Moi and Comcare - [2006] AATA 726

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 726

ADMINISTRATIVE APPEALS TRIBUNAL № V2005/921

GENERAL ADMINISTRATIVE DIVISION

Re: KIN YUN MOI
Applicant

And: COMCARE
Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date:22 August 2006
Place:Melbourne
Decision:The Tribunal sets aside the decision of the respondent dated 15 August 2005 affirming the earlier decision of 10 May 2005 and substitutes the decision that:
1.the applicant’s major depressive disorder is a compensable injury arising from his employment and predated the disciplinary action imposed for his breach of the Public Service Code of Conduct. The respondent is liable to pay compensation in accordance with s 14, s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988;
2.the applicant is not entitled to compensation for his condition of cervical spondylosis without myelopathy and right rotator cuff strain; and
3.the matter is remitted to the respondent to determine the compensation payable. The respondent to pay the applicant’s legal costs, if any.
(sgd) E. A. Shanahan
Member

WORKERS COMPENSATION – chronic depressive disorder – harassment in the workplace – breach of the Public Service Code and Conduct – sanction applied – alternative duties aggravating pre-existing degenerative changes and rendering them symptomatic.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

22 August 2006 Miss E.A. Shanahan, Member

Mr Moi has made application to the Administrative Appeals Tribunal for review of the respondent’s decision of 15 August 2005 which affirmed the determination of 10 May 2005 that his claimed manic depressive disorder, cervical spondylosis and right rotator cuff strain were not compensable. The respondent had determined that these conditions were secondary to disciplinary action attracted by Mr Moi’s breach of ss 13(3) and 13(11) of the Public Service Act 1999 (the Public Service Act).
The applicant was self-represented and the respondent was represented by Mr Ferwerda of Counsel, instructed by the Australian Government Solicitor. The Tribunal was provided with the documents lodged pursuant to the s 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents – Exhibit R1). The respondent tendered the summonsed medical record of Dr Goh, Mr Moi’s treating general practitioner and this was assigned the notation of Exhibit R2. Mr Moi and Mr John Shaw gave evidence before the Tribunal.

BACKGROUND TO THE APPLICATION

On 24 June 2004 Mr Moi, having been reprimanded by Ms Linda Hughes for not recording his lunch break on his timesheet, “gesticulated widely with his arm in a threatening manner” and told Miss Hughes to “just fuck off” (T8, p 33). This altercation was reportedly observed by four co-workers. The incident was reported to senior officers and Mr Moi was “suspected” of breaching ss 13(3) and 13(11) of the Public Service Act. An investigation was ordered (T10, p 37). The investigation was conducted by Mr John Shaw who found that Mr Moi had indeed breached ss 13(3) and 13(11) of the Code of Conduct and after the investigation was completed, imposed the sanction of a “reassignment of duties”. In addition, Mr Shaw…

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 Moi and Comcare

Details

AGLC: Moi and Comcare [2006] AATA 726
Case: [2006] AATA 726
Decision Date: 22 August 2006

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, the applicant, Kin Yun Moi, sought review of a decision by Comcare, affirming an earlier decision that his claimed major depressive disorder, cervical spondylosis and right rotator cuff strain were not compensable. The primary issue before the Tribunal was whether Mr Moi's major depressive disorder, which he claimed arose from workplace stress and conflict, predated the disciplinary action imposed for his breach of the Public Service Code of Conduct. The Tribunal found that Mr Moi's major depressive disorder was reactive in nature and arose from workplace stress and conflict, which in turn led to his claimed "out of character" behaviour on 24 June 2004. This injury is compensable. The Tribunal also found that Mr Moi's pre-existing cervical spine degenerative changes were rendered more symptomatic as a result of the alternative duties he was assigned in the form of a disciplinary sanction. However, since there is evidence that Mr Moi had had minor symptoms of this condition prior to the institution of disciplinary action, this condition is not compensable. The Tribunal set aside the decision of the respondent dated 15 August 2005, affirmed the earlier decision of 10 May 2005 and substituted the decision that the respondent is liable to pay compensation in accordance with s 14, s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988. The matter was remitted to the respondent to determine the compensation payable. The respondent was to pay Mr Moi's legal costs, if any.

Orders