McKeon and Comcare - [2001] AATA 910

DECISION AND REASONS FOR DECISION [2001] AATA 910

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1804

GENERAL ADMINISTRATIVE DIVISION       )              N1999/1548, N1999/1549
           Re      PHILIP BRIAN McKEON
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date31 October 2001
PlaceSydney

Decision      The decision in application number N1998/1804 is set aside. The Tribunal substitutes its decision that the Respondent is not liable to compensate the Applicant in respect of any incapacity but the Respondent may be liable to compensate the Applicant under s 16 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of physiotherapy expenses if he can comply with the requirements in that section of the Act. The matter is remitted to the Respondent for its consideration and further decision. The Applicant is entitled to costs in accordance with the Tribunal's General Practice Direction in respect of this application for review. The decisions in applications numbered N1999/1548 and N1999/1549 are affirmed. No costs are payable to the Applicant in respect of these applications.
  ..............................................
  Senior Member
CATCHWORDS
WORKERS' COMPENSATION – workplace stress in relation to introduction of new work practices and conflict with colleagues – anxiety – foot injury – whether applicant suffered psychiatric injury – failure to obtain benefit in connection with employment
Safety, Rehabilitation and Compensation Act 1988, sections 4(1) (definitions of "ailment", "disease", "injury"), (9), 14(1), 19(1), (2).
Comcare v Mooi (1996) 137 ALR 690
Re Patrick and Comcare (AAT 11609, 12 February 1997)
Re MacFarlane and Comcare (AAT 13244, 2 September 1998)
Trewin v Comcare (1998) 156 ALR 615)

REASONS FOR DECISION

31 October 2001 M J Sassella, Senior Member

HISTORY OF THE APPLICATIONS
N1998/1804

The application for review in this matter is made in respect of an injury, which Mr Philip Brian McKeon ("the Applicant") claims to have sustained on 19 February 1998 during the course of his employment at the Sydney Call Centre of Centrelink. Whilst descending the stairs at work, the Applicant claims to have sustained "torn ligaments in left foot".
The Applicant lodged an injury report on 19 March 1998 (Exhibit TD1, T3) and a claim for compensation (Exhibit TD1, T5) with Comcare Australia ("the Respondent") dated 9 March 1998, for the period 6 March 1998 – 11 April 1998 in respect of the "torn ligaments in left foot". In his claim the Applicant advised that he had previously fractured his left foot in September 1995. He also identified a number of factors he claimed contributed to his injury such as:

stress and confusion related to new work practices, including the introduction of the MATE telephone system, a new personal growth program, and new rosters;
having to use the stairs - he considered the lift an unsafe option because he had found a used syringe in an empty lift on one occasion (Exhibit TD1, T5).

Attached to this claim was a report dated 9 March 1998 by Dr Hassim, general practitioner, in which the doctor stated that the Applicant was suffering from "torn ligaments in…

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 McKeon and Comcare

Details

AGLC: McKeon and Comcare [2001] AATA 910
Case: [2001] AATA 910
Decision Date: 31 October 2001

CaseChat Overview and Summary

The case of McKeon and Comcare involves an applicant who sought compensation from Comcare for injuries sustained during his employment with Centrelink. The applicant alleged that he suffered from anxiety and physical injuries, including a foot injury, due to workplace stress and conflicts with colleagues. The matter was brought before the Administrative Appeals Tribunal to review the determinations made by the independent review officer. The applicant contested the findings that he did not suffer from a psychiatric injury and that he was not entitled to compensation for his alleged injuries.

The legal issues before the court were whether the applicant had suffered a psychiatric injury due to workplace stress and whether he was entitled to compensation for his alleged injuries. The court had to determine if the applicant's claims for anxiety and foot injury were valid and if Comcare was liable to compensate the applicant under the Safety, Rehabilitation and Compensation Act 1988.

The court found that the applicant's claims for anxiety were properly disallowed by Comcare. The court set aside the decision in application number N1998/1804 and affirmed the decisions in applications numbered N1999/1548 and N1999/1549. The court held that the respondent may be liable to compensate the applicant under section 16 of the Act in respect of physiotherapy expenses if he can comply with the requirements in that section of the Act. The matter was remitted to the respondent for its consideration and further decision. The applicant was entitled to costs in accordance with the Tribunal's General Practice Direction in respect of this application for review. No costs were payable to the applicant in respect of the other applications.

In conclusion, the court found that the applicant was not entitled to compensation for his alleged injuries, except for potential compensation for physiotherapy expenses. The decisions of the Administrative Appeals Tribunal were largely upheld, with the exception of the need for further consideration of the physiotherapy expenses claim.

Orders

Orders of the court

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Background

Background to the litigation

On 11 October 1999 the Applicant sought from the Tribunal reviews of the determinations of the independent review officer dated 13 September 1999 (Exhibit TD2, T1).BACKGROUND The Applicant was born on 2 January 1952. His wife of 3 years died on 24 July 1998 from a cerebral vascular accident (stroke). He has no natural children although he was involved in a relationship with a woman prior to his marriage for ten years, during which time he reared her two children as his own. The Applicant now lives alone in a rented apartment. The Applicant worked with Centrelink from 8 June 1996 to 24 November 2000. He initially worked as a telephone assessor in the Pensions Section, Sydney Call Centre. On 31 August 1998 he commenced work at the Darlinghurst Regional Office where he worked at the counter in a supervisory role until 24 November 1998. He returned to the Sydney Call Centre on 25 November 1998 in a new team with a new Team Leader. He remained at the Call Centre until 21 August 2000. The Applicant has a long history of conflict with work colleagues at Centrelink as indicated by the evidence. Whilst working at Centrelink, in addition to the time off work on the days the alleged injuries took place, the Applicant took the following periods off work in relation to his alleged injuries: The Applicant worked as a sub-contract driver with the Darling Harbour Airport Bus service from 31 August 2000 to 18 October 2000.MEDICAL AND OTHER EVIDENCE /CHRONOLOGY – relevant to "torn ligaments in left foot" injury (Exhibit TD1) The Applicant was on flex-leave from 9 February 1998 to 13 February 1998 during which he took up rock fishing (Exhibit TD1, T14). According to Mr Pigram, a Centrelink middle-manager (Exhibit TD1, T8), the Applicant, on returning from his flex-leave, advised Mr Pigram that he had injured his ankle while on leave, having slipped on rocks while fishing at either La Perouse or Yarra Bay. The Applicant however disputes having made any reference to an ankle injury (Exhibit TD1, T14). On 18 February 1998 the Applicant sent a CC-mail message (CC-mail is a form of electronic mail)(referred to by Mr Pigram at Exhibit TD1, T8) stating that he was anticipating taking sick leave. The Applicant stated: "I anticipate that I will have to take some sick leave over the next few weeks as a result of my roster… I anticipate that my health will be compromised by having to conform with irregular lunch break times…" (Exhibit A4). On 19 February 1998 the Applicant claims to have sustained an injury to his left foot on a stairwell at work, detailed in an accident report dated 9 March 1998 (Exhibit TD1, T3). On 24 February 1998 the Applicant consulted Dr Hassim complaining of a bruised and painful left foot (MFI 2), certified in a report dated 8 July 1998 (Exhibit TD1, T13). On 9 March 1998 Dr Hassim reported on the Applicant's injury, certifying the Applicant unfit for the period 9 March 1998 to 16 April 1998, due to "torn ligaments in left foot" (Exhibit TD1, T4). He was told by the Applicant that this injury was sustained at work. Dr Hassim stated that he advised the Applicant to stay off work for this period because, although in a clerical position, he would have to walk around the office during the course of his working day (Exhibit A1).

Evidence

Evidence Before The Court

The Applicant worked as a sub-contract driver with the Darling Harbour Airport Bus service from 31 August 2000 to 18 October 2000.MEDICAL AND OTHER EVIDENCE /CHRONOLOGY – relevant to "torn ligaments in left foot" injury (Exhibit TD1) The Applicant was on flex-leave from 9 February 1998 to 13 February 1998 during which he took up rock fishing (Exhibit TD1, T14). According to Mr Pigram, a Centrelink middle-manager (Exhibit TD1, T8), the Applicant, on returning from his flex-leave, advised Mr Pigram that he had injured his ankle while on leave, having slipped on rocks while fishing at either La Perouse or Yarra Bay. The Applicant however disputes having made any reference to an ankle injury (Exhibit TD1, T14). On 18 February 1998 the Applicant sent a CC-mail message (CC-mail is a form of electronic mail)(referred to by Mr Pigram at Exhibit TD1, T8) stating that he was anticipating taking sick leave. The Applicant stated: "I anticipate that I will have to take some sick leave over the next few weeks as a result of my roster… I anticipate that my health will be compromised by having to conform with irregular lunch break times…" (Exhibit A4). On 19 February 1998 the Applicant claims to have sustained an injury to his left foot on a stairwell at work, detailed in an accident report dated 9 March 1998 (Exhibit TD1, T3). On 24 February 1998 the Applicant consulted Dr Hassim complaining of a bruised and painful left foot (MFI 2), certified in a report dated 8 July 1998 (Exhibit TD1, T13). On 9 March 1998 Dr Hassim reported on the Applicant's injury, certifying the Applicant unfit for the period 9 March 1998 to 16 April 1998, due to "torn ligaments in left foot" (Exhibit TD1, T4). He was told by the Applicant that this injury was sustained at work. Dr Hassim stated that he advised the Applicant to stay off work for this period because, although in a clerical position, he would have to walk around the office during the course of his working day (Exhibit A1). The Applicant claimed time off work for the period 9 March 1998 to 16 April 1998. He submitted his claim for this time off on 25 March 1998 (Exhibit TD1, T18). On 10 March 1998 Mr Chris Griffith, acting Office Support Unit ("OSU") Manager, had a conversation with the Applicant (reported in a memorandum dated 19 March 1998, Exhibit TD1, T7). In this conversation the Applicant asked about leaving work due to pain in his foot. Mr Griffith stated that the Applicant explained that he had injured his foot whilst rock fishing and that he thought he had exacerbated the injury in the stairwell at work a day or so earlier. He asked Mr Griffith if he thought the agency would accept liability for compensation. In a report dated 11 March 1998, with respect to a CT scan of the Applicant's left foot and ankle, Dr Leung, radiologist, concluded that a soft tissue injury involving the ligaments of the left foot had been sustained. He also reported soft tissue swelling possibly due to the presence of a partial tear, and that there was no other significant abnormality detected (Exhibit TD1, T6).

Decision

Reasons for decision

The Tribunal has found that the Applicant's claims for anxiety were properly disallowed by Comcare.Decision The decision in application number N1998/1804 is set aside. The Tribunal substitutes its decision that the Respondent is not liable to compensate the Applicant in respect of any incapacity but the Respondent may be liable to compensate the Applicant under s 16 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") in respect of physiotherapy expenses if he can comply with the requirements in that section of the Act. The matter is remitted to the Respondent for its consideration and further decision. The Applicant is entitled to costs in accordance with the Tribunal's General Practice Direction in respect of this application for review. The decisions in applications numbered N1999/1548 and N1999/1549 are affirmed. No costs are payable to the Applicant in respect of these applications.

Ratio Decidendi

Legal Principle Established

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