Napper and Comcare (Compensation) - [2019] AATA 150

Napper and Comcare (Compensation) [2019] AATA 150 (14 February 2019)
Division:GENERAL DIVISION
File Number(s): 2016/5827
Re:Wayne Napper
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Ian Hanger AM QC
Date:14 February 2019
Place:Canberra

The decision under review should be set aside and a decision substituted that the aggravation of the Applicant’s schizoaffective disorder prior to 3 March 2016 was contributed to, to a significant degree, by his employment.
........................................................................
Deputy President Ian Hanger AM QC
Catchwords
COMPENSATION – whether the Applicant suffers from an ailment – whether the ailment was contributed to, to a significant degree, by the Applicant’s employment – legislative history concerning the words, “significant degree” and “material degree” – employee’s negative perceptions of employment arising from an earlier condition – perception held by the employee will meet a “reality” test for the purpose of the definition of “disease” if it is a perception about an incident or state of affairs that actually happened – whether the ailment was suffered as a result of reasonable administrative action taken in a reasonable manner – reviewable decision set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14
Cases
Comcare v Sahu-Khan [2007] FCA 15
Dean v Australian Postal Commission [2010] 52 AAR 54
Kirkpatrick v Commonwealth (1985) 9 FCR 36
Wiegand v Comcare [2002] FCA 1464
Secondary Materials
Explanatory Memorandum to the Safety Rehabilitation and Compensation and Other Legislation Amendment Bill 2006
REASONS FOR DECISION
Deputy President Ian Hanger AM QC
12 February 2019
INTRODUCTION

The Applicant, Mr Wayne Napper, has applied to the Tribunal for a review of a decision under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in which the Respondent, Comcare, denied liability to compensate him for his claimed psychological condition which has been diagnosed as aggravation of major depressive disorder with psychotic features and schizoaffective disorder.
BACKGROUND
From some time in 2013 until 3 March 2016, Mr Napper was employed by Transport Canberra and City Services Directorate (the Directorate) and worked in McCarthy House with responsibility for a number of irrigation systems across the parks of Canberra. He gave evidence that it was his job to keep the irrigation system for the parks functioning properly. This involved liaison between the Directorate and the contractors who performed physical functions such as repairing the system when it was malfunctioning.
In late 2015, the city was in the grip of a drought or at least an extremely dry summer and therefore relying heavily on the irrigation systems. A lot of the systems were very old and continually having problems. In particular Mr Napper was responsible for looking after the nature strip in Northbourne Avenue, and at that time a great deal of construction work was being carried out on Northbourne Avenue with respect to the light rail project and it was not easy to keep the irrigation system working. Mr Napper said he was running around being a bit of policeman because you had to…

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 Napper and Comcare (Compensation)

Details

AGLC: Napper and Comcare (Compensation) [2019] AATA 150
Case: [2019] AATA 150
Decision Date: 14 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by Comcare to deny compensation to the applicant, Mr Wayne Napper, for a psychological condition diagnosed as an aggravation of major depressive disorder with psychotic features and schizoaffective disorder. Mr Napper claimed his condition was a result of his employment with the Transport Canberra and City Services Directorate, where he was responsible for managing irrigation systems. The dispute centred on whether Mr Napper's ailment was contributed to, to a significant degree, by his employment, and whether it arose from reasonable administrative action taken in a reasonable manner.

The Tribunal was required to determine if Mr Napper suffered from an ailment as defined by the Safety Rehabilitation and Compensation Act 1988. It also had to assess whether his employment contributed to this ailment to a significant degree, considering the legislative history of "significant degree" and "material degree." Furthermore, the Tribunal needed to ascertain if the ailment was a result of reasonable administrative action taken in a reasonable manner, particularly in relation to events on or about 3 March 2016.

The Tribunal accepted that Mr Napper suffered from a genetic predisposition to schizoaffective disorder, which had manifested in previous stress-related episodes. It found that while Mr Napper may have exaggerated the extent of his responsibilities, he was a conscientious employee experiencing substantial stress due to dry weather conditions and ongoing issues with the irrigation system in Northbourne Avenue, exacerbated by light rail construction. The Tribunal concluded that the events of 3 March 2016, including being told to go home and see a doctor, constituted reasonable administrative action and did not contribute to his disorder, as he was already suffering from it. The Tribunal was satisfied that the work stressors were a significant factor in his presentation.

The Tribunal set aside the Comcare decision and found that Mr Napper suffered an ailment that was contributed to, to a significant degree, by his employment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant, Mr Wayne Napper, has applied to the Tribunal for a review of a decision under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in which the Respondent, Comcare, denied liability to compensate him for his claimed psychological condition which has been diagnosed as aggravation of major depressive disorder with psychotic features and schizoaffective disorder. BACKGROUND From some time in 2013 until 3 March 2016, Mr Napper was employed by Transport Canberra and City Services Directorate (the Directorate) and worked in McCarthy House with responsibility for a number of irrigation systems across the parks of Canberra. He gave evidence that it was his job to keep the irrigation system for the parks functioning properly. This involved liaison between the Directorate and the contractors who performed physical functions such as repairing the system when it was malfunctioning. In late 2015, the city was in the grip of a drought or at least an extremely dry summer and therefore relying heavily on the irrigation systems. A lot of the systems were very old and continually having problems. In particular Mr Napper was responsible for looking after the nature strip in Northbourne Avenue, and at that time a great deal of construction work was being carried out on Northbourne Avenue with respect to the light rail project and it was not easy to keep the irrigation system working. Mr Napper said he was running around being a bit of policeman because you had to identify which contractor it was that had damaged the irrigation system. So, that was extremely difficult, because they started extremely early in the mornings. So usually by the time I had tested the system again, to find if there was new damage, quite often I wouldn’t be able to find the contractor responsible for the damage. Mr Napper had to attempt to find the contractor responsible for damaging the system and then had to facilitate the repair. On top of that he was still carrying out his usual function of looking after the irrigation systems for other parts of Canberra. He described the work in the latter months of 2015 as being a pretty thankless task. Damage was happening almost daily, and it became extreme stressful. He describes the stress as causing him to sleep badly. He became short tempered with his wife. He says that he spoke to his supervisor, Mr Joel Kelly, about problems in Northbourne Avenue. Mr Kelly agrees that there were some discussions regarding Northbourne Avenue but regarded those discussions as a fairly typical conversation with Mr Napper about ongoing or emergency issues throughout the park system. He did not regard the conversation as unusual or as a plea for help by Mr Napper. Mr Kelly agreed that the system in Northbourne Avenue was very old and prone to breaking down and that the work in Northbourne Avenue was resulting in further breakages in the system with which Mr Napper had to deal. Mr Kelly also agreed that Mr Napper took on more responsibility than he had to because he undertook tasks requested by people who were not his supervisors and whom he had no obligation to assist. He had been cautioned against that but continued to undertake work that he was not necessarily required to do.

Evidence

Evidence Before The Court

When he got home his wife reports that he was distressed, and she rang Dr Radajewski and made an appointment for Mr Napper to see him the following day. He returned from the doctor very distressed. His wife tried to calm and console him and invited friends over for dinner that night. Early the next morning, when she awoke, she found him out in the kitchen sitting on the kitchen floor crying and his conversation didn’t make sense. He told her that he had been walking around the oval.His conversation was rambling. At around 3:00 am she called the ambulance which took him to hospital. At about this time he was delusional. He was discharged a day later on Sunday but within two days was readmitted to hospital. He was out of hospital for a short time and then readmitted. He eventually started back at work in September 2016 on a gradual return to work program. He was keen to get back to work and continued in his work. MEDICAL EVIDENCE I was assisted in the hearing by the concurrent evidence of three psychiatrists who had each provided reports on Mr Napper. I was also assisted by the records of the General Practitioner, Dr Radajewski. Dr Radajewski reports that Mr Napper consulted with him on 4 March 2016 reporting that he had been very stressed at work and that he was significantly under resourced for the scope of his work role. He told the doctor of the events relating to becoming angry with a female work colleague which had resulted in her crying. He also reported that he was very worried about a family member’s health at that time. The doctor expressed the opinion that Mr Napper was suffering from significant work and personal stress leading to an adjustment disorder with acute anxiety. Dr Radajewski reports that Mr Napper was admitted as a mental health patient several days later as a result of worsening mood and that he was discharged on 17 March 2016 with a diagnosis of a brief psychotic disorder. Mr Napper was readmitted on 27 March 2016 for 18 days due to further behavioural and psychological disturbance after which he was discharged with a diagnosis of schizoaffective disorder. Dr Radajewski notes that Mr Napper had a previous psychological assessment after an altercation at work in about December 2013 which resulted in a period away from work with an assessment being made in early 2014 that he suffered from an adjustment disorder with acute anxiety and that there appeared to be a genetic predisposition in relation to it. Reporting on the episode in early March, Dr Radajewski said, in my opinion it is more likely that the predisposing factors in Mr Napper’s current episode relate to work stressors in combination with worries regarding his family member’s health. He expresses the opinion that work related stress is a greater contributor component to Mr Napper’s overall presentation on this occasion than the personal factors. He also says, I do believe, however, that mounting work stressors are the most significant factor in Mr Napper’s presentation on this occasion as they were in December 2013.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Comcare also submits that the meeting on 3 March 2016, after which Mr Napper went home and was absent from work, was an event without which Mr Napper would not have suffered a disease for the purposes of the Act and that the meeting constituted reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. CONSIDERATION I accept that Mr Napper suffers a genetic predisposition to schizoaffective disorder which at times in his life results in a breakdown in his normal functioning. Most of the time he functions satisfactorily, and it was not until late in his life that he appears to have had the first breakdown. He suffered a stress related claim in 2012/13. On or about 3 March 2016 he suffered such a breakdown resulting in what was described as a relapse of the disorder. The evidence establishes that it is likely that this had been developing for some time since around the end of January. Mr Nolan suggested he take some time off and he took a week of leave. I am satisfied that the events (his email and his rudeness to a fellow employee) that occurred on or about 3 March 2016 were out of character and that at that time he was already suffering from the disorder and had been for some weeks. It follows that there is nothing in the argument that the action that took place on that day when he was told to go home and see a doctor was other than reasonable administrative action. The events of that day took place because of the disorder. The action taken by Ms Carder was entirely reasonable and appropriate. Her actions did not contribute to the disorder suffered by Mr Napper. I am satisfied that Mr Napper exaggerated the amount of work for which he was responsible. However he was a conscientious employee who according to Ms Carder occasionally worked outside of scheduled work hours including on weekends. She describes him as intense, discussed matters in significant depth, had difficulty letting things go, and dwelled on things. For example, concern over aging pumps or watering savings in parks. I am also satisfied that in late 2015 and early 2016 he was stressed by the responsibility of keeping the irrigation system functioning adequately in dry weather and in particular in Northbourne Avenue. Mr Nolan agrees that the system was no good… it was always a problem… The trees were dependent on the irrigation system. The government had already labelled the trees to have them removed, we didn’t see why we had to keep the irrigation going, it had excavators, sucker trucks, utes, people working on it all the time. It was not suggested to Mr Napper in his cross examination that he was told to let things slide or not to keep the system operating and I accept Mr Napper’s evidence that he was doing his best to ensure it functioned. Mr Nolan also agree that Mr Napper expressed concerns to him about the stress he was experiencing. I therefore accept that the dry weather, together with problems that resulted from the work being undertaken in Northbourne Avenue, were causing Mr Napper substantial stress.