Poignand and Comcare (Compensation)

Case [2019] AATA 2706

Poignand and Comcare (Compensation) [2019] AATA 2706 (16 August 2019)

Division:GENERAL DIVISION

File Number(s):     2016/5670          

Re:Billie Poignand

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President Gary Humphries AO        

Date:16 August 2019

Place:Canberra

The reviewable decision of 14 September 2016 is varied, to the extent that Mr Poignand is entitled to compensation pursuant to s 14 of the Act for aggravation of major depression, with a date of injury of 18 May 2016, being an injury which resulted in incapacity for work. The Tribunal directs that Comcare pay 75% of Mr Poignand’s costs of the proceedings (including the interlocutory proceedings) as agreed or assessed in accordance with the Tribunal’s Practice Direction on Taxation of Costs.

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Deputy President Gary Humphries AO

Catchwords

COMPENSATION – aggravation of major depression – whether Mr Poignand suffered an injury or an aggravation of an injury by incidents in 2014 and 2016 – whether liability excluded in either incident on the basis of being reasonable administrative action performed in a reasonable manner in respect of his employment – Tribunal finds that the 2014 incident meets the reasonable administrative action exclusion – Tribunal finds that the 2016 incident was not done in respect of Mr Poignand’s employment and liability exists as at that date – decision under review varied

PRACTICE AND PROCEDURE – scope of Tribunal’s jurisdiction to make a decision under s 19 of the Act where the reviewable decision and the initial claim for compensation does not address that question in an express or implied manner – where material before the Tribunal may demonstrate Mr Poignand’s incapacity for work – absence of contextual submissions

Legislation

Administrative Appeals Tribunal Act 1975
Safety, Rehabilitation and Compensation Act 1988

Cases

Abrahams v Comcare[2006] FCA 1829

Comcare v Lofts[2013] FCA 1197

Comcare v Martinez (No 2) [2013] FCA 439

Comcare v Reardon (2015) 148 ALD 356

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

Horton and Australian Capital Territory [2019] AATA 953

Kennedy v Comcare[2014] FCA 82

Kennedy and Comcare [2017] AATA 1271

Lees v Comcare (1999) 56 ALD 84

Lim v Comcare [2019] FCAFC 104

Long v Comcare [2016] FCA 737

Muir v Comcare[2016] FCA 346

National Australia Bank Limited v KRDV[2012] FCA 543

Nguyen and Comcare [2018] AATA 1623

REASONS FOR DECISION

Deputy President Gary Humphries AO

16 August 2019

INTRODUCTION

  1. The applicant, Billie Poignand, has been an employee of Geoscience Australia (GA) since 2006. Between 2012 and 2014 he worked at GA’s Canberra laboratories in technical, and occasionally administrative, roles. He commenced at the APS3 level in 2006 but by 2012 he had experienced periods of acting at the EL1 level.

  2. On 25 May 2016 Mr Poignand made a claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for a psychological injury (later characterised as a major depressive disorder, recurrent episode).[1] He claimed that his condition was caused by stressors caused by poor work design and the inappropriate…

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AGLC
Poignand and Comcare (Compensation) [2019] AATA 2706
Case
[2019] AATA 2706
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Poignand against a decision by Comcare regarding compensation for an alleged aggravation of major depression. The dispute centred on two incidents in 2014 and 2016, and whether these incidents constituted an injury or an aggravation of an injury, and if so, whether liability was excluded due to reasonable administrative action taken in a reasonable manner in respect of his employment. The case was heard by Deputy President Gary Humphries Ao.

The primary legal issues before the Tribunal were whether Mr Poignand suffered an injury or an aggravation of an injury as a result of the incidents in 2014 and 2016, and whether the exclusion for reasonable administrative action performed in a reasonable manner applied to either incident. The Tribunal also considered the scope of its jurisdiction to make decisions under s 19 of the Act, particularly where the reviewable decision and initial claim did not expressly or implicitly address the question of incapacity for work.

The Tribunal found that the 2014 incident, specifically the suspension of Mr Poignand's higher duties on 8 July 2014, constituted reasonable administrative action taken in respect of his employment and was therefore excluded from compensation under s 5A of the Act. This finding was based on the agreement of the parties and the medical evidence of Drs Oelrichs and Saboisky, which indicated that the incident was a reasonable response to a deteriorating situation within the workplace. However, the Tribunal determined that the incident on 18 May 2016 was not an outcome of reasonable administrative action taken in respect of Mr Poignand’s employment, and thus liability existed for an aggravation of his major depression on that date.

Consequently, the Tribunal varied the reviewable decision, finding Mr Poignand entitled to compensation under s 14 of the Act for the aggravation of his major depression, with a date of injury of 18 May 2016. Mr Poignand was found to be substantially, but not wholly, successful in his proceedings, and the Tribunal ordered Comcare to pay 75% of Mr Poignand’s costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

A statement from Ms Loiterton dated 28 November 2018 was tendered. In it she commented on the meeting as follows:I became quite upset at this meeting due to Mr Poignand’s refusal to compromise and his attitude that he “knew best” and his view was the only “right” one.She also made more general comments about Mr Poignand:Generally I had no difficulty with Mr Poignand and we got along. However, it was very hard to communicate with him about things as he tended to be very black and white in his views and was not prepared to compromise.THE MEDICAL EVIDENCE Mr Poignand told the Tribunal he had no treatment for any mental health condition between 2006 and 2014. With respect to his mental health from 2014 onwards, the Tribunal took live evidence from two psychiatrists, Dr Catherine Oelrichs and Dr John Saboisky, both called by Comcare. Reports of these doctors, dated 25 May and 14 June 2017 respectively, were tendered. Mr Poignand tendered a report by a third psychiatrist, Dr Ash Takyar, dated 13 March 2018, but Dr Takyar was not called to give evidence. Drs Oelrichs and Saboisky gave concurrent evidence. There was substantial agreement between them with respect to their assessment of Mr Poignand. They agreed that in July 2014 he suffered from an adjustment disorder with mixed emotional features. They noted that he had a pre-existing condition of chronic anxiety before this time. They also considered that the altercation with Mr Pappas on 2 July and the meeting with Dr Sircombe and Mr Royal on 8 July 2014 contributed to the onset of his adjustment disorder, though it was the later meeting which was the big tipping point (in Dr Saboisky’s words) where his symptomatology became a lot worse. They said that, at some point after the 8 July meeting, Mr Poignand recruited enough additional symptoms to establish a diagnosis of major depression. This condition continued with fluctuations throughout 2015 and 2016, but never disappeared entirely. The two doctors agreed that Mr Poignand became more symptomatic as a result of the incident of 18 May 2016. Dr Oelrichs felt that there had been some deterioration in his levels of depression at that time. She agreed that, if a worsening of his symptoms was properly described as an aggravation, he suffered an aggravation at that time. Dr Saboisky noted the report of another psychiatrist, Dr Scott Chambers, of 23 November 2016. Dr Chambers opined there that Mr Poignand had experienced an anxiety attack in early July 2016. Dr Takyar’s diagnosed major depressive disorder and generalised anxiety disorder as at July 2014. He noted that the confrontation with Mr Pappas on 2 July 2014 lead to the development of anxiety symptoms primarily, though he later attributed roughly 30% of his symptoms to the confrontation on 2 July. He also opined that Mr Poignand received a mental injury which was contributed to by the incident on 18 May 2016, though this injury was part of the work-related injury from 2014.CONSIDERATIONDid the 2014 incident constitute reasonable administrative action, taken in a reasonable manner?

Decision

Reasons for decision

I glean from the T-documents that the periods of incapacity for work resulting from the 18 May 2016 injury were somewhat greater than those resulting from the 8 July 2014 “injury”. On that basis I conclude that he has been substantially but not wholly successful in these proceedings. Accordingly I will make an order that Comcare pay 75% of Mr Poignand’s costs of the proceedings (including the interlocutory proceedings) as agreed or assessed in accordance with the usual arrangements.CONCLUSION Mr Poignand sustained potentially compensable injuries on 8 July 2014 and 18 May 2016 pursuant to s 5A of the Act. Those injuries arose in the course of his employment and were substantially contributed to by that employment. The injury in 2014 is not compensable because, being reasonable administrative action taken in respect of his employment, it is caught by the exemption to s 5A. The injury in 2016, conversely, is compensable because it is not the outcome of reasonable administrative action taken in respect of his employment. The reviewable decision of 14 September 2016 is varied, to the extent that Mr Poignand is entitled to compensation pursuant to s 14 of the Act for aggravation of major depression, with a date of injury of 18 May 2016, being an injury which resulted in incapacity for work. The Tribunal directs that Comcare pay 75% of Mr Poignand’s costs of the proceedings (including the interlocutory proceedings) as agreed or assessed in accordance with the Tribunal’s Practice Direction on Taxation of Costs.

Ratio Decidendi

Legal Principle Established

Dr Takyar’s diagnosed major depressive disorder and generalised anxiety disorder as at July 2014. He noted that the confrontation with Mr Pappas on 2 July 2014 lead to the development of anxiety symptoms primarily, though he later attributed roughly 30% of his symptoms to the confrontation on 2 July. He also opined that Mr Poignand received a mental injury which was contributed to by the incident on 18 May 2016, though this injury was part of the work-related injury from 2014.CONSIDERATIONDid the 2014 incident constitute reasonable administrative action, taken in a reasonable manner? A number of decisions guide the Tribunal with respect to the question of what constitutes reasonable administrative action. Robertson J in Comcare v Martinez (No 2) [2013] FCA 439 observed that the impact of administrative action on an employee does not of itself establish whether or not that action was taken in a reasonable manner (at [73]); the test of reasonableness is an objective, not a subjective, one. Nor does the action taken need to be perfect, nor the best possible course of action with respect to that employee, to satisfy the exemption:In my view it could not be said that the existence of alternatives is irrelevant to assessing whether or not an administrative action is taken in a reasonable manner: the fact that there is more than one way of taking an administrative action may well cast light on the reasonableness of the manner adopted. This is not to say that there may not be more than one way of doing things reasonably. Nor is it to gainsay the proposition that the question is not whether the administrative action could have been done more reasonably. (at [81]) In this case, counsel for Mr Poignand submitted that Mr Poignand had not crossed the Mooi threshold – that is, his injury had not reached the threshold for compensability envisaged in s 5A – at the incident on 2 July 2014. He crossed that threshold at the meeting on 8 July, which was unquestionably administrative action in respect of his employment. The thrust of that submission was shared by counsel for Comcare. I accept those submissions, which are consistent with the evidence of Drs Oelrichs and Saboisky but inconsistent with that of Dr Takyar, who thought that he developed anxiety symptoms on 2 July. I do so because Dr Takyar did not give live evidence and his opinion could therefore not be tested. Drs Oelrichs and Saboisky diagnosed Mr Poignand with major depression, and I adopt that diagnosis as the finding of the Tribunal. The parties further agreed that the act of suspending Mr Poignand’s higher duties on 8 July was reasonable administrative action; however, his counsel argued that it was not action taken in a reasonable manner. The evidence does indeed support the view that it was reasonable to take decisive action in response to a seriously-deteriorating position within the inorganic lab. Two staff members had taken leave on account of tensions within the lab which appear to have had their origin in Mr Poignand. At least two, and possibly four, staff had made oral complaints to either or both of Dr Sircombe and Mr Royal about him.