Robert Winchester and Comcare - [2014] AATA 15

[2014] AATA 15

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/1830

Re

Robert Winchester

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
RM Creyke, Senior Member

Date 15 January 2014

Place Canberra
The decision under review is affirmed
...................[sgd]......................
RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth employee – psychiatric injury – whether condition is an ailment – whether contributed to by employment to a significant degree – whether not compensable because due to reasonable administrative action conducted in a reasonable manner.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) section 4(1), 5A(1)-(2), 5B(3) and 14
CASES
Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Comcare v Martinez [2013] FCA 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Curragh Coal Sales Co Pty Ltd v Wilcox (1984) 1 FCR 461
Falconer v Pedersen [1974] VR 185
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Re Findlay and Comcare [2013] AATA 324
Re Georges and Telstra Corporation Ltd [2009] AATA 731
Re Hospital Benefit Fund of Western Australia Inc (1992) 28 ALD 25
SECONDARY MATERIALS
DC Pearce Statutory Interpretation in Australia (6^th edn, 2006)
REASONS FOR DECISION
RM Creyke, Senior Member
15 January 2014

Mr Robert Winchester, born 1952, applied to Comcare to accept liability for a psychiatric injury which he claimed was employment-related.
That application was refused on 25 January 2012, a decision upheld on review on 12 April 2012. Mr Winchester sought further review by the Tribunal on 1 May 2012. The Tribunal is satisfied it has jurisdiction in this matter.
The hearing by the Tribunal was held in Canberra on 18-20 November 2013.
Background
The following facts are agreed by both parties. Mr Winchester first worked as a trades’ assistant with ActewAGL from 7 April 1975. During this employment he did four years of ‘on the job’ training to qualify as an underground electrical cable jointer, whereupon he was re-classified as a Grade A Cable Jointer.
In the early 1980s, Mr Winchester completed two years of a TAFE course towards an Associate Diploma in Electrical Engineering, while working full-time as a jointer.
In or around 1995, Mr Winchester commenced a three year apprenticeship with ActewAGL for a position of overhead linesman. He completed the apprenticeship in two years because of his past experience and qualifications.
In 2001, Mr Winchester received the ActewAGL award for Overhead Linesman of the Year and was promoted to Leading Hand Overhead Linesman. In 2001 he was temporarily promoted to Overhead Line Maintenance Manager, a position he filled for nine months.
In 2004 he was promoted to be Team Coordinator in Construction, responsible for scoping, planning for and supervising a team of up to nine people. In addition, as increasing numbers of large construction projects with combined teams were undertaken by ActewAGL, Mr Winchester’s evidence was that he was consistently required to scope, plan for and supervise twenty or more persons.
By 2008 Mr Winchester’s own…

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 Robert Winchester and Comcare

Details

AGLC: Robert Winchester and Comcare [2014] AATA 15
Case: [2014] AATA 15
Decision Date

CaseChat Overview and Summary

The case of Robert Winchester and Comcare was heard by the Administrative Appeals Tribunal in Canberra from 18-20 November 2013. The dispute centered around the claim that Mr. Winchester, an employee of ActewAGL, suffered from work-related stress and depression which led to incapacity for work and impairment. Mr. Winchester argued that his condition was caused by his employment, and Comcare, his employer's insurer, was liable for the injuries.

The key legal issues before the Tribunal were whether Mr. Winchester's depressive disorder constituted an 'ailment' under the relevant legislation, whether his employment contributed to the ailment to a significant degree, and if Comcare was liable for his condition as it was not the result of reasonable administrative action taken in a reasonable manner. The diagnosis of Mr. Winchester's condition was debated, with the Tribunal concluding that he suffered from a depressive disorder rather than a chronic adjustment disorder.

The Tribunal determined that Mr. Winchester's depressive disorder qualified as an 'ailment' as it was a recognised psychiatric disorder. The Tribunal further held that Mr. Winchester's employment did contribute to his ailment to a significant degree, as the condition was substantially more than a mere contributing factor. The Tribunal also found that Comcare was liable for Mr. Winchester's condition, as it was not the result of reasonable administrative action taken in a reasonable manner.

In conclusion, the Tribunal ruled in favor of Mr. Winchester, holding that Comcare was liable for his work-related depressive disorder. The Tribunal found that his employment did contribute to the ailment to a significant degree, and the condition was not the result of reasonable administrative action taken in a reasonable manner.

Orders

Orders of the court

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Background

Background to the litigation

The hearing by the Tribunal was held in Canberra on 18-20 November 2013. Background The following facts are agreed by both parties. Mr Winchester first worked as a trades’ assistant with ActewAGL from 7 April 1975. During this employment he did four years of ‘on the job’ training to qualify as an underground electrical cable jointer, whereupon he was re-classified as a Grade A Cable Jointer. In the early 1980s, Mr Winchester completed two years of a TAFE course towards an Associate Diploma in Electrical Engineering, while working full-time as a jointer. In or around 1995, Mr Winchester commenced a three year apprenticeship with ActewAGL for a position of overhead linesman. He completed the apprenticeship in two years because of his past experience and qualifications. In 2001, Mr Winchester received the ActewAGL award for Overhead Linesman of the Year and was promoted to Leading Hand Overhead Linesman. In 2001 he was temporarily promoted to Overhead Line Maintenance Manager, a position he filled for nine months. In 2004 he was promoted to be Team Coordinator in Construction, responsible for scoping, planning for and supervising a team of up to nine people. In addition, as increasing numbers of large construction projects with combined teams were undertaken by ActewAGL, Mr Winchester’s evidence was that he was consistently required to scope, plan for and supervise twenty or more persons. By 2008 Mr Winchester’s own team consisted of thirteen people, a reduction because of the loss of human resources support. In addition, some of that team were required to resource a power pole replacement program so the numbers in his team were further reduced. Mr Winchester’s workload was defined in terms of projects, for each of which there was a ‘work pack’. Mr Winchester was expected to complete a number of work packs weekly. Summons material indicates there was an increase in the number of work packs between 2006 and 2008. Figures provided by the applicant showed the number for 2006 was 763, for 2007, 778, and for 2008, 910. Mr Winchester’s completion rate of his work packs did not meet his targets and in September 2008, Mr Winchester was put on notice by his supervisor that unless he completed more work packs over the next fortnight, he could be subject to disciplinary review. From early 2008, Mr Winchester was working a nine day fortnight commencing work at 7.30am and finishing at 4.00pm. However, he said he regularly took work home or stayed late at work to finalise matters, or prepare for upcoming tasks. On 10 February 2009, a grievance against Mr Winchester was submitted by an employee. The grievance related to a number of matters including, as summarised in the Grievance Report:·Outage went ahead late, insufficient time to complete;·No onsite conference or risk assessment;·Men were expected to work back;·Confusion about whether an access permit existed;·Meal not provided by Team Coordinator. Personnel told not to stop work; and·Plant operators for earth removal not notified job was running late.

Evidence

Evidence Before The Court

Mr Winchester has been taking anti-depressant medication since 2010. Initially he was reluctant to go on an anti-depressant. Mr Winchester had eight or more sessions with a private psychologist, and some six sessions with an Employee Assistance counsellor in 2010. He has also been seeing a counsellor from his church since 2009, and this continues on a regular and frequent basis. Medical evidenceDr Shroot Mr Winchester attended his general practitioner, Dr Alan Shroot, on 7 April 2009 who certified him unfit for work. Dr Shroot had been Mr Winchester’s treating practitioner since 2006. Dr Shroot provided a report dated 24 November 2011 saying that Mr Winchester had reported he was having major problems at work after a grievance complaint was made against him but that most of the grievances were found to be incorrect and Mr Winchester was having counselling at work. Dr Shroot had diagnosed work related stress and noted that he had not previously treated Mr Winchester for depression, but said he ‘has certainly been depressed’. He noted that in November 2011 Mr Winchester remained on anti-depressant medication. Dr Shroot said Mr Winchester had tried to cease anti-depressants in August 2010 but had to resume taking the medication. Dr Shroot said that, not having previously treated Mr Winchester for depression, ‘it is difficult to know whether the particular incidents at work are an aggravation of a previously existing condition, or whether this is purely post-traumatic stress as a result of what is happening at work’. He acknowledged that someone like Mr Winchester who has previously suffered from depression ‘would have been more susceptible to break down’. Dr Shroot said the main stressors were work-related, but ‘there have been further stresses in his personal life and these are probably a further consequence of the various stresses at work’. In a Medical Practitioner’s Statement completed on 23 June 2010, Dr Shroot noted a diagnosis of ‘depression and post traumatic stress as a result of work… brought on (aggravated) by work incident’. He also noted that Mr Winchester ‘has had depression on and off for long time’. Ms Todoroska Ms Zora Todoroska, psychologist, first saw Mr Winchester on 12 February 2010, on referral from Dr Shroot, and last saw him on 11 May 2010. She diagnosed Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. In her opinion the condition was induced by stress at work and was not an aggravation of a pre-existing or underlying condition. She noted in her report that, by Mr Winchester’s own admission, his personality was perfectionist, he was judgmental of himself, a list maker and keeper, schedule oriented and a hard worker. In her opinion such a personality type may tend towards depressive moods, gets caught up in details and is challenged by unplanned change. Stressors she identified were:· helplessness when in charge of particular jobs, and feeling it was his fault;· pressures at work;· stress in the workplace over some period;· perceived lack of support from management to reduce his stress, or provide him with additional resources;· the grievance complaint; and· stress at work affecting his relationship with his wife.Dr Zsadanyi

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The principal issue is whether Comcare is liable for Mr Winchester’s condition because it is an ‘injury suffered by an employee [that] results in … incapacity for work, or impairment’. In turn that raises issues concerning:·The appropriate diagnosis of Mr Winchester’s condition;·Whether the condition is an ailment;·Whether that ailment, being a mental ailment was contributed, to, to a significant degree, by Mr Winchester’s employment; and·If so, whether that ailment is not an ‘injury’ because it was suffered as a result of reasonable administrative action taken in a reasonable manner. Consideration Mr Winchester lodged a claim for ‘stress’, affecting his ‘mental state’, with a claimed date of injury of 6 April 2009. He completed his workers’ compensation application on 18 August 2010.Diagnosis The first issue is the appropriate diagnosis of Mr Winchester’s condition. Although Ms Todorovska diagnosed a chronic adjustment disorder, the two consultant psychiatrists, the treating practitioner, Dr Shroot, and Dr Lark, an occupational medical specialist, diagnosed a depressive disorder. The Tribunal prefers the views of the psychiatrist, and the other medical experts, including the treating practitioner, to the view of the treating psychologist and finds that Mr Winchester suffered from a depressive disorder. That diagnosis is confirmed as Mr Winchester, although initially reluctant to take anti-depressant medication, has been on such medication since 2010 which he finds helpful and continues to need.‘Ailment’ The second issue is whether that condition is an ‘ailment’. The Act defines ‘ailment’ in section 4(1) as follows: ‘An ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. Mr Winchester’s depressive disorder is a mental disorder, defect or morbid condition. The condition is recognised as a psychiatric disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th edn, 2000, Text Revision) (DSM IV – TR), a reputable and widely used manual of such disorders. As such his depressive disorder qualifies as an ‘ailment’.Whether that mental ailment was contributed, to, to a significant degree, by Mr Winchester’s employment The requirement that for liability to arise, employment must contribute to the ailment to a significant degree means that the contribution must be ‘substantially more than material’.[2] ‘Material’ had been determined to be more than de minimis, that is, ‘more than a mere contributing factor’,[3] and to be ‘an evaluative threshold below which a causal connection may be disregarded’.[4] The interpretation is best captured by the meaning in the Shorter Oxford English Dictionary as ‘in a material degree; substantially, considerably’.[5] That meaning was picked up in the amendments which led to section 5B(3) of the Act, namely, that the contribution must be ‘substantially more than material’.[6] As the discussion indicates, and the Tribunal accepts, the contribution must be one of substance and must be considerably more than de minimis, or a ‘mere contributing factor’. [2] Safety, Rehabilitation and Compensation Act 1988 (Cth) s5B(3). [3] Comcare v Sahu-Khan (2007) 156 FCR 536.[4] Id at 542. [5] Id at [15]-[16]. [6] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B(3).

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/1830
Re	Robert Winchester
APPLICANT
And	Comcare
RESPONDENT

Tribunal	RM Creyke, Senior Member
Date	15 January 2014
Place	Canberra