condition. The primary issue before the Tribunal was whether Ms Clement's psychiatric injury arose out of or in the course of her employment with the ABS. The Tribunal was bound by previous findings from the Federal Court and the Full Court of the Federal Court, which had concluded that Ms Clement's delusional disorder was present prior to her employment and its aetiology was unknown. As a result, the Tribunal was not satisfied that her reactive depression was due to her employment. The Tribunal also noted that Ms Clement had raised concerns about the premature and illegal closure of her rehabilitation program, but this issue was not before the Tribunal and it had no jurisdiction to address it.

The Tribunal examined the evidence and found that Ms Clement's claims were not supported by the facts. It held that there was no evidence to suggest that Ms Clement's psychiatric injury arose out of or in the course of her employment. The Tribunal also found that the rehabilitation program was not prematurely closed, and Ms Clement had not sought reconsideration of the decision to close the program. Consequently, the Tribunal dismissed Ms Clement's claim for compensation. The Tribunal's decision was based on the evidence presented and the findings of the previous courts. It was not satisfied that Ms Clement's psychiatric injury was caused by her employment, and therefore she was not entitled to compensation under the Act.

The Tribunal's decision was final and binding, and there were no further appeals available to Ms Clement. The Tribunal had considered all the evidence and arguments presented by Ms Clement and Comcare, and had reached its decision based on the facts and the law. The decision was a clear and concise statement of the Tribunal's reasoning and outcome, and provided a definitive resolution to the dispute between the parties.

Orders

Orders of the court

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Background

Background to the litigation

Ms Clement accepted a redundancy from the APS on 4 September 1994.Background Ms Clement was employed as a database administrator by the Australian Bureau of Statistics (ABS/agency). There is no issue as to the reasonableness of the decision by the ABS to institute a RTWP for Ms Clement. That decision followed Ms Clement suffering a stress induced reactive depression which prevented her working. The following is a brief account of the circumstances in which Ms Clement contends she was injured by her former employment. Ms Clement claimed she discovered data security problems in the Foreign Trade Section of the agency. She had prepared a paper presented at an agency meeting in January 1991 concerning the problems. As a consequence, according to Ms Clement, she was transferred from her position in the section in September 1991. That move led her to lodge an incident report and to seek compensation. Others took over her position and according to Ms Clement they confirmed her findings about the data security problems. Ms Clement’s complaints about how the ABS handled her complaints concerning the matters were investigated, among others, by the Commonwealth Auditor-General, the Privacy Commissioner, and the Merit Protection and Review Agency. Ms Clement claims their investigations vindicated her having been badly treated by the agency. Despite the incident and events which she claimed led to her injury, Ms Clement said she was keen to return to work after 1991 and she was involved in a rehabilitation program in order to assist her to do so, a program which she agreed to and which was set out in a document she signed on 9 February 1993. Within a short period of implementation, Ms Clement claimed the RTWP was not satisfactory because, among other things, there had been breaches of her privacy. Ms Clement asked for a change of rehabilitation service provider, but ABS closed her RTWP, decided that the provider was a reasonable service, and did not provide her with an alternative rehabilitation provider. The Tribunal is aware that there are factual findings made earlier by the Tribunal, differently constituted, and by the Federal Court which touch on the matters involved in this claim. In particular, the Tribunal in the earlier decision of Re Clement and Comcare[1] had found in particular that Ms Clement suffers from a delusional disorder which was present and operative prior to September 1991 and persists, and that the aetiology and causes of the delusional disorder were unknown. As a consequence the Tribunal in that matter was not satisfied that Ms Clement’s reactive depression condition was due to her employment. Those findings were upheld by the Federal Court,[2]and on further appeal by the Full Court of the Federal Court.[3] This Tribunal is accordingly bound by those findings.[1] Re Clement and Comcare [2010] AATA 296.[2] Clement v Comcare [2012] FCA 166.[3] Clement v Comcare [2012] FCAFC 118. However, the Tribunal in Re Clement and Comcare had also noted:Ms Clement raised issues concerning her rehabilitation program; she asserted that the program remained in force as it had been closed prematurely and illegally. It is not necessary for us to decide the first question concerning the consequential effects of any premature closure. In the absence of injury, there can be no entitlement to rehabilitation under the Act. Clearly enough Ms Clement objected to the service provider and sought reconsideration of that aspect of the determinations relating to her rehabilitation program. It appears that no such reconsideration eventuated. That matter is not on foot in these proceedings and the Tribunal has no jurisdiction in relation to it; it has not been raised or considered in any decision-making process at the primary or reconsideration stages in any of the matters Ms Clement has placed before the Tribunal.[4][4] Re Clement and Comcare [2010] AATA 296 at [40].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2010/3449, 2013/0722
Re	KRISTINE CLEMENT
APPLICANT
And	COMCARE
RESPONDENT

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER
Date	9 September 2013
Place	Canberra