Martin and Comcare (Compensation) - [2018] AATA 2870

Martin and Comcare (Compensation) [2018] AATA 2870 (3 August 2018)
Division:GENERAL DIVISION
File Number(s): 2013/0404
Re:Peta Martin
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:3 August 2018
Place:Sydney

1. The reviewable decision made by Comcare on 6 December 2012 denying liability to compensate Ms Martin for a depressive disorder is set aside.
2. In substitution it is decided that, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay compensation to Ms Martin in respect of an injury, being an Adjustment Disorder, suffered by her as an employee of the Australian Broadcasting Commission.
............................[sgd]............................................
J W Constance
Deputy President

Catchwords
COMPENSATION – whether Applicant suffered from an ailment or aggravation of such an ailment – whether the ailment or aggravation was contributed to by the Applicant’s employment – was the ailment or aggravation suffered as a result of administrative action taken in respect of the Applicant’s employment – whether administrative action was reasonable – whether administrative action was taken in a reasonable manner – reviewable decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21
Director-General of Education v Suttling (1987) 162 CLR 427
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
REASONS FOR DECISION
A: INTRODUCTION

Ms Martin commenced employment at the Australian Broadcasting Corporation as a Producer in its Renmark South Australia studios in 2010. The Corporation will be referred to as the “ABC” in these reasons.
In June 2012, Ms Martin lodged a claim for compensation[1] in respect of an injury described as “anxiety/depression” which she claimed was suffered by her as a result of “being subjected to repeated inappropriate behaviour”[2] in her workplace. Her claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth).
[1] Exhibit RR1 at 7.
[2] Exhibit RR1 at 10.
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Martin requested this be reconsidered. On 6 December 2012, Comcare decided to affirm its earlier determination.[3] In January 2013, Ms Martin applied to the Tribunal to review Comcare’s decision.[4]
[3] Exhibit RR1 at 192.
[4] Exhibit RR1 at 13.
The Tribunal initially heard and determined Ms Martin's claim in 2014. Thereafter a series of appeals culminated in her application coming before the High Court of Australia.[5] The High Court ordered that the matter be remitted to the Tribunal to be heard and determined according to law. Comcare accepted that when the matter again came before the Tribunal Ms Martin would not be constrained by prior findings of fact made by the Tribunal.
[5] Comcare and Martin (2016) 258 CLR 467; [2016] HCA 43.
For the reasons which follow the decision under review will be set aside. In substitution…

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) [2018] AATA 2870
Case: [2018] AATA 2870
Decision Date: 3 August 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Martin against a decision by Comcare to deny her compensation for a depressive disorder. The central dispute revolved around whether Ms Martin suffered from an ailment or an aggravation of an ailment, and crucially, whether this condition was contributed to by her employment, or specifically, by administrative action taken in respect of her employment. The case was heard by Deputy J W Constance P.

The court was required to determine whether Ms Martin suffered from an ailment or an aggravation of an ailment, and if so, whether that ailment or aggravation was contributed to by her employment. A key legal issue was whether the ailment or aggravation was suffered as a result of administrative action taken in respect of her employment, and if so, whether that administrative action was reasonable and taken in a reasonable manner.

The court preferred the opinion of Dr Clarke over that of Dr Begg regarding the timing of Ms Martin's psychiatric condition. Dr Clarke maintained that Ms Martin suffered significant psychiatric symptoms prior to March 2012, diagnosing a psychiatric condition before a meeting on 16 March 2012. While Dr Begg initially expressed a similar opinion, he later revised it, suggesting Ms Martin experienced intermittent episodes of distress prior to March 2012, but not a disorder of a persistent nature impacting her work. The court found Dr Begg's reasoning for this change unconvincing, particularly his reliance on a summary of her General Practitioner's notes, which may not have accurately reflected the original opinion. The court concluded that Ms Martin suffered an Adjustment Disorder no later than August 2011, which predated the administrative action concerning her failure to obtain a specific position.

Given this finding, the court determined that the administrative action did not contribute to her suffering the ailment. Comcare conceded that the ailment was significantly contributed to by her employment. Accordingly, the reviewable decision by Comcare denying liability was set aside, and it was decided that Comcare was liable to pay compensation to Ms Martin for an Adjustment Disorder suffered as an employee of the Australian Broadcasting Commission.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Clarke later considered the statement made by Ms Martin in these proceedings and the evidence she gave in 2014. He reported that the history he had been given by Ms Martin was generally consistent with her evidence.[25]The concurrent evidence of Dr Begg and Dr Clarke before the Tribunal on 12 June 2014 [26][25] Exhibit AA13.[26] Exhibit RR2 12/06/2014 at 22-46. When he gave evidence concurrently with Dr Begg, Dr Clarke maintained his opinion that Ms Martin suffered significant psychiatric symptoms prior to March 2012. This led him to diagnose Ms Martin as suffering a psychiatric condition prior to the meeting of 16 March 2012.[27] [27] Exhibit RR2 12/06/2014 at 25. Dr Begg changed the opinion he expressed in his report of 24 August 2012. When he gave evidence in 2014 he was of the opinion that prior to 16 March 2012 Ms Martin had “intermittent episodes of distress where she had sought out assistance, including the Employee Assistance Program.”[28] In reaching this conclusion he had considered case notes from the Program which showed an improvement in Ms Martin’s condition by June 2011. He also took into account a summary of the clinical notes of Dr Kulatunga, Ms Martin’s General Practitioner, in relation to a consultation on 25 June 2011.[29] The summary of those notes by the Comcare review officer read:… noted that you seemed to be under stress, but he did not diagnose you with a psychological condition, certify you unfit for work, prescribe any medication, or refer you to a psychologist.[30][28] Exhibit RR2 12/06/2014 at 27.[29] Exhibit RR2 12/06/2014 at 27.[30] Exhibit RR1 at 198. Based on this evidence, Dr Begg did not think that Ms Martin “had reached the criteria of excessive distress and particularly not of a persistent nature, nor of an impact on her work performance.”[31] He felt that these factors “were not consistent with a disorder being diagnosed at that point in time, but rather subsequently when she presented to the general practitioner distressed in March [2012].”[32] [31] Exhibit RR2 12/06/2014 at 27.[32] Exhibit RR2 12/06/2014 at 27.Discussion Having considered the evidence of both Dr Clarke and Dr Begg, I prefer the opinion of Dr Clarke, with whom Dr Begg at first agreed. I have taken into account the fact that Dr Begg formed his initial opinion after he assessed Ms Martin in August 2012, five months after the conversation between Ms Martin and Ms Raabus on 16 March 2012. At the time of that assessment he diagnosed a pre-existing psychiatric condition and was firm in his diagnosis (see paragraph 32 of these reasons). I do not find Dr Begg’s reasoning based on the review officer’s summary of Dr Kulatunga’s notes convincing. Dr Begg did not have the benefit of reading the General Practitioner’s notes prior to changing his opinion and neither he nor I have had the opportunity to have evidence directly from Dr Kulatunga. In my view there is a substantial risk that the review officer has not accurately reflected the Doctor’s opinion as to the condition suffered by Ms Martin at the time of the consultation.

Decision

Reasons for decision

Further, when, in 2014, the Tribunal Senior Member informed Dr Begg of the evidence as to the symptoms suffered by Ms Martin prior to March 2012, he agreed that the symptoms described were consistent with a diagnosis of Adjustment Disorder.[33] [33] Exhibit RR2 12/06/2014 at 28-30.PART 1 CONCLUSION On the basis of the opinions expressed by Dr Begg and Dr Clarke in their respective reports of 28 August 2012 and 28 March 2013, I am satisfied that Ms Martin suffered an Adjustment Disorder sometime prior to August 2011, at which time she ceased to be supervised by Mr Mellett and came under the supervision of Ms Raabus. In reaching this conclusion I have taken into account the following history taken by Dr Begg from Ms Martin in August 2012 and upon which he initially based the opinion he expressed in his report of 28 August 2012:She now has a deep sense of shame, she is isolating herself and does not want to talk to people about what has happened. She is frightened how she will be judged.The symptoms have been going on for a prolonged period of time, probably from at least September 2010 onwards have they been persistent. She has sought assistance from the Employee Assistance Program in May 2011 and this was when she began to document what was happening. It therefore appeared that around mid 2011, the symptoms were of sufficient severity that they were affecting her behaviour in so much that she needed external assistance and was sufficiently concerned to document the interactions.[34]This history is consistent with the evidence given to the Tribunal by Ms Martin in 2014 and again in 2017.[34] Exhibit RR1 at 120. As Ms Martin suffered the Adjustment Disorder no later than August 2011, it follows that the action relating to her failure to obtain the position of Cross-media Reporter made no contribution to her suffering that ailment. As I have noted earlier in these reasons, Comcare concedes that the ailment “was significantly contributed to by her employment with the ABC.” [35] [35] Respondents Revised Statement of Facts, Issues and Contentions dated 8 May 2017 at [4.4]. For the reasons stated, the reviewable decision made by Comcare on 6 December 2012 denying liability to compensate Ms Martin for a depressive disorder will be set aside. In substitution it will be decided that, in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), Comcare is liable to pay compensation to Ms Martin in respect of an injury, being an Adjustment Disorder, suffered by her as an employee of the Australian Broadcasting Commission.Note On this basis, the remaining issues set out in paragraph 24 of these reasons do not arise for consideration. However, in case I am wrong in my conclusion as to the date of the injury and in view of the significant arguments addressed by Counsel, I will consider the remaining issues on the assumption that the Adjustment Disorder was suffered by Ms Martin on, or shortly after, 16 March 2012. PART 2ON THE ASSUMPTION THAT MS MARTIN SUFFERED AN ADJUSTMENT DISORDER ON OR AFTER 16 MARCH 2012, WAS THE AILMENT “SUFFERED AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION …… IN RESPECT OF [MS MARTIN'S] EMPLOYMENT”? What is the relevant “reasonable administrative action”?Comcare’s argument

Ratio Decidendi

Legal Principle Established

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