Lenz and Comcare (Compensation)

Case [2015] AATA 659

Lenz and Comcare (Compensation) [2015] AATA 659 (31 August 2015)

Division

GENERAL DIVISION

File Number(s)

2013/6063

Re

Andre Lenz

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries and Dr Peter Wilkins, Member
Date 31 August 2015  
Place Canberra

The decision under review is affirmed.

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

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employee – condition of major depressive disorder – incident in East Timor in 2003 – whether incident contributed to a significant degree to applicant’s injury – whether caused by reasonable administrative action – applicant offered voluntary redundancy – reviewable decision affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

Cases

Comcare v Mooi (1996) 69 FCR 439

Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463

Hart v Comcare (2005) 145 FCR 29

Lombardo and Comcare [2013] AATA 470

Zdziarski v Telstra Corporation Limited [2015] FCA 207

REASONS FOR DECISION

Deputy President Gary Humphries and Dr Peter Wilkins, Member

31 August 2015

Summary

  1. The reviewable decision dated 4 September 2013, denying liability to pay compensation to the applicant for major depressive disorder (single episode) under s 14 of the Safety, Rehabilitation and Compensation Act 1988, is affirmed.

    Background

  2. Andre Lenz was a sworn member of the Australian Federal Police (AFP) for some 27 years. He served in a variety of roles and in places as diverse as Arnhem Land and Christmas Island. His service included six months as part of the United Nations-sponsored international policing effort in East Timor in 2003. During that deployment, he was assigned duties involving close personal protection of the President and First Lady of East Timor and as a technical adviser on national security to the East Timor government. He spent most of the last few years of his AFP service at the Robina office of the AFP on the Gold Coast in Queensland, where he and his wife live.

  3. On 19 March 2013, Mr Lenz lodged a workers’ compensation claim in which he claimed to be suffering from post-traumatic stress disorder (PTSD) arising out of two traumatic incidents during his deployment to East Timor. In an initial determination of 25 June 2013, and again in a reconsideration dated 4 September 2013, Comcare rejected his claim. He now seeks review of the latter decision before this Tribunal.

  4. Comcare accepts that Mr Lenz suffered mental illness at the time of his claim for workers’ compensation, and further accepts that his employment with the AFP contributed materially to that illness. However, it denies that Mr Lenz suffered a mental illness arising from his service in East Timor in 2003, and instead asserts that events surrounding the closure of the AFP’s Robina office in 2012 (the Robina incidents) were factors which contributed to his illness, and that the particular administrative actions which the AFP took at that time, and which contributed to his illness, constituted reasonable administrative action under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act). As a result,…

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AGLC
Lenz and Comcare (Compensation) [2015] AATA 659
Case
[2015] AATA 659
Decision Date

CaseChat Overview and Summary

Lenz v Comcare [2015] AATA 675 involved a claim for compensation by Andre Lenz, a former Australian Federal Police (AFP) officer, for a major depressive disorder. Lenz claimed the disorder arose from a traumatic incident in East Timor in 2003, where he was assigned to protect the President and First Lady. Lenz also claimed that events surrounding the closure of the AFP's Robina office in 2012 contributed to his illness. Comcare denied Lenz's claim, asserting that his illness was caused by reasonable administrative action by the AFP, which disqualified him from compensation under the Safety, Rehabilitation and Compensation Act 1988. The Administrative Appeals Tribunal was required to determine whether the East Timor incident contributed to Lenz's injury, whether the Robina incidents contributed to his injury, and if the Robina incidents amounted to reasonable administrative action.

The Tribunal found that, even if the East Timor incident occurred, it did not contribute to a significant degree to Lenz's injury. Furthermore, the Tribunal found that, even if the East Timor incident did contribute to Lenz's injury, the date of that injury was no earlier than the date he sustained an injury from the Robina incidents. The Tribunal considered that the Robina incidents constituted reasonable administrative action, and therefore, pursuant to section 5A and the principles in Hart v Comcare (2005) 145 FCR 29, Lenz's condition was not an injury under the Act.

The decision under review was affirmed.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

The reviewable decision dated 4 September 2013, denying liability to pay compensation to the applicant for major depressive disorder (single episode) under s 14 of the Safety, Rehabilitation and Compensation Act 1988, is affirmed.Background Andre Lenz was a sworn member of the Australian Federal Police (AFP) for some 27 years. He served in a variety of roles and in places as diverse as Arnhem Land and Christmas Island. His service included six months as part of the United Nations-sponsored international policing effort in East Timor in 2003. During that deployment, he was assigned duties involving close personal protection of the President and First Lady of East Timor and as a technical adviser on national security to the East Timor government. He spent most of the last few years of his AFP service at the Robina office of the AFP on the Gold Coast in Queensland, where he and his wife live. On 19 March 2013, Mr Lenz lodged a workers’ compensation claim in which he claimed to be suffering from post-traumatic stress disorder (PTSD) arising out of two traumatic incidents during his deployment to East Timor. In an initial determination of 25 June 2013, and again in a reconsideration dated 4 September 2013, Comcare rejected his claim. He now seeks review of the latter decision before this Tribunal. Comcare accepts that Mr Lenz suffered mental illness at the time of his claim for workers’ compensation, and further accepts that his employment with the AFP contributed materially to that illness. However, it denies that Mr Lenz suffered a mental illness arising from his service in East Timor in 2003, and instead asserts that events surrounding the closure of the AFP’s Robina office in 2012 (the Robina incidents) were factors which contributed to his illness, and that the particular administrative actions which the AFP took at that time, and which contributed to his illness, constituted reasonable administrative action under s 5A of the Safety, Rehabilitation and Compensation Act 1988 (the Act). As a result, it was asserted, these administrative actions disqualify Mr Lenz from compensation.The issues Mr Lenz gave evidence at the hearing of being involved in a night-time incident, in which he feared for his life, in a village in East Timor in July 2003 while he was assigned to protect the President of East Timor (the East Timor incident). It was this incident which formed the basis of his claim to have suffered PTSD, although it was conceded that the symptoms of this condition did not manifest themselves fully for some period after the incident. Accordingly, the Tribunal was required to determine:(a)whether the East Timor incident occurred, and if it did whether it contributed to a significant degree to an injury to Mr Lenz within the meaning of ss 5B and 14 of the Act;(b)whether the Robina incidents contributed to a significant degree to an injury to Mr Lenz within the meaning of ss 5B and 14 of the Act;(c)the date of any injury in paragraphs (a) and (b);(d)if Mr Lenz was injured as described in paragraph (b), whether the Robina incidents amount to reasonable administrative action within the terms of s 5A of the Act.It is apparent that the date of injury, if any, is a critical question. If Mr Lenz sustained a s 14 injury prior to the Robina incidents of 2012, later reasonable administrative action by the AFP in 2012 cannot be said to have been causative of that injury: Zdziarski v Telstra Corporation Limited [2015] FCA 207. The legislation

Evidence

Evidence Before The Court

He told the Tribunal he was having massive nightmares at this time.I was having crazy hallucinations and things of what had happened over in Timor and my wife would come in and wake me up because she could hear me screaming and yelling. I was having vivid recollections of Timor. Why Timor came back, I didn’t know.Over the ensuing period he reported sleeplessness and nightmares, an inability to go to crowded places without feeling tense, hypervigilance and flashbacks.The medical evidence Since returning from East Timor, Mr Lenz was provided a number of opportunities to report on his general state of health to his employer. These include the following: ·AFP Member’s Statement of Medical Fitness for Operational Deployment/Training (27 January 2004) ·PEPQ (PsychEval Personality Questionnaire Interpretation) (7 March 2006)·Statement of Medical History and Medical Examination Record, prior to deployment to Christmas Island (1 May 2012) In each of these processes there were questions relating to whether Mr Lenz was suffering from any psychological disease, injury or disability or exhibited any symptoms of anxiety, depression, situational stress or any nervous disorder. In response to these questions Mr Lenz generally answered in the negative. For example, in the evaluation dated 27 January 2004, he was asked: Do you have now, have you ever had, or have you been investigated for or treated for, any medical condition that has affected, or could affect your ability to perform your operational policing tasks? If yes, please provide details. He answered no to this question. He also stated that he had never taken medication to relieve symptoms of anxiety, depression, situational stress or any nervous disorder and had no history of psychiatric, behavioural or psychological conditions or need for counselling. Mr Lenz gave evidence of suffering a pulmonary embolism in 2005. Craig Pearman, treating psychologist, first saw Mr Lenz in January 2013. Comcare requested a report which Mr Pearman provided dated 18 April 2013. The report includes the following:…the onset of Mr. Lenz’s current symptom presentation began in December 2012. Mr. Lenz reported rumours (beginning as early as October 2011) regarding the closure of the Robina office of the AFP (where Mr. Lenz was based), and subsequent relocation of all service officers. Throughout the remainder of 2011 and early 2012, Mr. Lenz reported feeling uncertain about his future, but determined to work as normal. In May 2012, Mr. Lenz was informed that the Robina office would indeed be closing, and that relocation would be necessary. Between May and December 2012, Mr. Lenz reported gradually increasing stress levels relating to misinformation and perceived mistreatment by the AFP. By December 2012, Mr. Lenz was suffering loss of sleep, anxiety, irritability and conflict at work, and having dreams about his experiences in East Timor in September 2003 (while on duty with the AFP). He subsequently sought help from his GP, and was referred to me for assessment and management. …

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Under cross-examination, Mr Lenz agreed that he had described to the doctors different times when he first began to experience flashbacks to the East Timor incident. He told Dr Danesi that he first began to experience them after his pulmonary embolism in 2005, told Dr Hagan it was mid-2004 and Professor Macleod it was 2003. Consideration It is obviously critical to the case put to the Tribunal by Mr Lenz that the East Timor incident actually occurred. Mr Lenz gave an extensive and detailed account of that incident, details of which were broadly corroborated by what was in the diary and the copy of the UN incident report he produced. There remain, however, some troubling matters facing the Tribunal in accepting that this incident occurred. We note in particular that:·there is no AFP record of the incident;·no surviving paperwork from that period corroborates the incident, except for the diary and incident report copy produced by Mr Lenz on the first day of the hearing;·in his detailed statement of 7 February 2013, Mr Lenz makes no reference to keeping a diary or submitting an incident report;·despite Mr Lenz describing the incident as the most traumatic event of my life, he was unable to accurately remember prior to the hearing either the month or location in which the incident occurred;·despite so describing the incident, Mr Lenz appears to have told nobody about it or recorded it in writing at any time from his return from East Timor until 2013. The members who made up the Tribunal in this hearing came to different views on the first issue for determination, namely whether the East Timor incident occurred. Deputy President Humphries finds on balance that the incident did occur, although he cannot be sure that the incident occurred in precisely the way Mr Lenz said that it did. Dr Wilkins finds that the evidence before the Tribunal is insufficient to determine whether the incident occurred or not. However, it is unnecessary for the Tribunal to come to a resolved position on this issue, as the members agree as to the other issues before them. We find that, even if the East Timor incident did occur, it did not contribute to a significant degree to an injury to Mr Lenz within the meaning of ss 5B and 14 of the Act. We further find that, even if the incident occurred and even if it contributed to a significant degree to such an injury, the date of injury was no earlier than the date Mr Lenz sustained an injury within the meaning of ss 5B and 14 of the Act that was contributed to to a significant degree by the Robina incidents. For reasons set out below, we consider that the Robina incidents constitute reasonable administrative action and therefore, pursuant to s 5A and the principles in Hart v Comcare (2005) 145 FCR 29, Mr Lenz’s condition is not an injury under the Act. Hart’s case is authority for the proposition that, if there are multiple causes of a disease or injury which could otherwise fall within the definition of a compensable injury under the Act, and at least one of those causes constitutes reasonable administrative action under s 5A, then the disease or injury is not an injury for the purposes of the Act.