Ritson and Comcare (Compensation) - [2019] AATA 154

Ritson and Comcare (Compensation) [2019] AATA 154 (15 February 2019)
Division: GENERAL DIVISION
File Number(s): 2016/1794
Re:Brendan Ritson
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:15 February 2019
Place:Brisbane

In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), the reviewable decision is set aside and in substitution it is decided that the applicant is entitled to compensation under s 14 of the Act for the condition of major depressive disorder.
For the purposes of s 7(4) of the Act, the applicant should have been taken to have sustained the injury on 14 December 2015 being the date when the applicant first sought medical treatment for the disease.
The respondent is liable to pay the applicant’s legal costs incurred in the proceedings of an amount agreed between the parties, and failing agreement between the parties, the respondent is liable to pay costs in an amount as taxed by the Registrar or an officer of the Tribunal pursuant to s 67 of the Act.
............................[SGD]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for mental injury arising out of the applicant’s employment – whether the applicant suffered an ailment or aggravation of an existing ailment that was contributed to, to a significant degree, by the employee’s employment – application under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin (2016) 339 ALR 1
Comcare v Mooi (1996) 69 FCR 439
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Hennessey-Milne and Comcare [2018] AATA 4453
Jones v Dunkel (1959) 101 CLR 298
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Lim v Comcare [2017] FCAFC 64
Ritson v Director of Fair Work Building Industry Inspectorate & Anor [2016] FCCA 2926
Smith v Comcare [2015] FCAFC 24
SECONDARY MATERIALS
General Practice Direction (26 March 2007)
Dennis Pearce, Administrative Appeals Tribunal (Lexis Nexis Butterworths, 2^nd ed, 2007)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
15 February 2019
INTRODUCTION

The applicant, Mr Brendan Ritson, has submitted a claim for compensation for “anxiety and depression”, which was made in respect of a psychiatric injury allegedly sustained in the course of his employment with Fair Work Building and Construction (“FWBC”).
CLAIM HISTORY
The applicant commenced employment as an APS 5 level investigator with Fair Work Building and Construction (“FWBC”) on 20 July 2015. On 14 December 2015 the applicant was advised that FWBC was considering terminating his employment.
On 15 December 2015 the applicant submitted a claim for workers compensation in relation to “anxiety and depression”.[1] On the claim form the applicant stated that he had first noticed the condition on 27 November 2015 at approximately 8:50am, and that he first sought medical treatment on 14 December 2015. The applicant attached a statement dated 7 December 2015 which detailed the circumstances surrounding…

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 Ritson and Comcare (Compensation)

Details

AGLC: Ritson and Comcare (Compensation) [2019] AATA 154
Case: [2019] AATA 154
Decision Date: 15 February 2019

CaseChat Overview and Summary

This matter concerned a claim for compensation by the applicant, an employee, against Comcare for a mental injury allegedly arising out of his employment. The applicant sought compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The dispute centred on whether the applicant suffered an ailment or an aggravation of an existing ailment that was contributed to, to a significant degree, by his employment.

The court was required to determine whether the applicant's diagnosed mental health condition constituted an "ailment" for the purposes of the Act, and if so, whether that ailment was contributed to, to a significant degree, by his employment. A key consideration was whether the applicant's condition arose from reasonable administrative actions taken in a reasonable manner, which would exclude it from compensation under section 5A(1) of the Act.

The court relied on the report of Dr Macleod, who diagnosed the applicant with a major depressive disorder with features of agitation and anxiety. This diagnosis was adopted by Dr Smith. The court considered the applicant's submissions that his evidence was reliable and supported by file notes and the testimony of other witnesses, as well as the contemporaneous medical records from his GP. The respondent argued that the applicant's non-disclosure of prior disciplinary proceedings was a dishonest act, and that the subsequent meeting and proposed termination of employment were reasonable administrative actions.

The court found that the applicant suffered from a major depressive disorder with features of agitation and anxiety. It was determined that this ailment was contributed to in a significant degree by the applicant's employment. Consequently, the court found that the applicant had suffered an injury for the purposes of section 14 of the Act, and liability attached to Comcare to provide compensation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Under cross-examination Mr Stephenson was asked when he had previously been aware of the applicant experiencing similar stress, and he recalled 2008 or 2009. When questioned he advised that the applicant had previously worked for his company, Dynamic Corporate Services. Mr Stephenson was also asked about the preparation of his witness statement, and he agreed that, after he was contacted and asked a few questions, he was sent a draft to look at and sign.STATEMENT OF AGREED FACTS The parties have provided a document entitled “Statement of Agreed Facts”, which sets out the facts to which there is no dispute.[46] The respondent agrees that the applicant was working with the FWBC between 20 July 2015 and 16 December 2015, and for a period of time the applicant was under the supervision of Mr Cooper. [46] Exhibit H. The respondent agrees with the facts put forward by the applicant regarding the events on 13 October 2015 and 14 October 2015 up until the point at which the applicant entered the meeting room with Mr Cooper and Mr Hogan. With respect to the events on 11 November 2015, the respondent agrees that: ·At about 11:00am the applicant was standing at his desk in the offices of the FWBC;·Mr Cooper approached the applicant from behind and punched the applicant in the lower back four times in quick succession;·Mr Cooper’s punches were not overly forceful, but they did push the applicant into the desk in front of him; ·The applicant had not previously engaged in any type of horseplay with Mr Cooper and he was surprised by Mr Cooper’s conduct. With respect to the events on 20 and 23 November 2015, the respondent only agrees that on 20 November 2015 Mr Cooper directed the applicant to accompany him to the Southport site. With respect to the events on 27 November 2015, the respondent agrees that: ·At 3:30pm on 25 November 2015 the applicant received an email from Mr Cooper which made enquiries about the circumstances surrounding the applicant’s arrival at work on 24 November 2015; ·At about 11:45am on 26 November 2015 the applicant spoke with Mr Cooper about his email of 25 November 2015. He advised Mr Cooper that he had arrived at work at about 7:45am the previous day; ·At 2:50pm on 26 November 2015 the applicant received an email from Mr Cooper requesting that he respond to Mr Cooper’s email of 25 November 2015 before he left work for the day; ·At 4:31pm on 26 November 2015 the applicant sent an email to Mr Cooper noting that his scheduled finish time was 4:30pm and requesting approval for an hour of flex time to enable him to respond to Mr Cooper’s email before he left work; ·At about 8:50am on 27 November 2015 the applicant was standing at his desk speaking to Rob Thorney. Mr Cooper was standing at his desk facing the applicant. ·The applicant contends that:a) While the applicant was speaking to Mr Thorney, Mr Cooper asked the applicant, “Are you joking?”; b) The applicant turned to face Mr Cooper. Mr Cooper repeated, “Are you joking?”;c) The applicant said, “I beg your pardon Kevin”; d) Mr Cooper responded, “Is this a joke? You’re asking me to approve an hour of flex to send an email. You’re kidding yourself.”;e) Three other FWBC staff members were standing within hearing distance during the exchange between Mr Cooper and the applicant; f) The applicant walked towards Ms Busato’s office, and as he did Mr Cooper said, “You’re kidding yourself if you think I’m going to approve that. I’m denying your request.”; g) The applicant responded to Mr Cooper, “Kevin, I don’t appreciate being spoken to in a belligerent tone of voice in front of other staff”.

Evidence

Evidence Before The Court

The applicant provided a statement dated 28 September 2016 in which he outlined his view of events which he said took place on 14 December 2015. The statement contained the following allegations:·At about 8:40am on 14 December 2015 the applicant was standing at his desk when Catherine Higgins, Acting Team Leader, approached him and advised that Ms Busato wanted to have a meeting with him; ·The applicant was not told what the meeting was going to be about; ·The applicant went into a meeting room with Ms Busato, Ms Higgins and Mr Jenkinson; ·Ms Busato stated that she needed to speak to the applicant about his probation. She stated:“Some information has come to light that indicates that you may not have made full disclosure to the agency in your application to be appointed as a Fair Work Industry Inspector. The agency takes non-disclosure very seriously and at this stage is considering terminating your employment with FWBC.”·Ms Busato handed the applicant documents regarding the commencement of his employment, as well as several newspaper articles concerning the applicant. Ms Busato stated:“These internet articles reveal that you were subject to criminal proceedings as a member of the NSW Police. The issue here is non-disclosure of that information to the agency in your application to be appointed as a Fair Work Industry Inspector.”·Ms Busato advised that the applicant would be given until 9:00am tomorrow morning to respond to this issue;·The applicant asked, “Where has this come from? Has a complaint been made?”; ·Ms Busato stated, “I’m not at liberty to say where it has come from”;·The applicant stated, “This issue hasn’t just popped out of thin air. Someone has gone rifling through internet sites looking for this information”, and Ms Busato repeated her above statement;·Ms Busato agreed to let the applicant go home early and to have the following day off; ·After the meeting the applicant left the office accompanied by Ms Higgins. Ms Higgins asked, “Are you alright? Do you want to go and have a coffee?”’·The applicant responded, “The timing of this matter is very interesting. I need to go straight home to prepare my response. Thanks for your support.”; ·The applicant was not given any warning of the proposed meeting prior to it taking place. He was also not advised in writing of the allegations made against him, and was not provided the opportunity to have a support person present at the meeting;·When he arrived home the applicant made a record of the meeting and emailed it to himself at 10:51am; ·At 12:13pm the applicant sent an email to Ms Busato, summarising what had occurred in the meeting and requesting that she set out the allegations in writing, including the information he had allegedly failed to disclose and the source of the obligation to disclose that information; ·At 4:04pm the applicant received an email from Ms Busato, which advised:a) Media reports indicated that the applicant had been subject to disciplinary proceedings while employed at the NSW Police Force, including being suspended from duties in 2009 and investigations of alleged incidents in March 2006, April 2007 and June 2008; b) Employees are required to declare that they have not been and are not currently subject to disciplinary action, and any other matters which might bring their good character into question or compromise the activities of the FWBC; andc) The applicant failed to disclose these matters in the nomination form he signed on 20 July 2015;·At 4:45pm on that same day, the applicant saw his general practitioner (“GP”), Dr Hoa Tran. He consulted Dr Tran in relation to the anxiety and depressed mood he had been suffering from since the incident with Mr Cooper on 27 November 2015. Dr Tran concluded that the applicant was unfit for work and issued a medical certificate, prescribed medication, and provided a referral for the applicant to see Dr Selwyn Smith, psychiatrist. Dr Tran’s diagnosis was that the applicant suffered from anxiety and depression.The applicant’s oral evidence

Decision

Reasons for decision

The respondent submits that the evidence supports a finding that the meeting, the proposal to terminate the applicant’s employment, and the decision to terminate the applicant’s employment, were reasonable administrative actions taken in a reasonable manner with respect to the applicant’s employment. They note that the applicant was clearly dishonest in the nomination form completed at the commencement of his employment, which in itself is sufficient to justify the termination of his employment. The respondent also considers that the manner in which Ms Busato conducted the meeting, and in which she informed the applicant about the proposal to terminate his employment, were taken in a reasonable manner.Decision sought The respondent seeks that the decision under review be affirmed, on the basis that the applicant’s adjustment disorder developed as a result of reasonable administrative action and as such the exclusionary provision in s 5A(1) of the Act applies. The respondent submits that as the applicant cannot be found to have suffered an injury for the purposes of s 14 of the Act, no liability attaches to the respondent to provide compensation.APPLICANT’S SUBMISSIONS IN REPLY The applicant’s written submissions in reply responded to a number of contentions put forward in the respondent’s written submissions. The applicant referred again to the issue of Mr Cooper not being called to give evidence, and noted that while he does not necessarily agree that the respondent advised the Tribunal that Mr Cooper was not giving evidence due to being subject to personal litigation by the applicant, if that is accepted then he considers that: ·This reason does not satisfactorily explain Mr Cooper’s absence, as there was no explanation of why being the subject of personal litigation is a satisfactory or understandable basis for him declining to give evidence; ·It was not for the applicant to call a potentially adverse witness to give evidence in his case; if the respondent intended to rely on the evidence of Mr Cooper it was up to them to call him as a witness; and·The applicant gave evidence in person and had his evidence tested under cross-examination. The same did not happen for Mr Cooper, so to the extent that the applicant’s evidence differs from the evidence of Mr Cooper it would be “quite unsafe” to prefer Mr Cooper’s version. The applicant submitted that any other litigation he has been involved in is irrelevant to this matter, including remarks made by Judge Vasta in the Federal Circuit Court proceedings. He notes that the Tribunal is required to decide this case on the evidence before it, not on the basis of what another judge said about the applicant in another case; which is particularly important given that the factual matters which led to Judge Vasta’s findings were not specifically put to the applicant during cross-examination. The applicant referred to Dr Smith’s evidence where he agreed that if a hypothetical person genuinely believed they were able to answer allegations levelled against them, such that they would not lose their job, then they may not feel particularly distressed. The applicant submitted that he believed he could satisfactorily answer the allegation of non-disclosure that had been made against him, so the meeting “did not significantly affect him”.

Ratio Decidendi

Legal Principle Established

The applicant submits that the respondent’s submissions are based on the fact that the applicant is an unreliable witness, and because of that the foundation upon which Dr Smith and Dr Macleod formed their conclusions on causation is unsustainable; however, the applicant claims that, despite his credibility being “vigorously challenged” by the respondent during cross-examination, the respondent has not pointed to anything of substance which arose in the proceedings that could lead the Tribunal to conclude that the applicant’s evidence was unreliable. The applicant submits that the foundation giving rise to the doctors’ causation findings is also supported by: ·The applicant’s file notes; ·The evidence of Mr Fitzjohn, Mr Harrigan and Mr Stephenson, who confirmed the applicant’s distress on 27 November 2015; ·The evidence of Ms Busato, who stated that the applicant was calm and composed during the 14 December 2015 meeting; ·The fact that the applicant’s belief that he would be able to satisfactorily answer allegations was “entirely rational”; and ·The contemporaneous medical records of Dr Tran on 14 December 2015 make no mention of the meeting, but record stress and anxiety relating to Mr Cooper’s actions.CONSIDERATIONAilment of the applicant Recently, in Hennessey-Milne and Comcare [2018] AATA 4453 at [186], Deputy President Sosso remarked: “One of the features of workers’ compensation claims involving mental ailments is the multitude of “labels” that are ascribed to those ailments by various medical professionals”. This is one such case where the applicant has been diagnosed by medical specialists with different psychiatric conditions. The respondent submits that the applicant suffers from a psychiatric condition which has been identified by Dr Smith as being an adjustment disorder. Dr Macleod, who was commissioned by the respondent, has differed in his diagnosis by having the opinion that the applicant has major depression with agitation and anxiety. Dr Macleod in his report of 15 August 2016 has explained that subsequent to the assessment of an adjustment disorder by Dr Smith on 6 January 2016, the adjustment disorder of the applicant had evolved into a major depressive episode. In his report, Dr Macleod explained that it is not uncommon for adjustment disorders to progress to major depression. Dr Smith, in giving evidence, has adopted the diagnosis of Dr Macleod: he remarked: “I think Dr Macleod was probably correct. He regarded him as suffering from a major depressive disorder, which is, if you will, a step down further on the scale of an adjustment disorder with depressed mood”. I rely upon the report of Dr Macleod to find that when the applicant was examined by Dr Macleod in January 2016 he was suffering from an ailment being a major depressive disorder with features of agitation and anxiety. Whether the ailment was contributed to in a significant degree by the applicant’s employment I have to determine whether the ailment of the applicant being the mental health condition of the applicant was contributed to in a significant degree by the applicant’s employment.