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 1988Cases
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 263Thompson and Comcare [2012] AATA 752
REASONS FOR DECISION
Senior Member Linda Kirk
19 August 2019
INTRODUCTION
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.
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.
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.
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
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
On 15 June 2017, the Applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the Reviewable Decision.[7]
[7] T2.
The review application was heard by the Tribunal at a hearing in Canberra on 4…
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- Case
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CaseChat Overview and Summary
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
Decision
Reasons for decision
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.