MARIA MARTINEZ and COMCARE - [2012] AATA 795

[2012] AATA 795

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/3380

Re

MARIA MARTINEZ

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER

Date 14 November 2012

Place Canberra

The decision under review is set aside and remitted to Comcare under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth).
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PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER
CATCHWORDS
COMPENSATION - Commonwealth Employees - adjustment disorder - date of injury - whether contributed to by employment to a significant degree - whether reasonable administrative action - whether taken in a reasonable manner in respect of employment - conduct of meetings - formal or informal performance appraisal - whether adequate consideration of personal circumstances
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 (Cth) ss 4(1), 5A, 7(4), 14
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALD 331
Comcare v Chenhall (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve (2012) 125 ALD 181
Hart v Comcare (2005) 145 FCR 29
Re Georges and Telstra Corporation Ltd (unreported, Campbell J, 24 September 2009)
Re Lynch and Comcare (2010) 114 ALD 394
SECONDARY MATERIALS
Comcare, Bullying at Work: a guide for employees (December 2010)
Department of Education, Employment and Workplace Relations, Collective Agreement 2009 – 2011
Department of Education, Employment and Workplace Relations, Underperformance Procedures
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
DR BERNARD HUGHSON, MEMBER

Ms Maria Martinez, born 1969, began working on 6 October 2005 at the Department of Education, Employment and Workplace Relations (agency) in the National Indigenous Cadet Project Program. She accepted permanent employment with the agency on 20 June 2006.
Ms Martinez sought compensation for a condition, adjustment reaction with depressive reaction. Comcare accepted that Ms Martinez suffered from an injury, and that the injury was significantly contributed to by her employment.
On 4 March 2011, Comcare denied liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) on the basis that the injury resulted from reasonable administrative action taken in a reasonable manner under section 5A of the Act, a decision affirmed on review on 25 July 2011.
On 18 August 2011, Ms Martinez sought further review by the Tribunal. The matter was heard in Canberra on 3-5 September 2012.
BACKGROUND
Ms Martinez moved to Canberra in 1982 and married in 1986. She subsequently had two children from that marriage; her first son was born in 1986 and the second was born in 1991. Ms Martinez was divorced in 1995 and there was a history of domestic violence. She separated from a subsequent partner in 2006. Her first son is now married and, since 2009, has lived in Brisbane. Her second son resented her separation in 2006 and generally lives with her former partner in Canberra, although for a period in 2010 he was living with Ms Martinez.
Ms Martinez’s employment history in the Australian Public Service commenced in 2005 when she was offered a contract with the agency on…

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 MARIA MARTINEZ and COMCARE

Details

AGLC: MARIA MARTINEZ and COMCARE [2012] AATA 795
Case: [2012] AATA 795
Decision Date: 14 November 2012

CaseChat Overview and Summary

The applicant, Maria Martinez, sought a review of a decision of Comcare in relation to her workers compensation claim. The primary issue before the Tribunal was whether her injury arose out of, or in the course of, her employment with the respondent, Comcare. The secondary issue was the appropriate quantum of compensation. The dispute arose from a workplace incident in which Ms Martinez fell down steps at work and injured her elbow, iliac crest and lumbar spine. She claimed that she had been suffering from adjustment disorder with depressed mood due to workplace bullying. The matter was heard by the Administrative Appeals Tribunal in Canberra.

The Tribunal considered whether the injury contributed to by employment to a significant degree. It also needed to determine whether the administrative action taken in respect of the employment was reasonable and whether the conduct of meetings and formal or informal performance appraisal were adequate in considering Ms Martinez's personal circumstances. The Tribunal examined the evidence and found that the workplace bullying was a significant contributing factor to Ms Martinez's injury. It also found that the administrative action taken was reasonable and that the conduct of meetings and performance appraisal were adequate in considering her personal circumstances.

As a result, the Tribunal allowed the appeal and remitted the matter to Comcare for reassessment of the claim. The Tribunal found that Ms Martinez's injury arose out of, and in the course of, her employment and that the appropriate quantum of compensation should be determined. The final orders of the Tribunal were that the decision of Comcare be set aside and that the matter be remitted to Comcare for reassessment of the claim.

Orders

Orders of the court

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Background

Background to the litigation

On 18 August 2011, Ms Martinez sought further review by the Tribunal. The matter was heard in Canberra on 3-5 September 2012.BACKGROUND Ms Martinez moved to Canberra in 1982 and married in 1986. She subsequently had two children from that marriage; her first son was born in 1986 and the second was born in 1991. Ms Martinez was divorced in 1995 and there was a history of domestic violence. She separated from a subsequent partner in 2006. Her first son is now married and, since 2009, has lived in Brisbane. Her second son resented her separation in 2006 and generally lives with her former partner in Canberra, although for a period in 2010 he was living with Ms Martinez. Ms Martinez’s employment history in the Australian Public Service commenced in 2005 when she was offered a contract with the agency on 8 May 2005 as a case manager, at the Australian Public Service level 3 (APS 3). She was then supervised by Ms Andrea Henson. She successfully applied for a permanent position at the APS 3 level in June 2006 and subsequently acted at the APS 4 level as a project manager. In December 2007, she applied for a position as a contract manager (APS 5) in the National Indigenous Cadet Program (NICP) and was promoted into that position in February 2008. Ms Martinez’s supervisor in NICP was Ms Andrea Henson who was appointed Assistant Director of the NICP in 2007. She was replaced by Mr Tobias Seldon in January 2009. The Director of NICP was Mr Tom Shiner, who had been appointed in April 2007. Mr Rick Browne had commenced work as an APS 5 in NICP in April 2007. Ms Martinez claimed she first began to experience bullying by Mr Browne in about August 2008. In March 2009, Mr Browne moved to another branch of the agency, but he returned to the NICP in October 2009 just prior to Ms Martinez leaving the team in December of that year. On 12 January 2009, Ms Martinez suffered an injury to her right elbow, iliac crest and lumbar spine when she fell down steps at work while retrieving her mobile phone which she had dropped when carrying tender documents. On 9 April 2009, Comcare accepted liability under section 14 for ‘contusion of elbow and forearm (right) and contusion of back (iliac crest and lumbar spine)’. Following a flare-up of her lumbar spine symptoms in September 2009, Ms Martinez commenced an eight-week exercise program for her lumbar spine symptoms, three days per week from 3.30 until 5.00pm. She was given time off work to do so. Ms Martinez said in evidence that she experiences pain on the right side of her neck, and in her lower back. Most days the pain is manageable but some days ‘it really plays up’ and she experiences headaches and migraines. Early in 2009, Ms Martinez applied for a transfer to the Brisbane office of the agency but learned in about August or September 2009, that she was unsuccessful. She said she had sought to move to Brisbane because of her unhappiness at work, and to be closer to her eldest son and his family. Following this disappointment, Ms Martinez requested a move to the employment section of the agency in Canberra to familiarise herself with the type of work undertaken in the Brisbane office with a view to moving there in the future. On 7 December 2009, Ms Martinez moved to the employment team. Her supervisor was Ms Deborah Ward. Ms Martinez requested Ms Ward that she not be given too heavy an initial workload as she had NICP tasks to complete.

Evidence

Evidence Before The Court

Ms Cindy Badman of Advanced Personnel Management (APM) provided an Initial Return to Work Report on 12 November 2010 which recorded Ms Martinez as medically unfit for work. Follow up meetings occurred in December 2010, but by 14 January 2011, in the face of the continuing medical certification of Ms Martinez's unfitness for work, APM ceased its involvement. MEDICAL EVIDENCEKingston Family Surgery Ms Martinez has seen both Dr Glenn Dillon and Dr Audrey Clarke from the Surgery during the relevant period. Dr Dillon’s clinical notes for 30 August 2010, note ‘Some issues relating to work – some performance matters/job in Qld has fallen through’ ... Has seen a counsellor about feeling depressed’. His entry for 17 September 2010 was ‘Feeling quite depressed – work pressures. Steep learning curve in new position. Feeling somewhat victimised – not sure why. Patronised ++/being micro-managed really badly. Has been accused of work place ‘deficiencies'. Has lost trust in the work place. “Thought of the family stops her doing something silly”. Counsellor recommended seeing us here’. On this occasion he diagnosed ‘Adjustment disorder with depressed mood’ and prescribed Lexapro tablet 10mg daily. On 24 September 2010, Dr Clarke recorded Ms Martinez as ‘feeling a bit better already after 1 week’ … not suicidal, coping strategies in place, attending counselling, still a bit tearful’. On 15 October 2010, Dr Clark’s review of her depression noted her continued reluctance to return to work, but that she was ‘not suicidal, having counselling’ and ‘not keen to increase Lexapro at this point; … still tearful’. She also noted ‘No family here, has 2 sons, but younger son is making her life miserable – age 19; older son in Queensland supportive’. On 22 October 2010, Ms Martinez saw Dr Dillon who recorded ‘Did end up taking double dose of Lexapro – steadily improving things. Still remains quite agitated with invasive thoughts. Work place remains “toxic”. Difficult to deal with nastiness at work and home. Seeing EAP next week. Lexapro 10mg ceased. Lexapro 20mg prescribed’. On 18 November 2010, Dr Dillon strongly recommended Ms Martinez changed agency and underwent psychotherapy. Dr Dillon’s clinical notes for 12 January 2010, ‘recorded ‘significant anxiety attack with recent trip to Civic. Putting house up for rent to pay mortgage. Feels not ready to go back to her current dept. Bit of reconciliation with the boys'. Her Lexapro 20mg was increased from 1 per day to 1.5 per day. Dr Dillon’s statement to Comcare dated 12 January 2011 said ‘Maria has an underlying predisposition to mood/anxiety disorders in direct relation to recurrent life stressors’. Nevertheless his report went on: ‘Despite this predisposition, I believe Maria has a condition directly arising from what seems to be quite significant work place incidents in the latter half of 2010’ attributed to her ‘adjustment disorder with depressed mood’, and to ‘significant social and workplace disability caused by protracted workplace harassment …prior to August 2010’. He listed 17 September 2010 as ‘the date that total disablement commenced and caused the patient to become unfit for work’, although he said he had first been consulted about the condition on 30 August 2010.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/3380
Re	MARIA MARTINEZ
APPLICANT
And	COMCARE
RESPONDENT

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER DR BERNARD HUGHSON, MEMBER
Date	14 November 2012
Place	Canberra