Purdon and Comcare (Compensation) - [2024] AATA 3493

Purdon and Comcare (Compensation) [2024] AATA 3493 (16 September 2024)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2023/3453

GENERAL DIVISION )
Re: David Purdon
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:  Member W Frost
DATE OF CORRIGENDUM:            24 September 2024
PLACE:           Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
1.in paragraphs 3(b) and 99, the words “the AFP” be deleted and replaced with “Services Australia.”

...................[SGD]...........................
Member W Frost
Division:GENERAL DIVISION
File Number(s): 2023/3453
Re:David Purdon
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:16 September 2024
Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
....................[SGD]...................................
Member W Frost
Catchwords
WORKERS’ COMPENSATION – section 14 of the Safety, Rehabilitation and Compensation Act 1988 – definition of ‘injury’ under subsection 5A(1) SRC Act – definition of ‘disease’ under subsection 5B(1) – disease suffered by an employee – reasonable administrative action taken in reasonable matter – administrative investigation – exacerbation of condition – liability to pay compensation
Legislation
Administrative Appeals Tribunal Act 1975, ss 37, 43
Criminal Code Act 1995
Public Service Act 1999
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5, 7, 14
Cases
Bryant and National Australia Bank Ltd [2021] AATA 2769
Comcare v Martinez (No 2) (2013) 212 FCR 272
Comcare v Power (2015) 238 FCR 187
Commission for Safety, Rehabilitation & Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Purdon and Comcare [1997] AATA 466
Radulovic and Comcare (2010) AATA 777
Rizkallah and Australian Postal Corporation [1991] AATA 611
Scalzo and Australian Postal Corporation [1991]
Thappa and Comcare [2013] AATA 629
REASONS FOR DECISION
Member W Frost
16 September 2024
INTRODUCTION

The Applicant, Mr David Purdon, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, Comcare, declining liability to pay him compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) in respect of ‘work related stress, anxiety, emotional break down with physical symptoms’, including ‘abdominal discomfort’, ‘sleep disturbance’ and ‘headache’.[1]
[1] Exhibit 1, pages 1-6.
The Tribunal has considered all documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the additional documents taken into evidence in these proceedings, together with the parties’ submissions.[2] For the following reasons, the Tribunal affirms the decision under review. This means that Mr Purdon’s application to the Tribunal is unsuccessful and Comcare is not liable to pay him compensation under the SRC Act.
[2] Exhibits 1 to 4.
ISSUES
The Tribunal had to determine the following issues in this proceeding:
(a)whether Mr Purdon suffered from an ‘ailment’ or an ‘aggravation of such an ailment’, as defined by subsection 5B(1) of the SRC Act;
(b)if so, whether Mr Purdon’s ‘ailment’ was…

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 Purdon and Comcare (Compensation)

Details

AGLC: Purdon and Comcare (Compensation) [2024] AATA 3493
Case: [2024] AATA 3493
Decision Date: 16 September 2024

CaseChat Overview and Summary

This matter concerned a claim for workers' compensation by Mr Purdon against Comcare under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act). The central dispute revolved around whether Mr Purdon had suffered an "injury" as defined by the Act, which would render Comcare liable to pay compensation.

The Tribunal was required to determine several key issues. These included whether Mr Purdon suffered from an "ailment" or an "aggravation of an ailment," and if so, whether his employment contributed to this ailment to a significant degree, thereby constituting a "disease." Crucially, the Tribunal also had to consider whether this "disease" was suffered as a result of reasonable administrative action taken in a reasonable manner, which would exclude it from being considered an "injury" under the Act. Finally, the Tribunal needed to assess whether Mr Purdon had made any wilful and false representations regarding his prior health conditions.

The Tribunal's reasoning focused on the exclusion for reasonable administrative action. It found that Mr Purdon's condition was a result of reasonable administrative action taken in a reasonable manner in respect of his employment. This finding meant that, notwithstanding any potential ailment or disease, it did not constitute an "injury" for the purposes of section 5A(1) of the SRC Act. The Tribunal also considered evidence regarding Mr Purdon's prior history of depression, which he denied, but this became secondary to the primary finding regarding administrative action.

Consequently, the Tribunal determined that Mr Purdon had not suffered an "injury" as defined by the SRC Act. As a result, Comcare was not liable to pay compensation to Mr Purdon under section 14 of the Act. The Tribunal affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal had to determine the following issues in this proceeding:(a)whether Mr Purdon suffered from an ‘ailment’ or an ‘aggravation of such an ailment’, as defined by subsection 5B(1) of the SRC Act;(b)if so, whether Mr Purdon’s ‘ailment’ was ‘contributed to, to a significant degree’, by his employment with the AFP, as required by subsection 5B(1) of the SRC Act in order to constitute a ‘disease’;(c)if so, whether Mr Purdon’s ‘disease’ was suffered as a result of ‘reasonable administrative action taken in a reasonable manner’ in respect of his employment and therefore not an ‘injury’ under subsection 5A(1) of the SRC Act;(d)whether Mr Purdon has at any time, for purposes connected with his employment, made a ‘wilful and false representation’ that he did not suffer, or had not previously suffered from that ‘disease’, such that it shall not be taken to be an ‘injury’ for the purposes of the SRC Act; and(e)whether Comcare is liable to pay compensation to Mr Purdon for an ‘injury’ pursuant to section 14 of the SRC Act. BACKGROUND Mr Purdon is 62 years old.[3] [3] Exhibit 1, pages 2 and 67. In November 2021, Mr Purdon commenced employment with Services Australia as a full-time temporary Service Officer at level 3 in the Australian Public Service (APS).[4][4] Ibid., pages 13, 71 and 88. On 11 April 2022, Mr Purdon submitted a claim for the Australian Government’s Disaster Recovery Allowance (DRA) in relation to the floods in Lismore, New South Wales (NSW), in February 2022.[5] Mr Purdon stated in that claim form that he had a usual place of residence in an area impacted by the flood event, a usual place of work in, or income derived from, an area impacted by the flood, and lost income or a reduction in income as a direct result of the flood event. In addition to noting his full-time employment with Services Australia, Mr Purdon stated that he was ‘self-employed’, operated a ‘home based business’ in ‘[l]egal administration’ and his home had been ‘severely damaged’.[6] Mr Purdon further stated that he was ‘running at a loss of income and will suffer a further loss of income’.[7] In this regard, Mr Purdon claimed that his business’ net income for the eight weeks before the floods was $3,200 and that the estimated net loss between 1 March 2022 and 31 May 2022 was $3,200.[8][5] Ibid., pages 26-31. [6] Ibid. [7] Ibid., page 29. [8] Ibid., page 31. Also on 11 April 2022, Services Australia granted Mr Purdon’s claim for DRA with effect from 1 March 2022.[9] [9] Ibid., pages 32-33. On 19 April 2022, Services Australia informed Mr Purdon that he was eligible for the DRA ‘Top-up’, because the relevant Minister had declared the area in which Mr Purdon resided or worked as being ‘significantly affected’ by the flooding.[10][10] Ibid., pages 34-35. On 28 April 2022, Mr Purdon lodged an ‘Outside Employment Application’ with Services Australia in relation to work he was proposing to undertake for the Australian Electoral Commission (AEC) during the Federal Election in May 2022.[11][11] Ibid., pages 8-10.

Evidence

Evidence Before The Court

Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also provides that ‘aggravation’ includes ‘acceleration or recurrence’. EVIDENCELay evidenceMr Purdon The Tribunal has considered the written statements made by Mr Purdon dated 6 November 2022, 1 January 2023 and 23 July 2024.[34] Mr Purdon confirmed adherence to his three statements in these proceedings.[34] Exhibit 1, pages 13-57 and Exhibit 3, pages 30-35. Under cross-examination, Mr Purdon told the Tribunal he completed the workers’ compensation claim himself and accepted that he signed it on 8 November 2022.[35] He agreed that it was true and accurate, but did not necessarily agree that he ‘signed away’ his right to privacy. Mr Purdon said he was aware that it constituted a declaration that the contents of the claim were true and correct. [35] Exhibit 1, pages 65-70. Counsel for Comcare referred to Mr Purdon’s negative answer to question 33 in the workers’ compensation claim form regarding whether he had ‘ever experienced a similar symptom, injury or illness, work-related or otherwise’.[36] Mr Purdon told the Tribunal that his answer was ‘true’; he had ‘never experienced a similar injury or illness work-related or otherwise’. He agreed the claimed injury was a psychological condition, however when asked whether he agreed that depression was a psychological condition, Mr Purdon said that he ‘would agree that feeling sad could be described as a psychological condition’. Counsel put to Mr Purdon that when he completed his compensation claim he was aware that he had previously been diagnosed with depression. Mr Purdon told the Tribunal he did not believe that ‘I had ever been treated for depression in the past’. [36] Ibid., page 68. As a result, Counsel referred to a doctor’s letter in September 2007 indicating that Mr Purdon had a known background of ‘depression’.[37] Mr Purdon told the Tribunal that he had ‘never’ suffered or been treated for depression. When taken to further clinical records from 2007 to 2010 referring to depression, Mr Purdon repeated his denial that he had ever been depressed or treated for depression.[38] Mr Purdon told the Tribunal that he did not recall telling a doctor in 2010 that he had ‘high levels of anxiety and stress’ and denied making such a statement.[39] He also disagreed that he was suffering from ‘mental issues’, referred to in another doctor’s note from May 2010, although Mr Purdon said he had a ‘great deal of sadness and concern’ about his child’s health.[40] Mr Purdon did not accept that he was, as recorded in clinical notes from October 2010, ‘still very down and depressed’, although this was said to be ‘a period of great concern’ and ‘upset’ regarding his ‘position’, but Mr Purdon again said he was never treated for depression and did not believe he had ever suffered from such a condition.[41] He also denied seeing Dr Chowdhury about depression, but rather for ‘Workcover certificates’.[37] Exhibit 3, page 494. [38] Ibid., pages 420-434 and 478.[39] Ibid., page 577. [40] Ibid., page 466. [41] Ibid., page 422.

Decision

Reasons for decision

As a result of the Tribunal’s above finding regarding the application of the ‘reasonable administrative action’ exclusion in subsection 5A(1) of the SRC Act, Mr Purdon has not suffered an ‘injury’ and Comcare is therefore not liable to pay compensation to him under section 14 of the SRC Act. DECISION The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

Ratio Decidendi

Legal Principle Established

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ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/3453
GENERAL DIVISION	)