MMYB and Comcare (Compensation) [2016] AATA 405 (17 June 2016)
Division
GENERAL DIVISION
File Number(s)
2015/2907
Re
MMYB
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 17 June 2016 Place Perth The Tribunal sets aside the decision under review and, in substitution therefor, decides that Comare is liable, pursuant to s 14(1) of the Safety, Rehabilitation Act 1988 (SRC Act), to pay compensation to MMYB, in accordance with the SRC Act, in respect of an injury, namely, aggravation of post-traumatic stress disorder.
Pursuant to s 67(8) of the SRC Act, the Tribunal orders that the costs of these proceedings incurred by MMYB be paid by Comcare in accordance with s 6.9 of the Tribunal’s Guide to Worker’s Compensation Jurisdiction, dated 14 July 2015.
........[Sgd]...............................................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION – aggravation of chronic post-traumatic stress disorder (PTSD) – aggravation of ailment – disease – contributed to, to a significant degree – exclusionary provision – whether aggravation of disease suffered as a result of “reasonable administrative action” – aggravation not suffered as a result of the administrative action - decision under review set aside and substituted
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – s 4 - s 5A – s 5A(1) – s 5A(2) - s 5B – s 5B(2) – s 5B(3) - s 14
CASES
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve and Another [2012] FCAFC 21; (2012) 199 FCR 463; 125 ALD 181
Georges and Telstra Corporation [2009] AATA 731
Hart v Comcare [2005] FCAFC 16; (2005) 145 FCR 29
Jing Yu v Comcare [2010] AATA 80
Keen v Workers Rehabilitation and Compensation Corporation (1998) SASR 42
Martin v Comcare [2015] FCAFC 169; (2015) 148 ALD 1
Re Lynch and Comcare [2010] AATA38; (2010) 114 ALD 394SECONDARY MATERIALS
Administrative Appeals Tribunal’s Guide to Worker’s Compensation Jurisdiction, dated 14 July 2015
REASONS FOR DECISION
Senior Member CR Walsh
17 June 2016
INTRODUCTION
MMYB seeks a review of a decision made by Comcare on 28 May 2015 that MMYB is not entitled to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in relation to his claimed condition of “aggravation of chronic post-traumatic stress disorder (PTSD)”.
FACTUAL & PROCEDURAL BACKGROUND
MMYB, currently aged 45 years, has been employed as a police officer with the Australian Federal Police (AFP) since 2002.
During 1999, while working with Victoria Police, MMYB was shot in the torso.
MMYB required an emergency laparoscopy and surgery for the bullet wound and had further surgery for keloid scar in 2002 and incisional hernia repairs in 2012 and 2013.
In 2012, MMYB was diagnosed with PTSD as a result of the shooting incident.
Liability for the applicant’s PTSD was accepted in 2014 by his previous employer, Victoria Police. At the time of the shooting, MMYB did not receive any assistance from a psychiatrist or psychologist.
MMYB…
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Details
- AGLC
- MMYB and Comcare (Compensation) [2016] AATA 405
- Case
- [2016] AATA 405
- Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by MMYB against a decision by Comcare to affirm a determination that his claim for compensation was excluded under section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute arose from MMYB's assertion that his chronic post-traumatic stress disorder (PTSD) had been aggravated by his employment with the Australian Federal Police (AFP), specifically due to administrative actions including his transfer from the Joint Counter Terrorism Team and a subsequent temporary transfer to Perth Airport. Comcare had determined that these administrative actions were reasonable and taken in a reasonable manner, thus excluding MMYB's claim. The decision was heard by Cr Walsh SM.
The court was required to determine three primary issues. Firstly, whether MMYB had suffered an "ailment" or the aggravation of an "ailment". Secondly, if an ailment or its aggravation was established, whether it was contributed to, to a significant degree, by his employment with the AFP, thereby constituting a "disease" as defined by section 5B of the Act. Thirdly, and crucially, if the preceding conditions were met, whether MMYB's claim was excluded by section 5A of the Act, which precludes compensation for conditions resulting from reasonable administrative action taken in a reasonable manner.
The court's reasoning focused on the application of section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). While acknowledging that MMYB suffered from PTSD, the court found that the medical evidence, particularly from Dr Yue (Olivia) Lee, indicated that MMYB had not suffered an aggravation of his PTSD in the course of his employment with the AFP. Dr Lee's supplementary report stated that MMYB had not experienced any significant functional impairment until 2013 and that his cessation of work was likely multifactorial, not solely attributable to the disorder. Crucially, the court found that the aggravation of the ailment, if any, was not suffered as a result of the administrative actions taken by the AFP, but rather that the administrative actions themselves were reasonable. Therefore, the exclusionary provision of section 5A was not engaged in the manner Comcare had asserted, as the aggravation was not a consequence of the administrative action.
The court set aside Comcare's decision and substituted its own determination. It found that MMYB had suffered an aggravation of his ailment, and that this aggravation was contributed to, to a significant degree, by his employment with the AFP. However, it concluded that this aggravation was not the result of reasonable administrative action taken in a reasonable manner, and therefore, section 5A did not operate to exclude his claim.
The court was required to determine three primary issues. Firstly, whether MMYB had suffered an "ailment" or the aggravation of an "ailment". Secondly, if an ailment or its aggravation was established, whether it was contributed to, to a significant degree, by his employment with the AFP, thereby constituting a "disease" as defined by section 5B of the Act. Thirdly, and crucially, if the preceding conditions were met, whether MMYB's claim was excluded by section 5A of the Act, which precludes compensation for conditions resulting from reasonable administrative action taken in a reasonable manner.
The court's reasoning focused on the application of section 5A of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). While acknowledging that MMYB suffered from PTSD, the court found that the medical evidence, particularly from Dr Yue (Olivia) Lee, indicated that MMYB had not suffered an aggravation of his PTSD in the course of his employment with the AFP. Dr Lee's supplementary report stated that MMYB had not experienced any significant functional impairment until 2013 and that his cessation of work was likely multifactorial, not solely attributable to the disorder. Crucially, the court found that the aggravation of the ailment, if any, was not suffered as a result of the administrative actions taken by the AFP, but rather that the administrative actions themselves were reasonable. Therefore, the exclusionary provision of section 5A was not engaged in the manner Comcare had asserted, as the aggravation was not a consequence of the administrative action.
The court set aside Comcare's decision and substituted its own determination. It found that MMYB had suffered an aggravation of his ailment, and that this aggravation was contributed to, to a significant degree, by his employment with the AFP. However, it concluded that this aggravation was not the result of reasonable administrative action taken in a reasonable manner, and therefore, section 5A did not operate to exclude his claim.
Orders
Orders of the court
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Background
Background to the litigation
In her Statement, dated 18 March 2016, SSYD describes her decision to transfer MMYB out of the Joint Counter Terrorism Team to the Human Source Management Team on 16 January 2012, as follows:4.During my time in the Perth Office, decisions for the movement of Federal Agents between teams were made on the basis of operational requirement, members’ skills and background, development requirements and tenure or time in role. At that time, the Joint Counter Terrorism Team (JCTT) had a tenure policy of between 2-5 years, meaning that time spent in the JCTT should not be less than 2 years but should not exceed 5 years. The tenure policy had been agreed across all JCTTs in Australia; moreover all the members of the JCTT Perth Office were aware of this policy as I had mentioned it on more than one occasion during team musters and in general conversation.;5.On 16 January 2012, [MMYB] was moved out of the [JCTT] and into the Human Source Management Team (HSMT). This decision was made on the basis of the extended time [MMYB] had served in the JCTT and the excellent interpersonal skills he possessed which would be beneficial in the area of Human Source (Information) Management. I do not recall [MMYB] making a formal request to prevent a transfer from JCTT to HSMT. I recall a conversation with [MMYB] where he expressed a desire to remain in the JCTT. I do not recall what I specifically stated to [MMYB], however, I customarily reiterate to staff that movement between teams is the prerogative of AFP management based on the operational requirements, tenure policy and members’ background and skills. 6.I was aware of [MMYB’s] investment of time and effort to attain post-graduate qualifications in Terrorism studies…..There was no guarantee made that completing his studies would lead to specialisation in the field of counter terrorism. [Emphasis added] SSYD also describes her decision to temporarily transfer MMYB to the Perth International Airport in November 2012, as follows:7.In or about November 2012, the Perth Management Team, consisting of the Perth Manager, my fellow Superintendents and I made a decision to shift resources from the Perth Office to the Perth Airport. Superintendent BBCC conveyed to me that were severe staff shortage at Perth Airport at the time. [MMYB] was one of the first Federal Agents to be temporarily transferred to Perth Airport; however, he was not singled out for transfer……………..9.After the decision was made to temporarily transfer [MMYB] to the Perth Airport, I advised [MMYB’s][ team leader FA JJQS. I am not aware how this information was conveyed by [MMYB’s] team leader to him10.On or about 29 November 2012, I received an email from FA JJQS, which forwarded to me an email from [MMYB]…..11.After receiving this email, I arranged to meet [MMYB]. As I recall, the meeting took place between {MMYB} and myself and no other person was present.12.In the course of the meeting, I listened to [MMYB’s] concerns, which were consistent with those expressed in his email. I advised [MMYB] that a decision had been made and that he would transfer temporarily to the Perth Airport. With regard to his child care concerns, I explained to him that he was one of many members with young children and a working life and that although some flexibility would be allowed, the decision would not be reversed…….I explained that the transfer was only temporary. Other members would also be temporarily transferred. I also explained that [MYBB’s] permanent position would remain with the HSMT where he was doing a good job. I concluded that the decision would not be reversed.; 13.Throughout the meeting, [MMYB] was very upset and was crying. I was understanding of his circumstances but explained that on occasion, managers need to make decisions about resource allocation and to move resources where they were needed.14.Although he was very upset, by the end of the meeting, [MMYB] appeared to accept the temporary transfer.Statement of ABCD, dated 7 April 2016[14][14] Exhibit 10.
Evidence
Evidence Before The Court
This requires the Tribunal to consider the following:(i)whether MMYB has suffered an “ailment” or the aggravation of an “ailment”; (ii)if yes to 17(i), whether that ailment or aggravation of that ailment was contributed to, to a significant degree by his employment with the AFP such that it constitutes a “disease” as defined by s 5B of the SRC Act; and(iii)if yes to 17(ii), whether MMYB’s claim is excluded because his claimed condition was the result of administrative action taken in a reasonable manner in respect of his employment pursuant to s 5A of the SRC Act.MEDICAL AND OTHER EVIDENCE(i) Medical evidence Dr Thomas Ho, Somerly Central Medical Centre, report dated 23 June 2014[1][1] Exhibit 1 at pp 17-19. On 23 June 2014, Dr Ho, MMYB’s GP, reported the following:· the diagnosis of MMYB’s condition is PTSD following a gunshot wound while serving with Victoria Police in early 1999;· following his gunshot wound, MMYB required emergency laparoscopy and surgery for bullet wound, and then had further surgery for keloid scar in 2002 and incisional hernia repairs in 2012 and 2013;· MMYB’s reported symptoms are consistent with PTSD, including poor sleep, flashbacks, intermittent anger, frustrations and self-pity;· in his opinion, MMYB’s injury is completely and solely related to his employment as a police officer with Victoria Police;· MMYB should be able to return to pre-injury duties with no work restrictions within three months;· MMYB’s symptoms are not likely to continue indefinitely; and· MMYB should continue to receive psychological and psychiatric treatment for the next 2 years.Dr Yue (Olivia) Lee, Consultant Psychiatrist, MLCOA, reports dated 24 June 2014 & 23 October 2015[2] [2] Exhibit 1 at pp20-26 and report of 23 October 2015 filed on 13 November 2015. Dr Lee provided a report in relation to MMYB’s condition at the request of the AFP. On 24 June 2014, Dr Lee reported the following: · MMYB declined input from a psychiatrist or psychologist in 1999;· MMYB has since experienced ongoing nightmares and was averaging four hours sleep per night, he had become oversensitive, he became hyper vigilant to any dangers, and he felt increasingly detached with a lack of empathy and sympathy towards work-related matters and for the family;· MMYB also reported that he had been bullied at work, and felt that his integrity was criticised when he returned from work from leave and took additional days off due to illness;· MMYB wants to return to work but will only do so on a full time basis;· MMYB is not presently able to return to work, but may be able to return to pre-injury duties so in within the next 3-6 months with adequate treatment;· the general course of MMYB’s illness has been fluctuating, however, it has been improving over the past 12 months; and· there are no non-work related stressors impacting on MMYB’s current condition. In the course of this proceeding, Comcare sought a Supplementary Report from Dr Lee, asking that she provide an opinion on the causes of MMYB’s condition. In a Supplementary Report, dated 23 October 2015, Dr Lee stated: · the shooting incident in 1999 was the cause of MMYB’s PTSD;· MMYB has not suffered any aggravation of PTSD in the course of his employment with the AFP. MMYB served in other operations with the AFP and while he may have been suffering from PTSD symptoms, they were not so severe that he could not continue working, and Dr Lee could not elicit any other significant functional impairment until 2013;· the reasons that MMYB gave for his cessation of work was the perceived feeling of being bullied and ostracised at work. MMYB described having coped with his PTSD symptoms; and· PTSD may have been one of the factors causing impairment making MMYB vulnerable to disability but the cessation of work is likely multifactorial and not solely attributable to the disorder.Dr Alan D Jager, Forensic Psychiatrist, reports dated 21 October 2013 & 22 July 2014[3][3] Exhibit 4 and Exhibit 1 at pp 29-33.
Decision
Reasons for decision
On 28 May 2015, upon reconsideration, Comcare affirmed the Determination (Reviewable Decision). The reasons for decision, attached to the Reviewable Decision, state:I consider that your condition, at least in part, resulted from the events of:· your transfer to duties at the Perth Airport· your transfer out of JCTT at the end of your five years in the team on 2 November 2011As these matters were both in my opinion reasonable administrative action, and undertaken reasonably, I agree with the conclusions reached by the delegate that the condition for which you have claimed is excluded under s 5A and is not compensable by reasons of the matters considered by the Full Court of the Federal Court of Australia in Hart. On 15 June 2015, MMYB applied to the Tribunal for a review of the Reviewable Decision.ISSUES The primary issue for consideration by the Tribunal is whether Comcare is liable to pay compensation to MMYB pursuant to section 14 of the SRC Act. This requires the Tribunal to consider the following:(i)whether MMYB has suffered an “ailment” or the aggravation of an “ailment”; (ii)if yes to 17(i), whether that ailment or aggravation of that ailment was contributed to, to a significant degree by his employment with the AFP such that it constitutes a “disease” as defined by s 5B of the SRC Act; and(iii)if yes to 17(ii), whether MMYB’s claim is excluded because his claimed condition was the result of administrative action taken in a reasonable manner in respect of his employment pursuant to s 5A of the SRC Act.MEDICAL AND OTHER EVIDENCE(i) Medical evidence Dr Thomas Ho, Somerly Central Medical Centre, report dated 23 June 2014[1][1] Exhibit 1 at pp 17-19. On 23 June 2014, Dr Ho, MMYB’s GP, reported the following:· the diagnosis of MMYB’s condition is PTSD following a gunshot wound while serving with Victoria Police in early 1999;· following his gunshot wound, MMYB required emergency laparoscopy and surgery for bullet wound, and then had further surgery for keloid scar in 2002 and incisional hernia repairs in 2012 and 2013;· MMYB’s reported symptoms are consistent with PTSD, including poor sleep, flashbacks, intermittent anger, frustrations and self-pity;· in his opinion, MMYB’s injury is completely and solely related to his employment as a police officer with Victoria Police;· MMYB should be able to return to pre-injury duties with no work restrictions within three months;· MMYB’s symptoms are not likely to continue indefinitely; and· MMYB should continue to receive psychological and psychiatric treatment for the next 2 years.Dr Yue (Olivia) Lee, Consultant Psychiatrist, MLCOA, reports dated 24 June 2014 & 23 October 2015[2] [2] Exhibit 1 at pp20-26 and report of 23 October 2015 filed on 13 November 2015. Dr Lee provided a report in relation to MMYB’s condition at the request of the AFP. On 24 June 2014, Dr Lee reported the following: · MMYB declined input from a psychiatrist or psychologist in 1999;· MMYB has since experienced ongoing nightmares and was averaging four hours sleep per night, he had become oversensitive, he became hyper vigilant to any dangers, and he felt increasingly detached with a lack of empathy and sympathy towards work-related matters and for the family;· MMYB also reported that he had been bullied at work, and felt that his integrity was criticised when he returned from work from leave and took additional days off due to illness;· MMYB wants to return to work but will only do so on a full time basis;· MMYB is not presently able to return to work, but may be able to return to pre-injury duties so in within the next 3-6 months with adequate treatment;· the general course of MMYB’s illness has been fluctuating, however, it has been improving over the past 12 months; and· there are no non-work related stressors impacting on MMYB’s current condition.
Ratio Decidendi
Legal Principle Established
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