Murray and Comcare

[2008] AATA 508

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 508

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q200400743, Q200600311

GENERAL ADMINISTRATIVE  DIVISION		)        and Q200600460
Re		CHERYL MURRAY

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Dr Denovan, Member

Date18 June 2008

PlaceBrisbane

Decision The Tribunal determines that the applicant should be allowed to canvass whether workplace harassment contributed to her psychiatric condition.

.......................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

Workers’ Compensation – Injury – Psychiatric condition – Previous claim workplace harassment contributed to psychiatric condition – Previous claim dismissed by consent – Evidence in current proceedings refer to workplace harassment allegations – Whether applicant should be prevented from re-litigating an issue that was the subject of an earlier consent decision – Applicant should not be prevented because of consequences for the current proceedings – Whether respondent will be unfairly prejudiced – Respondent will be inconvenienced but not unfairly prejudiced – Respondent to be given an opportunity to investigate workplace harassment claim – Applicant allowed to canvass whether workplace harassment contributed to psychiatric condition

Administrative Appeals Tribunal Act 1975 (Cth), s 2A

Safety, Rehabilitation and Compensation Act 1986 (Cth), s 14

Re Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9

Re Richards and Australian Postal Corporation [2001] AATA 367

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

REASONS FOR DECISION

18 June 2008 Senior Member Bernard J McCabe and Dr Denovan, Member                  

1.      Ms Cheryl Murray, the applicant, has several claims before the Tribunal arising out of an incident at work in August 2000. Mrs Murray injured her leg. A question arose at the hearing over whether evidence that she was harassed in the workplace was properly before the Tribunal. Comcare, the respondent, says the evidence of workplace harassment should not be considered.

Background to the dispute

2.      Ms Murray was a civilian employee of the Department of Defence. She fractured the tibia in her right leg in a fall down a set of stairs at work on 18 August 2000. She wore a cast for several months and received physiotherapy. She resumed part-time work in around June 2001, and worked full-time from the end of that year. She says she continued to experience pain in her right foot and ankle after returning to work. She says she has developed reflexive sympathetic dystrophy (“RSD”) and a psychiatric condition that are connected to her original workplace injury. She says she ceased work as a result of her injuries in December 2002.

3.      Comcare accepted liability under s 14 of the Safety Rehabilitation and Compensation Act 1988 (“the SRCA”) for the fractured tibia (determination dated 9 January 2001). The applicant has since made several other claims which Comcare rejected. These include:

·A decision to deny liability under s 14 for right foot and ankle pain, RSD and an adjustment reaction with depressive reaction: reviewable decision dated 20 July 2004. That decision is the subject of appeal Q200400743.

·A decision to refuse a claim for permanent impairment compensation in respect of the right foot and ankle pain and RSD: reviewable decision dated 4 April 2006. That decision is the subject of appeal Q200600311.

·A decision to deny liability for an adjustment disorder with depressed mood arising out of RSD which was consequent upon the leg fracture: reviewable decision dated 15 May 2006. That decision is the subject of appeal Q200600460.

4.      The applicant also made a claim under the SRCA alleging that workplace harassment contributed to her psychiatric condition. That claim was submitted on 10 January 2003. It was supported by a number of statements setting out a factual basis for the claim. The claim was investigated and rejected. The decision was affirmed in a reviewable decision dated 20 July 2004. The subsequent appeal to the Tribunal was dismissed by consent.

5.      Some of the evidence tendered on behalf of the applicant in the proceedings currently before the Tribunal refers to allegations of workplace harassment. The respondent says it has been taken by surprise. It thought the allegations of workplace harassment had been abandoned following the dismissal of the other proceedings. Mr Clark, for Comcare, pointed out during the hearing and in written submissions that the applicant had not submitted any fresh evidence at the pre-hearing stage referring to workplace harassment, although those allegations were discussed in material that was filed subsequently. Mr Clark said it was reasonable for Comcare to prepare its case on the basis that the allegations for workplace harassment were not being pursued. He put that view to Mr Anforth, the applicant’s counsel, during the hearing. Mr Clark said Mr Anforth’s explanation (Transcript, 19 November 2007 at 7-15) of the extent to which the applicant relied on the evidence of workplace harassment was “puzzling”.

6.      Mr Anforth says the allegations of workplace harassment were considered and rejected by Comcare in the course of the decision-making process that led to all of the reviewable decisions currently before the Tribunal. He said that dismissal of the other proceedings by consent should not prevent his client from progressing a claim arising out of allegations that were squarely raised in the claims that are the subject of these proceedings.

7.      We agree the applicant has not signalled an intention to pursue the claim for workplace harassment with the clarity one would expect.  The applicant’s statement of facts and contentions is unsatisfactory in this respect: it refers to evidence of workplace harassment (eg, at [4.4], [4.10] and – obliquely – [4.9]) but does not expressly say that the harassment contributed to the development of the applicant’s various conditions.

8.      We must therefore ask ourselves two questions:

·Should the applicant be prevented from re-litigating an issue that was the subject of an earlier consent decision?

·If we decide the applicant is not to be prevented from re-litigating the workplace harassment allegations, would it be unfair to the respondent if it were required to turn its mind to these issues at this point in the proceedings?

9.      Mr Clark referred us to a number of authorities dealing with the question of re-litigation. Cases like Matusko and Australian Postal Corporation [1995] AATA 14; (1995) 21 AAR 9, Richards and Australian Postal Commission [2001] AATA 367 and Quinn and Australian Postal Corporation (1992) 15 AAR 519 make it clear the Tribunal should be slow to revisit issues that have already been decided, even if the decision in question was a consent decision and there have been no formal findings of fact. That approach finds support in the Tribunal’s statutory objectives of providing a review mechanism that is “fair, just, economical, informal and quick”: s 2A Administrative Appeals Tribunal Act 1975 (emphasis added).

10.     It is unclear why the applicant chose to terminate the earlier proceedings when she did. In one sense, it does not matter: the Tribunal will not ordinarily go behind a consent decision. But we cannot ignore the possible consequences for the applicant’s current proceedings. We have been provided with evidence that suggests Ms Murray’s psychiatric condition may be attributable to more than one cause. If we deny ourselves the opportunity to consider all of those possible causes simply because the applicant made what appears to be an unfortunate decision with respect to part of her claim, we will be compromised in our duty to make the correct and preferable decision.  We want to get to the truth. We want to accurately identify the applicant’s conditions and determine whether Comcare is liable for what has occurred. The applicant has complicated our task by withdrawing the earlier proceedings and failing to clearly and unambiguously signal her intentions in the current proceedings. But we are not satisfied that she should be prevented from having the totality of her claim heard now, if it can be done without unfairly prejudicing the respondent.

11.     We accept the respondent will be inconvenienced by our decision to allow the applicant to be heard in relation to the workplace harassment issues. But would it be unfair to do so?

12.     We are satisfied it would be fair to allow the applicant to canvass the allegation of workplace harassment in these proceedings provided that the respondent has the opportunity to investigate her claim. That might involve the applicant being required to undergo further medical examinations. It might also be necessary to recall witnesses, or call additional witnesses. All that is regrettable and might have been avoided if the applicant were more forthright in her statement of facts and contentions. If the applicant is ultimately successful in respect of all or part of her claim, any assessment of costs should take that conduct into account.

Conclusion

13.     The applicant should be allowed to canvass whether workplace harassment contributed to her psychiatric condition. A telephone directions hearing will be convened to discuss the further progress of the matter.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr Denovan, Member

Signed: ..............................[Sgd].......................................................
  Michael Buckingham, Associate

Dates of Hearing  19-20 November 2007
Date of Decision  18 June 2008    
Counsel for the applicant          Mr A Anforth
Solicitors for the applicant        James Watt and Co
Counsel for the respondent      Mr C Clark
Solicitors for the respondent     Sparke Helmore Lawyers