Mizzau and TNT Australia Pty Ltd (Compensation) - [2021] AATA 74

Mizzau and TNT Australia Pty Ltd (Compensation) [2021] AATA 74 (1 February 2021)
Division:General Division
File Number(s): 2018/4430
Re:Edward Mizzau
APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Date:1 February 2021
Place:Sydney

The reviewable decision made 24 July 2018, being the decision of the Respondent to affirm its earlier determination denying liability to compensate Mr Mizzau in respect of the claimed injury, is set aside.
In substitution it is decided that, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth), the Respondent is liable to pay compensation to Mr Mizzau in respect of the injury, being an exacerbation of social anxiety disorder and depression, deemed to have been sustained by him on 21 September 2015.
Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, Comcare shall pay the costs incurred by Mr Mizzau in these proceedings.
..........................[SGD]..............................................
Deputy President J W Constance
CATCHWORDS
WORKERS’ COMPENSATION – exacerbation of social anxiety disorder and depression – whether Applicant suffered an ailment or aggravation of an ailment – whether the ailment or aggravation of an ailment was contributed to, to a significant degree by his employment – whether the disease was suffered as a result of reasonable administrative action by the Respondent – where informal meetings between Applicant and his manager – where Applicant requested to attend formal meeting – where Applicant requested postponement of meeting to ensure his preferred support person could attend – where request refused – where Applicant directed to attend and that failure to do so may result in termination of his employment – where Applicant placed on performance improvement plan without the benefit of having his preferred support person of choice – where administrative action not taken in a reasonable manner – where exacerbation of social anxiety disorder and depression suffered as a result of the administrative action – decision set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14
CASES
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
REASONS FOR DECISION
Deputy President J W Constance
1 February 2021
A: INTRODUCTION
Mr Mizzau was employed by the Respondent from 1987 until 2016. In 2016 he held the position of Senior Business Analyst/Stores Manager.
In May 2018, Mr Mizzau lodged a claim for compensation[1] in respect of an injury described as “Psychological Injury – Anxiety”, which he claimed to have suffered in the following circumstances:
I was given additional work after a fellow employee left. Then I was criticized for not meeting my job targets and expectations. This sequence of events caused a psychological injury to me.[2]
His claim was made under the

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.

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Details

Case: [2021] AATA 74
Decision Date: 1 February 2021

CaseChat Overview and Summary

This matter concerned an appeal by Mr Mizzau against a decision by TNT Australia Pty Ltd to deny him workers' compensation. Mr Mizzau claimed he suffered an exacerbation of social anxiety disorder and depression due to his employment. The dispute centred on whether the ailment or its aggravation was contributed to to a significant degree by his employment, and crucially, whether it resulted from reasonable administrative action taken in a reasonable manner.

The court was required to determine if Mr Mizzau had suffered an injury as defined by the *Safety, Rehabilitation and Compensation Act 1988* (Cth). This involved assessing whether his social anxiety disorder and depression constituted a disease or an aggravation of a pre-existing condition, and if so, whether his employment was a significant contributing factor. A key legal issue was whether the administrative actions taken by his employer, specifically the handling of performance management and a meeting, constituted "reasonable administrative action taken in a reasonable manner," which would exclude the claim from compensation.

The court found that Mr Mizzau did suffer an exacerbation of a longstanding social anxiety disorder with developing depression, and that his employment contributed to this to a significant degree. The court determined that the administrative action taken by the Respondent, particularly the refusal to postpone a meeting to allow his preferred support person to attend and his subsequent placement on a performance improvement plan, was not taken in a reasonable manner. Therefore, the exclusion for reasonable administrative action did not apply. The court applied the principles from *Comcare v Martin*, which clarified that an employee suffers a disease as a result of administrative action if that action is a cause in fact of the disease, and that the administrative action need not be the sole cause.

The reviewable decision of TNT Australia Pty Ltd was set aside. In substitution, it was decided that TNT Australia Pty Ltd is liable to pay compensation to Mr Mizzau in respect of the injury, being the exacerbation of social anxiety disorder and depression, deemed to have been sustained by him on 21 September 2015. Comcare was ordered to pay the costs incurred by Mr Mizzau in these proceedings unless an application for directions regarding costs was made within fourteen days.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the reviewable decision will be set aside. In substitution it will be decided that the Respondent is liable to pay compensation to Mr Mizzau in respect of the injury suffered by him.B: BACKGROUND Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Mr Mizzau. I am satisfied that he was an honest witness who gave his evidence to the best of his recollection. Mr Mizzau is 57 years old. He is a qualified Accountant, having completed a Diploma of Accounting. When he was in his twenties Mr Mizzau was diagnosed as suffering anxiety. He received treatment for a few years, after which he did not need to consult any health professionals in respect of anxiety until 2011 when he was working for the Respondent. Mr Mizzau was diagnosed with Diabetes Type 1 in approximately 1994 and Addison’s disease in approximately 2007. He receives treatment on an ongoing basis for both conditions. He is of the view that neither of these conditions has affected his work performance. Mr Mizzau was promoted on several occasions during his employment by the Respondent. In his position as Senior Business Analyst he was engaged in planning and analysis for the Respondent, producing management reports based on the weekly profit and loss of the revenue side of the business. He also produced reports on a monthly and year-to-date basis. In about 2010 Ms Ijpma was appointed as Mr Mizzau’s Manager. Initially they had a good working relationship. He identifies the problems in his employment as commencing with the decision of the Respondent to make the position of National Inventory Manager redundant in about 2015. I shall set out further evidence in relation to this event later in these reasons.C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH) Subsection 14(1) of the Act provides:(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. “Injury” is defined in subsection 5A(1) to mean:(a)a disease suffered by an employee; or(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. Subsection 5A(2) provides:(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:(a)a reasonable appraisal of the employee’s performance;(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;(c)a reasonable suspension action in respect of the employee’s employment;(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.

Evidence

Evidence Before The Court

In addition, Associate Professor Robertson was of the view that Mr Mizzau also suffered a moral injury which is outside the normal range of human behaviour. This is a condition which can be very disabling in terms of mental health and is a manifestation of confronting something that outrages a person’s moral sense. For Mr Mizzau, this was “the deep psychological affront of the betrayal and disloyalty of his employer with whom he had spent around three decades of work.”[10] [10] Exhibit Z1 at 30.Evidence of Dr Champion, Consultant Psychiatrist Dr Champion assessed Mr Mizzau on 26 April 2019 at the request of the Respondent’s Solicitors. He provided a report dated 6 May 2019[11] and gave evidence at the hearing.[11] Exhibit Z1 at 37. In April 2019 Dr Champion diagnosed Mr Mizzau as suffering ”Mixed Anxiety/depressive disorder, best diagnosed as an Adjustment Disorder, most likely involving the underlying social anxiety disorder and a reaction to the workplace events of 2015, in particular being placed on a PIP [Performance Improvement Plan].”[12] When he gave evidence Dr Champion expressed the opinion that Mr Mizzau had a long history of social anxiety disorder which he kept under control. It was the September 2015 meeting, in which he was advised that he was to be placed on a performance improvement plan which caused his Adjustment Disorder.[13] [12] Exhibit R1 at 49.[13] Transcript 08/04/2020 at 71. In the opinion of Dr Champion, Mr Mizzau sustained a psychiatric condition in or around September 2015 as claimed in his workers compensation claim made 25 May 2018.[14][14] Exhibit R1 at 85. Nature of the ailment suffered by Mr Mizzau in September 2015 On the basis of the evidence of Associate Professor Robertson I am satisfied that in September 2015, Mr Mizzau suffered an exacerbation of a longstanding social anxiety disorder with developing depression. Although Dr Champion described Mr Mizzau’s condition slightly differently, his evidence that Mr Mizzau sustained a psychiatric condition as claimed (“anxiety”[15]) is consistent with Associate Professor Robertson’s diagnosis.F: WAS THE AGGRAVATION OF THE AILMENT “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY MR MIZZAU’S EMPLOYMENT BY THE RESPONDENT, AND THEREFORE A “DISEASE” WITHIN THE MEANING OF THE ACT?[15] See paragraph 2 of these reasons. Based on the evidence of Dr Lam, Associate Professor Robertson and Dr Champion referred to in paragraphs 20 to 26 above, I am satisfied that the aggravation of Mr Mizzau’s social anxiety disorder and his depression was contributed to, to a significant degree, by his employment by the Respondent.G: WAS THE DISEASE SUFFERED “AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF [MR MIZZAU’S] EMPLOYMENT”? In Comcare v Martin the High Court said, in part:44.The application of the definition of disease in s 5B(1) means that, to have suffered a disease falling within s 5A(1)(a), the employee must have suffered an ailment or aggravation of an ailment that was contributed to, to a significant degree, by the employee's employment. In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee "as a result of" reasonable administrative action taken in a reasonable manner in respect of the employee's employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee's employment which answers that description of reasonable administrative action.45.When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease "as a result of" administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment…[16][16] [2016] HCA 43 at [44]-[45].

Decision

Reasons for decision

The causal connection between the disease Mr Mizzau suffers and the informal meetings prior to 2 September 2015 is not met.H: CONCLUSION The reviewable decision made 24 July 2018, being the decision of the Respondent to affirm its earlier determination denying liability to compensate Mr Mizzau in respect of the claimed injury, will be set aside. In substitution it will be decided that, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth), the Respondent is liable to pay compensation to Mr Mizzau in respect of the injury, being an exacerbation of social anxiety disorder and depression, deemed to have been sustained by him on 21 September 2015. Within fourteen days of the date of this decision each party may apply to the Tribunal for directions in relation to costs; should such an application not be made, Comcare shall pay the costs incurred by Mr Mizzau in these proceedings.

Ratio Decidendi

Legal Principle Established

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