NJCX and Comcare (Compensation)

Case [2024] AATA 1560

NJCX and Comcare (Compensation) [2024] AATA 1560 (7 June 2024)

DIVISION:GENERAL DIVISION

2020/6640File Number:          

Re:NJCX  

APPLICANT

ComcareAnd  

RESPONDENT

DECISION

Tribunal:Mr S. Webb, Member

Date:7 June 2024

Place:Canberra

The decision under review is affirmed.

......................[SGD]..................................................

Mr S. Webb, Member

Catchwords

WORKERS COMPENSATION – compensation claim – employment by licensee in senior management position – probationary period – history of psychiatric disorders – depression and anxiety – ‘ailment’ – multifactorial stressors – allegations of workplace bullying, harassment and unfair treatment ­– work stress – interpersonal tensions – performance issues – summary termination of employment – ‘disease’ threshold – meaning of ‘significant degree’ – allegation of contemporaneous symptoms not independently corroborated – termination of employment contributed to ailment to a significant degree – ‘disease’ resulted from reasonable administrative action undertaken in a reasonable manner in respect of the employee’s employment – wilful and false representation – exclusion from ‘injury’ applies – decision affirmed

JURISDICTION – scope of compensation claim – construction of claim – conjunctive description of condition under claim partially obscured – claim to be construed broadly on basis of accompanying documents – second condition under claim capable of determination by Comcare ­– power of decision maker to determine liability for all claimed conditions able to be exercised by reconsideration decision maker ­– Tribunal has jurisdiction

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) ss 25, 43

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7, 14, 53, 54, 60, 61, 62, 64

Safety, Rehabilitation and Compensation Regulations 2019 (Cth) ss 11A

Cases

Abrahams v Comcare [2006] FCA 1829

Comcare v Drinkwater [2018] FCAFC 62

Comcare v Lofts [2013] FCA 1197

Comcare v Martin [2016] HCA 43

Comcare vMooi[1996] FCA 1587

Comcare v Stewart [2019] FCA 365

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Frosch v Comcare [2004] FCA 1642

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Fuad and Telstra Corp Ltd [2004] AATA 1182

Griffiths v Australian Postal Corporation [2018] FCA 520

Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

National Bank of Australia v Georgioulas [2013] FCA 1412

Telstra Corporation Ltd v Kotevski [2013] FCA 27

Wuth v Comcare [2022] FCAFC 42

REASONS FOR DECISION

Mr S. Webb, Member

5 June 2024

  1. The Applicant, NJCX, lodged a claim for compensation in respect of an alleged psychological injury in employment by the Australian Rail Track Corporation (ARTC). NJCX alleges the claimed injury resulted from circumstances in the ARTC employment, including alleged harassment, bullying, unfair treatment, lack of resources and supports, sudden termination of the employment and the manner in which the termination was undertaken. Comcare rejected the claim by primary determination and on reconsideration. NJCX applied for review of this decision by the Tribunal.

  2. The application has been attended by unfortunate delays, partly due to NJCX’s circumstances and lack of legal representation. I recognise the difficulties a person faces when representing themselves in…

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Details
AGLC
NJCX and Comcare (Compensation) [2024] AATA 1560
Case
[2024] AATA 1560
Decision Date

CaseChat Overview and Summary

This matter concerned a compensation claim brought by NJCX against Comcare. NJCX, who was employed by Accenture in a senior management role, alleged that they suffered an 'ailment' due to multifactorial stressors in the workplace, including allegations of bullying, harassment, unfair treatment, interpersonal tensions, and performance issues, culminating in the summary termination of their employment. The Administrative Appeals Tribunal was required to determine whether NJCX's condition constituted a 'disease' for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth), and whether the termination of employment contributed to the ailment to a significant degree.

The Tribunal was also tasked with considering whether the ailment resulted from reasonable administrative action taken in a reasonable manner in respect of NJCX's employment, which would exclude it from the definition of 'injury'. Furthermore, the Tribunal had to determine the scope of the compensation claim, specifically whether a partially obscured conjunctive description of the condition under the claim could be broadly construed based on accompanying documents, and whether the decision-maker had the power to determine liability for all claimed conditions.

The Tribunal reasoned that the term 'ailment' encompassed a broader range of conditions than 'disease', and that the evidence, including the report from Dr Joseph Dunn, indicated that NJCX suffered from an adjustment disorder. While the psychiatrist noted that NJCX did not appear overtly depressed, the Tribunal found that the termination of employment contributed to the ailment to a significant degree. Crucially, the Tribunal determined that the actions taken by Accenture did not constitute reasonable administrative action taken in a reasonable manner, and therefore the exclusion did not apply. Regarding the claim's scope, the Tribunal held that the claim should be construed broadly, and that the decision-maker had the power to determine liability for all claimed conditions.

The Tribunal affirmed the decision of Comcare.

Orders

Orders of the court

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Background

Background to the litigation

A great deal of latitude has been allowed for this reason to ensure NJCX has a reasonable opportunity to present their case: to ask questions, to adduce and test relevant evidence, and to make submissions. The assistance helpfully given in this regard by Ms Bortone, counsel for Comcare, is noted. Facts The following findings are made on the evidence, applying the reasonable satisfaction standard. In 1978, NJCX was born in Poland. In 2002 and 2003, NJCX obtained tertiary qualifications in engineering and international supply chain management.[1][1] T28, folio 77. Subsequently, NJCX obtained employment in procurement. From 2004 to 2006, NJCX was employed by KLB Group as a Purchasing Consultant. From 2006 to 2010, NJCX worked for McKinsey and Company as an Associate. From 2010 to 2011, NJCX was employed by Kurt Salmon Associates in the role of Manager.[2] On 10 May 2011, NJCX was offered employment in Sydney by Accenture in the role of Manager in the Global Markets and Management Consulting Growth Platform.[3] [2] Ibid.[3] Exhibit 1, page 1638. In June 2011, NJCX entered Australia under a Temporary Work (Skilled) 457 visa sponsored by Accenture. NJCX signed a contract of employment with Accenture on 18 July 2011.[4][4] Ibid, page 1649. NJCX gave evidence of experiencing difficulties with a senior manager in that employment. On 14 January 2013, NJCX consulted Dr Sue Rowley (then treating general practitioner). Dr Rowley noted NJCX was very stressed as a Project Leader/”15 hour days etc’ self Rx – Panadol only.[5] NJCX was certified unfit for work from 30 September 2013.[6] [5] Ibid, page 1391.[6] Ibid, pages 1650 and 1651. NJCX was referred by Dr Rowley to Dr Joseph Dunn, a consultant psychiatrist. Dr Dunn was not called to give oral evidence. It appears Dr Rowley recommended consideration be given to hospitalisation for NJCX. NJCX initially consulted Dr Dunn on 1 and 8 October 2013, and from time to time thereafter. On 10 October 2013, Dr Dunn reported:[NJCX] recalls having seen either a psychologist or a psychiatrist in Paris 7 years ago at the end of a problematic relationship. [NJCX] does not recall having being [sic] prescribed any medications at that time.…[NJCX] identified with symptoms of anxiety and anger. [NJCX] was not so convinced that [NJCX] was experiencing symptoms of depression, and seemed to be reasonably euthymic, although clearly troubled and offended, in the mental state examination. When I asked [NJCX] to complete the BECK depression inventory, however, [NJCX] seems to have become lost in the fine detail of that and find it difficult to accurately respond perhaps that was a manifestation of some obsessional personality traits.…… I have still failed to obtain from [NJCX] a clear personal and developmental history. [NJCX] relates, quite notably, in an intense way. I do not, however, think [NJCX] is overtly depressed…I noted, however, that there were a few passing comments that concerned me about whether [NJCX] was tipping into a paranoid psychotic state. [NJCX] spoke, for example, about [their] experience of “indirect psychological pressure” to leave the company and some interactions that appeared to have a “hidden meaning”. When I tried to pursue a further investigation of whether [NJCX] had actually tipped into a paranoid psychotic state, however, I could not establish evidence of this.At the heart of it, therefore, [NJCX] probably attracts a “default” diagnosis of a chronic adjustment disorder. I do not think, however, that [NJCX’s] psychiatric diagnostic formulations account well for patients who present in this way. Beneath any anxiety are their most powerful driving emotions which are a combination of anger and helpless injustice….Patients who present like this will often spend time and energy trying to get a vindication or “proof” of their victimhood….…I do not think that any psychotropic medication is indicated at present but I would be happy to review that impression as time unfolds, particularly if evidence emerges either of a significant depressive or psychotic state…[7][7] Ibid, pages 1383-1384.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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