Rodway and Comcare (Compensation) - [2022] AATA 163

Rodway and Comcare (Compensation) [2022] AATA 163 (7 February 2022)
Division:GENERAL DIVISION
File Number(s): 2019/7606
Re:Kaylene Rodway
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member West
Date:7 February 2022
Place:Melbourne

The decision of the delegate of the Respondent dated 27 September 2019 affirming the determination dated 9 July 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) is set aside and in its place the Tribunal determines that:
(a)the Applicant suffered incapacity for work as a result of an injury, namely adjustment disorder with mixed anxiety and depression, the subject of a claim for compensation dated 10 May 2019, to which her employment with the Department of Human Services contributed to a significant degree (Injury);
(b)the Respondent is liable under s 14 of the Act to compensate the Applicant in respect of the Injury;
(c)the matter is remitted to the Respondent to determine the Applicant’s entitlements pursuant to ss 16 and 19 of the Act; and
(d)the Respondent is to pay the Applicant’s costs and disbursements of these proceedings pursuant to s 67 of the Act.

............................[SDG].....................................
Member R West
Catchwords
WORKER COMPENSATION – s 14 of the Safety, Rehabilitation and Compensation Act 1988 – psychological injury – adjustment disorder with mixed anxiety and depression - incapacity for work – whether reasonable administrative action taken in a reasonable manner – decision set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Public Service Act 1999 (Cth)
Administrative Appeals Act 1975 (Cth)
Cases
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin (2016) 258 CLR 467
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drenth v Comcare [2012] FCAFC 86
REASONS FOR DECISION
Member R West
7 February 2022

This matter concerns an application for the review of a decision of a delegate of the Respondent dated 27 September 2019 to affirm a determination dated 9 July 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) for the Applicant’s condition of adjustment disorder with mixed anxiety and depression.
Background
At all relevant times the Applicant was employed by Services Australia as a team leader in the Department of Human Services, having commenced the employment in 2004.
On 10 May 2019, the Applicant submitted a claim under s 14 of the Act[1] for compensation related to an alleged condition of adjustment disorder with mixed anxiety and depression.
[1] T5 at pp.8-16.
The Respondent denied liability under s 14 of the Act on 9 July 2019.[2] This decision was affirmed by an independent review officer on 27 September 2019.[3] The Applicant lodged an application for review of this decision by the Tribunal on 19 November 2019.[4]
[2] T51 at pp.213-214.
[3] T70 at pp.281-282.
[4] T3 at pp.5-6.
A hearing in relation to the Review was held on 16, 17 and 18 August and 6 September 2021. Due to the restrictions placed on…

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 Rodway and Comcare (Compensation)

Details

AGLC: Rodway and Comcare (Compensation) [2022] AATA 163
Case: [2022] AATA 163
Decision Date: 7 February 2022

CaseChat Overview and Summary

This matter concerned an application for review before the Administrative Appeals Tribunal (AAT) regarding Comcare's denial of liability for the applicant's condition of adjustment disorder with mixed anxiety and depression. The applicant, employed by Services Australia as a team leader, had lodged a claim for compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (the Act). A delegate of Comcare initially denied liability, and this decision was affirmed by an independent review officer. The applicant subsequently sought a review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant's adjustment disorder with mixed anxiety and depression constituted an "injury" for the purposes of section 14 of the Act, or if it fell within an exclusionary provision. Specifically, the Tribunal had to determine if the condition was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the applicant's employment, as defined by section 5A(1) of the Act. This involved assessing whether the informal counselling provided to the applicant by Ms. Hines on 22 January 2019, which was identified as a trigger for her condition, constituted such reasonable administrative action.

The Tribunal found that the applicant had suffered from an adjustment disorder with mixed anxiety and depression to which her employment contributed to a significant degree. The medical evidence established that the condition resulted from a build-up of stressors in her employment, triggered by the informal counselling. Crucially, the Tribunal determined that while the counselling was an administrative action, it was not taken in a reasonable manner in all the circumstances. Therefore, the exclusionary provision in section 5A(1) of the Act did not apply. The Tribunal was satisfied that the applicant's condition resulted in her incapacity for work, and consequently, she was entitled to compensation under section 14 of the Act.

Orders

Orders of the court

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Background

Background to the litigation

This matter concerns an application for the review of a decision of a delegate of the Respondent dated 27 September 2019 to affirm a determination dated 9 July 2019 by which the Respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Act) for the Applicant’s condition of adjustment disorder with mixed anxiety and depression. Background At all relevant times the Applicant was employed by Services Australia as a team leader in the Department of Human Services, having commenced the employment in 2004. On 10 May 2019, the Applicant submitted a claim under s 14 of the Act[1] for compensation related to an alleged condition of adjustment disorder with mixed anxiety and depression.[1] T5 at pp.8-16. The Respondent denied liability under s 14 of the Act on 9 July 2019.[2] This decision was affirmed by an independent review officer on 27 September 2019.[3] The Applicant lodged an application for review of this decision by the Tribunal on 19 November 2019.[4][2] T51 at pp.213-214.[3] T70 at pp.281-282.[4] T3 at pp.5-6. A hearing in relation to the Review was held on 16, 17 and 18 August and 6 September 2021. Due to the restrictions placed on the community in response to the COVID-19 pandemic the Tribunal determined that the hearing proceed by videoconference pursuant to s 33A of the Administrative Appeals Act 1975 (AAT Act). The Applicant was represented by Mr Mark Carey of counsel. The Respondent was represented by Mr John Wallace of counsel. In conducting the Review, the Tribunal has had regard to:(a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act (T Documents); (b)the documents tendered by the parties and listed as exhibits in Annexure A; and(c)the oral evidence of:(i)the Applicant; and(ii)Dr Matthew Tagkalidis, psychiatrist;(iii)Tanya Michelle Hines;(iv)Jeanette Kiervan;(v)Melissa Brotherson-Clarke; and(vi)Dr Anthony Sheehan, psychiatrist. Relevant Legislation The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Act). Section 14 of the Act provides:(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. (2) Compensation is not payable in respect of an injury that is intentionally self-inflicted. (3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. Sections 5A(1) and 5B(1) respectively set out the relevant definitions for the purpose of the Act as follows: "injury" means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment; but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. "disease" means:(a) an ailment suffered by an employee; or (b) an aggravation of such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

Evidence

Evidence Before The Court

In their final written submissions, the parties confirmed that there was no dispute about various key matters including: (a)The Applicant being an ‘employee’ for the purposes of s 5 of the Act. At the material times, she was a permanent employee engaged under the Public Service Act 1999 (PSA), engaged as an APS 6 level officer within the Department of Human Services and her specific role was as a Team Leader in the Albury Office of the Child Support Services. She had been engaged in the particular Department since 11 January 2007[9]. (b)The Applicant suffered from a condition beyond the bounds of normal mental functioning. She was diagnosed with an adjustment disorder with mixed anxiety and depression. (c)The Applicant’s first treatment for that disorder was in the first week of February 2019. In her reconsideration request[10] she advised that she “sought medical treatment in the first week of February. I was seen by Dr Belinda Lacey, Carrier Street Clinic (Benalla) on 5th February, and then again on 11th Feb by Dr Anthony Knight, Carrier Street Clinic (Benalla), Both of these visits were to seek support from stress and anxiety I was feeling about work.”(d)The Applicant’s injury was contributed to, to a significant degree, by her employment. (e)That injury resulted in a degree of impairment of function and, particularly, incapacity for work at all, or at the level immediately prior to the happening of the injury, that is, the Team Leader in the Albury Office of the Child Support Services where she worked full-time standard hours and also regular Tuesday evening overtime. [9] T5 at p.15.[10] T56 at p.221.Medical Evidence The Applicant identified a number of work-related factors which had contributed to the development of her anxiety and depression[11], including:(a)the performance management of two staff members prior to transferring to the Albury office, involving complaints against her of discrimination and bullying;(b)the performance management of Ms H shortly after arriving in the Albury office which involved aggressive and intimidating behaviour towards her which she found disturbing in the context of her previous experiences;(c)an unwelcoming attitude from some members of the leadership team in Albury, particularly Ms Hines;(d)resistance by other members of the leadership team to various proposals she made for changes; (e)general stress in coming to grips with the new form of work she was to deal with in the Albury office; and(f)the events of 22 January 2019.[11] Exhibit A1. The Applicant tendered a medical report of Dr Tagkalidis, consultant psychiatrist, dated [12] Exhibit A3.4 February 2021[12] and Dr Tagkalidis gave oral evidence at the hearing. Dr Tagkelidis saw the Applicant on 4 February 2021 for the purpose of an independent psychiatric assessment. He concluded that the Applicant was then suffering from an adjustment disorder with mixed anxiety and depressed mood which had partially abated and that her current functioning and coping had not been compromised by any personality-based factors. He stated in his report that the Applicant had clearly developed a depressive and anxiety syndrome consequent to the incidents described, and that these incidents were a direct contributing factor to her condition. He clarified in his oral evidence that the incidents were a reference to a series of incidents reported to him by the Applicant including the informal counselling by Ms Hines on 22 January 2019. Dr Tagkalidis stated in his report that [t]he relevant workplace events contributed 100% of the Applicant’s emotional distress during the relevant period and that her emotional impairment had led to a very significant functional decline which had encompassed vocational, domestic, social and leisure activities. He stated that the Applicant had no work capacity for approximately six months in the period that she was off work. He noted that at the time of his assessment in February 2021 the Applicant’s prognosis was positive and improving with time.

Decision

Reasons for decision

While Dr Sheehan identified the events of 22 January 2019 as significant, he acknowledged in cross examination that other events in the Applicant’s employment contributed to her condition and that the events of 22 January 2019 may be over emphasised given the build-up of stressors from employment, and that event may have assumed greater significance because it was only the last event in the chain leading to overt symptoms. Conclusion On the basis of this evidence and having regard to the concessions of the parties, the Tribunal is satisfied that the Applicant suffered from an adjustment disorder with mixed anxiety and depression to which her employment with the Department of Human Services contributed to a significant degree. The condition resulted from a build-up of stressors in her employment and was triggered by the informal counselling action of Ms Hines on 22 January 2019. The date of injury is 5 February 2019, being the date she first sought medical treatment for the condition. The medical evidence further establishes that the Applicant’s adjustment disorder with mixed anxiety and depression resulted in her incapacity for work as defined in s 4(9) of the Act for work at all, or at the level of Team Leader in the Albury Office of the Child Support Services where she worked full-time standard hours and regular Tuesday evening overtime. On this basis the Tribunal is satisfied that, but for any exclusionary provision in s 5A of the Act, the Applicant suffered an injury for which she was entitled to compensation under s 14 of the Act. Exclusionary Provisions The Respondent asserted that the Applicant’s adjustment disorder with mixed anxiety and depression was suffered as a result of the informal counselling action taken by Ms Hines on 22 January 2019, which considered in all the circumstances, was reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment. The relevant exclusion provision in this case is the exclusion in the definition of injury in s 5A(1) that injury does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. Section 5A(2) provides that reasonable administrative action is taken to include the following:(a)a reasonable appraisal of the employee's performance;(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee's employment;(c)a reasonable suspension action in respect of the employee's employment;(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee's employment;(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);(f)anything reasonable done in connection with the employee's failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment. The element of the definition in s 5A(2) identified by the Respondent as relevant to this case is that in subparagraph (b). However, the Respondent argued that the administrative actions listed in s 5A(2) are expressly not limited to those actions identified by subparagraphs (a)-(f)[25].[25] Citing Commonwealth Bank of Australia v Reeve [2012] FCAFC 21, Drenth v Comcare [2012] FCAFC 86 and Comcare v Drinkwater [2018] FCAFC 62.

Ratio Decidendi

Legal Principle Established

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