Messenger and Comcare (Compensation) - [2023] AATA 2407

Messenger and Comcare (Compensation) [2023] AATA 2407 (4 August 2023)
Division:GENERAL DIVISION
File Number: 2018/6198
Re:Robert Messenger
APPLICANT

AndComcare
RESPONDENT

File Number: 2018/6204
Re:Fern Messenger
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:4 August 2023
Place:Hobart

In the matters of 2018/6198 and 2018/6204, the Tribunal affirms the decisions under review.
....................[sgd]....................................................
Deputy President Britten-Jones
CATCHWORDS
COMPENSATION - Claims for psychological injuries - Whether requirement to give notice under s 53 applicable - Whether Mr Messenger suffered an ailment during his employment - Whether ailment significantly contributed to by employment - Whether Mrs Messenger suffered an aggravation of a pre-existing condition - Whether aggravation significantly contributed to by employment - Reasonable administrative action - Decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Abrahams v Comcare [2006] FCA 1829
Comcare v Mooi [1996] FCA 508; 69 FCR 439
Frosch v Comcare [2004] FCA 1642
Wuth v Comcare [2022] FCAFC 42
REASONS FOR DECISION
Deputy President Britten-Jones
4 August 2023

The applicants, who I will refer to as Mr and Mrs Messenger (or together, the Messengers), were employed with the Commonwealth Department of Finance from 1 July 2014 in the office of Senator Jacqui Lambie. Their relationship with Senator Lambie broke down and they were dismissed on 3 May 2017. Mr and Mrs Messenger claim to be entitled to compensation under s 14 of the Safety, Rehabilitation and Compensation Act1988 (the SRC Act) in respect to psychological injuries said to arise or have been aggravated during the period of their employment. Their claims have previously been declined by Comcare. They have applied to the Tribunal for a review of those decisions made by Comcare. Their applications were heard together because of the considerable factual overlap in their claims. In these reasons, unless otherwise stated, the findings relate to both applications. Only when required have I made separate findings in each of the applications.
The Tribunal heard evidence from Mr and Mrs Messenger, Senator Lambie, numerous fellow employees from the same office and medical experts. There were many factual disputes with respect to significant events during the period of employment. Most of those disputes had been aired in Federal Court proceedings brought by Mr and Mrs Messenger under the Fair Work Act 2009 (Cth) against the Commonwealth and Senator Lambie seeking declarations and compensation relating to their period of employment. That decision was handed down by Snaden J on 10 June 2022 in Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677. The applications brought by the Messengers in those proceedings were dismissed. Whilst there is considerable factual overlap between this matter and the Federal Court proceedings, I have not relied upon any findings made by the Judge in the Federal Court proceedings. Instead, I have made my own findings based upon the evidence before me which included extracts of transcript from, and some witness statements filed in, the Federal…

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 Messenger and Comcare (Compensation)

Details

AGLC: Messenger and Comcare (Compensation) [2023] AATA 2407
Case: [2023] AATA 2407
Decision Date: 4 August 2023

CaseChat Overview and Summary

This case involved applications for workers' compensation by Mr and Mrs Messenger against Comcare. The Messengers sought compensation for psychological injuries allegedly sustained during their employment with Senator Lambie. Comcare had denied their claims, citing the reasonable administrative action exclusion under section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The matter came before Deputy President Britten-Jones of the Administrative Appeals Tribunal.

The Tribunal was required to determine several legal issues. For Mr Messenger, these included whether the *Safety, Rehabilitation and Compensation Act 1988* applied, specifically concerning the notice requirement under section 53. It also needed to ascertain if Mr Messenger suffered an ailment as defined by the Act, and if that ailment was contributed to to a significant degree by his employment, thereby constituting a disease under section 5B. Finally, the Tribunal had to consider if any such disease was a result of reasonable administrative action, excluding it from compensation. For Mrs Messenger, the issues were similar: whether the Act applied, whether she suffered an aggravation of a pre-existing ailment, if that aggravation was significantly contributed to by her employment, and if it arose from reasonable administrative action.

In relation to Mrs Messenger, the Tribunal found that while she had a history of depression prior to her employment, the evidence did not establish an aggravation of this condition during the period of her employment up to February 2017. Although she experienced stress and upset due to various workplace events, the Tribunal was not satisfied that these led to a recurrence or aggravation of her diagnosed major depressive disorder. Furthermore, the Tribunal concluded that any aggravation Mrs Messenger suffered was a result of reasonable administrative action, which, under section 5A of the *Safety, Rehabilitation and Compensation Act 1988*, meant it did not constitute a compensable injury.

Consequently, the Tribunal affirmed the decisions under review, meaning the claims for compensation by both Mr and Mrs Messenger were dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal heard evidence from Mr and Mrs Messenger, Senator Lambie, numerous fellow employees from the same office and medical experts. There were many factual disputes with respect to significant events during the period of employment. Most of those disputes had been aired in Federal Court proceedings brought by Mr and Mrs Messenger under the Fair Work Act 2009 (Cth) against the Commonwealth and Senator Lambie seeking declarations and compensation relating to their period of employment. That decision was handed down by Snaden J on 10 June 2022 in Messenger v Commonwealth of Australia (Represented by the Department of Finance) [2022] FCA 677. The applications brought by the Messengers in those proceedings were dismissed. Whilst there is considerable factual overlap between this matter and the Federal Court proceedings, I have not relied upon any findings made by the Judge in the Federal Court proceedings. Instead, I have made my own findings based upon the evidence before me which included extracts of transcript from, and some witness statements filed in, the Federal Court proceedings.Procedural Background Mr and Mrs Messenger signed separate applications for workers’ compensation on 14 March 2018 which were then submitted to Comcare on 21 March 2018. The claims for compensation were denied by a delegate of the respondent on 9 July 2018. The determinations were then affirmed upon reconsideration by the respondent. The basis for the denials was the reasonable administrative action exclusion in s 5A of the SRC Act. Mr and Mrs Messenger lodged their applications for review with the Tribunal in October 2018.Issues in dispute for Mr Messenger Does the SRC Act apply by reference to the requirement to give notice under s 53 of the SRC Act? Did Mr Messenger suffer an ailment as defined in s 4(1) of the SRC Act? If so, was that ailment contributed to, to a significant degree, by Mr Messenger’s employment such as to constitute a disease for the purposes of s 5B of the SRC Act? If so, was that ‘disease’ suffered as a result of reasonable administrative action in respect of Mr Messenger’s employment, such that the claim should be excluded under s 5A of the SRC Act?Issues in dispute for Mrs Messenger Does the SRC Act apply by reference to the requirement to give notice under s 53 of the SRC Act? Did Mrs Messenger suffer an aggravation of an ailment as those terms are defined in s 4(1) of the SRC Act? If so, was that aggravation of an ailment contributed to, to a significant degree, by Mrs Messenger’s employment such as to constitute a disease for the purposes of s 5B of the SRC Act? If so, was that ‘disease’ suffered as a result of reasonable administrative action in respect of Mrs Messenger’s employment, such that the claim should be excluded under s 5A of the SRC Act?Legislation Section 53 of the SRC Act provides:(1)This Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority: (a)as soon as practicable after the employee becomes aware of the injury; …(3)Where: (a)a notice purporting to be a notice referred to in this section has been given to the relevant authority; (b)the notice, as regards the timing of giving the notice or otherwise, failed to comply with the requirements of this section; and(c)the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause; the notice shall be taken to have been given under this section.

Evidence

Evidence Before The Court

Mr Witherford was employed in Ministerial and Parliamentary Services in the Department of Finance from May 2016 to April 2017. He gave evidence in the Federal Court proceedings on 11 February 2021. He provided two written statements to the Tribunal dated 19 August 2021. He gave oral evidence to the Tribunal on 8 February 2022. Evidence from the medical witnessesDr Ash Takyar Dr Takyar provided medical reports at the request of the lawyers for Mr and Mrs Messenger. In relation to Mr Messenger, Dr Takyar provided reports dated 9 December 2019 and 5 September 2021. In relation to Mrs Messenger, Dr Takyar provided reports dated 9 December 2019 and 4 September 2021. Dr Takyar provided oral evidence to the Tribunal in February 2022.Dr Takyer – Mrs Messenger Dr Takyar interviewed and examined Mrs Messenger via video link on 22 November 2019. She told Dr Takyar that Senator Lambie’s conduct on numerous occasions caused her mental state to deteriorate over time. She referred to a death threat from an Islamic State supporter in February 2015 and that Senator Lambie did not care about security that was needed. She said that Senator Lambie wanted to sack a young girl because she was spending too much time with her mother who was receiving palliative care. She said that her ultimate breakdown was in December 2016 on a trip to Canberra and then there was a vicious verbal attack in February 2017. She said at that point she went and saw her general practitioner and was on sick leave on and off thereafter until her employment was terminated on 3 May 2017. In his December 2019 report, Dr Takyar considered that Mrs Messenger had no significant history of any anxiety prior to her employment with Senator Lambie but had a history of mild depression that was nearly in remission and did not impart any occupational incapacity at the time of that employment. He said that Mrs Messenger presented with a history of a recurrence of a major depressive disorder and an adjustment disorder with anxiety in the context of a reported history of bullying and harassment which she described whilst working for Senator Lambie in her political office, overwork and exposure to threats and observing others allegedly being harassed by Senator Lambie over the course of her employment. He said that her condition developed in the context of adverse treatment, security threats and perceived security issues, lack of support from Senator Lambie, overwork and perceived harassment. In his supplementary report dated 4 September 2021, he said that her mental state changes took place somewhere between late 2014 and mid-2015.Dr Takyer – Mr Messenger Dr Takyer interviewed and examined Mr Messenger on 22 November 2019. Mr Messenger reported a series of events that lead to a deterioration in his mental state. The first was an incident on radio when Senator Lambie made inappropriate comments. Next were three physical assaults by another politician in Canberra, Senator Heffernan. He referred to Senator Lambie trying to sack a staff member because she was spending too much time with her mother who was receiving palliative care. He referred to the terrorist threat in February 2015. He referred to daily abuse and derogatory comments made by Senator Lambie from around Anzac day 2015. He said he was required to field phone calls from veterans who were often suicidal and abusive. He said he was required to read a top secret report detailing sexual assaults, torture and abuse.

Decision

Reasons for decision

I conclude that Mrs Messenger’s aggravation was suffered as a result of reasonable administrative action and therefore falls outside of the definition of injury in s 5A(1) of the SRC Act. It follows that her aggravation does not give rise to a compensable injury.DECISION The decision of the Tribunal is to affirm the decisions under review.

Ratio Decidendi

Legal Principle Established

The respondent contends that Mrs Messenger did not suffer an aggravation of an ailment within the period December 2016 to February 2017. Consideration There is no dispute that the medical evidence establishes that Mrs Messenger suffered from depression prior to when her employment began in July 2014. She first experienced depressive symptoms in 1998 which was followed by a further three episodes in 1999 (post-natal depression), 2005 (after a miscarriage) and 2009 (after a custody battle).[38] Her treatment for depression continued after she was employed. Her maintenance dose of 100mg of Zoloft or sertraline[39] continued up until at least 17 February 2017 when she attended her general practitioner who provided her usual script for a daily 100mg tablet of Zoloft.[40] During the period of her employment up to and including 17 February 2017, Mrs Messenger made no report to her treating doctors relating to stress from the workplace. She said she was hesitant to do so until 2017. She said that her stress levels were building up in 2014 and 2015 but it became ‘too much’ in late 2016 and early 2017.[41] For the reasons set out below, I find that the evidence, including the contemporaneous medical records, does not establish an aggravation in the period of employment up to and including 17 February 2017.[38] Transcript P-359.[39] Statement of Mrs Messenger dated 27 August 2021 at [88].[40] Exhibit 8 – TB 99 and TB 55.[41] Statement of Mrs Messenger dated 27 August 2021 at [76]. I accept that there were numerous events prior to 17 February 2017 which may have caused Mrs Messenger to be stressed or upset but I am not satisfied that they gave rise to an aggravation (recurrence) of her previously diagnosed major depressive disorder. In July 2015 Senator Lambie spoke to Mr and Mrs Messenger about Kelcey Walker whose mother was ill and who had been absent from the office for some time on compassionate leave. Senator Lambie suggested to the Messengers that when Ms Walker ran out of paid leave she could take leave without pay. Mr and Mrs Messenger considered this was harsh and may have been upset by it[42] but I am unable to accept the evidence of Mrs Messenger that Senator Lambie shouted that ‘she can’t continue waiting for Kelcey’s mum to die so that Kelcey can come back to work.’[43] I accept that this may have been a difficult conversation for Mrs Messenger to have because she cared for Kelcey Walker but I am unable to accept that Senator Lambie’s conduct was inappropriate or that she yelled or behaved in a threatening manner towards Mrs Messenger. [42] See statement of Tammy Tyrell dated 2 June 2021 at [15].[43] Statement of Mrs Messenger dated 27 August 2021 at [45]. Mrs Messenger gave evidence, supported by Mr Messenger, that Senator Lambie used vulgar language around staff, abused alcohol and bullied her and the staff. Ms Lynd gave evidence of a very different work environment. She said Senator Lambie was ‘quite laid back’ and ‘pretty easy going’ and that there was ‘a great atmosphere’ in the office.[44] In cross examination she described the Senator as very passionate who could get quite fired up and would swear occasionally; although, Ms Lynd denied that the Senator used some very vulgar language that was put to her in cross examination. Ms Balthazaar described that by late 2016 there was a ‘toxic nature in the office’ related to Mr and Mrs Messenger which she recorded in a statutory declaration on 20 April 2017.[45] She said she was unfairly targeted by Mr and Mrs Messenger which caused her stress at the time.[46] She raised her issues relating to Mr and Mrs Messenger with Senator Lambie in December 2016.[47] Ms Sargent said she never saw Senator Lambie drinking at work.[48] In her evidence she described Mr and Mrs Messenger as toxic[49] and quite volatile.[50] She said that Senator Lambie was a wonderful person to work with.[51] Ms Tyrell gave evidence that by December 2016 the staff felt that they were not being heard by the Messengers and that they were targeted by them if they expressed disagreement. The staff generally felt frustrated with the Messengers’ management of them. Ms Tyrell made Senator Lambie aware of these staff concerns in December 2016 when she accompanied her on a road trip around the electorate.[44] Transcript P-503.[45] Transcript P-519 and P-520.[46] Transcript P-525.[47] Transcript P-520 to P-528.[48] Transcript P-539.[49] Transcript P-558 to P-559.[50] Transcript P-557.[51] Transcript P-558.