Powell and Comcare (Compensation)

Case [2019] AATA 2715

Powell and Comcare (Compensation) [2019] AATA 2715 (19 August 2019)

Division:GENERAL DIVISION

File Number(s):      2017/4844

Re:Jennifer Powell

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:19 August 2019

Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975. 

........................................................................

Senior Member Linda Kirk

Catchwords

WORKERS COMPENSATION – psychological injury - whether the Applicant suffers an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in s 4 of the Safety, Rehabilitation and Compensation Act – Whether the ailment or aggravation of an ailment was contributed to, to a significant degree, by her employment - whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner with respect to the Applicant’s employment – whether the Respondent is liable to pay compensation – decision under review affirmed

Legislation

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

Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drenth v Comcare (2012) 128 ALD 1
Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42
Lim v Comcare [2017] FCAFC 64
National Australia Bank Limited v KRDV (2012) 204 FCR 436
Rutledge and Comcare [2011] AATA 865
Von Stieglitz and Comcare [2010] AATA 263

Thompson and Comcare [2012] AATA 752

REASONS FOR DECISION

Senior Member Linda Kirk

19 August 2019

INTRODUCTION

  1. Ms Jennifer Powell (‘the Applicant’) was born in 1962.[1]  She commenced employment with the Australian Federal Police (‘AFP’) on 15 October 2013.[2]

    [1] T3.

    [2] T3.

  2. On 11 January 2017, the Applicant lodged a claim for workers' compensation for 'psychosocial injury'. The Applicant reported in her claim form that she first noticed her symptoms on 22 June 2016 at 4:30 pm.[3]

    [3] T3.

  3. On 3 February 2017, the Applicant resubmitted her claim for workers' compensation that included an attached statement in support of her claim.[4]

    [4] T4 and T4.1.

  4. On 7 April 2017 Comcare (‘the Respondent’) denied liability under s 14 of the Safety, Rehabilitation and Compensation Act1988 (‘the SRC Act’) for the claimed condition on the basis that the Applicant's ailment arose because of her failure to obtain promotion and the decision to deem her not competent in relation a training course, with these actions being reasonable administrative actions taken in a reasonable manner by the AFP.[5]

    [5] T23

  5. On 19 June 2017, the Respondent affirmed the determination of 7 April 2017 on the basis that the reasonable administrative action exclusion applied, and that the Applicant would not have otherwise sustained the ailment without the reasonable administrative action associated with the Applicant's failure to obtain a promotion (‘the Reviewable Decision’).[6]

    [6] T1.2

  6. On 15 June 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[7]

    [7] T2.

  7. The review application was heard by the Tribunal at a hearing in Canberra on 4…

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AGLC
Powell and Comcare (Compensation) [2019] AATA 2715
Case
[2019] AATA 2715
Decision Date

CaseChat Overview and Summary

This matter concerned an application for compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act) by an applicant against Comcare. The applicant sought compensation for a psychological injury, specifically an adjustment disorder with anxiety, which she alleged was contributed to by her employment with the Australian Federal Police (AFP). The core dispute revolved around whether the applicant's condition constituted an "ailment" or an "aggravation of an ailment" under the SRC Act, whether this was contributed to to a significant degree by her employment, and crucially, whether any such condition was a result of "reasonable administrative action taken in a reasonable manner" in respect of her employment, which would exclude it from the definition of "injury" under the Act.

The court was required to determine several key legal issues. Firstly, it needed to ascertain whether the applicant suffered from an "ailment" or an "aggravation of an ailment" as defined by section 4 of the SRC Act. Secondly, the court had to consider whether this ailment or aggravation was contributed to to a significant degree by her employment, thereby qualifying as a "disease" under section 5B(1) of the Act and meeting the definition of "injury" in section 5A(1)(a). Thirdly, and central to the defence, the court had to assess whether any such disease was suffered as a result of "reasonable administrative action taken in a reasonable manner" with respect to the applicant's employment, as contemplated by section 5A(1) of the Act, which would operate to exclude it from compensation. Finally, the court had to determine whether Comcare was liable to pay compensation for an injury under section 14 of the SRC Act.

In its reasoning, the Tribunal found that the applicant did suffer from a psychological condition that met the definition of an "ailment" under section 4 of the SRC Act, based on medical evidence diagnosing an adjustment disorder with anxiety. The Tribunal was satisfied that this ailment was contributed to to a significant degree by her employment, thus constituting a "disease" as defined in section 5B of the Act. The critical question then became whether this disease was suffered as a result of reasonable administrative action taken in a reasonable manner. The Tribunal examined the advancement process undertaken by the applicant, noting that while the applicant complained about the lack of a pre-decision feedback meeting with Superintendent Hester, the relevant policy did not mandate a strict timetable for such steps. The Tribunal considered that the applicant was consulted during the process and that the meeting to convey the advancement decision, though not attended by Superintendent Hester, was conducted by others acting in his stead. The Tribunal concluded that the advancement process constituted administrative action, and it was proceeding to consider whether this action was reasonable and taken in a reasonable manner.

The Tribunal affirmed the decision under review, finding that the applicant suffered from an ailment contributed to to a significant degree by her employment. However, the Tribunal determined that the applicant's condition was a result of reasonable administrative action taken in a reasonable manner in respect of her employment, and therefore, it was excluded from the definition of injury under section 5A(1) of the SRC Act. Consequently, Comcare was not liable to pay compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The issue for determination is whether the Applicant is entitled to compensation for an ‘injury’ under s 14 of the SRC Act and specifically:a)Whether the Applicant suffers an ‘ailment’, or an ‘aggravation’ of an ‘ailment’ as defined in s 4 of the SRC Act; b)Whether this was contributed to, to a significant degree, by her employment with the AFP, such that she has a ‘disease’ under s 5B(1) of the SRC Act, which may therefore meet the definition of ‘injury’ in s 5A(1)(a), and;c)Whether any ‘disease’ was suffered as a result of a ‘reasonable administrative action’ taken in a reasonable manner with respect to the Applicant’s employment, such that it is excluded from the definition of ‘injury’ in s 5A(1), and;d)Whether the Respondent is liable to pay compensation for an injury under s 14 of the SRC Act.EVIDENCE BEFORE THE TRIBUNALApplicant’s employment at the AFP The Applicant commenced work as a permanent employment with the AFP on 15 October 2013 as a policy officer/analyst at Band 6.3 in National Security Policy.[8] On 23 April 2015, she transferred at level to join National Security Intelligence in the role of Intelligence Analyst in the Intelligence Collection and Evaluation (ICE) Team.[9] The Applicant’s transfer was not via a competitive merit selection process. She told the Tribunal that there was a local merit selection process involving interviews with applicants after which she was invited to join the area, and this was endorsed by AFP Human Resources (‘HR’).[8] Exhibit A2, [22].[9] T9.2; Exhibit A2, [23]-[25]. The Applicant’s then Team Leader, Mr Andrew McDermott, explained to the Tribunal that the Dissemination or ICE Team fell under the Strategic Intelligence Area. It was responsible for disseminating all product both internally and externally to and from the AFP. Requests and inquiries would come from the wider intelligence community through the Team. The work of Team members was not that of a traditional analyst.[10] It could be described as ‘administrative, facilitating and dissemination’ and then ‘managing upwards of … leadership relationships.’[11] Ms Jessica Sneesby described the ICE analyst role as being responsible for ‘high level collection and collation of information from internal and external sources, the analysis of that data and information and identifying … a picture of crime, and that information, that analysis leads to a decision; is sent to the decision makers to … influence how they … direct their investigation.’ The role is a ‘support function’ in that they disseminate intelligence that has already been produced.[12][10] Transcript, 4 March 2019, 124.[11] Transcript, 4 March 2019, 125.[12] Transcript, 3 June 2019, 5. In August 2015, as part of an annual Performance Development Appraisal (‘PDA’) process, the Applicant commenced a development capability arrangement with Mr McDermott, in preparation for advancement through the Intelligence Analyst Advancement Arrangements (‘the Advancement Arrangements’).[13] In November 2015, the Applicant commenced a development pathway for a 10 month period,[14] which involved her commencing related tertiary studies and undergoing a Top Secret Positive Vetting security clearance process.[15] The purpose of undertaking these activities was to address what the Applicant had identified were gaps in her skill set that she needed to address in order to perform at an intelligence analyst Band 7 level.[13] T22.6; Exhibit A2, [32].[14] T22.5, Exhibit R7, [4].[15] Exhibit A2, [33].

Decision

Reasons for decision

In the advancement decision Superintendent Hester advised the Applicant that to assist in her to develop the required skills for a Band 7 analyst:·she would be placed in a Police Intelligence Development Program (PIDP) commencing in November 2016;·she would undertake a Skills Audit and Recognition of Prior Learning with the Intelligence Training team to identify skill gaps; and·if opportunities were required by the Applicant to develop further skills not presently attainable in her work area, he would assist in finding those opportunities.[133][133] T22.4.Meeting to convey advancement decision During September 2016, Superintendent Hester was Acting Commander of Intelligence and Ms Suzanne Crilly was acting in Superintendent Hester's substantive position.[134] [134] T8, 52; Exhibit R9, [34]. On 12 September 2016, the Applicant returned from leave[135] and met with Acting Coordinator Crilly and Ms Sneesby at 2pm[136] following an exchange of emails making the arrangements.[137] The first email from Ms Crilly attached the advancement decision letter dated 1 September 2016. Superintendent Hester told the Tribunal that he did not attend the meeting as he had asked Ms Crilly in his absence to take carriage of the Applicant’s development and action plan going forward.[138][135] T8.1.[136] T13.1; 123.[137] T13.13; 157 and 158.[138] Transcript, 4 March 2019, 205. At 10.42am on 13 September 2016 the Applicant emailed Ms Crilly setting out the agreed steps following the meeting.[139] At 1.59pm on 14 September 2016 Ms Crilly responded to the Applicant.[140][139] T13.13, 156 and 157.[140] T13.13, 155. On 14 September 2016, Superintendent Hester met with Ms Crilly and Ms Sneesby to discuss the development of a PDA and assessment plans for the Applicant to ensure she could obtain the skills necessary to perform the role of an Intelligence Analyst without constant supervision.[141][141] T8, 52; T8.2, 61; Exhibit A2, [93]. On 14 September 2016, the Applicant consulted with HR. During this meeting, the Applicant advised she was upset by the process and the lack of 'support or guidance' she received from Superintendent Hester.[142][142] s71 documents, 127; Transcript, 3 March 2019, 107. At 12.57pm on 15 September 2016 Ms Sneesby emailed the Applicant with a PDA for her action, outlining the amendments that had been made for her to develop the necessary skills as a Band 6/7 analyst.[143][143] T13.13, 154 and 155. At 2:00pm on 16 September 2016 Superintendent Hester approved the Applicant’s request to transfer to Internal Audit.[144][144] T8, 52; T8.2, 62; T25.3, 392; Exhibit R9, [37]. At 2:04 pm on 16 September 2016 Superintendent Hester emailed Ms Crilly and asked her to advise the Applicant that:·as she would be away from Intelligence for several months, he could not guarantee her return to the FAC position and it would need to be filled;·any return to Intelligence by the Applicant would be based on their needs;·the Applicant would be removed from the November PIDP as she could not complete the workbook during the audit; and·any skills during the Audit are not transferable to Intelligence.[145][145] T25.3, 392.

Ratio Decidendi

Legal Principle Established

The policy assigns responsibilities to various individuals and provides a flexible timeframe for meeting the steps in the advancement process. The Applicant’s primary complaint is that Superintendent Hester did not conduct a meeting to provide her with feedback prior to making a decision on her advancement. There is no hard and fast timetable in the policy that mandates that the various steps be done by a certain date. The meeting to provide the Applicant with feedback was held at the conclusion of the process (12 September). The Applicant was not precluded from input or visibility in the process as she was consulted by Mr McDermott in relation to the request by Superintendent Hester for further information, and she developed a response to this request together with Mr McDermott.CONSIDERATION AND REASONSDid the Applicant suffer an ‘ailment’? The Applicant consulted her general practitioner, Dr Stephen Cousins on 2 September 2016 who declared her unfit for work for the period 31 August to 2016 and prescribed her medication. The Applicant was reviewed by Dr Catherine Oelrichs on 8 March 2017 who reported that the Applicant first developed clinically apparent symptoms of anxiety around September 2016, and diagnosed her with adjustment disorder with anxiety under DSM-5. In her evidence at the hearing, Dr Oelrichs confirmed her opinion that the Applicant first experienced symptoms clinically consistent with a psychological condition (adjustment disorder with anxiety) in early September 2016, and that the advancement process was likely to have significantly contributed to the manifestation of her symptoms.[175][175] Transcript, 4 March 2019, 116-117. On the basis of Dr Oelrichs’ assessment, the Tribunal finds that the Applicant suffered from a psychological condition that meets the definition of an ‘ailment’, in s 4 of the SRC Act.Contributed to, to a significant degree On the basis of the medical evidence referred to above, the Tribunal is satisfied that the Applicant’s ailment was contributed to, to a significant degree, by her employment at the AFP. That is, the Applicant suffered a ‘disease’ as defined in section 5B of the Act. This is not disputed by the Respondent. The issue is whether the Applicant suffered this ‘disease’ as a result of ‘reasonable administrative action taken in a reasonable manner’ in respect of her employment.‘Reasonable administrative action taken in reasonable manner’ To determine whether the ‘adjustment disorder with anxiety’ suffered by the Applicant is excluded by section 5A it is necessary to determine the following:1)Was the advancement process ‘administrative action’ taken in respect of the Applicant’s employment?2)Was the administrative action ‘reasonable’?3)Was the action ‘taken in a reasonable manner’?4)Was the condition suffered by the Applicant ‘as a result of’ the administrative action?1) Was the advancement process ‘administrative action’? The term ‘administrative action’ is not given any special meaning under the Act, whereas the term ‘reasonable administrative action’ is explicated in section 5A(2), outlined below.