Maria Martinez and Comcare

Case [2013] AATA 949

[2013] AATA 949 

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/3380

Re

Maria Martinez

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Mr S. Webb, Member
Date 24 December 2013
Place Canberra

The decision under review is affirmed.

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

Mr S. Webb, Member

WORKER’S COMPENSATION – psychological injury claim – decision to reject the claim overturned by Tribunal at first hearing – Tribunal decision upset on appeal and remitted to be decided according to law – meaning of ‘reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment’ – disease a result of exclusionary factors – decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 4, 5A, 5B, 7, 14

Comcare v Martinez (No 2) [2013] FCA 439

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Hart v Comcare [2005] FCAFC 16
Peters v Comcare [2013] FCA 808
Re Martinez and Comcare [2012] AATA 795

REASONS FOR DECISION

Mr S. Webb, Member

24 December 2013

  1. Maria Martinez claimed compensation for an injury in her employment by the Department of Education, Employment and Workplace Relations (the Department)[1]. Comcare rejected the claim in primary and reconsideration decisions[2] on grounds that the claimed injury was the result of reasonable administrative action undertaken in a reasonable manner in respect of her employment – an exclusionary proviso in the definition of ‘injury’ under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). The matter came before the Tribunal and, in the result, Comcare’s decision was set aside[3].

    [1] T9.

    [2] T31 and T44.

    [3] Re Martinez and Comcare [2012] AATA 795.

  2. Comcare took the Tribunal’s decision on appeal to the Federal Court of Australia. Robertson J allowed the appeal and remitted the matter to the Tribunal to be determined according to law, with or without fresh evidence being taken[4].

    [4] Comcare v Martinez (No 2) [2013] FCA 439.

  3. Having heard the parties prior to hearing the remitted matter, and with their agreement, I ruled that it is not necessary to recall witnesses to do over again the evidence taken by the Tribunal at first hearing, which can be dealt with in documentary form. But I allowed for additional evidence to be adduced on key points. It was on this basis that the matter came on for hearing.

  4. Comcare filed two additional witness statements from Madjenka Maric and Penny Duncan, and arranged for each of them to give oral evidence.

  5. On commencement of the hearing, questions arose about the need to take further evidence from two key witnesses, Ms Martinez and Ms Ward, and, if so, the extent to which each would be examined on points traversed during the previous hearing. Having taken into evidence the documents that were before the Tribunal at first hearing, as well as the full transcript of that hearing, I ruled that additional oral evidence from Ms Martinez or Ms Ward should be confined to matters that it is necessary for either party to cover, namely gaps in the evidence that need to be filled,…

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Maria Martinez and Comcare [2013] AATA 949
Case
[2013] AATA 949
Decision Date

CaseChat Overview and Summary

Maria Martinez lodged a claim for compensation against Comcare, seeking damages for depression and anxiety she attributed to workplace bullying and patronisation. The matter was heard by the Administrative Appeals Tribunal, with Comcare represented by Mr Andrew Berger. The Tribunal had to determine whether Martinez's disease was an injury for the purposes of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and if it resulted from reasonable administrative actions taken by her supervisor, Ms Ward.

The central legal issue was whether the disease Martinez suffered from constituted an injury under the Act, and whether it resulted from reasonable administrative actions taken by her employer. The Tribunal examined the nature of the disease, whether it was an injury for the purposes of the Act, and whether it resulted from actions taken in respect of Martinez's employment. The Tribunal also had to consider whether the actions taken by Ms Ward were reasonable administrative actions in respect of Martinez's employment.

The Tribunal concluded that Martinez suffered from a disease, which was an ailment to which her employment contributed to a significant degree. However, the Tribunal found that the disease was not an injury for the purposes of the Act as it resulted, in part at least, from actions taken by Ms Ward from 21 June 2010 to 17 September 2010 in respect of Martinez's performance. These actions were deemed to be reasonable administrative actions undertaken in a reasonable manner in respect of her employment. Therefore, Martinez's disease did not fall within the meaning of an injury for the purposes of the Act, and she was not entitled to compensation. The Tribunal affirmed the decision under review, being Comcare’s reconsideration decision on 25 July 2011.

Orders

Orders of the court

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Background

Background to the litigation

In the result, even though counsel for Comcare, Mr Andrew Berger, had prepared on the basis that oral evidence would be taken from Ms Martinez, she was not recalled. Ms Ward was required to clarify parts of her evidence and to address a number of inconsistencies within it.The facts Many of the facts are not controversial. These are set out in a Statement of Agreed Facts prepared by the parties for the first hearing[5]. Counsel for both parties informed me that the facts set out in that document are agreed for the purposes of the present hearing. I am satisfied that those facts are made out and can be accepted.[5] Exhibit R12. In order to assist understanding and for ease, it is necessary to set out the facts established by the present evidence. This includes exhibits and transcript from the previous Tribunal hearing[6], and it embraces evidence given by Andrea Henson, Monwell Levi, Lynne Stevenson, Tobias Seldon, Rick Browne, Thomas Shiner and, in particular, Ms Martinez[7] and Ms Ward[8].[6] Exhibits R13, R14 and R15.[7] Exhibit R13 pages 9 to 88.[8] Exhibit R14 pages 126 to 183. The legal framework for managing the performance of Departmental employees is established by the ‘DEEWR Collective Agreement 2009-11’[9] (the Agreement). Under the Agreement, the Department operates a Performance Management and Development Policy[10] (the PMD Policy) and Underperformance Procedures[11]. The PMD Policy requires each employee to enter into an Individual Performance and Development (IPAD) plan, which is subject to annual and mid-cycle review. The IPAD scheme provides for the performance of the employee to be rated against agreed criteria according to a five point scale: ‘Exceptional’, ‘Outstanding’, ‘Good’, ‘Satisfactory and ‘Unsatisfactory’. The PMD Policy provides for performance issues to be promptly addressed at any time in the annual IPAD cycle.[9] Exhibit R10.[10] Exhibit R2, Attachment F.[11] T27.5. In the period immediately prior to December 2009, Ms Martinez was employed in the position of Contract Manager at the APS 5 level in the National Indigenous Cadetship Program (NICP) section of the Department. It appears that hitherto Ms Martinez performed well when acting in a previous APS 4 role under her (then) supervisors, Christopher Dodd and Andrea Henson, and in or about 2007 she was rated as ‘Outstanding’. In January 2008 Ms Martinez won promotion to the APS 5 Contract Manager role in a merit based selection process that was signed off by the Branch Head at the time, Lynne Stevenson, and the Director of the section, Tom Shiner. From early in 2009, Tobias Seldon assumed the role of Assistant Director at the EL1 level, with responsibility for Rick Browne, an APS 6 level officer and Ms Martinez at the APS 5 level. The reporting structure followed the hierarchy of seniority in the section. Over a period in 2009, Ms Martinez perceived that Mr Seldon and Mr Browne were bullying her. Mr Seldon and Mr Browne were critical of Ms Martinez’s performance.

Evidence

Evidence Before The Court

On 1 November 2010, Ms Martinez lodged a claim for compensation in respect of “Depression, Anxiety” that she says arose on the morning of 31 August 2010 as a result of “Patronisation, Bullying, Being made to feel stupid, Work colleagues speaking ill”[36].[36] T9 folios 24 and 26.Medical evidence It is germane to consider this history in the context of the contemporaneous medical evidence, particularly the clinical notes of Dr Glenn Dillon, Ms Martinez’s treating general practitioner. I note that some of Dr Dillon’s clinical notes, from 9 October 2009 to 30 August 2010 were not before the Tribunal at first hearing. Ms Martinez had a previous work-related physical injury for which she obtained rehabilitative treatments, including physiotherapy and a gym program during 2010. In order to obtain such treatment, Ms Martinez left work early on some days, recording this as leave to be recredited under the compensation arrangements between her employer and Comcare. It is quite clear from the clinical records of Dr Dillon that on 16 April 2010 Ms Martinez was “Extremely stressed out” by a personal matter, the details of which are not relevant to record. The Doctor noted that she had applied for a transfer to Queensland in order to be closer to family members, and that she was sleeping poorly, recording that the reason for the consultation was “acute anxiety”[37]. There is no reference to difficulties at work in these or preceding records. The same can be said for Dr Dillon’s notes of consultations with Ms Martinez on 28 May and 25 June 2010. The latter consultation took place four days after the commencement of Ms Ward’s ‘more formal’ performance improvement process on 21 June 2010, when Ms Martinez says that she was shocked by Ms Ward raising issues about her performance. On the face of Dr Dillon’s clinical notes, this was not something she raised or that was of clinical significance at the time. [37] Exhibit R8, clinical note 16 April 2010. On 19 August 2010, Ms Martinez consulted an Employee Assistance Program Counsellor provided by the Department, John Cameron. Mr Cameron’s notes reveal that Ms Martinez was coping with personal issues and that she wanted to move to Queensland, but she was encountering difficulty finding work there. He noted “Workplace issues also impacting: changes in work environment” and “confidence low at work”[38]. [38] Exhibit R9, clinical note 19 August 2010. Dr Dillon first noted issues relating to Ms Martinez’s employment in his consultation with her on 31 August 2010 –“Some issue relating to work – some performance matters / job in Qld has fallen throughComcare matters as well – paperwork not lodgedHas seen a counsellor about feeling depressed”[39][39] Exhibit R8, clinical note 31 August 2010. In a further consultation on 16 September 2010, Mr Cameron noted –“She stated she is struggling with work due to a significant number of people being put on the mobility register and the mood/culture it is causing with all staff: fear driven environment.She said that she is now in a new role that she is not suited to and doesn’t feel she can perform. She explained this is now moving towards hating being at work and that she is worried she may become rude or isolate from others.… She reiterated that she was still feeling patronised and bullied by her boss and worries about this occurring again.”[40][40] Exhibit R9, clinical note 16 September 2010.

Decision

Reasons for decision

As Ms Martinez’s disease is not an injury for the purposes of the Act, it is not necessary to consider the date of the injury under s 7(4).Conclusion Ms Martinez suffers from a disease, being an ailment to which her employment contributed to a significant degree. Her disease resulted, in part at least, from actions Ms Ward took from 21 June 2010 to 17 September 2010 in respect of Ms Martinez’s performance, including her flex sheets. The particular actions Ms Ward took are within the meaning of reasonable administrative actions undertaken in a reasonable manner in respect of her employment for the purposes of s 5A(1) of the Act. It follows that Ms Martinez’s disease is not within the meaning of an injury for the purposes of the Act, and she is not entitled to compensation pursuant to the claim she made on 1 November 2010. The decision under review, being Comcare’s reconsideration decision on 25 July 2011, is affirmed.

Ratio Decidendi

Legal Principle Established

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