Lord and Comcare (Compensation) - [2019] AATA 2965

Lord and Comcare (Compensation) [2019] AATA 2965 (30 August 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2018/2844
GENERAL DIVISION  )
Re: Belinda Lord
Applicant

And: Comcare
Respondent

DIRECTION
TRIBUNAL:  The Hon. John Pascoe AC CVO, Deputy President
DATE OF CORRIGENDUM:            5 September 2019
PLACE:            Sydney

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 this application such that:
1.the wording in paragraph [33] of the decision is changed to:
The question for the Tribunal in this case is whether SBS took reasonable administrative action, and whether or not that action was taken in a reasonable manner in respect of the Applicant. These questions must be considered in relation to the circumstances of this particular case.

..............................[sgd].....................................
The Hon. John Pascoe AC CVO, Deputy President
Division:GENERAL DIVISION
File Number: 2018/2844
Re:Belinda Lord
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:30 August 2019
Place:Sydney

The reviewable decision of the Respondent’s delegate dated 13 April 2018 is affirmed.
..[sgd]..........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
COMPENSATION – injury – ailment – where applicant suffered from a mental ailment – where injury was significantly contributed to by applicant’s employment – whether injury was suffered due to the employer’s reasonable administrative action taken in a reasonable manner – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5B, 14
CASES
Comcare v Martinez (No 2) [2013] FCA 439
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
30 August 2019

The Applicant has applied for review of the decision of the Respondent’s delegate made on 13 April 2018. This decision affirmed an earlier determination dated 30 November 2017 which found that the Applicant was suffering an injury, specifically ‘adjustment reaction with mixed emotional features’, which was significantly contributed to by her employment with the Special Broadcasting Service (‘SBS’). However, liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) was declined on the basis that one of the exclusionary provisions of the Act applied, namely that the injury was suffered as a result of reasonable administrative action taken in a reasonable manner.
BACKGROUND
The Applicant was born in 1969.
The Applicant began working for SBS as a hair and make-up artist in around 1994, initially as an employee to a sub-contractor. From about 1997 to 2004 she performed those duties as a sole trader. From about 2005 to 2016 she was working as a contractor to SBS through her own company. In January 2017 the Applicant became a casual employee of SBS, working about 30 hours per week.
Following a number of events and changes in the workplace which will be outlined later, the Applicant began to experience psychological symptoms. On 18 July 2017 the Applicant attended an appointment with her general…

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 Lord and Comcare (Compensation)

Details

AGLC: Lord and Comcare (Compensation) [2019] AATA 2965
Case: [2019] AATA 2965
Decision Date: 30 August 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by Ms. Lord for review of a decision by Comcare. Comcare had affirmed an earlier determination that Ms. Lord suffered from an adjustment disorder, which was significantly contributed to by her employment with the Special Broadcasting Service (SBS). However, Comcare declined liability under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) on the basis that the injury was suffered as a result of reasonable administrative action taken in a reasonable manner.

The sole legal issue before the Tribunal was whether the actions of SBS in relation to changes in Ms. Lord's work fell within the exclusionary provision of section 5A(1) of the Act. It was agreed by both parties that Ms. Lord suffered from an adjustment disorder and that this ailment was significantly contributed to by her workplace events, thus satisfying the definition of 'injury' under sections 5A and 5B of the Act.

The Tribunal found that the actions taken by SBS constituted reasonable administrative action carried out in a reasonable manner. This conclusion was supported by the findings of an independent investigator, PWC, who conducted an extensive review including interviews with Ms. Lord and other relevant parties. The Tribunal gave considerable weight to these findings, which strongly supported the evidence presented.

Consequently, the Tribunal affirmed the reviewable decision of Comcare's delegate dated 13 April 2018.

Orders

Orders of the court

The reviewable decision of the Respondent’s delegate dated 13 April 2018 is affirmed.

Background

Background to the litigation

The Applicant has applied for review of the decision of the Respondent’s delegate made on 13 April 2018. This decision affirmed an earlier determination dated 30 November 2017 which found that the Applicant was suffering an injury, specifically ‘adjustment reaction with mixed emotional features’, which was significantly contributed to by her employment with the Special Broadcasting Service (‘SBS’). However, liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘the Act’) was declined on the basis that one of the exclusionary provisions of the Act applied, namely that the injury was suffered as a result of reasonable administrative action taken in a reasonable manner.BACKGROUND The Applicant was born in 1969. The Applicant began working for SBS as a hair and make-up artist in around 1994, initially as an employee to a sub-contractor. From about 1997 to 2004 she performed those duties as a sole trader. From about 2005 to 2016 she was working as a contractor to SBS through her own company. In January 2017 the Applicant became a casual employee of SBS, working about 30 hours per week. Following a number of events and changes in the workplace which will be outlined later, the Applicant began to experience psychological symptoms. On 18 July 2017 the Applicant attended an appointment with her general practitioner, who diagnosed her with ‘mild anxiety and mild depression’. The Applicant’s symptoms appear to then have worsened and the Applicant was certified as unfit for work between 20 September 2017 and 15 November 2017. On 20 September 2017 the Applicant submitted a claim for worker’s compensation. This claim was declined on 30 November 2017. On 20 January 2018 the Applicant returned to work on a graduated return to work plan. On 5 March the Applicant submitted a request for reconsideration of the Respondent’s determination. The reconsideration decision confirming the original determination was issued on 30 November 2017. On 31 January 2017 the Applicant applied to the Tribunal for review of the reconsideration decision. The Applicant continues to work at SBS and is currently determined as being fit to work four days per week.ISSUES The issue for determination in this case is relatively narrow. It was agreed by both parties that Ms Lord suffers from an ailment, namely adjustment disorder, and that this ailment was ‘contributed to, to a significant degree’ by the events in her workplace and therefore satisfies the definition of ‘injury’ under sections 5A and 5B of the Act. The only issue is therefore whether the actions of SBS in relation to changes in the Applicant’s work fell within the exception contained in section 5A(1) of the Act which relevantly states as follows:1In this Act:“injury” means:(a)a disease suffered by an employee;………………………but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The findings of PWC as an independent investigator must be given considerable weight. PWC conducted what appears to extensive internal review with interviews with the Applicant and all of the other relevant parties. Their findings strongly support the evidence of Ms Muras and Ms Crawford.DECISION I find that the actions taken by SBS were reasonable administrative action carried out in a reasonable manner. They therefore meet the criteria of the exception under section 5A(1) of the Act. The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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