SDCS and COMCARE (Compensation) - [2022] AATA 1327

SDCS and COMCARE (Compensation) [2022] AATA 1327 (20 May 2022)
Division:GENERAL DIVISION
File Number: 2018/4729
Re:SDCS
APPLICANT

AndCOMCARE
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:20 May 2022
Place:Brisbane

The decision under review is set aside and the matter is remitted to the Respondent for reconsideration in accordance with a direction that the exclusion (“but does not include”)
in section 5A(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) is not applicable.
...............................[SGD].........................................
Senior Member Katter
CATCHWORDS
COMPENSATION – in respect of an injury suffered by an employee if the injury results in incapacity for work, or impairment – disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment – sections 5A and 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
LEGISLATION
Administrative Appeals Tribunals Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member Katter
20 May 2022
APPLICATION

This is an application for review[1] of the decision of the Respondent dated 27 April 2018[2], determining that ‘the exclusionary provisions set out in sub-section 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”) operate to exclude the Applicant’s psychological injury from sub-section 14(1) compensation’[3].
[1] Exhibit 1, T Documents, T1, page 5, Application for Review of Decision. See also pages 1 – 80.
[2] Ibid, T31.3, page 331, Reviewable decision – Determination dated 21.01.2018 is affirmed.
[3]Exhibit 1, T Documents, T22.2, page 249, Determination – Liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 … is denied in respect of ‘adjustment disorder with mixed anxiety and depressed mood’.
BACKGROUND
The Applicant was a “Service Officer”[4] with the Department of Human Services (the “Department”)[5].
[4]Exhibit 1, T Documents, T11, page 123, E-mail exchange between Service Centre Manager and Applicant regarding incidents of 01.09.2017.
[5] Ibid.
The Applicant lodged a “Workers’ Compensation Claim” form through the Respondent’s website on 22 November 2017[6]. In answer to the question on the form, “What is the condition that you are claiming for?”, the Applicant answered: “Anxiety and Depression”[7]. As to the question on the form, “When did you first notice your symptoms/injury?”, the Applicant stated: “08/08/2016 9:00 AM”[8]. In answer to the question on the form, “When will you be returning to work?”, the Applicant answered: “Less than 12 weeks”[9]. In a statement accompanying the claim form[10], the Applicant stated:
‘During this time that with no doubt was the most stressful time of my life, I witnessed, experienced and shared the amount of stress vulnerable customers going through to receive the services they are entitle to. This stress along with customer aggression and incidents at work has caused anxiety and depression that affected me and my family and I have been struggling to manage this on an everyday basis’[11].
[6] Exhibit 1, T Documents, T3, pages 82…

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 SDCS and COMCARE (Compensation)

Details

AGLC: SDCS and COMCARE (Compensation) [2022] AATA 1327
Case: [2022] AATA 1327
Decision Date: 20 May 2022

CaseChat Overview and Summary

This matter concerned an application for review of a decision by Comcare, the respondent, which determined that the applicant's psychological injury was excluded from compensation under section 5A(2) of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). The applicant, a Service Officer with the Department of Human Services, claimed to have suffered anxiety and depression as a result of stress, customer aggression, and incidents at work. Comcare's delegate had adopted the reasoning of a report which concluded that the applicant's injury was suffered as a result of reasonable administrative actions taken in a reasonable manner in respect of his employment, thereby triggering the exclusionary provisions of section 5A(2).

The primary legal issue before the court was whether the applicant's psychological injury was excluded from compensation by section 5A(2) of the Act, which excludes injuries suffered as a result of reasonable administrative action taken in a reasonable manner in respect of an employee's employment. The court was required to determine if the evidence supported Comcare's finding that the applicant's injury was a consequence of such actions and, if so, whether this exclusion applied.

The court reasoned that while Comcare's decision identified reasonable administrative action as having contributed significantly to the applicant's condition, section 5A(1) of the Act specifically refers to a "disease", "injury" or "aggravation of a physical or mental injury (other than a disease)". The court found that the decision under review, which stated that the injury was suffered as a result of reasonable administrative actions and therefore excluded by section 5A(2), would be set aside. The court noted that the parties had primarily led evidence and made submissions regarding the threshold issue of whether there was an entitlement to compensation under section 14(1) of the Act, and that Comcare was to decide any further entitlements under other sections of Part II of the Act.

The decision under review was set aside. The court indicated that it was not making a finding regarding any earlier conditions or potential false representations by the applicant, as there was insufficient evidence to support such findings. The matter was to proceed with Comcare determining any entitlements under the relevant sections of Part II of the Act.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review[1] of the decision of the Respondent dated 27 April 2018[2], determining that ‘the exclusionary provisions set out in sub-section 5A(2) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “Act”) operate to exclude the Applicant’s psychological injury from sub-section 14(1) compensation’[3]. [1] Exhibit 1, T Documents, T1, page 5, Application for Review of Decision. See also pages 1 – 80.[2] Ibid, T31.3, page 331, Reviewable decision – Determination dated 21.01.2018 is affirmed.[3]Exhibit 1, T Documents, T22.2, page 249, Determination – Liability under section 14 of the Safety, Rehabilitation and Compensation Act 1988 … is denied in respect of ‘adjustment disorder with mixed anxiety and depressed mood’. BACKGROUND The Applicant was a “Service Officer”[4] with the Department of Human Services (the “Department”)[5].[4]Exhibit 1, T Documents, T11, page 123, E-mail exchange between Service Centre Manager and Applicant regarding incidents of 01.09.2017.[5] Ibid. The Applicant lodged a “Workers’ Compensation Claim” form through the Respondent’s website on 22 November 2017[6]. In answer to the question on the form, “What is the condition that you are claiming for?”, the Applicant answered: “Anxiety and Depression”[7]. As to the question on the form, “When did you first notice your symptoms/injury?”, the Applicant stated: “08/08/2016 9:00 AM”[8]. In answer to the question on the form, “When will you be returning to work?”, the Applicant answered: “Less than 12 weeks”[9]. In a statement accompanying the claim form[10], the Applicant stated:‘During this time that with no doubt was the most stressful time of my life, I witnessed, experienced and shared the amount of stress vulnerable customers going through to receive the services they are entitle to. This stress along with customer aggression and incidents at work has caused anxiety and depression that affected me and my family and I have been struggling to manage this on an everyday basis’[11].[6] Exhibit 1, T Documents, T3, pages 82 – 89 Workers’ Compensation Claim Form.[7] Ibid, page 83.[8] Ibid.[9] Exhibit 1 (n 6), T3, page 83.[10]Exhibit 1, T Documents, T3.1, pages 90 – 92, Applicant statement – ‘Statement to support my compensation claim’.[11] Ibid, page 90. The Applicant made declarations on that form[12], including the following[13]: ‘I know I must immediately inform Comcare if I become employed in any way during the period I am absent from work due to my injury/disease. …I know I must immediately inform Comcare if my injury or disease improves enough to allow me to return to work.’ [12] Exhibit 1 (n 6), T3, pages 86 - 87.[13] Ibid. On 22 January 2018 the Respondent, by a person stated to be a delegate, determined that the Respondent is ‘not liable to pay compensation to the employee in respect of the injury in accordance with sub-section 14(1) of the Act’[14]. The determination ‘adopted the reasons stated in the report as the reasons for the decision’[15]. In the reasons “summary” it was stated: ‘Taking into account the factors above, I consider that the evidence supports that the Department has acted reasonably in supporting [the Applicant] and in addressing complaints regarding demonstrated inappropriate behaviour. I note that these actions were administrative in nature, were conducted in a reasonable manner, and were taken in respect of his employment. I consider the evidence shows that, on balance, the injury was suffered as a result of these actions, and therefore, the exclusionary provisions set out in Section 5A(2) of the … Act operate to exclude [the Applicant’s] psychological injury from compensation’[16].[14] Exhibit 1 (n 3), T22.2, page 249, [1]. [15] Ibid, [2]. [16]Exhibit 1, T Documents, T22.3, page 260, second last paragraph, Recommendation by Allianz to delegate in respect of Applicant’s claim for compensation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is insufficient evidence to accept that the Applicant made false representations regarding any earlier condition. There is insufficient evidence to find that the Applicant’s injury is or is not the same as any earlier condition or whether or not it is a continuation or aggravation of the same injury, noting that the report adopted by both parties states it is a ‘new diagnosis’[144] and not an exacerbation of a pre-existing condition. Further, if the Applicant did make false representations (and that is not found) regarding the same injury, there is insufficient evidence to find that any alleged false representations were made willfully. [144] Exhibit 1 (n 127), T16, page 197.DECISION The decision under review dated 27 April 2018, as referred to above, stated that ‘on balance, the injury was suffered as a result of reasonable administrative actions, and therefore the exclusionary provisions set out in section 5A(2) of the Act operate to exclude the Applicant’s psychological injury from compensation’[145]. The submission of the Respondent is that the evidence identified the reasonable administrative action (particularly on 10 November 2017) as “having contributed in a significant degree to the Applicant’s psychiatric condition [underlining added]”. However, sub-section 5A(1) of the Act states only that a “disease”, “injury” or “an aggravation of a physical or mental injury (other than a disease)” 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. [145]Exhibit 1, T Documents, T31.2, page 329, second last paragraph, Recommendation by Allianz to delegate to affirm the determination dated 22.01.2018. The decision under review of 27 April 2018 that ‘the evidence shows that, on balance, the injury was suffered as a result of reasonable administrative actions, and therefore the exclusionary provisions set out in Section 5A(2) of the Act operate to exclude the Applicant’s psychological injury from compensation’ will therefore be set aside. As referred to above, the Respondent submitted that section 14 is “purely a threshold issue as to whether or not there was an entitlement to compensation” and “it’s then a matter for the Respondent to decide what entitlements there may be in respect of sections 16 and 19 et cetera”. The parties predominantly led evidence and made submissions as to the particular words in s 14(1): “ … Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee … ”. There is no other finding as to any of the sections in Part II, noting that the Applicant seeks “financial assistance for all the times [the Applicant] took off work because of this medical condition”[146]. That is that the Respondent, as the Respondent submitted, is to decide what entitlements, if any, there may be in respect of sections in Part II: “Subject to this Part”. [146]Exhibit 1, T Documents, T3.1, page 92, final paragraph, Applicant statement – ‘Statement to support my compensation claim’.

Ratio Decidendi

Legal Principle Established

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