Prudence Gaffey and Comcare - [2014] AATA 659

[2014] AATA 659

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/3171

Re

Prudence Gaffey

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
RM Creyke, Senior Member

Date 10 September 2014

Place Canberra
The decision under review is affirmed.
..........................[sgd]..............................................
RM Creyke, Senior Member
Catchwords
COMPENSATION – Commonwealth employee – diagnosis of claimed psychiatric condition – deemed date of injury – whether employment contributed to a significant degree – whether condition was suffered as the result of reasonable administrative action taken in a reasonable manner.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B.
Cases
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia Ltd v Reeve (2012) 199 FCR 463
Wiegand v Comcare Australia (2002) FCA 1464
Seondary Materials
REASONS FOR DECISION
RM Creyke, Senior Member

Ms Prudence Gaffey, born 1954, has applied for review of a reviewable decision by Comcare dated 28 June 2013 to deny her compensation for ‘major depressive disorder, single episode’.
Ms Gaffey’s application was received by the Tribunal on 3 July 2013. The matter was heard in Canberra on 21 and 22 July 2014.
Background
Ms Gaffey has been employed in the Australian Public Service for twenty years. At the time of these events she was an Executive Level 1 (EL1) officer in the Department of Sustainability, Environment, Water, Population & Communities (agency) and had been at that level for some ten years. She had worked in two divisions in the agency.
Ms Gaffey has accepted injuries, including to her back, which occurred in 2009. By 2010 the effects of the injury had developed into a chronic pain condition with secondary depression and anxiety. She also has thoracic scoliosis (curvature of the spine in the thoracic or mid-back region), and torticollis (a wry neck leading to an asymmetric neck or head position).
At all material times Ms Gaffey was on a return to work program, gradually increasing her work hours.
In February 2012, Ms Gaffey moved to a new work area in the agency. At the mid-year performance assessment in July 2012, her manager, Ms Joanne Nathan, rated Ms Gaffey ‘3-Satisfactory’ for the period to 30 June 2012. As Ms Nathan had to cut short the performance assessment meeting, it was agreed to schedule a further meeting to discuss the work plan for the next year, a standard element of the assessment process.
That further meeting was held on 20 August 2012. Present at the meeting were Ms Gaffey, Ms Nathan and Ms Pieta Laut, Ms Gaffey’s mentor since 2011, attending apparently at Ms Gaffey’s request. Ms Nathan said the meeting was to clarify Ms Gaffey’s understanding of the requirements for the work plan, for the tasks for that financial year, and the standard of performance for each task. Ms Laut recorded the proposed work plan on a whiteboard which was run off and attached to Ms Gaffey’s performance development documentation. Ms Laut left the meeting when she could make no further contribution. At the meeting, Ms Gaffey alleges that Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Prudence Gaffey and Comcare

Details

AGLC: Prudence Gaffey and Comcare [2014] AATA 659
Case: [2014] AATA 659
Decision Date: 10 September 2014

CaseChat Overview and Summary

The case of Prudence Gaffey and Comcare involved an application by Ms. Gaffey for compensation under the Safety, Rehabilitation and Compensation Act 1988 for a psychiatric condition she claimed arose from her employment. The dispute was heard by the Administrative Appeals Tribunal (AAT). The primary issue before the AAT was whether Ms. Gaffey's psychiatric condition was compensable as a work-related injury. This hinged on whether her employment significantly contributed to the condition, and if the administrative actions related to her employment were reasonable.

The AAT examined the evidence regarding Ms. Gaffey’s psychiatric condition, which was diagnosed as an aggravation of pre-existing major depressive disorder and generalised anxiety disorder. The Tribunal accepted the medical evidence that Ms. Gaffey experienced an increase in her symptoms from August 2012, particularly after a meeting on 20 August 2012. The Tribunal considered whether her employment with the Department of Sustainability, Environment, Water, Population & Communities contributed to this condition to a significant degree. Ms. Gaffey argued that her condition was exacerbated by workplace stress and the actions of her colleagues during performance assessment meetings.

The AAT concluded that while Ms. Gaffey’s employment did contribute to her condition, it was not sufficient to find that the administrative actions taken by her employer were unreasonable. The Tribunal found that Ms. Gaffey’s manager had acted with consideration and in accordance with advice, and there was no evidence to suggest the information was conveyed in an unreasonable manner. The Tribunal also noted that Ms. Gaffey had been appreciative of her manager's support, indicating that her criticisms were primarily directed at her mentor’s conduct. Therefore, the Tribunal determined that the exclusionary provisions applied, and Ms. Gaffey's condition was not compensable as an 'injury' under the Act.

The AAT found that although Ms. Gaffey's psychiatric condition was significantly contributed to by her employment, the administrative actions involved in that contribution were reasonable. Consequently, Ms. Gaffey’s claim for compensation was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

Ms Gaffey’s application was received by the Tribunal on 3 July 2013. The matter was heard in Canberra on 21 and 22 July 2014.Background Ms Gaffey has been employed in the Australian Public Service for twenty years. At the time of these events she was an Executive Level 1 (EL1) officer in the Department of Sustainability, Environment, Water, Population & Communities (agency) and had been at that level for some ten years. She had worked in two divisions in the agency. Ms Gaffey has accepted injuries, including to her back, which occurred in 2009. By 2010 the effects of the injury had developed into a chronic pain condition with secondary depression and anxiety. She also has thoracic scoliosis (curvature of the spine in the thoracic or mid-back region), and torticollis (a wry neck leading to an asymmetric neck or head position). At all material times Ms Gaffey was on a return to work program, gradually increasing her work hours. In February 2012, Ms Gaffey moved to a new work area in the agency. At the mid-year performance assessment in July 2012, her manager, Ms Joanne Nathan, rated Ms Gaffey ‘3-Satisfactory’ for the period to 30 June 2012. As Ms Nathan had to cut short the performance assessment meeting, it was agreed to schedule a further meeting to discuss the work plan for the next year, a standard element of the assessment process. That further meeting was held on 20 August 2012. Present at the meeting were Ms Gaffey, Ms Nathan and Ms Pieta Laut, Ms Gaffey’s mentor since 2011, attending apparently at Ms Gaffey’s request. Ms Nathan said the meeting was to clarify Ms Gaffey’s understanding of the requirements for the work plan, for the tasks for that financial year, and the standard of performance for each task. Ms Laut recorded the proposed work plan on a whiteboard which was run off and attached to Ms Gaffey’s performance development documentation. Ms Laut left the meeting when she could make no further contribution. At the meeting, Ms Gaffey alleges that Ms Laut made upsetting comments about Ms Gaffey’s appearance of pain, tiredness, grumpiness, absence of passion for, or interest in, her work. Ms Gaffey attended her general practitioner, Dr Fraser, on Monday 23 August 2012. Dr Fraser’s clinical notes state ‘Some stress at work; new job, feeling some pressure to perform from woman she has asked to mentor her – the latter is high performing; although current boss is supportive’. At a meeting with her mentor on 30 August 2012, Ms Gaffey again alleged that Ms Laut made inappropriate, negative and upsetting comments about her physical appearance and the impression created in relation to Ms Gaffey’s work attitude and ability. Ms Gaffey discussed her concerns about the two meetings at a meeting with her rehabilitation case manager, Ms Chi Chu, held after the August meetings but before Ms Gaffey’s leave in October. The meeting was also attended by Ms Chu’s supervisor, Mr Anthony Wickens. Ms Chu and Mr Wickens advised Ms Gaffey to talk to her manager, Ms Nathan, before she went on leave on 22 October 2012 about her concerns relating to the 20 August meeting.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In those circumstances, although Ms Gaffey’s evidence was that when she was notified of Ms Nathan’s final rating of ‘1 – not performing’ on 19 December 2012, ‘it hit her like a bus’, there is evidence to indicate that she was already aware that this news was imminent. In those circumstances, Ms Nathan’s actions, which were considered and only taken after advice, cannot be considered to be unreasonable. Nor was there any suggestion that the information was conveyed in an unreasonable manner. Generally, Ms Gaffey’s notes indicate she had been grateful for Ms Nathan’s support and her criticisms were focused on Ms Laut’s actions rather than those of Ms Nathan. Conclusion On balance, the Tribunal finds that although Ms Gaffey’s condition was significantly contributed to by her employment, the Tribunal is not able to be satisfied that the administrative actions involved in that significant contribution were unreasonable or undertaken in an unreasonable manner. That means the exclusionary provisions apply and Ms Gaffey’s condition is not compensable as an ‘injury’ under the Act.

Ratio Decidendi

Legal Principle Established

The issues are:·What is the diagnosis of the claimed psychiatric condition?·What is the deemed date of injury of the condition?·Did Ms Gaffey’s employment contribute to the condition to a significant degree?·Is any compensation excluded because the condition was ‘suffered as a result of reasonable administrative action taken in a reasonable manner’ (s 5A(1), (2))? ConsiderationDiagnosis Ms Gaffey made a claim for severe depression and anxiety. The claim was dated 16 February 2013. At the hearing, it was accepted that the claim was one for aggravation of a pre-existing psychiatric condition. Dr Fraser provided a number of medical certificates which indicated that Ms Gaffey was experiencing an increase in depression, anxiety and stress symptoms since August 2012. In particular Dr Fraser certified that Ms Gaffey suffered severe depression and anxiety occurring after a meeting on 20 August 2012 due to workplace stress. Her specific diagnoses were: ‘1. Generalised anxiety disorder and 2. major depression’. Dr Fraser also noted that her DASS [Depression, Anxiety and Stress Scale] scores of 14 March 201[3] were ‘extreme’. Ms Gaffey’s treating psychologist, Ms Marion Swetenham, in a report dated 20 March 2013, diagnosed Major Depressive Disorder, and said that Ms Gaffey had symptoms of generalised anxiety disorder with panic attacks and agoraphobia. According to the Beck Depression Inventory she said Ms Gaffey had severe symptoms, and her DASS scores for depression, anxiety and stress, were ‘extremely severe’. She recommended weekly or twice weekly sessions with herself at that time. Dr John Saboisky, consultant psychiatrist, provided a report for Comcare dated 18 September 2013. He referred to ‘the diagnosed condition of Major Depressive Disorder and Generalised Anxiety’, resulting from chronic back pain. In its reviewable decision dated 28 June 2013, Comcare accepted that Ms Gaffey suffered from a major depressive disorder and generalised anxiety. The medical, including psychiatric and other evidence supports the diagnosis of major depressive disorder and generalised anxiety, a condition that was an aggravation of a secondary psychiatric condition which had been accepted by Comcare as compensable in 2010. The Tribunal finds that Ms Gaffey was suffering from an aggravation of those conditions. In accordance with the Act a psychiatric condition is classified as a ‘disease’.[1] A disease is only compensable if it meets the criteria for an ‘injury’ in the Act.[1] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B. Date of injury Section 14 of the Act provides for compensation for a work-related injury provided ‘the injury results in … incapacity for work, or impairment’. An ‘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’. Ms Gaffey was suffering an ‘impairment’, namely, a malfunction of her cognitive ability and on the basis of the medical evidence and the evidence of Ms Gaffey, the Tribunal so finds.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/3171
Re	Prudence Gaffey
APPLICANT
And	Comcare
RESPONDENT

Tribunal	RM Creyke, Senior Member
Date	10 September 2014
Place	Canberra