Marshall and Comcare (Compensation) - [2023] AATA 34

Marshall and Comcare (Compensation) [2023] AATA 34 (20 January 2023)
Division:GENERAL DIVISION
File Numbers: 2017/3785 and 2017/6329
Re:Adam Marshall
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:Mr A. Maryniak KC, Member
Date:20 January 2023
Place:Melbourne

The reviewable decisions dated 4 May 2017 and 21 August 2017 are affirmed.
.......................[sgd].................................................
Mr A. Maryniak KC, Member
Catchwords
WORKERS' COMPENSATION - Safety, Rehabilitation and Compensation Act 1988 (Cth) - Two applications - Where Respondent accepts Applicant suffered from a condition which was significantly contributed to by his employment - Where Respondent accepts certain events contributed to aggravation of adjustment disorder - Whether Applicant's condition resulted from reasonable administrative action taken in a reasonable manner - decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Martin [2016] HCA 43
Comcare v Stewart [2019] FCA 365
REASONS FOR DECISION
Mr A. Maryniak KC, Member
20 January 2023

The Applicant, Mr Adam Marshall, seeks review of two decisions:
(i)a decision dated 4 May 2017, which affirmed a determination of 7 March 2017 (First Application); and
(ii)a decision dated 21 August 2017, which affirmed a determination of 25 July 2017 (Second Application).
Both decisions denied liability to pay compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for an “aggravation of adjustment disorder” on the basis that each resulted from reasonable administrative action taken in a reasonable manner in accordance with s 5A of the Act. Both applications were heard together by consent.
The Respondent accepts, and it is not in issue, that on or about 31 August 2016, 7 December 2016 and 23 March 2017, the Applicant suffered from a mild or minor adjustment disorder with symptoms of anxiety and depression which was significantly contributed to by his employment on each of the three occasions.[1]
[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B.
Further, the Respondent accepts, and it is not in issue, that the following events (either alone or in combination) significantly contributed to the Applicant’s aggravation of adjustment disorder:
First Application
(a)31 August 2016 adjustment disorder:
On or about 24 August 2016, the Applicant was told by his employer, the Bureau of Meteorology (the Bureau), that it would be unable to extend his Motor Vehicle Allowance (MVA);
(b)7 December 2016 adjustment disorder:
(i)From 5 September 2016, the Bureau raised queries with the Applicant regarding cabcharges;
(ii)On or about 21 November 2016, the Bureau queried with the Applicant the distances in his claimed MVA travel expenses; and
(iii)On or about 25 November 2016, the Applicant was told that he had been overpaid and was not entitled to receive Isolated Establishment Allowance (although the Applicant did not press this event in closing submissions).
Second Application
(a)23 March 2017 adjustment disorder:
On 22 March 2017, the meeting between the Applicant and Mr Arnold, his then supervisor at the Bureau.
The parties also accept that but…

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 Marshall and Comcare (Compensation)

Details

AGLC: Marshall and Comcare (Compensation) [2023] AATA 34
Case: [2023] AATA 34
Decision Date: 20 January 2023

CaseChat Overview and Summary

This matter concerned two applications brought by the Applicant, Mr Marshall, against the Respondent, Comcare. The dispute centred on whether Mr Marshall's adjustment disorder, which Comcare accepted was significantly contributed to by his employment and aggravated by certain events, constituted an "injury" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applications were heard by Mr A. Maryniak KC, Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was to determine, in respect of each application, whether Mr Marshall's condition resulted from reasonable administrative action taken in a reasonable manner. This involved considering the statutory definition of "injury" under section 5A of the Act, which includes specific exclusions for reasonable administrative actions. The Tribunal was required to assess whether the actions taken by Mr Marshall's employer fell within the scope of this exclusion.

The Tribunal's reasoning was guided by the High Court's decision in *Comcare v Martin*, which clarified that the purpose of the reasonable administrative action exclusion is to insulate legitimate human resource management actions, when undertaken reasonably, from workers' compensation claims. The Tribunal emphasised that the assessment of reasonableness must be based on an objective measure, rather than the subjective psychological reaction of the employee. To this end, the Tribunal was required to identify the specific administrative actions, the circumstances surrounding them, their impact on the employee, and the manner of their implementation to determine if they were taken reasonably. The Tribunal considered extensive documentary and oral evidence from the Applicant and psychiatrists engaged by the Respondent.

The Tribunal affirmed the decisions made in respect of both applications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal must determine, in respect of each Application, whether or not the Applicant’s condition resulted from reasonable administrative action taken in a reasonable manner.CONSIDERATION Extensive documentary evidence has been lodged with and considered by the Tribunal, together with the oral evidence of the Applicant, Mr Arnold, Dr Alexandra Evans and Professor Andrew Taylor (psychiatrists engaged by the Respondent), all of whom were cross examined. The Tribunal has also considered: (a)the Applicant’s Statements of Facts, Issues and Contentions; (b)the Respondent’s Statement of Facts, Issues and Contentions; (c)the Applicant’s Closing Submissions lodged on the final day of the hearing; and (d)the oral submissions of the parties. For the purposes of defining ‘injury’ in s 5A(1) of the Act, and without limiting that subsection, by s 5A(2), ‘reasonable administrative action’ is taken to include, relevantly:(a) a reasonable appraisal of the employee’s performance;(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;…(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. The purpose of the reasonable administrative exclusion as noted by the High Court in Comcare v Martin:[2] …was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers’ compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action. The taking of administrative action in respect of an employee’s employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependant upon the subjective psychological drivers of the employee’s reaction.(footnotes removed)[2] [2016] HCA 43 at [46]. The Tribunal is to approach the relevant questions of fact based upon a qualitative test based on an objective measure of reasonableness. It is necessary to identify the relevant administrative action(s), the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacted upon the employee, the circumstances in which the administrative action was implemented, and any other matters relevant to determining whether the administrative action was taken in a reasonable manner by the employer.[3] First Application[3] Comcare v Stewart [2019] FCA 365 at [70].31 August 2016 Adjustment Disorder