Martin and Comcare (Compensation) - [2024] AATA 3113

Martin and Comcare (Compensation) [2024] AATA 3113 (2 September 2024)
Division:GENERAL DIVISION
File Number(s):2023/6138
Re:Matthew Ivor Martin
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President O'Donovan
Date:2 September 2024
Place:Canberra

The decision under review is affirmed.
……………..[SGD]…………….
Deputy President O'Donovan
Catchwords
COMPENSATION – bipolar affective disorder – whether medical evidence sufficient to establish aggravation – workplace communication issues – meeting with General Counsel about email behaviour – whether reasonable administrative action – obligation to ensure safety of other employees – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Commonwealth Bank and Reeve (2012) 199 FCR 463
Comcare v Mooi (1996) 69 FCR 439
REASONS FOR DECISION
Deputy President O’Donovan
INTRODUCTION

The applicant seeks review of a decision made by a Comcare delegate on 7 July 2023. The delegate’s decision denied liability to pay the applicant compensation in relation to a workplace injury he claimed to have suffered while employed at Services Australia (a department of the Commonwealth Government). The applicant’s claim was in relation to an aggravation of his bipolar disorder.
In the applicant’s request for reconsideration, he described the aggravation as being the result of ‘multiple significant prior actions and interactions with his supervisor from 2021 with cataclysmic events in and around the week of 21 February 2023’.
In the hearing, the primary incident pressed as causative of an aggravation of the applicant’s longstanding bipolar condition was a meeting with his ultimate supervisor on 21 February 2023. There was some medical evidence advanced at hearing which suggested that more general work issues may have produced an aggravation around October 2022. I will address that issue even though prior to the evidence given by the applicant’s psychologist at the hearing, earlier difficulties at work were framed more as context rather than as causative of the aggravation of the applicant’s bipolar condition.
The respondent denies that the applicant has established that his underlying bipolar condition was aggravated by any events in the workplace. In the alternative, the respondent contends that if I were satisfied that the applicant suffered an aggravation of his bipolar disorder as a result of the meeting conducted on 21 February 2023, the meeting constituted reasonable administrative action conducted in a reasonable manner and thus attracts the exclusion of liability in the definition of an injury in section 5A of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). To determine that question it is necessary to look both at the context of the meeting, and to resolve a factual dispute about what actually occurred at the meeting.
I have structured these reasons as follows. First, I will make general findings about the applicant’s background health and work situation prior to October 2022. Second, I will make findings about events leading up to the meeting of 21 February 2023. Third, I will consider whether there is adequate evidence that the applicant suffered an aggravation of his bipolar disorder as a result of the meeting of 21 February 2023. Fourth, I will consider whether…

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 Martin and Comcare (Compensation)

Details

AGLC: Martin and Comcare (Compensation) [2024] AATA 3113
Case: [2024] AATA 3113
Decision Date: 2 September 2024

CaseChat Overview and Summary

This matter concerned an appeal by an applicant, Mr Martin, against a decision by Comcare. Mr Martin sought compensation for an alleged aggravation of his bipolar affective disorder, which he contended was caused by workplace stressors. The dispute centred on whether the medical evidence was sufficient to establish that Mr Martin had suffered an injury, as defined by the *Safety, Rehabilitation and Compensation Act 1988* (Cth), due to an aggravation of his pre-existing mental ailment.

The court was required to determine whether the applicant had established that he suffered an injury, specifically an aggravation of a mental ailment, within the meaning of section 5B of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This involved assessing whether the applicant's reaction to workplace events constituted a mental ailment that fell outside the boundaries of normal mental functioning, as distinguished from a normal human response to distressing events.

The Deputy President found that the medical evidence provided by the applicant's General Practitioner, Dr Ramchander, was insufficient to satisfy the legal threshold. While the certificates indicated that Mr Martin was experiencing stress, anxiety, low self-esteem, and rumination, these were considered to be within the range of normal emotional responses to challenging workplace circumstances, such as perceived bullying and concerns about performance. The Deputy President noted that the medical evidence did not confirm that the applicant's reaction extended beyond normal mental functioning, a requirement for establishing a compensable mental ailment, citing the principle from *Comcare v Mooi*. Consequently, the applicant failed to demonstrate that he suffered an aggravation of his bipolar disorder as a result of work incidents.

The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

The evidence before me is set out in the appended Exhibit List. BACKGROUND The applicant was diagnosed with bipolar disorder in 2012. The condition was reasonably well managed with medication following diagnosis. He was initially treated with lithium, but this was subsequently changed to sodium valproate due to concerns about metabolic effects, and he reports having been on sodium valproate consistently since at least 2014. However alcohol and drug abuse have been the applicant’s Achilles heel in the management of the condition. He began using marijuana at age 14 and experimented with a variety of drugs including cocaine and ecstasy as an adult. He has also been a heavy user of alcohol at various points in his life. In the decade or so since the applicant was diagnosed, he has been involved in a number of drug related incidents:(a)January 2012 – charged with two counts of furious, reckless, or dangerous driving, and three counts of trafficking a controlled substance. It was this incident that resulted in the applicant’s referral to a psychiatrist and subsequent formal diagnosis with bipolar affective disorder;(b)24 October 2014 – tested positive for THC in a roadside saliva test, and reported to Dr McAndrew that he had steadily increased his cannabis use over the previous six months;(c)9 January 2015 – attended Dr McAndrew on 9 January 2015 because he needed a psychiatrist’s report for upcoming court proceedings regarding the positive drug test; (d)7 October 2022 – pulled over by police and charged with driving while intoxicated, as well as possession of an illicit substance. Despite his vulnerability, the applicant completed a combined Law and Commerce degree in 2018. While studying and prior to commencing employment with Services Australia in 2021, the applicant was continuing to drink, and his doctors noted on occasion signs that his bipolar disorder was not entirely under control. In particular, on 4 August 2020 Dr Lad administered a DASS 21 (Depression, Anxiety and Stress Scale) test. The results indicated ‘extremely severe’ anxiety and stress, alongside ‘moderate’ depression. Dr Lad noted that the applicant’s mood was a little elated, with pressured speech. These are signs of what is called ‘hypomania’. Noting that the two mood extremes in bipolar disorder are mania and depression, ‘hypomania’ is a state which involves some elevated mood associated with a mix of desirable and undesirable traits which include decreased need for sleep, increased appetite for risk, increased energy and happiness, inflated self-esteem, feeling invincible, being more talkative, being easily distracted, obsession with current activity, and a tendency to impulsive behaviour. On 5 February 2021 the applicant attended Dr Lad and reported feeling unwell after reducing his dosage of sodium valproate. On 19 February 2021 he attended the practice again and reported that, while his initial goal had been to reduce his dosage, given ‘recent stressors at work’ he was happy to increase the dose back to the previous level.[1][1] Noting that the applicant had only commenced at Services Australia 5 days prior to this appointment.

Evidence

Evidence Before The Court

In those circumstances, I prefer Mr Parmeter’s account of the meeting (and its prelude). To the extent that there is inconsistency between the applicant’s account of the meeting and Mr Parmeter’s I prefer Mr Parmeter’s version of events.Medical evidence Before turning to the medical evidence, it is useful to emphasise two things. First, to be entitled to compensation the applicant must establish that he suffered an injury as that term is defined in the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). In the present case what the applicant seeks to establish that he suffered an aggravation of a mental ailment which meets the definition in section 5B of the SRC Act. The second thing to note is that work related stress is not necessarily an ailment which attracts compensation. Suffering stress can be a reaction within the range of normal human responses to distressing events. It can be of such a nature that it results in incapacity for work. But those features do not automatically establish an entitlement to compensation. To amount to a mentail ailment it must involve a mental reaction outside of the boundaries of normal mental functioning. That is an essential requirement for finding that a reaction constitutes a mental ailment. So much is clear from the Federal Court decision in Comcare v Mooi.[5] The medical evidence in support of the applicant’s claim needs to be considered through this lens.[5] (1996) 69 FCR 439, 442. As a result of the applicant being self-represented and undoubtedly suffering financial stress as a result of ceasing work on 23 February 2023, the medical evidence in support of his claim is sparse. It relevantly consists of a number of medical certificates provided by his treating General Practitioner Dr Ramchander. The first of these was produced on 24 February 2023. It simply states:Mr Matthew Martin has work related stress and will be unfit for work from 24/02/2023 to 10/03/2023 inclusive. Certificates to similar effect were produced subsequently. A certificate prepared on 6 March 2023, under ‘comments on mental capacity’, stated:·Low self-esteem·Anxious·Lack of self-worth·RuminatingIt concluded that, ‘based on the available information’, this was caused by ‘perceived bullying at work’ and ‘work related stress’.[6][6] T 188-9. Certificates in similar terms were produced on 20 March 2023 and following. On 5 June 2023 Dr Ramchander prepared a further report. It relevantly stated:Matthew has been managed for work related stress by myself, his psychologist and his psychiatrist. At this stage, it is felt that Matthew is fit to return to work on a graduated return to work programme. Dr Ramchander did not give evidence at the hearing and was not made available for cross-examination. Based on the certificates available and the one medical report, I am not satisfied that the applicant was suffering from any mental condition which was outside the boundaries of normal mental functioning. The applicant was subject to events at work which potentially had implications for his ongoing employment. Critical relationships in the workplace were breaking down and concerns about his performance and behaviour were regularly being raised with him. It would be surprising if he were not stressed, anxious, ruminating and diminished in his self-esteem. The evidence available from Dr Ramchander rises no higher than identifying the emotions experienced by the applicant. Nothing in the documents Dr Ramchander has prepared confirms that the applicant’s reaction is outside the boundaries of normal mental functioning.

Decision

Reasons for decision

Consequently, Mr Bilboe’s claims are insufficient to persuade me that the applicant suffered an aggravation of his bipolar disorder as a result of work incidents during the course of 2022.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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