MARY MEANEY and COMCARE

Case [2012] AATA 352

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL             )

)        No: 2010/5151

General Administrative Division               )

Re: Mary Meaney
Applicant

And: Comcare
Respondent

DIRECTION

TRIBUNAL:             Professor RM Creyke, Senior Member

DATE:   11 January 2013

PLACE:                  Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

  1. at footnote 19 replace “Id at 27” with “Id at [27]”;
  2. at footnote 20 replace “Cf Rares and Tracey JJ at” with “Cf Id at [57] and [60] per Rares and Tracey JJ”.

...............................[sgd]..............................
Professor RM Creyke, Senior Member

[2012] AATA 352

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2010/5151

Re

MARY MEANEY

APPLICANT

And

COMCARE

RESPONDENT

Decision

Tribunal

PROFESSOR RM CREYKE, SENIOR MEMBER
Date 13 June 2012
Place Canberra

The decision under review is set aside and substituted under s43. 

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

PROFESSOR RM CREYKE, SENIOR MEMBER

Catchwords

COMPENSATION - Commonwealth Employees - nature of injury – whether disease – date of injury – whether caused by employment – whether personal carer’s leave is a benefit – whether denial of personal carer’s leave significant cause of condition - whether reasonable administrative action undertaken in a reasonable manner

Legislation

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

Cases

Comcare v Mooi (1996) 69 FCR 439 at 444.

Comcare v Sahu-Khan (2007) 156 FCR536
Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 87 ALD 34
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Gilbert and Comcare [2009] AATA 224
Re Kelly and Comcare (2006) 93 ALD 658.
Repatriation Commission v Webb (1987) 13 ALD 421
Trewin v Comcare (1998) 84 FCR 171
Wiegand v Comcare (2002) 72 ALD 795

Secondary Materials

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Edition, June 2000)

Australian Fair Pay and Conditions Standard
Department of Infrastructure, Working Hours and leave Employment Guidelines (revised March 2007)
Department of Transport and Regional Services, DOTARS Human Resource Procedures booklet (revised March 2007)

REASONS FOR DECISION

PROFESSOR RM CREYKE, SENIOR MEMBER

  1. Ms Mary Meaney, born 1959, made a claim for workers compensation for a ‘mental state’, dated 10 November 2009. The application was rejected by Comcare on 19 May 2010, a decision upheld on review on 24 September 2010.

  2. Ms Meaney sought review by the Tribunal on 26 November 2010.  The application was heard on 20 February 2012. During the hearing, there had been discussion of the forthcoming decision of the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21.  Following the publication of that decision on 8 March 2012, on 16 March 2012, the respondent requested…

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AGLC
MARY MEANEY and COMCARE [2012] AATA 352
Case
[2012] AATA 352
Decision Date

CaseChat Overview and Summary

The case involves Ms. Mary Meaney, an employee of the Department of Infrastructure, Transport, Regional Development and Local Government, and Comcare, the respondent in the proceedings. Ms. Meaney sought review of a decision by the Tribunal, which was concerned with her claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). The primary issue before the court was whether Ms. Meaney’s psychological injury, diagnosed as Chronic Adjustment Disorder, was compensable under the Act. This hinged on whether the injury was a ‘disease’ caused by her employment to a significant degree and if it was excluded by section 5A of the Act as being the result of reasonable administrative action taken in a reasonable manner.

The court examined the nature of Ms. Meaney's injury and whether it qualified as a ‘disease’ under the Act. Medical evidence indicated that she suffered from a psychiatric condition outside the boundaries of normal mental functioning and behaviour. The court considered the various diagnoses provided by different medical specialists and concluded that Ms. Meaney was suffering from Chronic Adjustment Disorder, which was a ‘disease’. The second issue was whether her employment contributed significantly to the development of this condition. The court found that while Ms. Meaney’s employment did contribute to her condition, the denial of personal carer’s leave by her supervisor did not significantly contribute to it. The court also examined whether the administrative action taken by the agency in denying her leave was reasonable and concluded that it was.

The Tribunal, after considering the evidence and the legal principles involved, found that Ms. Meaney's condition was compensable. The decision noted that while the denial of personal carer’s leave was not a significant cause of her condition, the overall employment circumstances did contribute to it. Consequently, the Tribunal allowed Ms. Meaney's claim for compensation, subject to certain conditions.

Orders

Orders of the court

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Background

Background to the litigation

Ms Meaney sought review by the Tribunal on 26 November 2010. The application was heard on 20 February 2012. During the hearing, there had been discussion of the forthcoming decision of the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21. Following the publication of that decision on 8 March 2012, on 16 March 2012, the respondent requested that the decision be accepted as authority. A telephone directions hearing was held on 20 April 2012 to discuss whether the parties should make submissions as to the application of Reeve in the matter at hand. In the result neither party did so. Final advice on that matter was received by the Tribunal from the respondent on 23 April 2012, and from the applicant on 01 May 2012. Background Ms Meaney was a Director in the Ministerial and Parliamentary Services (MPS) section of the Department of Infrastructure, Transport, Regional Development and Local Government (agency) where she had worked since 5 January 2005. She was employed at a substantive Executive Level 2 (EL2), but from 31 October 2007, she enjoyed an SES Band 1 equivalent remuneration package to reflect ‘the extensive experience and strong legal qualifications and background’ that she brought to the role.[1] As Director she was responsible for over 20 staff. [1] AWA request document attached to standard AWA. Ms Meaney was employed on an Australian Workers’ Agreement (AWA). The AWA provided that from time to time the Department may notify her of departmental policies affecting her employment (A2.1). It was accepted that such policies included the DOTARS Human Resource Procedures booklet (rev’d May 2007) containing the policies relating to personal carer’s leave (PCL). PCL includes both carer’s leave and sick leave. Ms Meaney’s supervisor from 2005 was Mr Jeremy Chandler, former Chief Operating Officer for the agency until he resigned in November 2007. From December 2007 the position was filled by Mr David Banham. Ms Meaney became a carer of her widowed mother in 1997. Her mother had suffered a stroke in 1991, a fall in 1998-99, had two eye operations between 1999 and 2003, and a severe infection in late 2008. Ms Meaney said the care she provided involved her taking her mother to appointments, ensuring she had meals, that the house was clean and the gardening done, as well as providing her with social support. Under arrangements negotiated with Mr Chandler in 2005 when she accepted the position, Ms Meaney was permitted to work flexible hours, for example, on occasions, being in the office during the morning and in the evening, rather than the afternoons. Ms Meaney’s evidence was that she had an arrangement with Mr Chandler that she could leave work ‘to see my mother’. Her evidence was that she had also ‘put that in place with David … when [her] mother was ill in 2008’. The arrangement, as Ms Meaney explained, was also for her to take a certain number of days per year in lieu of the extra hours worked to manage parliamentary business, with additional days in an election year. For this purpose, Ms Meaney kept a diary of her hours. Mr Chandler is reported to have said the arrangement was to reflect workplace factors, namely, ‘Because of the issues concerning the Parliamentary area, because you work in Cabinet matters, because you work at short notice, you have to take things to Minister’s offices, you work at Senate Estimates’. As Ms Meaney said of the job: ‘we worked very flexibly in the Ministerial and Parliamentary area’. Another officer in the MPS area had also negotiated to work from home one day a week.

Evidence

Evidence Before The Court

Between 1 January 2009 and 22 February 2009, Ms Meaney took 16.41 days leave, of which 7 days were recreation leave, 9.41 days were personal circumstances leave, seven days of which, between 15 and 23 January 2009, were for family circumstances leave, that is, immediately after her mother broke her hip and was hospitalised. Other evidence of Mr Banham Mr Banham said ‘the vast majority of any discussion between myself and Mary was not done through the email system; it was done personally, face-to-face’. In relation to the circumstances in which PCL is granted, he said he would not grant Ms Meaney PCL (carer’s leave) for six weeks because ‘if you’re looking for a longer term, six weeks leave, it’s no longer covered under the sort of incidental provisions, and that was my view’. Her request in advance for the longer period was ‘now starting to get into beyond the spirit of PCL’. In his view PCL was for ‘an emergency, infrequent situation’. For long-term requirements recreation leave was more appropriate. As he said it was more suitable ‘Because I believe it was’. He acknowledged that Mr Meaney had been using carer’s leave for caring for her mother throughout 2008 and he said ‘there was frequent use of that’ and that had not been an issue. He acknowledged that PCL could be used for ‘an accident’ and that that was ‘a fairly clear-cut definition of what support of the family is’. He also said that if Ms Meaney had challenged his statement that she should use recreation leave ‘that may well not have been the decision’. Mr Banham said, in response to cross-examination, that he was aware ‘of Ms Meaney’s mother’s problem’. His understanding was that the six weeks leave was ‘for when [Ms Meaney’s mother] came out of hospital and was convalescing at home’. Later, however, he said ‘I can’t say I had any particular detailed knowledge of her mother’s condition’ other than she ‘… had long-term ailments, and I don’t know what they were, and I knew she had had a fall and hurt her hip’. When asked if he knew how serious the injury was he said ‘No I don’t think so’. He said he had not asked Ms Meaney about her mother because ‘I probably don’t think it’s my nature to ask how her mother is and the details of it’. In response to the questioning as to whether he had asked if there was anyone else who might care for Ms Meaney’s mother, Mr Banham said ‘It’s really not my business to ask her about her family life’. As he said ‘I would expect Mrs Meaney to volunteer that information if she was [the] only person who was there to look after her mother’. As to Mr Banham’s knowledge of Ms Meaney’s circumstances, he stated in evidence in relation to her request for PCL for a ‘medical illness’ from 23 February 2009 that he ‘wasn’t aware of any conditions with Mary’. Medical reports On 14 September 2009, at the request of the agency, Ms Meaney attended Dr Graham George, consultant psychiatrist, who provided a report on 15 September 2009. Dr Andrew Lark, occupational physician, provided a Fitness for Duty report on 23 July 2009 at the request of the agency.Dr Mills

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is accepted that a psychological injury such as an Adjustment Disorder with Anxious Mood is compensable if the condition is sufficiently serious to be described as ‘outside the boundaries of normal mental functioning and behaviour,’[2] provided it is contributed to, to a significant degree, by the employee’s employment (section 5B of the Act), and provided it has not been excluded under section 5A of the Act. Section 5A(1) states that a disease, being an injury, is not compensable if employment was caused by ‘reasonable administrative action taken in a reasonable manner’. What is ‘reasonable administrative action’ is defined non-exhaustively in section 5A(2). [2] Comcare v Mooi (1996) 69 FCR 439 at 444.ConsiderationNature of claimed injury; and was it a ‘disease’ that was caused, to a significant degree, by the employee’s employment (section 5B) The medical evidence of Dr Mills, Mr Aldridge, Dr George, and Dr Reutens was that, at least during the first quarter of 2009, Ms Meaney was suffering from a psychiatric condition which was diagnosable in accordance with the criteria in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders[3]. It was accordingly a condition outside the boundaries of normal mental functioning and behaviour. Whether it is a ‘disease’ and hence an ‘injury’ for the purposes of the Act must be determined according to section 5B of the Act.[4] [3] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th Edition, June 2000) [4] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) ss 4(1), 5A, 5B. The description of that injury varied. The Comcare primary decision-maker identified the condition generically as a ‘mental state’ and found it was a ‘disease’. The reviewable decision did not refer to the nature of the condition. Dr Mills identified ‘Acute Situational Crisis’ which progressed to ‘Chronic Adjustment Disorder’; Mr Aldridge diagnosed ‘Adjustment Disorders with Anxiety’; and in Dr George’s opinion, in September 2009, Ms Meaney was suffering from ‘Chronic Adjustment Disorder’. Dr Lark diagnosed anxiety, depression and severe insomnia requiring ongoing medication and said Ms Meaney’s prognosis was uncertain. Associate Professor Robertson said Ms Meaney was suffering ‘Panic Disorder with Agoraphobia, with Obsessional Personality Traits’ with a differential diagnosis of Adjustment Disorder with Anxious Mood. Dr Reutens, while acknowledging that to make a retrospective diagnosis was difficult, said that in February 2009, Ms Meaney was experiencing an ‘Adjustment Disorder with Anxious Mood’ of mild to moderate severity. On balance, the Tribunal accepts the view of the majority of medical specialists that Ms Meaney, in February 2009, was suffering from Chronic Adjustment Disorder, and that this was a ‘disease’. To be compensable, the Act requires that employment must have contributed to a significant degree to the development of the ‘disease’.[5] In deciding whether ‘an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment’, section 5B(2) of the Act indicates that consideration of a number of factors may be important. Those non-exhaustive factors are: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment;(c) any predisposition of the employee to the ailment or aggravation;(d) any activities of the employee not related to the employment; and(e) any other matters affecting the employee’s health.[5] Safety, Rehabilitation and Compensation Act 1988 (Cth), s5B(1)