Muir and Comcare (Compensation)

Case [2015] AATA 612

Muir and Comcare (Compensation) [2015] AATA 612 (19 August 2015)

Division

GENERAL DIVISION

File Number(s)

2014/2504

Re

Linda Muir

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries
Date 19 August 2015
Place Canberra

The decision under review is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

................................[sgd]...................................

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employees – injury caused by work – date of injury – whether reasonable administrative action – whether carried out in a reasonable manner – decision set aside and substituted.

Legislation

Safety, Rehabilitation and Compensation Act 1998 (Cth)

Cases

Abrahams v Comcare (2006) 93 ALD 147
Beasley v Comcare [2012] AATA 411
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hart v Comcare (2005) 145 FCR 29
Kennedy v Comcare [2013] AATA 696
Quick v Comcare (2010) 115 ALD 451
Wilson and Comcare [2010] AATA 396
Zdziarski v Telstra Corporation Limited [2015] FCA 207

Secondary Materials

Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, Washington DC, American Psychiatric Association, 2000 (DSM-IV)

REASONS FOR DECISION

Deputy President Gary Humphries

19 August 2015

Summary

  1. The reviewable decision dated 14 April 2014 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.

    Background

  2. Linda Muir has been working for the Australian Federal Police (the AFP) as an unsworn employee for more than 20 years, although not continuously. She is married to a retired AFP Sergeant. She has worked in both the ACT and National “Regions” of the AFP and in a range of operational areas, most recently in the Exhibition Management Centre of ACT Policing and in Forensics in the National Region. As at the hearing of this matter before the Tribunal, she remained an employee of the AFP.

  3. Despite her long service in the organisation, Ms Muir has had a number of unpleasant experiences in her dealings with AFP colleagues. These have ranged from instances of bullying and sexual harassment dating from 1993 to the incidents which form the basis of the decision presently before the Tribunal for merits review. A claim for post-traumatic stress disorder arising from “sexual abuse and harassment” (in Ms Muir’s words) was accepted by Comcare in 1993.

    The legislation

  4. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides:

    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.

  5. “Injury” is defined in s 5A:

    (1) In this Act:

    "injury” means:

    (a) a disease suffered by an employee; or

    (b) an injury (other than…

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Details
AGLC
Muir and Comcare (Compensation) [2015] AATA 612
Case
[2015] AATA 612
Decision Date

CaseChat Overview and Summary

In the case of Muir and Comcare, Linda Muir, an employee of the Australian Federal Police, brought a claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) due to an adjustment disorder she attributed to workplace stress, including incidents of bullying and sexual harassment. The dispute involved whether the Tribunal had jurisdiction to consider events that occurred before the date Ms Muir went off work, which was pivotal to determining whether Comcare was liable for compensation. The primary legal issue was whether the Tribunal could consider the 2010-2012 events in determining Ms Muir’s claim for compensation and, if so, whether these events contributed to her condition.

The Tribunal examined the evidence, including medical reports and testimonies from experts, to determine if the 2010-2012 events were significant contributors to Ms Muir’s condition. The Tribunal found that Scenario B, which considered the 2010-2012 events as significant contributors to her condition, better reflected the totality of the evidence. It concluded that these events were not reasonable administrative actions under the SRC Act and thus did not exclude Ms Muir’s claim for compensation. The Tribunal set aside the previous decision and ruled that Comcare was liable to pay compensation for Ms Muir’s adjustment disorder.

In summary, the Tribunal found that the 2010-2012 events were significant contributors to Ms Muir’s condition and were not reasonable administrative actions. Consequently, Comcare was liable to pay compensation to Ms Muir for her adjustment disorder. This decision underscores the importance of considering the totality of evidence when determining the date and cause of an employee's injury for compensation purposes.

Orders

Orders of the court

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Background

Background to the litigation

The reviewable decision dated 14 April 2014 is set aside and in substitution the Tribunal decides that Comcare is liable to pay compensation to the applicant for an adjustment disorder under s 14 of the Safety, Rehabilitation and Compensation Act 1988.Background Linda Muir has been working for the Australian Federal Police (the AFP) as an unsworn employee for more than 20 years, although not continuously. She is married to a retired AFP Sergeant. She has worked in both the ACT and National “Regions” of the AFP and in a range of operational areas, most recently in the Exhibition Management Centre of ACT Policing and in Forensics in the National Region. As at the hearing of this matter before the Tribunal, she remained an employee of the AFP. Despite her long service in the organisation, Ms Muir has had a number of unpleasant experiences in her dealings with AFP colleagues. These have ranged from instances of bullying and sexual harassment dating from 1993 to the incidents which form the basis of the decision presently before the Tribunal for merits review. A claim for post-traumatic stress disorder arising from “sexual abuse and harassment” (in Ms Muir’s words) was accepted by Comcare in 1993.The legislation Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) provides: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 s 5A:(1) In this Act: "injury” means: (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. (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. Ms Muir’s claim and Hart’s case

Evidence

Evidence Before The Court

The Amended Statement of Facts Issues and Contentions filed on behalf of Ms Muir and dated 18 March 2015 makes no reference to the 2010-2012 matters, but her statement lodged with the Tribunal and dated 3 September 2014 makes detailed reference to those matters.The medical evidence In a medical report tendered by Comcare dated 29 September 2014, Dr Michael Hong records that Ms Muir suffered from recurrent anxiety and depressive symptoms “which she attributed to various issues at work over many years”. He diagnosed “a personality related adjustment disorder on the background of high interpersonal sensitivity.” Under the headings Presenting Complaints and Past Psychiatric History, Dr Hong recounts Ms Muir’s description of a number of work-related incidents, including apparently those incidents which make up the 2010-2012 matters. Dr Hong also reports:Ms Muir presented as a woman with a high level of interpersonal sensitivity and personality vulnerability, and this explains why her psychiatric reaction appears so unusual and inordinate in the context of described work issues. It also explains why her psychiatric incapacity appears prolonged for the type of work-related stressors she described. In its letter of 15 September 2014 commissioning Dr Hong’s report, Comcare instructs the doctor that The applicant reported first noticing her condition, and first seeking treatment for it on 23 October 2013. In his subsequent report Dr Hong traverses the 2010-2012 matters, then responds to specific questions from Comcare, questions focusing only on the 2013 matters. In his evidence before the Tribunal, Dr Hong indicated that the condition he observed during his examination of Ms Muir in September 2014 was the product of a combination of her workplace conditions and “personality factors”. He was not specific about which “workplace conditions” contributed to her condition. Under cross-examination, he agreed, however, that the workplace issues to which he was referring relied heavily on Ms Muir’s self-report as to their importance. He further agreed that the sexual harassment incident in 2012 was “quite a significant factor” in relation to her condition. He also agreed that his report should not be read as indicating that the 2013 matters were the only factors contributing to Ms Muir’s condition. His attention was drawn to the “Diagnostic criteria for Adjustment Disorder” in DSM-IV (to which Mr D’Cruz, clinical psychologist, referred in a tendered report). Those criteria refer to:The development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s). His evidence with respect to this criterion was that a stressful event occurring within 3 months of the development of emotional behavioural symptoms was more likely to have been a contributing factor than an event occurring more than 3 months before the development of those symptoms. Mr D’Cruz gave evidence that there had been “a series of incidents” contributing to Ms Muir’s condition, of which the event of 23 October 2013 was “the last straw”. He said it was difficult to determine when Ms Muir might first have been suffering from a psychological condition, but agreed that symptoms such as “daily sweating, trembling, shaking, palpitation” would put her outside the bounds of normal mental functioning and behaviour.Consideration

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr D’Cruz gave evidence that there had been “a series of incidents” contributing to Ms Muir’s condition, of which the event of 23 October 2013 was “the last straw”. He said it was difficult to determine when Ms Muir might first have been suffering from a psychological condition, but agreed that symptoms such as “daily sweating, trembling, shaking, palpitation” would put her outside the bounds of normal mental functioning and behaviour.Consideration It was accepted before the Tribunal that, when she went off work on 23 October 2013 following the Weston matter, Ms Muir had an injury, or more specifically an ailment, under s 14 of the Act. For reasons which I set out below, I consider that two of the 2013 matters – or causes, to adopt the language of the Full Court in Hart – giving rise to Ms Muir’s complained-of condition constituted reasonable administrative action, per s 5A. This conclusion in turn imposes upon the Tribunal consideration of two alternative scenarios based on the evidence before it:Scenario A: Ms Muir suffered her injury on 23 October 2013. The 2013 matters were significant contributors to that injury. The 2010-2012 matters may also have contributed significantly to that injury. Because at least one of the causes of that injury falls within the definition of reasonable administrative action under s 5A, all the causes are excluded from constituting an injury under the Act. Ms Muir must fail.Scenario B: Ms Muir suffered an injury or injuries, some time prior to May 2013, to which the 2010-2012 matters, or some of them, were significant contributors. The 2013 matters were significant contributors either to a fresh injury or injuries, or to an aggravation of the injury or injuries arising from the 2010-2012 matters. Because there is no suggestion of reasonable administrative action in relation to the 2010-2012 matters, s 5A does not apply. Ms Muir must succeed. On balance, I regard Scenario B as better reflecting the totality of the evidence before the Tribunal. I set out below my reasons for this opinion. Counsel for Comcare argued on the opening day of the hearing that a finding that injuries occurred in the period 2010-2012 was beyond the Tribunal’s jurisdiction:…to the extent that they [the events of 2010-2012] relate to a separate injury this Tribunal does not have jurisdiction with respect to that separate injury, the only relevant decision under review being the decision with respect to section 14 liability in relation to this injury, and by that the respondent means the aggravation of the applicant’s adjustment disorder which gave rise to the period of incapacity [i.e. following 23 October 2013]. To the extent that there might have been earlier aggravations of that condition they might properly have been the subject of separate claims. The respondent… has prepared its case on the understanding that the relevant contributors are those identified in …the 2 relevant medical reports before the Tribunal and to the extent that the claim has been widened in this way we are just alive to the fact that we may be straying into the territory of a different aggravation, and there isn’t the medical evidence to assist the Tribunal in any event on that question.Counsel for Comcare went on to argue that Comcare had not made a decision in respect of the 2010-2012 matters, and that if the Tribunal regarded those matters as being part of the present claim, they should be remitted to Comcare for a decision.