O'Kane and Comcare

[2008] AATA 593

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 593

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2006/156

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHAEL O'KANE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date  9 July 2008

PlaceSydney

Decision The decision under review is affirmed.

....................SGD..........................

Ms N Bell
  Senior Member  

CATCHWORDS

WORKER’S COMPENSATION - Failure to obtain the benefit of future employment – does Applicant suffer adjustment disorder – psychological injury – dismissal – injury sustained – meaning of injury - decision under review is affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988; sections 4 and 41

CITATIONS

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Hart v Comcare (2005) 87 ALD 341

Lees v Comcare (1999) 56 ALD 84

REASONS FOR DECISION

9 July 2008 Ms N Bell, Senior Member

1.      Mr Michael O’Kane commenced employment with the Australian Hydrographic Service on 28 June 2004 on a non-ongoing contract.  This contract ceased on 23 September 2004, but Mr O’Kane was offered four further non-ongoing contracts, with the last of those to cease on 30 June 2005.

2.      On 7 June 2005, almost three weeks before Mr O’Kane’s last contract was due to expire, he had a meeting with Ms Deborah Coulls, a Manager at the Service, to discuss future work prospects.  At this meeting a further non-ongoing contract was not offered to him and instead he was offered a Professional Service Provider’s contract.  Mr O’Kane perceived this to be a less beneficial arrangement.

3.      Mr O’Kane contends that, in a further meeting on 15 June 2005 with Ms Coulls, he was dismissed and made to leave the building under escort. Comcare contends that Mr O’Kane threatened to absent himself for the remaining two weeks of his non-ongoing contract and left the building, and the Service, of his own accord.

4.      Mr O’Kane claims he suffered adjustment disorder as a result of events on 15 June 2005 and resulting incapacity and medical expenses.

Issues

5.      The essential issue is whether Mr O’Kane suffered an injury according to the definition of “injury” in section 4 of the Safety, Rehabilitation and Compensation Act 1988, that is, whether he suffered an injury or an aggravation that arose out of, or in the course of, his employment.  That definition expressly excludes an injury that was suffered as a result of the failure to obtain a benefit.

6.      Therefore, the three questions that arise in this application are:

i)         Whether Mr O’Kane sustained an injury (within the ordinary meaning of the word); and

ii)        If so, whether the injury arose out of or in the course of Mr O’Kane’s employment; and

iii)       If so, whether the injury resulted from a failure to obtain a benefit.

Did Mr O’Kane sustain an injury?

7.      Mr O’Kane gave evidence that immediately after his meeting with Ms Coulls on 15 June 2005 he went to see his local doctor because he was very distressed.  He said he was shaky, sweating profusely, nervous, agitated, uneasy, reclusive, withdrawn and lacking in confidence.

8.      Dr Robert Haik, Psychiatrist, in his report of 26 September 2006 diagnosed adjustment disorder which lasted for some months following the 15 June 2005 meeting.  He reported, and confirmed in oral evidence, that this diagnosis was no longer available once Mr O’Kane commenced employment again and resumed his previous social life.

9.      Comcare, however, contends that, notwithstanding Dr Haik’s expert opinion, Mr O’Kane did not suffer adjustment disorder and was not incapacitated for work during the remainder of his non-ongoing contract.  Comcare submitted that Mr O’Kane was, rather, anticipating a return to work opportunities that would be made available to him after he had lodged his compensation claim.  Comcare also referred to the activity Mr O’Kane engaged in, in pursuit of his legal rights as he saw them.

10.     Comcare also relied on the opinion of Ms Milne, Psychologist, whose report of 14 July 2005, it was submitted, suggests a person who is willing and able to work.

11.     I prefer the opinion of Dr Haik because, notwithstanding that Mr O’Kane was fixed on returning to work on terms acceptable to him, he was so distressed that he was significantly affected for a few months after the incident.  I note, in this regard, that Dr Haik considered that Mr O’Kane had not embellished or exaggerated his history and that he suffered “marked distress”.  I accept Mr O’Kane’s evidence that he was significantly impaired in occupational and social functioning for a short time following the incident.  I am satisfied that Mr O’Kane suffered adjustment disorder following the incident.  I am also satisfied that he no longer suffers from that condition and has not for some time. 

Did the injury arise out of or in the course of employment?

12.     Mr O’Kane submitted that the meeting with Ms Coulls took place within normal working hours, during the course of Mr O’Kane’s normal duties and initiated by Ms Coulls, his superior and therefore arose out of or in the course of his employment.  Mr O’Kane referred me to the decision of the High Court in Federal Broom Co Pty Ltd v Semlitch[1]  as authority for the proposition that “employment” should be broadly construed.

I note the dicta of Windeyer J:

“Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc.” (at p.633)

[1] (1964) 110 CLR 626

13.     Comcare submitted that the meeting on 15 June 2005 was about future employment and therefore not “in the course of” Mr O’Kane’s employment.

14.     I am satisfied that the meeting at which, according to Mr O’Kane, his adjustment disorder was caused, arose in the course of his employment.  He attended the meeting in response to an invitation from Ms Coulls and did so in the course of his duties and during normal working hours.  Were Mr O’Kane not employed with the Service at the time, the meeting would not have taken place and the subject matter discussed there would not have arisen.

Failure to obtain a benefit?

15.     It is common ground that Mr O’Kane’s non-ongoing contract was to cease on 30 June 2005 and that the purpose of the meeting with Ms Coulls on 15 June was to discuss an offer of further employment that Ms Coulls had made to him on 7 June.  Mr O’Kane’s version of what transpired at the meeting was that, after he had objected to his proposed rate of payment and said he intended to take the rest of his contract period as sick leave, Ms Coulls accused him of bullying her and became angry.  He said he calmly left her office and went to his desk, and that as he did Ms Coulls said “You’re finished” and then followed him, very close to his shoulder, in an attempt to provoke him.  He also said she spoke to the Deputy Security Officer, Mr Gillin, who was nearby and Mr Gillin asked him for his Defence Pass and escorted him from the building.

16.     Ms Coulls’ version of events was different.  She said Mr O’Kane became visibly upset and agitated when she said she could not offer him a higher rate of pay; that he threatened to take the matter to his solicitor and to his Member of Parliament and that he would take the remainder of his contract period as stress leave; that she stated he was trying to bully her and she withdrew the offer of further employment; and that he left her office very agitated and angry.  She said she followed him out to the area where his desk was, but at a distance of some paces, and spoke to Mr Gillin and asked him to escort Mr O’Kane from the office if he was leaving.  She said she then returned to her office.  She said she was upset by the encounter but did not raise her voice.  She did, however, lodge a complaint about Mr O’Kane’s conduct with her supervisor the next day.  She said she was frustrated and angered by the meeting with Mr O’Kane because she was offering him a chance of further employment and was surprised by the threats he made.

17.     Mr Gillin’s evidence was that both Mr O’Kane and Ms Coulls appeared to be upset when they left her office, that Ms Coulls told him that Mr O’Kane had decided to leave on that day and asked him to help Mr O’Kane gather his belongings and then he accompanied Mr O’Kane from the building after retrieving his pass.  He said Mr O’Kane was “somewhat abusive”, voicing expletives about the event as they walked from the office area to his car.

18.     Mr O’Kane characterised the incident as a dismissal.  Ms Coulls said Mr O’Kane had been offered a new, different employment contract, that he was critical of its terms, had stated his intention to leave the Service on stress leave and did so of his own accord.

19.     Mr Michael Prince, Director of Charting and Information Management, and Ms Coulls’ manager, explained that there are three “levels” of people working in the Service.  The first level is people who are permanent members of the Australian Public Service; the second is non-ongoing employees who are employed for a maximum of 12 months for a specific task on a contract basis with the approval of Maritime Headquarters and the third is Professional Service Providers who are hired for rates set under a standing offer with an employment agency.  The contract offered to Mr O’Kane by Ms Coulls was at this third level and had been directed and authorised by Mr Prince with no room for negotiation.  He said it was offered because approval had not been granted by Maritime Headquarters to offer Mr O’Kane a further non-ongoing contract.  He said the professional service providers’ contract was offered to him as a stopgap measure.

20.     I am satisfied, on the basis of the evidence of Ms Coulls, Mr Gillin and Mr Prince that as at 15 June 2005 Mr O’Kane’s non-ongoing contract had two weeks remaining; that approval to offer a further non-ongoing contract was not given by Maritime Headquarters; that, as an alternative, a professional service providers contract was offered to him by Ms Coulls with the approval of Mr Prince; that Mr O’Kane was unhappy with the terms of this contract;  that, when Ms Coulls told him the rate of payment could not be negotiated, he announced he would take leave for the remainder of his non ongoing contract period; and, after Ms Coulls commented that he was trying to bully her, Mr O’Kane moved to leave the office.  At Ms Coulls’ request, he was accompanied by Mr Gillin.

21.     This does not amount to dismissal.  It does, however, amount to a failure to obtain a benefit, the benefit being a rate of payment satisfactory to Mr O’Kane.

22.     Mr O’Kane submitted that the discussions with Ms Coulls on 7 and 15 June concerned the retention of a benefit, that is, his then current rate of payment, rather than a failure to obtain a benefit. He asserts that he was dismissed and it was this dismissal that gave rise to his adjustment disorder.  I have already concluded that Mr O’Kane was not dismissed.  The benefit discussed in the meeting was rate of payment under the non-ongoing contract that was shortly due to expire.  With that contract ending in two weeks, there was no scope for retention of that benefit beyond that time.  The benefit that was not obtained by him was a future rate of payment identical or higher than the rate of payment under his due to expire non-ongoing contract.  He failed to obtain that benefit.

23.     I note that Ms Milne, in her report of 14 July 2005, noted her surprise that, given the amount of humiliation Mr O’Kane said he felt, he was intent on returning to his pre-injury employment.  Dr Haik, in his report of 26 September 2006, after detailing the history given by Mr O’Kane, said:

“There is no doubt that the critical issue here is Mr O’Kane’s reaction to being offered less money than he previously received.  He was offended.”

24.     Both Mr O’Kane’s willingness to return to the Service and his presentation to Dr Haik support the conclusion that he was most concerned with his rate of payment and other terms of employment beyond 30 June 2005.  I consider that his failure to obtain a continuation of his current rate of payment materially contributed to his adjustment disorder.  It was the “critical issue”, according to Dr Haik.  The continuation of his current rate of payment was a benefit that he failed to obtain. It follows that Mr O’Kane’s adjustment disorder resulted from a failure to obtain a benefit.  It further follows that Mr O’Kane’s adjustment disorder is excluded from the definition of “injury” and Comcare is not liable to pay him compensation.

decision

25.     The decision under review is affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member

Signed:         ...............................SGD......................................................
  Associate: Felicia Daniele

Date/s of Hearing  21 & 22 April 2008
Date of Decision  9 July 2008
Solicitor for the Applicant          Self-Represented
Counsel for the Respondent       Mr M Gollan
Solicitor for the Respondent       Sparke Helmore