Prowse and Comcare (Compensation)

Case [2019] AATA 411

Prowse and Comcare (Compensation) [2019] AATA 411 (14 March 2019)

Division:GENERAL DIVISION

File Number(s):      2016/6093

Re:Kim Prowse

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member Mark Hyman

Date:14 March 2019

Place:Canberra

The decision under review is set aside and in substitution the tribunal decides that:

(a)Ms Prowse has an injury under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and is entitled to compensation; and

(b)the matter is remitted to Comcare to determine the compensation that is to be paid to Ms Prowse.

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

Member Mark Hyman


Catchwords

WORKERS’ COMPENSATION – denial of liability – psychological condition – diagnosis – whether contributed to, to a significant degree, by employment – whether one or more causal events were administrative action – whether causal administrative action was reasonable – whether taken in a reasonable manner – whether in the absence of the administrative action the condition would have arisen – date of injury – decision set aside

Legislation

Administrative Appeals Tribunal Act 1975, ss 35, 37

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 7, 14, 16, 19, 71

Cases

Bailey v Broadsword Marine Contractors [2017] FCAFC 219

Comcare v Drinkwater [2018] FCAFC 62

Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43

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

Comcare v Mooi [1996] FCA 1587

Comcare v Power [2015] FCA 1502

Commonwealth Bank v Reeve [2012] FCAFC 21

Dean v Australian Postal Corporation [2010] FCA 680

Drenth v Comcare [2012] FCAFC 86

Georges and Telstra Corporation [2009] AATA 731

Hart v Comcare [2005] FCAFC 16

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286

Lim v Comcare (2017) 344 ALR 499; [2017] FCAFC

Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468

Prain v Comcare [2017] FCAFC 143

State Transit Authority of NSW v Chemla [2007] NSWCA 249

Stewart and Comcare [2018] AATA 3685

Von Stieglitz and Comcare [2010] AATA 263

Wiegand v Comcare [2002] FCA 1464

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

Mark Hyman, Member

14 March 2019

  1. This decision is about whether the applicant, Ms Kim Prowse, is entitled to workers’ compensation. Ms Prowse was engaged in the Department of Prime Minister and Cabinet in the delivery of programs aimed at Australia’s Indigenous communities. She developed a psychiatric condition and lodged a claim for compensation with Comcare, the respondent. This claim was denied on application, and a second time on internal review, in a reconsideration determination. On 11 November 2016 Ms Prowse applied to this tribunal for review of Comcare’s decision.

  2. The tribunal held a hearing over four days. The matter was heard first on 5 and 6 November 2018 but Ms Prowse was too unwell on the third day to continue; the hearing was vacated and resumed for two further days on 21 and 22 January 2019. Ms Prowse appeared in person and gave evidence. She was represented by Mr Karl…

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Details
AGLC
Prowse and Comcare (Compensation) [2019] AATA 411
Case
[2019] AATA 411
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Ms Prowse against a decision by Comcare to deny liability for a psychological condition. The dispute centred on whether Ms Prowse's employment at the Department of Prime Minister and Cabinet contributed to a significant degree to her condition, and if so, whether any administrative actions taken by her employer were reasonable and taken in a reasonable manner, thereby excluding Comcare's liability. The case was heard by a Member.

The legal issues before the court were whether Ms Prowse suffered from an ailment under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act), and if so, whether her employment was a significant contributing factor. Crucially, the court had to determine if the condition was caused by administrative action taken by her employer, and if that action was reasonable and taken in a reasonable manner. The court also needed to consider whether, in the absence of such administrative action, the condition would have arisen, and to establish the correct date of injury.

The court considered extensive medical evidence from various psychiatrists and a general practitioner, noting Ms Prowse's pre-existing psychological vulnerabilities and distressing personal events. Comcare argued that the primary causative events were administrative actions, specifically a direction regarding her working hours on 29 January 2015, and that these actions were reasonable and taken in a reasonable manner. The court acknowledged inconsistencies in Ms Prowse's evidence regarding flexible work arrangements and performance appraisals, but ultimately found that the administrative action taken on 29 January 2015 was the cause of the injury, and that this action was reasonable and taken in a reasonable manner. The court concluded that without these events, the injury would not have occurred, thus satisfying the "Martin test" for causation and triggering the exclusion under s 5A(1) of the SRC Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ms Prowse’s later work history at PM&C is of limited relevance to the present matter because the period which is at issue is in early 2015. An outline has been included above because much of the material was included in the accounts Ms Prowse gave to the psychiatrists and other health professionals whose reports are considered below.THE MEDICAL EVIDENCE It is not disputed that Ms Prowse has a history of psychological issues going back several years. Apart from anything else, she suffered a number of distressing events in the decade leading up to the events of early 2015, including the stillbirth, the breakdown of her marriage and the death of her father. For present purposes it is not necessary to recount the details of these issues, but the record[28] shows that Ms Prowse had a particular crisis in early 2009 following the stillbirth and around the time of the break-up of her marriage, being admitted to hospital for a period. She was assessed by a psychiatrist, Dr John Saboisky, as part of a Fitness for Duty assessment. In a report dated 25 August 2009[29] Dr Saboisky concluded that Ms Prowse did not have a significant psychological condition at the time of the consultation, but that earlier in the year, perhaps around March 2009, she had “developed symptoms of significant depression”. The loss of her baby, the breakdown of her marriage, and difficulties at work, especially with a particular supervisor, were all noted as contributing factors. [28] Exhibit R1, folios 83-108.[29] Exhibit R1, folios 98-9.Expert reports prepared during 2015-2016 Over the course of this matter a number of reports have been obtained from a range of experts, especially but not only consultant psychiatrists. ·A report[30] from Dr Catherine Oelrichs, a consultant psychiatrist, dated 12 May 2016, notes that although a complete diagnosis could not be made because of the preoccupation with workplace factors displayed by Ms Prowse, there was no doubt that she still showed symptoms of ongoing anxiety and depression; the provisional diagnosis was “major depressive disorder on the background of personal vulnerabilities and the history of complex trauma in the last few years”.·A treating psychologist, Mr Harold Bilboe, provided a report dated 27 July 2016[31], in which he advised that Ms Prowse had first needed medical help, in his judgment, on 8 February 2015; that workload issues, the change to flexible work arrangements and an inadequate response by the Department to Ms Prowse’s protests at her treatment had all contributed; that Ms Prowse’s diagnosis was major depression (recurrent); there was no pre-existing condition that contributed; and that this was a primary condition rather than an aggravation of an existing condition.·A report by Dr Diana Kirk[32], a general practitioner at the practice attended by Ms Prowse, dated 1 August 2016, noted 9 February 2015 as the date of first consultation; diagnosed Ms Prowse’s condition as “severe depression and severe psychological distress as per her psychologist”; noted that although she had previously suffered significant trauma she had been able to survive those episodes and return to work; and identified the current condition as a primary condition rather than an aggravation of an existing condition.·A report[33] by Dr Bree Wyeth, a consultant psychiatrist with the City Mental Health Team of the ACT Government, dated 14 August 2016, noted that issues began in about January 2015; that Ms Prowse had a diagnosis of major depression; that this was a new and primary condition; and that there were relevant background factors in Ms Prowse’s personality and family history.·Dr Michael Hong, a consultant psychiatrist, provided a report[34] dated 23 August 2016 in which he noted that Ms Prowse reported her condition as having arisen around January 2015; diagnosed a chronic adjustment disorder (with major depressive episode being equally valid); and noted contributing factors in Ms Prowse’s personality.·In a report[35] dated 24 August 2016 Dr Saddichha Sahoo, a consultant psychiatrist, made a diagnosis of major depressive disorder, moderate severity; that condition was not the result of a previously resolved injury; this condition reached clinical significance “probably around March, April or May 2015”; Ms Prowse does not have any personality disorder; rather the depression is the result of workplace factors.[30] T5, folios 123-34.[31] T25, folios 192-213.[32] T32, folios 232-4.[33] T40, folios 252-6.[34] T56, folios 355-65.[35] T47, folios 366-76.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Callan put the case for Comcare along the following lines:·the psychiatric condition suffered by Ms Prowse is an ailment under the SRC Act;·the major causative events were those of 29 January 2015, in particular the direction that she was to start work at 9am;·it is not contested that the psychiatric condition was contributed to, to a significant degree, by Ms Prowse’s employment at PM&C, and the nexus with her employment, required under the SRC Act, is therefore established; ·but the condition is excluded under subsection 5A(1) of the SRC Act because it was caused by reasonable administrative action, taken in a reasonable manner;·the direction to come in at 9am related to Ms Prowse’s working hours and was therefore administrative action aimed at her employment;·it was reasonable of Ms Koch to make that direction given the difficulties with Ms Prowse’s attendance and wider problems of her performance;·in all the circumstances, the action was taken in a reasonable manner, given that the direction to come to work at 9am was preceded by a warning, and accompanied by a request for further medical evidence and by an acknowledgement that if such evidence was provided flexible work arrangements could be reconsidered; ·the evidence of the psychiatrists should not be relied on for the Martin test; the experts’ guidance on diagnosis can be relied on but for causation the tribunal is better positioned to reach its own conclusions, based on the oral evidence and the clinical notes of Dr Kraus, which suggest that the condition did not arise until after 29 January 2015 and was caused by the events of that day: without those events the injury would not have occurred; and ·that understanding of causation would meet the Martin test, and the reasonable administrative action exclusion would apply.CONSIDERATIONThe evidence, its quality and relevance Ms Callan emphasised inconsistencies in Ms Prowse’s evidence and between her evidence and some of the documentary material before the tribunal. It is indisputable that such inconsistencies exist. It was clear, for example, that Ms Prowse was at the very least imprecise when she referred to the flexible work arrangements. Thus her email to Ms Hefren-Webb seeking her assistance[44], dated 28 July 2015, describes the arrangement as requiring her to arrive at work by 10am and to leave as late as 6pm. In oral evidence she suggested the arrangement was that she could start as late as 10.30am and that the beginning and end was governed by the 7am to 7pm working day at PM&C; and at other times she said that the start and finish times were not specified and were left to her discretion, provided she was able to complete all her work. Another example is with regard to a performance appraisal that Ms Koch conducted for Ms Prowse in December 2014, covering July-December of that year. The rating arrived at was “consistently achieves”, awarded both for “key deliverables” and for “behaviours”. Ms Prowse described this outcome as “glowing” on more than one occasion, but that must be an exaggeration, given that there are only four rating points (“unsatisfactory”, “mostly achieves”, “consistently achieves” and “consistently exceeds”). Again, Ms Prowse’s account of being “seconded” to the IAS grant applications, and of her previous projects being “backfilled” has, as Ms Callan suggested “an air of unreality” about it; in an office environment, with emails continuing to arrive, and with only a limited number of personnel, it is hard to believe that Ms Prowse could have been so deceived about what was happening to her projects.[44] T3, folio 98.