LUCIANO LOMBARDO and COMCARE - [2013] AATA 470

[2013] AATA 470

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/3723

Re

LUCIANO LOMBARDO

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER

Date 5 July 2013

Place Canberra
The decision under review is affirmed
...................................[sgd].....................................
Professor RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth Employees – depressive disorder – whether contributed to by employment to a significant degree – whether reasonable administrative action – decision to not offer a redundancy – failure to obtain a benefit – whether taken in a reasonable manner in respect of employment
Legislation
Department of Education, Employment and Workplace Relations Collective Agreement 2009 – 2011
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 6, 7 and 14
Cases
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Comcare v Martinez [2013] FCA 439
Comcare v Ross [1996] (FCA 680/96, unreported, 2 August 1996, Finn J)
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461
Falconer v Pedersen [1974] VR 185
Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Trewin v Comcare (1998) 84 FCR 171
Secondary Materials
Pearce, DC Statutory Interpretation in Australia (6th edn, 2006) [3.30]
REASONS FOR DECISION
Professor RM Creyke, Senior Member
5 July 2013

Mr Luciano Lombardo sought compensation for depressive disorder deemed to have been sustained on 2 February 2011. Liability was denied by Comcare under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) on 11 May 2012, a decision upheld on 2 July 2012. On 28 August 2012, Mr Lombardo sought further review by the Tribunal.
Background
On 20 December 2010, Mr Lombardo lodged an expression of interest in taking a voluntary redundancy at work. He was employed by the Department of Education, Employment and Workplace Relations (agency) in its Targeted Jobs Projects Branch. The Branch was affiliated with the Victorian State office of the agency, although based in Canberra. Mr Lombardo’s expression of interest was made in response to an offer on 16 December 2010 of a small number of redundancies in the agency due to a restructure and in the face of budgetary constraints.
The redundancy process was to take place in two stages: first the national office, and second, state and regional offices. As Mr Lombardo was aligned with the State office network his expression of interest was considered in the second tranche. In the result, Mr Lombardo was not one of those to whom a redundancy was offered. He was so advised on 1 February 2011.
Mr Lombardo emailed the Secretary of the agency on 2 February 2011 complaining that the decision was ‘vindictive in nature’ and a punishment of him, since it prevented him obtaining favourable superannuation entitlements, a matter which had been mentioned in his expression of interest.
On 2 February 2011, Mr Lombardo obtained a medical certificate from Dr…

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.

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Details

Case: [2013] AATA 470
Decision Date

CaseChat Overview and Summary

In the case of Lombardo v Comcare, the applicant, Mr. Luciano Lombardo, sought compensation for a depressive disorder he claimed was sustained on 2 February 2011. Comcare denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The denial was upheld on review by the Administrative Appeals Tribunal on 2 July 2012. Mr. Lombardo then sought a further review by the Tribunal on 28 August 2012. The Tribunal was required to determine whether Mr. Lombardo had suffered an 'injury' as defined in the Act, and if so, whether Comcare was liable for the injury given it was due to 'reasonable administrative action'.

The Tribunal found that Mr. Lombardo had indeed suffered a depressive disorder with a deemed date of injury of 2 February 2011. This finding was based on medical evidence and Mr. Lombardo's testimony. The Tribunal determined that a depressive disorder is a mental ailment covered by the Act. The Tribunal was satisfied that the findings were correct or preferable, based on the medical evidence and Mr. Lombardo's account of events. The Tribunal concluded that Mr. Lombardo had met the criteria for an 'injury' under the Act, as the depressive disorder was significantly contributed to by his employment. The Tribunal then considered whether Comcare could be held liable for the injury due to 'reasonable administrative action'. The Tribunal found that the decision not to offer Mr. Lombardo a redundancy was reasonable administrative action, and thus Comcare was not liable for the injury.

The Tribunal's reasoning was based on the evidence that the decision to not offer Mr. Lombardo a redundancy was part of a planned restructuring process, and there was no excess capacity in his area. The Tribunal held that the decision was not vindictive but part of a legitimate administrative process. Therefore, the Tribunal dismissed Mr. Lombardo's claim for compensation. The final orders of the Tribunal were that Mr. Lombardo's claim for compensation be dismissed, and that the original decision by Comcare be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

Mr Luciano Lombardo sought compensation for depressive disorder deemed to have been sustained on 2 February 2011. Liability was denied by Comcare under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) on 11 May 2012, a decision upheld on 2 July 2012. On 28 August 2012, Mr Lombardo sought further review by the Tribunal.Background On 20 December 2010, Mr Lombardo lodged an expression of interest in taking a voluntary redundancy at work. He was employed by the Department of Education, Employment and Workplace Relations (agency) in its Targeted Jobs Projects Branch. The Branch was affiliated with the Victorian State office of the agency, although based in Canberra. Mr Lombardo’s expression of interest was made in response to an offer on 16 December 2010 of a small number of redundancies in the agency due to a restructure and in the face of budgetary constraints. The redundancy process was to take place in two stages: first the national office, and second, state and regional offices. As Mr Lombardo was aligned with the State office network his expression of interest was considered in the second tranche. In the result, Mr Lombardo was not one of those to whom a redundancy was offered. He was so advised on 1 February 2011. Mr Lombardo emailed the Secretary of the agency on 2 February 2011 complaining that the decision was ‘vindictive in nature’ and a punishment of him, since it prevented him obtaining favourable superannuation entitlements, a matter which had been mentioned in his expression of interest. On 2 February 2011, Mr Lombardo obtained a medical certificate from Dr Helen Wessell, his general practitioner, that he was unfit for work for 2 – 11 February 2011. She said it was due to ‘severe depression’ and that he would benefit from a ‘long break from work’ prior to a graduated return to work. On 24 February 2011, Dr Wessell issued an open letter to the effect that Mr Lombardo was ‘suffering from work stress since an apparent offer of redundancy was suddenly denied him’. Thereafter, Dr Wessell periodically certified Mr Lombardo as unfit for work between 8 April 2011 and 18 February 2012. A report from a psychologist, Dr Neil Harrigan, on 25 February 2011 was that Mr Lombardo had presented on 23 February 2011 displaying ‘distressing levels of depression and anger’. On 8 February 2012, Mr Lombardo completed a Claim for Workers’ Compensation in respect of a psychological condition. The claim recorded that Mr Lombardo had first noticed the illness on 1 February 2011 at 5.30pm and first sought treatment on 2 February 2011 at the Phillip Medical & Dental Centre. In the first half of 2012, the agency commenced negotiations with Mr Lombardo about his return to work. On 10 August 2012, negotiations had broken down and Mr Lombardo was directed to return to work. Mr Lombardo responded on 15 August 2012. On 22 August 2012, his employment was formally terminated. Evidence dated 10 December 2012 from the Manager, Victorian State Network of the agency, was that as there was no excess capacity in the area in which Mr Lombardo worked no redundancies came from that area.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issues are:·Whether Mr Lombardo has suffered an ‘injury’ in the terms of the Act (section 5A); and·Whether, if that is so, there is no liability for the injury because it was due to ‘reasonable administrative action’ (section 5A(2)).ConsiderationWhether Mr Lombardo has suffered an ‘injury’ in terms of section 5A of the Act At the outset of the hearing, the Tribunal was advised that both parties accepted the findings in the reviewable decision that Mr Lombardo was suffering from a depressive disorder, that the deemed date of injury was 2 February 2011, and that the injury had been significantly contributed to by his employment. The Tribunal is not obliged to accept concessions agreed by the parties or findings made at a previous level in the decision-making hierarchy. The Tribunal must be satisfied that the finding is either the correct or the preferable decision. In the circumstances of Mr Lombardo’s claim it is so satisfied. A person has suffered an ‘injury’ under the Act and liability to pay compensation arises if the employee suffered either a ‘disease’ or an ‘injury (other than a disease)’ (section 5A(1)(a), (b)). A ‘disease’ is defined to cover an ‘ailment’ or an ‘aggravation of such an ailment’. An ‘ailment’ is defined broadly to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’ (section 4(1)). The reviewable decision accepted that Mr Lombardo suffered a depressive disorder, with a date of injury of 2 February 2011 (section 7(4) of the Act), being the date on which Mr Lombardo sought medical treatment for his condition. A depressive disorder is a mental ailment. That concession is consistent with the predominant medical evidence:· Dr Wessell provided a medical certificate on 2 February 2011, that he was suffering from ‘severe depression’;· Dr Neil Harrigan, Mr Lombardo’s treating psychologist, in a letter dated 4 April 2011, referred to Mr Lombardo’s ‘stress and resultant depression’;· Dr James Hundertmark, consultant psychiatrist, in a Fitness for Duty report dated 23 May 2011, concluded that Mr Lombardo ‘was close to suffering from psychotic depression’;· Dr Donald Lawrence, psychiatrist, in a report dated 6 November 2011, said that in August 2011 Mr Lombardo ‘presents with a mild resolving depressive episode’;· Dr Inglis Howe Synnott, consultant psychiatrist, in a second Fitness for Duty report dated 20 July 2012, concluded that in July Mr Lombardo had no psychiatric condition. He did not express an opinion as to Mr Lombardo’s psychological state in February 2011. The test also meets the criteria in section 7(4) that the deemed date of injury is either the date on which ‘the employee first sought medical treatment for the disease’ or ‘the disease…first resulted in the incapacity for work’. Mr Lombardo’s history meets the first of these tests. In light of these findings and the concessions by the parties, the Tribunal finds that Mr Lombard did suffer from a psychological condition with a deemed date of injury of 2 February 2011. The Tribunal is satisfied that these findings are the correct or preferable findings. That satisfaction is based on the medical evidence as to his psychological condition, accepted by all the medical experts except Dr Synnott, who did not report on his condition until some 18 months after he first suffered symptoms, and Mr Lombardo’s testimony as to the circumstances leading to his disorder.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3723
Re	LUCIANO LOMBARDO
APPLICANT
And	COMCARE
RESPONDENT

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER
Date	5 July 2013
Place	Canberra