Ringshaug and Comcare (Compensation)

Case [2016] AATA 88

Ringshaug and Comcare (Compensation) [2016] AATA 88 (18 February 2016)  

Division

GENERAL DIVISION

File Number(s)

2014/1559, 2015/1278, 2015/1602

Re

Sue Ringshaug

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Deputy President Gary Humphries
Dr Ion Alexander, Member
Date 18 February 2016  
Place Canberra

The decisions under review are affirmed.

...............................[sgd].........................................

Deputy President Gary Humphries

Catchwords

COMPENSATION – Commonwealth employees – whether employee suffered an ailment – whether reasonable administrative action – whether acting in respect of employment – whether carried out in a reasonable manner – reviewable decision affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14

Cases

Hart v Comcare (2005) 87 ALD 341

Keane and Australian Postal Commission (1977) 1 ALD 53

Lynch and Comcare (2010) 114 ALD 394

Martin v Comcare (2015) 148 ALD 1

Sullivan v Civil Aviation Safety Authority (2014) 141 ALD 540

REASONS FOR DECISION

Deputy President Gary Humphries
Dr Ion Alexander, Member

18 February 2016

Background

  1. The Tribunal has before it three claims brought by Ms Sue Ringshaug under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act). Ms Ringshaug has worked for Disability ACT (under its various names) for almost 20 years. She began her work there as an Administrative Support Officer (ASO) in the Scheduling Office in March 1996, but in recent years has also trained and worked as a Disability Support Officer (DSO) in the group houses run by Disability ACT for people with disabilities.

  2. During that time, Ms Ringshaug has been afflicted by workplace-related illness. In 2001, she suffered an episode of work-related sprain of shoulder & upper arm (bilateral) (though there was some dispute as to whether this could be characterised as occupational overuse syndrome (or repetition strain injury (RSI)); the role of an ASO apparently involves extensive keyboard use). In February 2011, her GP, Dr Low, diagnosed occupational overuse of her right upper limb and in April 2011, Comcare, the respondent in these proceedings, accepted liability for a condition of her neck and right shoulder, arm, wrist and fingers. She undertook a graduated return to work during 2011.

  3. By the time an occupational physician, Dr Le Leu, examined Ms Ringshaug in October 2011 he found that her history was consistent with RSI but, due to previous treatment and the passage of time, there was little to find on examination. Dr Low certified her fit to return to her pre-injury duties from December 2011. During 2012 she worked part-time as a DSO and part-time as an ASO.

  4. On 19 March 2013, Ms Ringshaug attended a meeting with Ms Pieta White, the Scheduling Office Coordinator. At that meeting Ms White told Ms Ringshaug that she would no longer be able to undertake a joint role as a support worker in the group houses and in the Scheduling Office. Ms White told her that, to finalise her workers’ compensation claim of 2011, Ms Ringshaug would need to return to her previous role as a scheduling officer for a…

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Details
AGLC
Ringshaug and Comcare (Compensation) [2016] AATA 88
Case
[2016] AATA 88
Decision Date

CaseChat Overview and Summary

Ringshaug and Comcare involved a dispute between Ms Ringshaug and Comcare, the Australian Government's workers' compensation insurer, regarding her eligibility for compensation under the Safety, Rehabilitation and Compensation Act 1988. Ms Ringshaug alleged that her physical and mental conditions were work-related injuries, while Comcare argued that her claims were not compensable under the Act. The case was heard by the Administrative Appeals Tribunal, which affirmed Comcare's decisions to deny Ms Ringshaug's compensation claims.

The primary legal issue before the Tribunal was whether Ms Ringshaug's conditions—anxiety, hypertension, secondary major depressive disorder, and adjustment disorder with anxiety—were injuries or diseases within the meaning of the Act. Additionally, the Tribunal had to determine if these conditions were excluded under section 5A of the Act, which provides that an injury or disease is not compensable if it results from reasonable administrative action taken in respect of the employee's employment in a reasonable manner. The Tribunal also considered whether Ms Ringshaug's claimed aggravation of her right upper limb overuse injury was compensable.

In its decision, the Tribunal found that Ms Ringshaug's conditions were not injuries or diseases under the Act. Alternatively, even if they were considered injuries or diseases, they were excluded under section 5A because they were the result of reasonable administrative action taken in respect of her employment in a reasonable manner. The Tribunal emphasised that Ms Ringshaug's conditions were a direct consequence of her reaction to management's actions, which were reasonable and taken in a reasonable manner. The Tribunal concluded that Ms Ringshaug's claims for permanent impairment, non-economic loss, and secondary major depressive disorder and adjustment disorder with anxiety were not compensable.

The Tribunal affirmed Comcare's determinations to deny Ms Ringshaug's claims for compensation. The decisions under review were upheld, and the Tribunal found in favour of Comcare.

Orders

Orders of the court

The decisions under review are affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal accepts the parties’ contention that failure of Ms Ringshaug’s first action would lead inevitably to failure of the second action. The medical evidence Ms Ringshaug made many visits to her GP, Dr Low, during the period in question. Dr Low first diagnosed RSI in February 2011, and over the course of that year certified her gradual return to a pre-injury level of fitness for work. During this time he recommended avoiding prolonged sedentary deskwork and that she obtain weekly physiotherapy and attend Ergogym. He recommended that keyboard work should be accompanied by frequent breaks. On 17 October 2011, Dr Le Leu, an occupational physician, recommended that Ms Ringshaug:… could either return to full-time scheduling or return to a combination of scheduling and disability work. The latter would be the best option in the future provides [sic] she receives adequate training and there are appropriate lifting devices and policies in place.He added:She takes the reasonable viewpoint that a mixture of work would be better for an overuse condition.He found that her condition had stabilised (largely recovered) but that she was vulnerable to a further recurrence if she is not careful to avoid excessive, repetitive use of the arms and hands particularly under conditions of stress. In a report dated 16 November 2011, physiotherapist Ms Tanya Stewart for Ergogym recorded that Ms Ringshaug reports that she is at 100 percent of her pre-injury capacity provided she does not perform provocative activities. On 23 December 2011, Dr Low certified Ms Ringshaug as fit to return to pre-injury duties, including being on call. In a further medical certificate of 28 March 2012 Dr Low certified her to return to her duties as either an ASO or DSO. Following the incident of 17 May 2013, when Ms Ringshaug became upset on reading Ms Blount’s email, she again attended Dr Low, who recorded on 20 May:Dept has ordered patient to return to office full time, Patient forced to work according to unsuitable roster, which is made up of hours rejected by colleagues. Dept refuses to grant patient mixed duites [sic] in any way… Patient is apprehensive of incurring work injuries as before. Patient feels very stressed, anxious, affecting sleep, and is very averse to RTW. He recorded that Ms Ringshaug had high blood pressure. That day he diagnosed Working condition problems – unreasonable management refusing patient’s request to perform mixed duties which will prevent recurrence of previous work injuries. This has resulted in anxiety, hypertension, and loss of patient’s motivation to work. He recorded further high blood pressure readings on 17 June, 15 July, 8 August and 15 August 2013. On 18 November 2013, Dr Low issued a report in which he said The continual agitation and lack of support by her work management over her work roster has caused her various ailments like insomnia, poor concentration, lack of motivation and elevation of her blood pressure. Dr Jetnikoff, a consultant psychiatrist, provided a report dated 30 August 2013 in which he found that Ms Ringshaug did not suffer from a psychiatric disorder and that her anxiety about re-injury was within the normal realm of mental functioning and behaviour. He noted that she had become quite cautious, but he did not regard this as pathological. He also noted that she has reached a stalemate with the employer and she is stubbornly concerned about re-injury and felt that she needed to defend her position. Again, I do not consider this as based on mental illness, rather a pursuit of perceived fairness in the workplace. He also wrote that She reported no current physical symptoms.

Decision

Reasons for decision

In Martin the Federal Court disapproved of the Tribunal treating one outcome as the direct and foreseeable consequence of another outcome. We respectfully agree that the Court was right to find that two separate and distinct issues – though arising in the course of the same telephone call – should not be conflated. But we do not think that circumstance is replicated in the present case. Ms Ringshaug’s condition was a direct consequence of management’s actions, in a straightforward cause-and-effect sense, not in the artificial sense used by the Tribunal in Martin. To argue that Ms Ringshaug was injured by her reaction to management’s actions, and not by the actions themselves, proceeds on the basis of a logical fallacy. It is the equivalent of the child arguing that what broke his mother’s window was the cricket ball interacting with it, not his cricket bat propelling the ball in its direction.Conclusion For the reasons provided above, the Tribunal makes the following findings:2014/1559Ms Ringshaug's claimed condition of anxiety and hypertension is not an injury or disease within the meaning of the Act. In the alternative, if her condition does fall within the definition of an injury or disease, it is otherwise excluded under s 5A as it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Accordingly the Tribunal affirms Comcare’s determination of 18 February 2014 in respect of this condition.2015/1278Ms Ringshaug's claim for permanent impairment and non-economic loss in relation to her accepted aggravation of right upper limb overuse injury arises out of, and is dependent upon, the condition claimed for in 2014/1559 being compensable. As the Tribunal has found it is not compensable, it affirms Comcare’s determination of 24 February 2015 with respect to the second claim.2015/1602Ms Ringshaug’s claimed condition of secondary major depressive disorder and adjustment disorder with anxiety is not an injury or disease within the meaning of the Act. In the alternative, if her condition does fall within the definition of an injury or disease, it is otherwise excluded under s 5A as it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Accordingly the Tribunal affirms Comcare’s determination of 16 March 2015 in respect of this condition.

Ratio Decidendi

Legal Principle Established

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