Pedersen and Comcare (Compensation)
[2016] AATA 449
•30 June 2016
Pedersen and Comcare (Compensation) [2016] AATA 449 (30 June 2016)
Division
GENERAL DIVISION
File Number(s)
2014/1883 & 2014/4741
Re
Pedersen
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal A G Melick AO RFD SC (Deputy President)
Date 30 June 2016 Place Hobart The Tribunal affirms the decisions dated 20 March 2014 and 8 July 2014.
........................................................................
A G Melick AO RFD SC (Deputy President)
CATCHWORDS
COMPENSATION - whether disease significantly contributed to by Applicant’s employment – whether arising from employment - whether ‘reasonable administrative action’
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988
CASES
Wiegand v Comcare[2002] FCA 1464
Telstra Corporation Ltd v Bowden [2012] FCA 576Humphrey Earl Ltd v Speechley (1951) 84 CLR 133
O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000
Lynch and Comcare [2010] AATA 38Radulovic and Comcare [2010] AATA 777
Commonwealth Bank of Australia v Reeve [2012] FCA FC 21
Rutledge and Comcare [2011] AATA 865
Drenth and Comcare [2011] AATA 582
KRDV and National Australia Bank Limited [2011] AATA 210Hart v Comcare (2005) 145 FRC 29
Hunt and Comcare [2013] AATA 931
Comcare v Martinez (No 2) [2013] FCA 439
Kaloudis and Comcare [2009] AATA 892Ferguson and Commonwealth Bank of Australia [2012] AATA 718
Katherine Von Stieglitz v Comcare[2010] AATA 263
Jones and Comcare [2013] AATA 334
Wiegand and Comcare [2010] AATA 790
Federal Broom Company Pty Ltd v Semlitch (1964) 40 CLR 626
Re JQWK and Comcare [2013] AATA 830
Long v Comcare [2016] FCA 737 at [20] to [24]
Re Prain and Comcare [2014] AATA 593REASONS FOR DECISION
A G Melick AO RFD SC (Deputy President)
The Applicant joined (what is now) Centrelink in April 1991 and developed Post Traumatic Stress Disorder (PTSD) in the context of workplace events with her last aggravation, which was accepted by Comcare, occurring in February 2012.
Also accepted by Comcare in 2010 was a ‘shoulder injury’ and these injuries are related to her ongoing psychological problems.
On 16 April 2013:
(a)The Applicant learned from her Comcare Case Manager that her claim for her shoulder injury was going to be declined (on the basis of an IME stating that she was ‘faking it’);
(b)The Applicant telephoned her Rehabilitation Case Manager, Ms Cushion;
(c)The Applicant and the rehabilitation provider discussed the implications of the declinature of her claim;
(d)The rehabilitation provider reportedly told the Applicant it was likely that she would be returned to ‘normal duties’;
(e)The Applicant understood this to mean that it was likely she would be exposed to clients again and that she would be placed back in an unsafe situation (including having to leave at a time when there were fewer employees at the workplace);
(f)The Applicant became ‘panicked’ at the prospect of this and decompensated psychologically;
(g)It is agreed by all medical examiners that the Applicant’s fears of being returned to pre- (original) injury duties played a significant role in the ‘aggravation’ of her PTSD;
(h)At the time these events occurred the claimant was performing suitable duties [i.e. no face to face clients; answering telephone calls on an ad hoc basis; working 20 hours per week] and these had been her pre-injury duties.
The Applicant has not worked in any capacity since 16 April 2013 and now seeks a review of the decision rejecting her claims pursuant to ss16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
The matter was heard on 5, 6 and 8 October 2015 with additional information being provided on 3 and 4 December 2015 and again on 25 February 2016.
It was agreed between the parties that:
(i)The Applicant suffers from Post-Traumatic Stress Disorder (PTSD) as a consequence of various incidents that have occurred in the course of her employment by the Commonwealth;
(ii)The Applicant’s PTSD is a “disease” for the purpose of s 5B and an” injury” for the purpose of s 5A of the SRC Act; and
(iii)The Applicant suffered an aggravation of her PTSD as a result of the events on 16 April 2013 (the April aggravation). I note that the consulting psychiatrists for each party were agreed as to this, although differing as to the psychiatric diagnosis to be given to the condition.
ISSUES
The remaining issues to be determined as set out in the Respondent's submissions were common ground between the parties:
(a)Can the administrative actions of the Respondent be characterised such that those actions amounted to a contribution to the aggravation of the condition “by the employee's employment” for the purposes of section 5B of the SRC Act?
(b)If so, do the administrative actions amount to being “reasonable administrative actions taken in a reasonable manner in respect of the employees employment” for the purposes of section 5A of the SRC Act and more particularly sub-paragraph 5A(2)(f)?
BACKGROUND
On 21 November 2012 the Applicant, born 19 April 1969, claimed compensation in respect of anxiety/PTSD (PTSD). The Applicant has, however, had the following claims also accepted by the Respondent as compensable:
Date of Claim
9 December 1993
Condition/Injury Claimed
An episode of severe anxiety
5 September 1994
An episode of PTSD for the period 5 September 1994 to
4 October 1994
14 April 2000
Neck sprain
28 March 2004
PTSD
12 October 2010
Supraspinatus muscle tendon strain (left)
18 January 2013
PTSD (date of injury 27 February 2012)
EXPANDED RELEVANT FACTS
I agree with the Respondent’s summary of the facts as follows:
The Applicant commenced employment with the then Department of Social Security on 15 April 1991.
In December 1993 in the course of her employment she was involved in an incident where a client threatened to harm her and also had begun to make threatening phone calls to her at home.
In September 1994 in the course of her of employment she witnessed an incident where a client went “ballistic” causing damage to the office and threatening to kill the Applicant.
In 2000 the Applicant was transferred into a new position of “personal adviser” and she alleges that at times she found this position distressing.
On 25 March 2004 the Applicant seemingly suffered a panic attack when at the Launceston Mall alleging, she recalls, that some months prior to this incident witnessing one of her clients involved in a brawl at the same location. On 26 March 2004 while driving to work the Applicant alleges that she felt unable to breathe and after working for a short period of time suffered a further panic attack and was subsequently certified unfit for work until 13 April 2004.
About the end of 2006 the Applicant’s duties were permanently restricted from requiring her to undertake face to face contact with Centrelink clients.
The Applicant further alleges that between 2007 and April 2013 she had increasing difficulties with her “psychological condition and her employment”. Moreover, the Applicant alleged on 6 February 2012 she heard about an incident where a client attended the Centrelink Launceston office and threatened to return with a gun. As a result of hearing of this incident and the subsequent response by Centrelink the Applicant says she suffered from increased anxiety, hyper-vigilance, felt frightened to walk near the Centrelink building and had difficulty concentrating and suffered fear at work.
In late November 2012 she made a claim for compensation in respect of the incident of February 2012. Consultant Psychiatrist, Dr Rhonda Dotson, diagnosed her as suffering from an adjustment disorder with Anxiety that was related to the stressful nature of the Applicant’s employment involving ongoing threats and unpleasantness and remained affected by the symptoms associated with those stresses and would remain so until she was removed to another position or with another employer. The Applicant evidently was moved to another section of Centrelink away from contacts with clients, other than outbound ad hoc telephone contact with Centrelink clients.
On 16 April 2013 the Respondent issued a notice to the Applicant of its intention to determine that there was no present liability to continue to pay her compensation. The notice concerned the Shoulder Injury of 12 October 2010. That claim was reviewed following the receipt of the report from Dr Andrew Hanusiewicz, Orthopaedic Surgeon. His opinion was that whatever painful condition the Applicant had suffered as a consequence of the Shoulder Injury in the past she had made a full recovery and that there was no other pathology in her cervical spine or shoulder to account for the symptoms complained of and particularly the severity of those symptoms.
Dr Jennifer Barker’s clinical note in respect of the Applicant’s attendance of 16 April 2013 relevantly records: “Comcare have cancelled shoulder claim (sic) alleging that she’s faking it … Stressed to the max. Has flared anxiety.”
On 24 April 2013 Dr Barker reported that in her opinion a significant component to the Applicant’s pain relates to the ‘chronic anxiety/PTSD’ that she has suffered and that there was no doubt in her mind that increasing stress resulted in increased muscle tension associated with increased pain. She noted that the Applicant’s shoulder pain would have resolved a long time ago but for the chronic stress at work and the delay in receiving approval from the Respondent for psychological therapy. Dr Barker noted that the “decision by Comcare has dramatically worsened her chronic anxiety/PTSD as she fears that she will be required to return to previous duties that involved contact with clients.”
On 15 August 2013 Dr Scott Chambers, Consultant Psychiatrist, reported to Centrelink as to the initial circumstances that gave rise to the diagnosis of PTSD, in his opinion, continued to impact on the Applicant’s work capacity.
In a report dated 21 October 2013 rehabilitation providers, ORS Group, state:
“Ms Pedersen has not worked since the 16/4/13 when she was informed that Comcare were stopping her shoulder claim. Ms Pedersen stated that this resulted in her feeling stressed and upset to the point that she attended an appointment with Dr Barker that day…The ORS Group attended the doctor’s appointment on the 23/4/13 with Mrs Pedersen and Dr Barker. At this appointment Mrs Pedersen was visibly upset by Comcare cancelling her shoulder claim. She reported that she was stressed and upset by Comcare cancelling the claim.”
In a subsequent report of 16 January 2014 Dr Barker reported relevantly that on 16 April 2013 the Applicant presented to her in a very distressed state and that she was so distressed she had no hesitation in putting her off work on the basis of “a flare up her chronic anxiety/PTSD”. Moreover, when seen on 23 April 2013 the Applicant was still very distressed and felt sick at the prospect of a full return to work at Centrelink. Dr Barker noted that the Applicant felt “totally betrayed by the system despite having made a considerable effort to get back to work”. Dr Barker concluded that in her view she did not believe it was appropriate for the Applicant to ever work at Centrelink again.
RELEVANT SPECIALIST MEDICAL OPINION
On 19 December 2014 Dr Ian Sale, having had the opportunity to examine the Applicant at the request of the Respondent on 22 October 2014 and 3 December 2014, stated:
“There has been an aggravation in the sense that, following communications from Comcare by telephone and letter during early 2013, there was an aggravation of Ms Pedersen’s symptoms that caused her to be regarded by her GP as incapacitated… She has not worked for DHS since receiving advice from Comcare about how her claim for a shoulder injury had been disallowed. Although there is a long history involved in Ms Pedersen’s condition, it appears to be the most significant factor causing incapacity over the last 20 months or so… The recent total incapacity for work for DHS, which is now of about 20 months duration, arises out of Comcare informing Ms Pedersen that her shoulder injury claim had been disallowed.”
Relevantly Dr Kaplan at the request of the Applicant examined the Applicant on 30 June 2014 providing his report of 7 July 2014 to her solicitors Slater and Gordon. The thrust of the opinion provided by Dr Kaplan is that following the incident of February 2012 and upon her returning to work the Applicant was struggling and was in constant fear while she was at work. That she would feel the need to hide in the disabled toilet at work to calm herself down.
Notwithstanding that the Applicant was able to return to some form of regular employment of a part-time nature, she informed Dr Kaplan that she still felt intensely fearful and anxious and struggled to remain at work. He notes that in April 2013 the Applicant received a telephone call from her Comcare case manager who allegedly informed her that her physical injury was “imagined and not genuine” stating to Dr Kaplan that she was “devastated” by this discussion because “every day I was struggling….”
Moreover, the Applicant evidently told Dr Kaplan that she feared that the rejection of a claim would force her to increase her hours to a normal 25 hours a week (she was working 20 hours per week at that stage) and that she would also be required to have contact with Centrelink clients; and that she held fears of having to work longer hours as a result of having to leave her office later on some occasions when there were fewer staff around then and she would feel vulnerable.
Dr Kaplan indicated that the Applicant had developed PTSD as a result of the traumatic experiences to which she was subjected to in 1993 and 1994. That in his opinion her condition has never resolved and the numerous stresses she experienced in the course of her work over the years had served to maintain and reinforce her condition. That she experienced ongoing anxiety and at times had been depressed, and she continued to have greatly diminished capacity to cope with stress and pressure. She continues to have intrusive thoughts, flashbacks and recurring nightmares and she describes sleep and appetite disturbance, loss of libido, difficulties with memory and concentration, increased arousal, and avoidance symptoms. She has a dread of returning to work at Centrelink and of having contact with clients and indeed of working with DHS.
Dr Kaplan considered that given the long duration of the Applicant’s psychiatric condition and the numerous aggravating experiences over the years that her prognosis is likely to be unfavourable and the condition is likely to persist for prolonged and probably at least to some extent an indefinite period of time. He noted that she had been incapacitated for work at times over the years that have required time off work. Moreover, noting that she claims that she has been incapacitated for work since April 2013 as a result of her psychiatric condition.
In a subsequent report dated 5 February 2015 Dr Kaplan having been provided with a statement from the Applicant dated 2 February 2015; and with a copy of Dr Sale’s report dated 19 December 2014, he again indicated that he considered that the Applicant’s incapacity for work commencing April 2013 was caused by PTSD.
He did, however, accept at paragraph 3 of his report that the Applicant suffered from an aggravation of the PTSD condition in April 2013. That she had been vulnerable for a number of years as result of this condition and has at times had absences from work as a result of this vulnerability and allegedly further various unspecified work stresses. He noted that the stressful experience in April 2013 was perceived by the Applicant as another attack and occurred in the context of her PTSD and her underlying vulnerability and intense anxiety and effectively represented “the last straw” and that she had been, in any event struggling at work. Moreover, Dr Kaplan considered that the aggravation suffered by the Applicant in April 2013 had not ceased and she would in consequence remain in an emotionally fragile state suffering a range of symptoms as described in his report.
LEGISLATIVE FRAMEWORK
The SRC Act ‘provides rehabilitation and workers’ compensation to employees covered by the scheme for a work related injury.’ It is beneficial legislation and interpreted accordingly.
Section 14(1) of the SRC Act provides for compensation for injuries suffered by employees of the Commonwealth, Commonwealth authorities or licensed corporations. It provides as follows:
“14(1) 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.[1]”
[1] impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
The required connection between a psychological condition suffered by an employee and his or her employment is provided for indirectly via the definitions of “injury” and “disease”:
S5A (1) defines Injury. Injury means:
(a) a disease suffered by an employee [as defined in s5B]; 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 employment) that is an aggravation that arose out of the employee’s 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 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 para (a) (b) (c) or (d); and
(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.
Section 5B Definition of disease
5B. (1) In this Act:
disease means:
(a)an ailment[2] suffered by an employee; or
[2] Ailment is defined in s4(1) of the SRC Act to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development): “aggravation” is defined so as to include an “acceleration or recurrence”.
(b)an aggravation of such an ailment
that was contributed to, to a significant degree by the employee’s employment by the Commonwealth or a licensee.
Subsection 5B(2) relevantly provides a structure for determining whether an ailment or aggravation was contributed to, to a significant degree by the employee’s employment:
In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
Further s5B(3) – In this Act, significant degree means a degree that is substantially
more than material.Section 6 states:
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(b) while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or
…
APPLYING THE ACT
In considering Comcare’s liability for compensation, Comcare must take the employee as it finds her, that is, with any pre-existing vulnerability to injury that the employee might have: Wiegand v Comcare [2002] FCA 1464, Federal Broom Company Pty Ltd v Semlitch (1964) 40 CLR 626 and Fellowes v Military Rehabilitation and Compensation Commission (2008) 170 FCR 531 at [33]. Hence I must consider the effects of the April aggravation upon the Applicant taking into account her pre existing conditions.
POSSIBLE DRAFTING ISSUES
s5A(1)(c) refers to “…arose out of the employee’s employment;” and s5B(2)(b) refers to “…contributed to a significant degree by the employee’s employment by the Commonwealth….”.
I can see no reason to import an intention by Parliament to import two different tests for each of the above subsections, but as there are differences that may be extrapolated by some of the case law I set out some relevant decisions.
ARISING OUT OF EMPLOYMENT
In Telstra Corporation Ltd v Bowden [2012] FCA 576 Murphy J stated at [32] to [39]:
…..The test as to whether an injury arises out of employment
[32] The words “arising out of employment” in subs 5A(1)(c) have their origin as part of the phrase “injury by accident arising out of and in the course of employment” in early workers’ compensation legislation in England and Australia. This phrase imposed two conditions before an injury could be compensable under the legislation. Because of the double condition the old authorities require both a temporal connection to employment through the words “in the course of” employment, and a causal connection through the words “arising out of” employment: see for example Dover Navigation Co Ltd v Isabella Craig [1940] AC 190 (“Dover Navigation”) at 199 per Lord Wright.
[33] The conjunctive “and” was removed and replaced by the disjunctive “or” in an amendment in 1948 to the Commonwealth Employees Compensation Act 1930 (Cth) (see the Commonwealth Employees’ Compensation Act 1948 — No 61 of 1948) which is the predecessor to the Act in this case. Since this amendment, for an injury to be compensable it has only been necessary for an employee to establish either that the injury arose out of employment or that it arose in the course of employment.
[34] Although only the “arising out of” employment limb of the double condition test is directly relevant in this case, the old authorities on the double condition test remain useful for the light they throw on the tests needed to meet the “arising out of” limb considered on its own. They are also useful in the guidance they provide as to the meaning of “employment” in the phrase “arising out of employment”.
[35] That the phrase “arising out of employment” requires a causal connection between the injury and employment is common ground.
[36] It is important to remember that the test of causation is one of common sense: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. In Migge v Wormald Bros Industries Ltd[1972] 2 NSWLR 29 at 44 Mason JA (in dissent) noted:
… causation in tort does not differ from causation under the workers compensation legislation. In that field and in cases concerning liability for personal injury it has been emphasised repeatedly that questions of causation are to be resolved by the application to the facts of the case of common sense, rather than scientific or logical theories of causation.
The judgment of Mason JA was endorsed by the High Court on appeal: Migge v Wormald Bros Industries Ltd (1973) 47 ALJR 236.
[37] In a passage approved by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 (“Law”) per Aickin J at 647–648, with whom Gibbs, Stephen and Mason JJ agreed, the Full Court in Repatriation Commission v Law (1980) 47 FLR 57 said at 68:
“It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be “immediate”, “direct” or “proximate” or by saying it connotes a “real”, “sole” or “dominant” cause.
…
The expression “arisen out of” is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description “arising out of”.
What is required for an injury to arise out of employment is a causal connection which is less proximate than “caused by” or “results from”, but not a connection which is fanciful or tenuous.
[38] It is also important to remember that it is well settled that the purpose of the Act is remedial and is intended to give rights to employees. The appellate courts have repeatedly taken an approach to the provisions of the legislation which is generous to employees.
[39] Consistently with this, the authorities are clear that employment is not to be narrowly construed. “Employment” when used in the statutory definition of injury covers things belonging to or arising out of it: St Helens Colliery v Hewitson [1924] AC 59 at 71 per Lord Atkinson. In an often repeated statement, in Thom v Sinclair 1917 AC 127 (“Thom”) at 142 Lord Shaw noted that:
“The expression in my opinion, applies to the employment as such — to its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute “arising out of employment” apply.”
In Kavanagh v Commonwealth (1960) 103 CLR 547 (“Kavanagh”), Dixon CJ noted at 556 that the words require “a causal connection between the employment or its incidents”.
BY THE EMPLOYMENT
Dixon J in Humphrey Earl Ltd v Speechley (1951) 84 CLR 133 said:
“the question of whether it occurs in the course of employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorised to do in order to carry out his duties.”
To be in the course of employment the events must occur ‘while the employee is doing something which is part of or incidental to his service’[3]; or put alternatively, ‘ while the worker is engaged in work which he is employed to do or in something incidental to that work’.[4]
[3] Whittingham v the Commissioner of Railways (WA) (1931) 46 CLR 22 per Dixon J at 29
[4] Kavanagh v the Commonwealth (1960) 103 CLR 547 per Fullagar J at 559
In O’Loughlin v Linfox Australia Pty Ltd [2015] FCA 1000 Bromberg J stated at [39] – [41]:
A number of cases have considered the second aspect of that test, that is, what is “something incidental to that work”. In Whittingham, Dixon J said (at 29) that that which is incidental to a worker’s work depends upon the sufficiency of the connection between the employment and the thing done by the employee, which is a matter of degree, in which time, place and circumstance, as well as practice, must be considered, together with the conditions of the employment. As Stephen J identified in Bill Williams Pty Ltd v Williams (1972) 126 CLR 146 at 159, it is a consideration of those factors that determines whether or not a worker has sustained his injury while engaged in something incidental to his work. It is apparent from what was said at 478–9 of Hatzimanolis that the majority was setting down an organizing principle for determining when, in the context of an Interval, an injury was sustained while doing something incidental to employment:
Incidence of service, however, is not a principle the application of which will determine whether the injury was sustained in the course of employment; it is a conclusion. When a tribunal concludes that a worker sustained injury while doing something incidental to his or her employment, it records a result which must have been reached, consciously or unconsciously, by reference to some principle or standard which leads to that result. Furthermore, while the matters to which Dixon J. referred in Whittingham must be examined for the purpose of determining whether an injury was sustained in the course of employment, those matters do not automatically determine that question. Without the assistance of an organizing principle, a tribunal of fact cannot know which of them is or are determinative.
[40] The majority went on to identify a number of subsets of the overarching concept of “incidental to employment.” It observed (at 479) that Australian courts had almost invariably applied the test formulated by Dixon J in Henderson v Commissioner of Railways (Western Australia) (1937) 58 CLR 281 when called upon to determine “whether an injury occurring during intervals between work was sustained ‘in the course of employment’” (emphasis added). It stated (at 483) that an injury is “more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work” (emphasis added), and gave examples of the two kinds of interval. In that context, it laid down (at 484) the organizing principle that it had set out to establish: “Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way.”
[41] Hatzimanolis was thus concerned with quite a limited area. The “course of employment” comprises duties and things incidental thereto. Hatzimanolis was concerned only with the latter. “Things incidental thereto” can include things occurring in intervals between two periods of work and intervals within an overall period of work. Hatzimanolis was only concerned with the latter. Hatzimanolis said only that if the test set out at 484 is fulfilled, then an injury sustained in an interval within an overall period of work will have been sustained during something incidental to the employee’s work, and therefore in the course of employment.
His Honour summarised the ‘Hatzimanolis principle’[5] thus:
[21] An employee who resided in New South Wales obtained a position with his employer at Mt Newman, a remote mining town in the Pilbara in Western Australia. He was told he would work in the area of Mt Newman for about three months and would be required to work on some Sundays. On the third Sunday after the employee commenced work, he and other employees joined an employer-organised trip to see the scenic Wittenoom Gorge. Whilst on their journey, the employer-provided vehicle overturned and the employee was seriously injured. The employee claimed workers’ compensation. The issue before the High Court in Hatzimanolis was whether the employee’s injury was sustained “in the course of employment”.
[22] In considering that issue, the majority (Mason CJ, Deane, Dawson and McHugh JJ) recognised (at 478) that the course of employment of an employee “is not identical with the period of employment of a worker or with the work which that person performs”. Informed by observations made by Dixon J in Whittingham v the Commissioner of Railways (WA) (1931) 46 CLR 22 at 29, the majority stated that the course of employment covered more than the actual work performed by an employee and that it had long been recognised that it extended to the incidents of service. As the majority observed at 478–479, whether something done was an incident of service is a conclusion, rather than an “organizing principle” that would be of assistance in determining whether an injury not sustained during actual work was nevertheless sustained in the course of employment. Accordingly, after a discussion of the authorities, the majority formulated this principle (Hatzimanolis principle), at 484:
“Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment “and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”. (citations omitted)
[23] It is necessary to explain what the majority meant by “an interval or interlude within an overall period or episode of work“. The meaning is apparent from the discussion at 483. The majority spoke of an interlude or an interval as a break occurring between two periods of actual work. Their Honours recognised that an interval between two periods of work can occur within a discrete working period such as that occurring between an employee’s daily starting and finishing times. Tea breaks and lunch breaks were given as examples of interludes or intervals occurring within an “overall work period”. It was also acknowledged that an interval between two periods of work could be the break between the end of one working day and the commencement of the next. Such an interval would not ordinarily be perceived as occurring in the course of employment. However, the majority recognised that in some cases (“where an employee is required to embark upon some undertaking for the purpose of his or her work in circumstances where, notwithstanding that it extends over a number of daily periods of actual work, the whole period of the undertaking constitutes an overall period or episode of work”), an interval between two days of work may occur within an “overall period or episode of work“.
[5] See Hatzimanolis v ANI Corporation Ltd. [1992] HCA 21
His Honour also made clear that the principle in Hatzimanolis does not apply generally: [6]
Hatzimanolis was thus concerned with quite a limited area. The “course of employment” comprises duties and things incidental thereto. Hatzimanolis was concerned only with the latter. “Things incidental thereto“ can include things occurring in intervals between two periods of work and intervals within an overall period of work. Hatzimanolis was only concerned with the latter. Hatzimanolis said only that if the test set out at 484 is fulfilled, then an injury sustained in an interval within an overall period of work will have been sustained during something incidental to the employee’s work, and therefore in the course of employment.
Hatzimanolis was not expanded in Comcare v PVYW [2013] HCA 41 and against the background of the above cases there are several decisions which clarify whether an injury arises out of a person's employment or was contributed to…by the employee’s employment.
[6] See [40] - [41]
Firstly in Federal Broom Company Pty Ltd v Semlitch (supra), it was noted that employment is concerned with what the employee actually does and not the mere fact of being employed.
In Prain and Comcare [2014] AATA 593 this Tribunal rejected the proposition that injury sustained whilst injured travelling for medical treatment, even when funded by the Respondent, was an injury arising out of the Applicant’s employment.
The Tribunal held that the ATO (her employer) had not made any significant contribution to her injury, rather her injury was caused by ComSuper which was an entirely separate and independent agency unrelated to the ATO:
“Section 5B requires that a disease be contributed to ‘to a significant degree’ by the employee’s employment… such a determination requires an objective assessment of the actions of the employer… the actions of CompSuper cannot be attributed to Ms Jones employment with the ATO … The ATO was merely a participant in the process providing guidance and advice to its employee… it was not Mr Hunter’s role to assess whether the medical practitioners engaged by ComSuper were appropriately qualified in accordance with the guidance notes. The actions of any of ComSuper’s employees or medical practitioners independently engaged by ComSuper cannot be attributed to the ATO.”
That contribution may also be a matter of perception. As Von Doussa J opined in Wiegand v Comcare (supra) at [31]:
… it was open on the evidence for the Tribunal to hold that one or more of the incidents or states of affairs about which Mr Wiegand raised complaint in the course of his evidence contributed in a material degree to an aggravation of the depressive disorder suffered by Mr Wiegand. For that to be the case there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee, or the employee’s perception of it, is one which passes some qualitative test based on an objective measure of reasonableness. If the incident or state of affairs actually occurred, and created a perception in the mind of the employee (whether reasonable or unreasonable in the thinking of others) and the perception contributed in a material degree to an aggravation of the employee’s ailment, the requirements of the definition of disease are fulfilled.
In Re Jones and Comcare [2013] AATA 334 an ATO employee claimed for an adjustment disorder that arose out of an unsuccessful application to Comsuper for a Partial Invalidity Pension. The tribunal found that any actions by Comsuper in relation to the assessment an employee’s entitlements had no connection with employment by the Commonwealth within the meaning of s5B of the SRC Act.
In JQWK and Comcare [2013] AATA 830 this Tribunal rejected the proposition that information that aggravated the Respondent's psychiatric condition, provided by the employer under s71 of the SRC Act to the Respondent, was an event that arose out of the Respondent’s employment.
In this matter I find that the Applicant’s situation analogues to many of the matters above and that her ongoing incapacity for work arose from notice given to her, by an agency other than her employer, that her weekly incapacity payments and the need for medical treatment would no longer be paid for her shoulder injury. There was clearly a separation of functions between the respondent and the Applicant’s employer.
Comcare were not the Applicant’s employer and ‘the nature of, and particular tasks’[7] undertaken by Comcare were not the responsibility of her supervisors or anybody within Centrelink.
[7] (see s5B(2)(b))
Applying the above decisions I conclude that the actions of the Respondent that amounted to a contribution to the aggravation of the Applicant’s condition were not conducted as part of the Applicant’s employment for the purposes of s5B of the Act.
I find the question as to whether those actions arose out of the Applicant’s employment less clear but as I have noted above it would seem incongruous for parliament to have intended a different test for the purposes of sections 5A and 5B and accordingly I find that the Applicant’s injury did not arise out of her employment.
ADMINISTRATIVE ACTION
I now turn to the question of administrative action in case either of my findings above are found to be incorrect.
The distinction between administrative and operational action was considered yet again by Tracey J in Long v Comcare [2016] FCA 737 at [20] to [24] where he said:
[20] A distinction between “administrative” action and “operational” decisions was recognised by the Full Court in Reeve.
[21] Mr Reeve had developed a depressive illness while working as a manager of a Perth branch of the Commonwealth Bank. The circumstances which contributed to his condition included organisational and staff changes, the humiliation of a telephone conference with colleagues in which he was required to report poor branch results, an unsupportive visit from his manager and the anxiety of reporting poor customer satisfaction survey results. The Full Court held that the exclusion under s5A of the Act applied to specific action taken in respect of an individual’s employment, such as disciplinary action (“administrative action”), as opposed to action forming part of the everyday tasks and duties of that employment (“operational decisions”). Thus, the ordinary work routine, changes to routine and directions to perform work did not constitute “reasonable administrative action taken in respect of the employee’s employment”. The Full Court concluded that the events which contributed to Mr Reeve’s condition were part of his ordinary work duties as an employee and he was, therefore, not disentitled to compensation by operation of the qualification in s5A(1) of the Act.
[22] The distinction between “administrative action” and “operational” decisions was explained by Gray J at [33] in the passage quoted by the Tribunal (see above at [15]).
[23] At [60] (in another passage quoted by the Tribunal) Rares J and I drew a similar distinction.
[24] Both judgments established that “administrative action”, within the meaning of s5A, must be employee-specific. It must entail more than the regulation of the normal incidences of a person’s employment. Such action may or may not involve the application or implementation of some particular policy. The “formality” or otherwise of a particular action on the part of the employer is not necessarily a determinative factor.
In Lynch and Comcare [2010] AATA 38 Senior Member Creyke and Member Wilkins noted at para [97] and [98]:
“What amounts to administrative action is defined in the Act only to the extent of the examples given in s5A(2). These refer to performance appraisal, counselling, suspension or disciplinary action and anything done in connection with these examples. The examples are not exhaustive…cases establish that administrative action can be constituted by a series of actions as opposed to merely one action… ‘administration action’ must be some specific incident in the course of the employment, or specific or identifiable course of conduct by an employer…”
In Radulovic and Comcare [2010] AATA 777 Senior Member Creyke at [74] was keen to confine administrative action to the matters described in s5A(2) and anything reasonable done in connection with them, indicating that the provisions were not intended to be ‘at large’.
However in Commonwealth Bank of Australia v Reeve [2012] FCA FC 21 Gray J said at [26] and [33]:
[26] “One thing is clear. The examples given in s5A(2) of the SRC Act do not define exhaustively the scope of the exclusionary provision in s5A(1). This is made plain by the opening words of subs (2) itself, as well as by s15AD(a) of the Acts Interpretation Act….”
[33] “In the case of s5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to “legitimate human resource management actions”. Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.An example where it was not administrative action is as follows. A spontaneous informal conversation with a school principal (in front of others) at a training session where the principal told the teacher (back at school following an adjustment disorder) that she may be better suited to an office job led to the teacher having a re-emergence of symptoms of her adjustment disorder. The context and content of the conversation were held to be relevant to its characterisation. The conversation was held not to be ‘administrative action’: Rutledge and Comcare [2011] AATA 865.
However, in this matter the actions were specific to the Applicant and I find the matters surrounding the April aggravation to be an administrative action because the action taken was specific to the Applicant. Even though carried out by a third party the actions were inextricably intertwined with the employer/employee relationship.
AS A RESULT OF
There must be some link between the administrative action and the otherwise compensable injury or disease.
In Hart v Comcare (2005) 145 FRC 29 the Full Federal Court rejected a line of authority which suggested that the previous exclusion in s4(1) would not operate when the injury was attributable to multiple causes. The court held that the exclusion applied where the failure to obtain promotion made a material contribution to the disease. This approach was applied to s5A by the Federal Court in Comcare v Martinez (No 2) [2013] FCA 439 where the Court found error of law in the Tribunal’s failure to consider whether one or two concurrent causes of injury should have exclusionary effect.
Hart remains applicable to 5A but ‘consideration must now be given as to whether the injury or disease was contributed to a significant degree e.g. in Kaloudis and Comcare [2009] AATA 892, failure to obtain promotion was a minor causal factor and did not exclude entitlement to compensation.
Consistent with this in Drenth [2011] AATA 582 the Tribunal opined at [95]:
“….the words “as a result of” in the exception to the definition of injury require that the relevant reasonable administrative action should be a significant cause of, or (having regard to Hart v Comcare) contribute to a significant degree to, the ailment or aggravation.”
However more recent cases Hunt and Comcare [2013] AATA 931 and (as cited) Re Ferguson and Commonwealth Bank of Australia [2012] AATA 718 suggest:
The administrative action need only make a contribution which as a matter of common sense links the claimed condition to employment for the claim to be excluded on the basis that it is not an ‘injury’ in terms of the Act. There does not have to be a contribution which is material or significant.
In this case there was never any intention to place the Applicant in a position to have to undertake face to face contact but I accept that this was her perception. There is no dispute that the Applicant’s perception made a significant contribution to the aggravation of her disease. Accordingly, if I am wrong about the findings I have made about the April incident not being in the course of the Applicant’s employment, I find that the aggravation of her condition was as a result of what I have found to be administrative action.
WAS THE ACTION REASONABLE AND CARRIED OUT IN A REASONABLE MANNER
The question remaining is whether the actions were reasonable and carried out in a reasonable manner (see s5A(1) of the SRC Act) and I now consider some relevant authorities in relation to that.
The exclusion is subject to two tests of reasonableness — the reasonableness of the particular administrative action and the reasonableness of the manner in which the action was undertaken
In Drenth and Comcare [2011] AATA 582 Deputy President Jarvis and Professor Ben-Tovim made clear at [75] and [76]:
“To determine whether the actions were reasonable involves an objective judgment, taking into account all of the circumstances in which they occurred, and determining whether they were rational, lawful and not irrelevant or disproportionate to what was required; and the question of what was “reasonable” does not involve determining whether the action could have been done more reasonably or in a different way more acceptable to the decision-maker: see Bropho v Human Rights and Equal Opportunity Commission & Anor (2004) 135 FCR 105 at [78]–[80], and the helpful analysis of Professor Robin Creyke, Senior Member, and Dr Peter Wilkins, Member, in Re Lynch and Comcare (2010) 114 ALD 394.”
At paragraph 67 of Katherine Von Stieglitz v Comcare[2010] AATA 263, Senior Member Creyke and Member Miller said:
Whatever administrative action is to be taken must be “reasonable”. Reasonableness is a chameleon-like concept, tailored to the circumstances. As a minimum, to be reasonable the action must be lawful. What is reasonable is assessed objectively and relates to the specific conduct involved in light of the process overall. Reasonableness must be assessed against what is known at the time without the benefit of hindsight, taking into account the attributes and circumstances, including the emotional state, of the employee concerned. There must be nothing ‘untoward’ about the actions involved, and the administrative action must not be ‘irrational, absurd or ridiculous’, Dr Campbell summed up many facets of these principles in Re Georges and Telstra Corporation Ltd when he said:
I observe that the Concise Oxford Dictionary defines the word reasonable in terms of sound [sic] of judgment, sensible, moderate, not expecting too much, ready to listen to reason, within the limits of reason, not greatly less or more than might be expected, tolerable, fair.
At Comcare v Martinez (No 2) [2013] FCA 439 Robertson J said at [82]:
In my view, since context is a large part of statutory construction, it is not appropriate to start from a context so remote from the SRC Act...I would of course agree with French J, as his Honour then was, that the word “reasonable” allows the possibility that there may be more than one way of doing things “reasonably”, and the judgment required is not whether the thing could have been done more reasonably. I also agree, with respect, that the word imports an objective judgment.
I also note Lander J’s comments in Keen v Workers Rehabilitation and Compensation Corporation[1998] SASC 7056; (1998) 71 SASR 42 at 47-48 where his Honour said, in a context much closer to the present legislation:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
In Comcare v Martin[2015] FCA 4, Griffiths J noted the same passage from Keen, and continued at [68]:
It may be noted that the Tribunal referred to that passage from Lander J’s judgment in [66] of its reasons for decision. It also referred in [67] to the following passage from Bleby J’s judgment in Keen (at 63):
...whether administrative action is taken in a reasonable manner is very much a question of objective fact, and is to be determined against the ordinary standards of reasonable employers in all the circumstances of the case. Whether administrative action is reasonable or is taken in a reasonable manner depends first on the finding of the primary facts as to what occurred in the taking of the administrative action, namely what decision was made, who made it and why it was made, what was done, what was omitted to be done and the factual background against which the decision was made or implemented.
With due respect to the Applicant submissions I fail to see what was unreasonable in the behaviour of the Respondent or its employees and/or agents. It was appropriate that medical advice be taken to determine whether not there was a continuing liability to pay weekly compensation and medical expenses to the Applicant. Once that advice received it was only appropriate to provide the Applicant with procedural fairness by the means of a “Notice of Intention”. This would enable her, if she so desired, to obtain further evidence support of her application.
The Applicant then sought information by way of a verbal summary as to the background to the above-mentioned notice. The medical practitioner’s opinion to the effect that the Applicant was not genuine in respect of her complaints and/or symptoms was relayed to her and this was information that she was entitled to know, otherwise how would she know how to properly respond to the Notice of Intention?
Furthermore it was agreed between the parties that the Applicant was not involved in face-to-face contact prior to her initial injury and hence it was never intended, or intended to indicate to her, that she would return to face-to-face contact.There was nothing inappropriate in the manner by which the information was relayed to her and I find that the actions surrounding the April aggravation were conducted in a reasonable manner.
Accordingly, even if the actions were administrative actions carried out in the course of her employment I find that they were reasonable and carried out in a reasonable manner.
APPLICATION 2014 / 4741
Although I was asked to determine the above application in respect of a decision not to pay for increased medical treatment between 16 April 2013 and December 2013 there was very little evidence or submissions made in relation to this application.
I am unable to determine what treatment costs are being sought and it appears that the increase in treatment is temporally related to the April incident.
Furthermore the decision sought to be reviewed as one of 20 March 2014 which was internally reviewed and, in part, overturned by a Review Officer on 8 July 2014. In so far as it later decision did not allow increased medical treatment from 16 April 2013 I consider to be correct for the reasons set out above in relation to application 2014/1883.
Accordingly I affirm the reviewable decisions dated 20 March 2014 and 8 July 2014.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC (Deputy President).
[Sgd]
Dated: 30 June 2016
Dates of hearing 5, 8 and 9 October 2015 Solicitor for the Applicant Ms Nicola Maher, Slater & Gordon Counsel for the Applicant Mr Adrian Coombes Solicitor for the Respondent Ms Naomi Richards, AGS
Counsel for the Respondent Mr John Wallace
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