RSBQ and Comcare (Compensation)

Case [2017] AATA 1965

RSBQ and Comcare (Compensation) [2017] AATA 1965 (30 October 2017)

Division:GENERAL DIVISION

File Number(s):      2015/0749 & 2015/2623

Re:RSBQ  

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:A G Melick AO RFD SC, Deputy President

Date:30 October 2017

Place:Hobart

The decisions under review are affirmed.

........................................................................

A G Melick AO RFD SC, Deputy President

CATCHWORDS

WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – applicant claims flawed recruitment process caused psychological injury – applicant claims failure to implement return to work plan caused aggravation of that injury – whether injury caused by disappointment at failing to obtain promotion – whether recruitment process and return to work plan were reasonable administrative action undertaken in a reasonable manner – decisions under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 5A, 5B, 14

Public Service Regulations 1999 (Cth)

CASES

Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105; [2004] FCAFC 16
Comcare v Martin (2016) 258 CLR 467; [2016] HCA 43
Comcare v Martinez (No 2) (2013) 212 FCR 272; [2013] FCA 439
Hart v Comcare (2005) 145 FCR 29; [2005] FCAFC 16
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
McKinnon and Australian Postal Commission [2001] AATA 297

Re Georges and Telstra Corporation Ltd [2009] AATA 731

REASONS FOR DECISION

A G Melick AO RFD SC, Deputy President

30 October 2017

BACKGROUND

  1. The Applicant commenced his position in an APS5 role with a Commonwealth Government agency (the Agency) on 28 April 2005.

  2. The Applicant began acting in an APS6 position in September 2011. Between July 2012 and January 2013 the Applicant acted in an EL1 role before returning to act in the APS6 position.  During that period, his substantive position was the APS5 role to which he had initially been appointed. The APS6 position that the Applicant was acting in was advertised as a permanent role in 2013.  The Applicant applied for the position and was unsuccessful.

  3. The factual background and materials were voluminous which has necessitated the detail as set out below.

  4. By application 2015/0749 the applicant lodged a claim for compensation with the respondent for ‘anxiety and depression symptoms following prolonged dispute with employer’. This claim arose, inter alia, as result of the applicant's alleged corruption of the recruitment process and his ‘disappointment’ at failing to be appointed to the position.

  5. Application 2015/2623 relates to a claim for an aggravation of the existing injury referred to in the above-mentioned application as a result of the employer’s failure to finalise an appropriate return to work plan (RTW plan).

  6. The Applicant was self-represented and evidence relating to both claims was often intertwined. Some separation has been attempted in the facts that follow however it has been difficult to categorise some of the ten volumes of material exhibited into one claim or another.

    HISTORY

  7. The Applicant was notified in person that he had not been successful by his supervisor Mr A on 7 August…

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AGLC
RSBQ and Comcare (Compensation) [2017] AATA 1965
Case
[2017] AATA 1965
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the claims of RSBQ (the applicant) against Comcare (the respondent) concerning a psychological injury. The applicant alleged that a flawed recruitment process caused his psychological injury and that the subsequent failure to implement a return-to-work plan aggravated this injury. The core of the dispute revolved around whether the applicant's condition constituted an "ailment" under the Safety, Rehabilitation and Compensation Act 1988 (Cth) and whether this ailment was caused or aggravated by his employment.

The Tribunal was required to determine several legal issues. Firstly, it needed to ascertain whether the applicant suffered from an "ailment" as defined by section 4 of the Act, which encompasses any physical or mental ailment, disorder, defect, or morbid condition. Secondly, the Tribunal had to consider whether the applicant's ailment was significantly contributed to by his employment, a prerequisite for it to be considered a "disease" under section 5B(1) of the Act. Finally, the Tribunal had to assess whether the exclusionary provision in section 5A(1) of the Act applied to the applicant's claimed condition.

In its reasoning, the Tribunal accepted the diagnosis of "Adjustment Disorder with mixed disturbance of emotion and conduct" as a valid ailment under section 4 of the Act, based on the evidence presented by various medical professionals. Crucially, the respondent conceded that the applicant's ailment had been significantly contributed to by his employment. This concession meant the Tribunal did not need to independently determine the causal link for the purposes of section 5B(1). The Tribunal's decision affirmed the previous decisions under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 4 of the Act defines ‘ailment’ as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.EVIDENCE Multiple volumes of documents were tendered into evidence during the hearing. This included the T documents for both applications, supplementary documentation containing the Agency’s records relating to the Applicant’s complaints and RTW process, and additional correspondence and medical reports. The Applicant gave his own evidence and was then cross examined extensively during the hearing. I have no doubt that the Applicant’s evidence was truthful in articulating events as he perceived them. The Applicant called his treating psychologist, Dr Slaghuis to give evidence by phone. He also called the Agency’s current Director of People and Capability, Ms J. I agree with the assessment of Dr Slaghuis where he notes that the Applicant’s thinking is ‘logical and linear and his verbal expression articulate, precise, and erudite’ (T12 at 74, Exhibit 2). He also noted that the Applicant ‘expresses himself with dignity and considerable kindness.’ I do note, however, that the Applicant sometimes became quite persistent, excitable and repetitive in his submissions although he was always able to clearly communicate his concerns. The Respondent called the following lay witnesses to give evidence during the hearing:(a)Ms G, who had been the delegate responsible for signing off on the appointment of the successful candidate to the APS6 position;(b)Mr C, who had been on the selection panel;(c)Ms I, who was employed by the Agency and had provided a reference for the Applicant with respect to the APS6 position; and(d)Mr A, who had been on the selection panel and was the Applicant’s direct supervisor during the recruitment process. The Respondent also called the following medical professionals to give evidence:(a)Dr Peter Farnbach, psychiatrist, who assessed the Applicant and produced three reports dated 7 May 2015, 24 June 2015 and 11 January 2015;(b)Dr Philip Reid, psychiatrist, who assessed the Applicant in September 2015;(c)Dr Ian De Saxe, consultant psychiatrist, who assessed the Applicant in March 2014;(d)Dr Gregor Schutz, general practitioner, who assessed the Applicant in May 2014; and(e)Dr Grantley Tschirn, consultant occupational physician, who assessed the Applicant in November 2013.CONSIDERATION – APPLICATION 2015/0749Does the Applicant suffer from an ailment within the meaning of s 4 of the Act? The Applicant has been assessed by a number of medical practitioners, including his treating general practitioner, Dr Gregor, his psychologist, Dr Slaghuis, and various medical professionals engaged by the Respondent. He has been diagnosed with the following conditions:(a)Anxiety and depression symptoms (medical certificate from Dr Gregor dated 31 March 2014; T38 at 513, Exhibit 1);(b)Adjustment disorder with anxious mood (report of Dr De Saxe dated 17 March 2014; T14.3 at 238, Exhibit 1);(c)Severe Reactive Anxiety/Depression Disorder and associated Adjustment Disorder (report of Dr Gregor dated 14 April 2014; T9 at 58, Exhibit 2); and(d)Adjustment Disorder with mixed disturbance of emotion and conduct (report of Dr Schutz dated 26 May 2014; T19 at 423, Exhibit 1)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Respondent also called the following medical professionals to give evidence:(a)Dr Peter Farnbach, psychiatrist, who assessed the Applicant and produced three reports dated 7 May 2015, 24 June 2015 and 11 January 2015;(b)Dr Philip Reid, psychiatrist, who assessed the Applicant in September 2015;(c)Dr Ian De Saxe, consultant psychiatrist, who assessed the Applicant in March 2014;(d)Dr Gregor Schutz, general practitioner, who assessed the Applicant in May 2014; and(e)Dr Grantley Tschirn, consultant occupational physician, who assessed the Applicant in November 2013.CONSIDERATION – APPLICATION 2015/0749Does the Applicant suffer from an ailment within the meaning of s 4 of the Act? The Applicant has been assessed by a number of medical practitioners, including his treating general practitioner, Dr Gregor, his psychologist, Dr Slaghuis, and various medical professionals engaged by the Respondent. He has been diagnosed with the following conditions:(a)Anxiety and depression symptoms (medical certificate from Dr Gregor dated 31 March 2014; T38 at 513, Exhibit 1);(b)Adjustment disorder with anxious mood (report of Dr De Saxe dated 17 March 2014; T14.3 at 238, Exhibit 1);(c)Severe Reactive Anxiety/Depression Disorder and associated Adjustment Disorder (report of Dr Gregor dated 14 April 2014; T9 at 58, Exhibit 2); and(d)Adjustment Disorder with mixed disturbance of emotion and conduct (report of Dr Schutz dated 26 May 2014; T19 at 423, Exhibit 1) In its written submissions, the Respondent contended that the Tribunal should accept Dr Schutz’ diagnosis of ‘Adjustment Disorder with mixed disturbance of emotion and conduct’ on the basis that it is ‘more descriptive’ than those of other medical practitioners. I accept this diagnosis. I find that the Applicant’s condition, as it is variously diagnosed, falls within the definition of ailment set out in s 4 of the SRC Act as it is a mental ailment, disorder, defect or morbid condition.Has the Applicant’s ailment been significantly contributed to by the Applicant’s employment, so as to meet the definition of ‘disease’ under s 5B(1) of the Act? The High Court in Comcare v Martin (2016) 258 CLR 467 held that the causal connection required by s 5A(1) of the SRC Act is satisfied if the ailment or aggravation would not have been suffered by the employee without the administrative action being taken. However, the employee’s employment need not be the sole cause of the ailment or aggravation. At paragraph 45 of their joint judgment, French CJ, Bell, Gageler, Keane and Nettle JJ stated:There may be multiple causes, some of which might even be related to other aspects of the employee’s employment. What is necessary is that the taking of the administrative action is an event without which the employee’s ailment or aggravation would not have been a disease [within the meaning of s 5B(1)]: it would have been contributed to, to a significant degree, by the employee’s employment. During the hearing, the Respondent conceded that the Applicant’s ailment had been significantly contributed to by the Applicant’s employment with the Agency (Transcript, 16 January 2017, page 8, see especially [30]-[35]). It is therefore not necessary for me to determine whether the Applicant’s ailment was significantly contributed to by the Applicant’s employment for the purposes of the definition of ‘disease’ found in s 5B(1) of the SRC Act.Does the exclusionary provision in s 5A(1) exclude liability for the Applicant’s claimed condition?