SDCS and COMCARE (Compensation)

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 – 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.
Further to extensions of time that were “approved”[17], the Applicant sent a “reconsideration request” dated 3 April 2018 as to the determination of 22 January 2018[18]. The Applicant on the form marked the following: “rejection of a claim”, “insufficient investigation of the claim”, and “I have new information to provide at review”[19]. That reconsideration request included further information from the Applicant[20].
[17]Exhibit 1, T Documents, T23, page 261, Email from Allianz to Applicant granting extension of time for Applicant to lodge a request for reconsideration until 14.02.2018. T24, pages 262 – 265, Email from Allianz to Applicant granting a further extension of time for the Applicant to lodge a request for reconsideration until 28.03.2018. T25, pages 266 – 273, Email and letter from Allianz to Applicant granting further extension of time for the Applicant to lodge a request for reconsideration until 03.04.2018.
[18] Exhibit 1, T Documents, T26.1, page 275, Reconsideration request form.
[19] Ibid.
[20]Exhibit, T Documents, T26.2, pages 276 – 278, Applicant’s submissions. T26.3, pages 279 – 290, Various e-mails from Applicant. T26.4, pages 95 - 96 (See T3.3), ‘Feedback Session Summary 110816’. T26.5, pages 291 – 198, Screenshots of customer aggression reports. T26.6, page 299, Letter from … (general practitioner) to Respondent. T26.7, page 300, Medical certificate, unfit 01.09.2016 to 02.09.2016. T26.8, page 301, Medical certificate, unfit 21.12.2016 to 23.12.2016. T26.9, page 97 (See T3.4), Medical certificate – unfit 22.02.2017 – 01.03.2017.T26.10, page 301, Results (cardiology … ). T26.11, page 303, Letter from … (consultant cardiologist) to Dr S … . T26.12, page 304, Transthoracic echocardiogram report. T26.13, page 305, Letter from Dr … to Dr … . T26.14, page 98 (See T3.5), Letter from Dr … (general practitioner) to DHS. T26.15, page 131, Letter from … (psychologist). T26.16, page 306, Jetstar Tax Invoice.
On 27 April 2018, the Respondent “affirmed” the determination dated 22 January 2018[21]. The determination dated 27 April 2018 ‘adopted the reasons stated in the report as the reasons for the decision’[22]. The reasons accepted that the Applicant’s “‘adjustment disorder with mixed anxiety and depressed mood,’ or an aggravation thereof developed during the course of the Applicant’s employment” with the Department[23]. In the reasons in the report it was stated[24]:
‘Allianz finds that the evidence supports that the Department has acted reasonably          in supporting [the Applicant] and in addressing complaints regarding demonstrated        inappropriate behaviour. Allianz note that these actions were administrative in          nature, were conducted in a reasonable manner, and were taken in respect of his            employment. Allianz 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.’
[21]Exhibit 1, T Documents, T31.3, page 331, [1], Reviewable Decision – Determination dated 22.01.2018 affirmed.
[22]          Ibid, [2].
[23]Exhibit 1, T Documents, T31.2, page 329, Recommendation by Allianz to delegate to affirm the determination dated 22.01.2018.
[24]          Ibid, second last paragraph.
By an application for review of decision, the Applicant applied to the Tribunal on

20 August 2018[25]. The Applicant refers to the determination of 27 April 2018 in the application for review form[26]. The Applicant stated the following grounds in that application form as to ‘why the decision is wrong’[27]:
‘I believe my medical condition and fitness to work as a result of that has not been           taken into consideration.
I believe the report from Prof T … dated 9 January 2018, is almost 9 months after            I was under stress since 2016, and at time I visited Prof T … I was under         medication for about 3 months. As you are aware, we take medication to improve          and enhance our abilities, therefore even Prof T … said at time of visit, I was ok (being under medication) but suffered in early 2017.
In initial claim outcome, the department advised I reported no customer aggression         however I screen shot them and sent it as evidence in my request for review.
And I do have a lot more to comment on, when I send you my evidence and         statement.’
[25]          Exhibit 1, T Documents, T1, page 1.
[26]          Ibid, page 4.
[27]          Exhibit 1, T Documents, T1, page 5.
The matter was part-heard on 2[28] and 3[29] November 2020. On 3 November 2020 the Applicant submitted that two further hearing days be set aside, with the examination of three witnesses then to occur[30]. Further relevant documents were then obtained by the Applicant, after the hearing on 2 and 3 November 2020. There were further hearing days on 28[31] and 29 September 2021[32]. The Applicant and Respondent then filed written submissions after the hearing.
[28]          Transcript 2 November 2020, pages 1 – 76.
[29]          Transcript 3 November 2020, pages 77 – 190.
[30]          Ibid, page 186, lines 10-15.
[31]          Transcript 28 September 2021, pages 1 – 126.
[32]          Transcript 29 September 2021, pages 127 – 196.
Section 14 of the Act
The Respondent submitted that the issue of entitlement or otherwise of the Applicant to compensation was a section 14 issue[33].
[33] Transcript 28 September 2021, page 6, line 14.
Sub-section 14(1) of the Act states[34]:
[34]Safety, Rehabilitation and Compensation Act 1988 (Cth), Act No. 75 of 1988, C2019C00158 registered 1 May 2019.
“Compensation for injuries
(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”’ …
There is no issue or contention by either of the parties as to the claim form submitted[35], the timing of the claim form[36] and/or the timing of the request for reconsideration by the Applicant[37]: section 53 of the Act[38].
[35]          Exhibit 1 (n 6), T3, pages 82 – 92.
[36]          Ibid.
[37]          Exhibit 1, T Documents, T26.1, page 275, Reconsideration request form.
[38]          Transcript 28 September 2021, pages 4 and 5, lines 23 – 5.
As to the word “Comcare” in sub-section 14(1), no issue or contention is referred to by the parties further to section 98A of the Act, as to whether a licence has been granted to an eligible corporation[39].
[39] Transcript 28 September 2021, page 3, line 27.
As to the word “injury” in sub-section 14(1), sections 5A and 5B of the Act state:
“5A Definition of injury
(1)      In this Act:
"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.
(2)       For the purposes of subsection (1) and without limiting that subsection,   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.
5B Definition of disease
(1)      In this Act:
"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.
(2)     In determining whether an ailment or aggravation was contributed to, to   a significant degree, by an employee's employment by   the Commonwealth or a licensee, the following matters may be taken into            account:
(a)      the duration of the employment;
(b)      the nature of, and particular tasks involved in, the employment;
(c)      any predisposition of the employee to the ailment or aggravation;
(d)      any activities of the employee not related to the employment;
(e)      any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3)      In this Act:
significant degree means a degree that is substantially more than   material.”
Section 6 of the Act relevantly states:

“6 Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a)as a result of an act of violence that would not have occurred but for the employee’s employment or the performance by the employee of the duties or functions of his or her employment; or
(b)while the employee was at the employee’s place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment; or …
(f)       while the employee was at a place for the purpose of:
(i)        obtaining a medical certificate for the purposes of this Act; or
(ii)       receiving medical treatment for an injury; or
(iii)      undergoing a rehabilitation program provided under this Act;   or
(iv)      receiving a payment of compensation under this Act; or
(v)undergoing a medical examination or rehabilitation assessment in accordance with a requirement made under this Act; or … ”
Incapacity for work, or impairment
Sub-section 14(1) states that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work, or impairment.
While the Applicant was working for the Department in New South Wales,
[40]Exhibit 1, T Documents, T3.4, page 97; Medical certificate – unfit 22.02.2017 – 01.03.2017. Exhibit 2, Supplementary T Documents, ST11, page 40, Letter from Dr S to Applicant.
[41]          Ibid, T3.4, page 97.
[42]          Exhibit 2, Supplementary T Documents, ST11, page 40, Letter from Dr S to Applicant.
[43]          Ibid.
[44]          Exhibit 2 (n 42), ST11, page 40.
[45]          Ibid.
Dr S produced two letters dated 21 February 2017[40]. One letter states that the Applicant will be unfit to work until 1 March 2017 due to “illness”[41]. The other letter states that the Applicant has been attending the surgery in New South Wales since September 2016[42]. Dr S states that the Applicant “is suffering from Atrial Flutter & has Supraventricular ectopias”, which is “due to the severe stress [the Applicant] has”[43]. Dr S’s letter also refers to the Applicant’s spouse having major surgery (requiring care before and for four weeks after the operation) and that the Applicant’s youngest child has broken an arm and has had two operations since June 2016[44]. Further, Dr S states that the Applicant has “been through a lot of stress from work at Centrelink [in New South Wales] while dealing with [the Applicant’s] family stresses being far [away] in Queensland”[45].
After changing employment location to Queensland, the Applicant attended Dr B in Queensland, on 26 July 2017 and 13 September 2017[46]. In a letter dated 20 September 2017, Dr B stated that the Applicant “is suffering from acute Mixed Anxiety Depression triggered by stress at work”, that the Applicant’s anxiety “was triggered by working in the Self Serve Area in Centrelink, without much support”[47].
[46]Exhibit 1, T Documents, T3.5, page 98, Letter from Dr B (general practitioner) to Department of Human Services (DHS).
[47] Ibid.
The Applicant also consulted Dr C in Queensland[48]. Dr C signed a medical certificate on 10 November 2017, certifying that the Applicant “is unfit for work from 10/11/2017 to 24/11/2017 inclusive due to a medical condition”[49].
[48]Exhibit 1, T Documents, T14.10, page 172, Attachment K: Medical certificate, unfit from 10.11.2017 – 24.11.2017.
[49] Ibid.
As to ‘incapacity for work’, Dr B in a ‘Certificate of capacity for work’ dated 14 November 2017 for the Applicant, stated in the ‘Clinical symptoms/diagnosis’ section: “Mixed anxiety depression triggered by stress at work”[50]. Next to the ‘Comments on physical capacity’ section, Dr B stated “NAP”[51]. The recommendation was that the Applicant was unfit for work from 14 November 2017 to 14 December 2017 by reason of “Extreme anxiety”[52].
Dr B states that the Applicant was first seen at that practice for this condition on
26 July 2017, stating that it is a new injury/disease[53]. In the box labeled “Factors which may be relevant to the condition or recovery (if any) are”,
[50]          Exhibit 1, T Documents, T3.7, page 100, Medical certificate – unfit 14.11.2017 – 14.12.2017.
[51]          Ibid.
[52]          Exhibit 1 (n 50), T3.7, page 100.
[53]          Ibid.
[54]          Exhibit, 1 (n 50), T3.7, page 101.
Dr B stated: “Getting the appropriate support and training at work”[54].
The evidence is that the Applicant, as of 28 December 2017, could resume alternate duties and substantive hours[55]. That is, that there was before that date incapacity for work. The parties have not submitted that the Applicant still has an incapacity for work.
[55] Exhibit 1, T Documents, T16, page 199, Medical report of Dr M (consultant psychiatrist).
Incapacity for work is an alternative to impairment in sub-section 14(1) of the Act. The parties have not led evidence and made submissions specifically as to impairment, in the alternative to incapacity for work in sub-section 14(1) of the Act.

Sub-section 14(1) of the Act then requires that the incapacity for work is in respect of an injury suffered by an employee.
Injury
The Respondent stated that “there is no dispute that on 10 November 2017 [the Applicant] did suffer an injury”[56]. The Applicant submitted that the injury started in 2016[57]. The Applicant submits that the ailment was ‘first noticed’ in August 2016[58] and the Applicant first sought treatment at about the same time[59]. The Applicant submits: “I was dealing with depression and anxiety as [a] result of customer aggression and long-standing work in a high-risk area without … adequate support”[60]. The Applicant further stated that the Applicant’s supervisor ‘encouraged staff to make formal complaints about the Applicant so that the supervisor could initiate formal counselling in order to highlight a behavioural issue and redirect the Respondent’s attention from the real issue, being the Applicant’s reported customer aggression and not receiving support in the performance of the Applicant’s duties’[61].
[56]          Transcript, page 191, lines 20 – 21.
[57]          Ibid, line 40.
[58]          Applicant’s written submissions, [1]. T9, page 114, Early contact reference sheet.
[59]          Ibid.
[60]          Applicant’s written submissions, second last paragraph.
[61]          Ibid.
The Applicant refers to a report prepared by Dr M which is dated 28 December 2017[62]. Dr M produced a total of four reports in relation to the Applicant[63]. The Respondent submits that “[t]here is nothing raised by the Applicant which could cause the Tribunal to have any misgivings about accepting Dr M[’s] evidence”[64]. The report gives the Applicant’s symptoms an onset date of 8 August 2016 and an assessment date of
[62]          Exhibit 1, T Documents, T16, pages 191 – 200, Medical report of Dr M (consultant psychiatrist).
[63]          Ibid. Exhibit 6, Respondent’s Bundle of “Hearing Documents”, R1 to R6.
[64]          Respondent’s submissions in reply, [13].
[65]          Exhibit 1 (n 52), T16, page 191.
[66]          Ibid, page 192.
[67]          Exhibit 1 (n 52), T16, page 193.
[68]          Ibid, page 195.
[69]          Exhibit 1 (n 52), T16, page 196.
[70]          Ibid, page 196.
[71]          Exhibit 1 (n 52), T16, page 196.
[72]          Exhibit 1 (n 52), T16, page 197.
[73]          Ibid, page 198.
[74]          Exhibit 1 (n 52), T16, page 199.
[75]          Ibid, page 199.
15 December 2017[65], with the date last worked being “November 2017”[66]. After setting out background information and material, the report sets out some comments made by the Applicant, including that the Applicant “denied any non-work-related stress”[67], before setting out a summary and assessment. In the summary and assessment, Dr M states that “not[ing] conflicting versions of events between [the Applicant] and the employer”, “[the Applicant] developed an adjustment disorder in response to difficulties encountered in the workplace”[68]. As part of the assessment, Dr M’s report states that the Applicant “suffers from 309.28 Adjustment Disorder with Mixed Anxiety and Depressed Mood”[69]. Some of the diagnostic criteria include “Development of emotional and behavioural symptoms in response to managerial action at work” and “[o]nce the stressors and its consequences have resolved; symptoms are not expected to persist longer than six months”[70]. The report includes the following question and answer, respectively[71]: “Is [the Applicant’s] employment with the DHS [the] cause of his current diagnosis? If yes, please detail what contribution [the Applicant’s] employment has made to his current clinical presentation.” “Yes. [The Applicant] outlined an industrial dispute with the employer with [the Applicant’s] perception that [the Applicant] is a victim of racial vilification.” Dr M’s report stated that there “is no pre-existing condition”, that the condition would not have occurred irrespective of the Applicant’s employment within the Department of Human Services, and that the Applicant “has not suffered an exacerbation of a pre-existing condition. This is a new diagnosis”[72]. In the report on the Applicant’s current capacity for employment, the report states[73]: “[The Applicant] could resume [the Applicant’s] substantive hours but not [the Applicant’s] substantive duties. … [The Applicant] has the capacity to perform … duties in a low-stress well-supervised position with clearly defined job expectations.” Dr M’s report states that the Applicant “could resume [the Applicant’s] substantive pre-injury duties three months from now. [The Applicant] could resume alternate duties and substantive hours immediately”[74]. Further, the report stated that the Applicant “should make a full symptomatic and functional recovery within three months”[75].
There is a report by Associate Professor T dated 9 January 2018[76]. The report states a ‘symptom onset date’ of 8 August 2016, an ‘assessment date’ of 21 December 2017 and a ‘date of work cessation’ of 10 November 2017[77]. The report of Associate Professor T states that “[the Applicant] said [the Applicant’s previous communication] with a psychiatrist had been with Dr M … in July 2017 for an independent medical examination”[78]. The report states that using the Generalised Anxiety Disorder Scale (GAD-7), the Applicant scored a 3 out of a maximum of 21, indicating that “[the Applicant] does not suffer [from] a clinical anxiety disorder”[79]. The report further states that using the Patient Health Questionnaire (PHQ-9), the Applicant scored 5 out of a possible maximum of 27, indicating that “[the Applicant] has occasional or minor symptoms of depression but does not satisfy diagnostic criteria for a depressive illness”[80]. The report references a medical certificate received from Dr B dated 14 November 2017[81], stating that the Applicant was first seen at the practice on 26 July 2017 and was seen for the same condition in September 2016 in New South Wales[82]. In the report’s summary and assessment it states that prior to 2016 the Applicant had no significant physical or mental health problems, and that during 2016 “it would appear some work-related stressors accumulated such that in 2017 [the Applicant] was experiencing symptoms of anxiety and presented [to the General Practitioner] as a consequence”, that the General Practitioner provided some treatments and that the “treatments appeared to have helped [the Applicant], in that [the Applicant] no longer meets diagnostic criteria for any recognised mental disorder”, and that “in retrospect [Associate Professor T] would diagnose [the Applicant] as having an adjustment disorder with anxiety (ICD 10-43) during early 2017”[83].
[76]Exhibit 1, T Documents, T17, page 205, Section 36 medical report of Associate Professor T (consultant psychiatrist).
[77]          Ibid, page 205.
[78]          Exhibit 1 (n 76), T17, page 207.
[79]          Ibid, page 208.
[80]          Exhibit 1 (n 76), T17, page 208.
[81]          Exhibit 1 (n 50), T3.7, page 100.
[82]          Exhibit 1 (n 76), T17, page 210.
[83]          Exhibit 1 ( n 76), T17, page 210.
In a separate report prepared by Associate Professor T[84], it is stated that “[Associate Professor T’s] diagnosis from earlier this year is essentially the same as the [General Practitioner]. It is worth reiterating that in my professional opinion, the appropriate treatment initiated by the [General Practitioner] has led to improvement in [the Applicant’s] health to the point where [the Applicant] no longer meets any diagnostic criteria”[85].
[84] Exhibit 1, T Documents, T18, page 220, Fitness for duty medical report of Associate Professor T.
[85] Ibid.
Associate Professor T in a further report refers to a conversation with the Applicant’s General Practitioner, Dr C[86]: “ … Dr C … is not concerned about any psychiatric disorder but alluded to the history of work related difficulties.” The previous reports from Associate Professor T state a different articulation[87]: “ … Dr C … is not concerned about any psychiatric disorder but alluded to social and marital issues, as well as the history of work related difficulties.”
[86] Exhibit 1, T Documents, T20, page 229, Superseding section 36 report from Associate Professor T.
[87] Exhibit 1 (n 84), T18, page 219.
The Respondent submitted that no practitioner referred to in the claim was involved in the Applicant’s care in 2016 or early to mid-2017, hence would have no first-hand knowledge or contemporaneous history relating to any medical issues from that period. The Respondent submitted that since moving to Queensland in or about mid-2017 the Applicant has been seeing Dr B and Dr C in Queensland[88] and that neither “was involved in [the Applicant’s] care in 2016 or early to mid-2017, and hence would have no first-hand knowledge or contemporaneous history relating to any medical issues from that period [so] their respective opinions relating to [the Applicant’s] concerns during the period prior to July 2017 are based on and guided by [the Applicant’s] self reporting only”[89]. The Respondent submitted that the respective opinions relating to the Applicant’s concerns during the period prior to July 2017 are based on, and guided by, the Applicant’s self-reporting only. ‘Despite no first-hand knowledge or contemporaneous medical history’[90], the Respondent accepts that the Applicant suffers or suffered from an ailment[91] or injury “sustained … due to [the Applicant’s] interactions with management in their efforts to deal with the [Applicant’s] behavioral/disci[pli]nary issues”[92].
[88]          Exhibit 1 (n 16), T22.3, page 256.
[89]          Ibid, page 257.
[90]          Exhibit 1 (n 16), T22.3, page 257 (first paragraph).
[91]          Ibid, page 252 (second paragraph).
[92]          Respondent’s submissions in reply, [12].
The Respondent further contends that the Applicant had not supplied any medical evidence nor submitted reports of injury in relation to any incident in the workplace prior to the lodgement of the claim for compensation on 22 November 2017. After commencing at the Department office in Queensland, the Applicant submitted Reports of Customer Aggression and Incident or Injury, dated 18 July 2017[93], 25 July 2017[94], 27 July 2017[95], 5 September 2017[96], 5 September 2017[97], 26 September 2017[98], 26 September 2017[99], 19 October 2017[100], 24 October 2017[101], 24 October 2017[102] and 9 November 2017[103] to the Respondent employer[104]. There are no similar documents in the exhibits from the period when the Applicant was in New South Wales.
[93]          Exhibit 2, Supplementary T Documents, ST16, page 51, Report of Customer Aggression.
[94]          Exhibit 2, Supplementary T Documents, ST17, page 52, Report of Customer Aggression.
[95]          Exhibit 2, Supplementary T Documents, ST18, page 53-54, Report of Incident or Injury.
[96]          Exhibit 2, Supplementary T Documents, ST19, page 55-56, Report of Incident or Injury.
[97]          Exhibit 2, Supplementary T Documents, ST20, page 57-58, Report of Incident or Injury.
[98]          Exhibit 2, Supplementary T Documents, ST21, page 59, Report of Customer Aggression.
[99]          Exhibit 2, Supplementary T Documents, ST22, page 60, Report of Customer Aggression.
[100]         Exhibit 2, Supplementary T Documents, ST23, page 61, Report of Incident or Injury.
[101]         Exhibit 2, Supplementary T Documents, ST24, page 62, Report of Customer Aggression.
[102]         Exhibit 2, Supplementary T Documents, ST25, page 63, Report of Incident or Injury.
[103]         Exhibit 2, Supplementary T Documents, ST26, page 64, Report of Customer Aggression.
[104]         Submissions on behalf of the Respondent; Comcare, [25].
The Respondent stated “that the Applicant suffered a ‘disease’”[105] and stated a “diagnosis … that the Applicant suffered an ‘adjustment disorder with depression and anxiety”[106]. By determination[107] and letter[108] dated 22 January 2018, the Respondent accepted that the Applicant suffers or suffered from an ailment as defined in the Act, being “Adjustment Disorder with Mixed Anxiety and Depressed Mood”[109] on the estimated nominated date of injury of 8 August 2016[110]. Until the Respondent’s written submissions of
[105]         Respondent’s submissions, [44].
[106]         Exhibit 3, Respondent’s further submissions.
[107]         Exhibit 1 (n 3), T22.2, page 249.
[108]         Exhibit 1 (n 16), T22.3, page 250.
[109]         Ibid, page 252.
[110]         Exhibit 1 (n 16), T22.3, page 256.
[111]         Ibid (n 105), [44].
[112]         Exhibit 1 (n 55), T16, page 193.
10 September 2019, the Respondent accepted “that the Applicant suffered a disease … to which the Applicant’s employment contributed in a significant degree”[111]. Further, both parties refer to the reports of Dr M, who stated that the Applicant “developed an adjustment disorder in response to difficulties encountered in the workplace”[112].
Suffered as a result of reasonable administrative action
The Respondent stated that the ‘only issue’ was whether “the Applicant’s ailment was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of [the Applicant’s] employment” (section 5A)[113].
[113] Exhibit 5, Respondent’s Amended Statement of Issues, Facts and Contentions, [65].
The Respondent submits that the disease, injury or aggravation was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment (sub-section 5A(1)).
The Respondent submits that[114]:
[114]         Submissions on behalf of the respondent Comcare, [14] – [18].
“As noted above, the case for the Respondent focuses upon the various steps taken by management to have the Applicant address and modify his behaviour in the workplace. It will be contended that the expert medical evidence identified these factors – especially what occurred on 10^th November 2017 – as having contributed in a significant degree to the Applicant’s psychiatric condition.
Once that proposition has been established, it is then incumbent upon the Tribunal to consider the operation of s 5A(2) of the Act. Here, in the course of the Tribunal hearing, the Respondent indicated that it relied upon the following sub-sections of s 5A(2):
‘(b)      a reasonable counselling action (whether formal or informal) taken   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 … (b) … or (d); … ’
Upon reflection, the Respondent’s case will focus primarily upon (b) and to a lesser extent (e).
If it can be shown that the evidence establishes that the management steps up to and including the decision on the 10^th November to inform the Applicant that he would be informally counselled amount to reasonable administrative action which has been reasonably taken, then the Applicant is not entitled to compensation for any psychiatric condition to which these management steps “have contributed in a significant degree”. Section 5A was added to the Act by an amendment in 2007. For the assistance of the Applicant, the Explanatory Note to the amending Act noted as follows:
“A further objective, through the exclusionary provisions, was to ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers compensation.”
Finally, it must be shown that not only the formulation of the administrative action was reasonable, but also carried out in a reasonable way. In the context of this Application, it has to be shown that not only the decision to tell the Applicant on the 10^th November about his behaviour and warn him of the prospect of formal action was reasonable, but that the steps taken to inform him of these steps was also reasonable in light of all the prevailing circumstances.”
Prior to departing on Friday 10 November 2017 the Applicant was in a discussion with the Applicant’s supervisor, regarding the Applicant’s workplace behaviour and the prospect of formal counselling about that behaviour[115]. After that discussion, the Applicant left work with the Department and did not return to work with the Department[116].
[115] Exhibit 1, T Documents, T12.2, pages 129 and 130, Timeline of events.
[116] Ibid.
The Respondent accepts that the Applicant’s condition “developed in the context of [the Applicant’s] employment”[117], especially ‘interactions between the Applicant and management over [the Applicant’s] workplace behaviour which was predominant in the development of any psychiatric symptoms suffered by the Applicant’[118].
[117] Exhibit 1 (n 16), T22.3, page 257 (last paragraph).
[118] Respondent’s submissions, [10] and [14].
The Respondent submits that the Applicant sustained the injury due to his interactions with management in their efforts to deal with his behavioral/disciplinary issues. The Respondent submits that the contemporaneous medical records and testimony refutes the Applicant’s claim that he sustained his claimed injury due to customer aggression.
The Respondent submits that all medical leave related to management actions of similar dates, which actions were reasonable[119].
[119] Exhibit 1 (n 16), T22.3, pages 258 – 260.
The Respondent refers particularly to the evidence of Dr M, who initially examined the Applicant on 15 December 2017 and then again on 16 April 2019, submitting that Dr M identified the Applicant’s interactions with his work management as being at the forefront in the development of his psychiatric symptoms.
Notwithstanding the existence of various reports of stress suffered as a result of exposure to aggressive customers, the Respondent submits that if the Applicant was experiencing stress which resulted in mental health symptoms on account of exposure to aggressive customers, then one would have expected to see complaints of that sort occurring in contemporaneous medical records. The notes of the consultations between the Applicant and Dr B (26 July 2017 and 13 September 2017) and Dr C (30 October 2017) do not refer specifically to any complaint of stress emanating from exposure to aggressive customers. The Respondent submits that, when all of the evidence is assessed, it can be concluded that it was the Applicant’s interactions with management which contributed in a significant degree to the development of a psychiatric condition.
The Applicant’s claim was denied on 22 January 2018[120], stating that the Department acted reasonably in supporting the Applicant and in addressing complaints regarding demonstrated inappropriate behaviour[121]. The Respondent decided that the actions were administrative in nature, were conducted in a reasonable manner and were reasonably taken in respect of the Applicant’s employment[122]. The Respondent stated that, on the balance of probabilities, the injury was suffered as a result of these actions, and therefore, the exclusionary provisions in sub-section 5A(2) of the Act operate to exclude the Applicant’s psychiatric injury from compensation[123].
[120]Exhibit 1, T Documents, T22.1, page 244, Letter from Allianz to Applicant advising claim has not been accepted.
[121]Exhibit 1, T Documents, T22.3, page 260, Recommendation by Allianz to delegate in respect of Applicant’s claim for compensation.
[122] Ibid.
[123] Exhibit 1 (n 122), T22.3, page 260.
The Respondent submits, as referred to above, that there was reasonable administrative action taken in reasonable manner being ‘reasonable counselling action (whether formal or informal)’ taken in respect of the Applicant’s employment with the Department. The Respondent submits that ‘if the Respondent reasonably took reasonable management actions leading up to the ailment, then the Applicant is not entitled to compensation for the disease, injury or aggravation which was significantly contributed to by those management actions’.

Dr M’s[124] and Associate Professor T’s[125] evidence was that the Applicant’s symptom onset date was August 2016, with the date last worked being “November 2017”[126]. As referred to above, the report by Associate Professor T dated 9 January 2018[127] stated that prior to 2016 the Applicant had no significant physical or mental health problems, and that during 2016 “it would appear some work-related stressors accumulated such that in 2017 [the Applicant] was experiencing symptoms of anxiety and presented [to the General Practitioner] as a consequence”. As referred to above, Dr B stated in a letter dated 20 September 2017 that the Applicant “is suffering from acute Mixed Anxiety Depression triggered by stress at work” and that the Applicant’s anxiety “was triggered by working in the Self Serve Area in Centrelink, without much support”[128]. There is no evidence that the onset of the symptoms in August 2016 (Dr M and Associate Professor T) or as referred to on 20 September 2017 (Dr B) were as a result of ‘reasonable counselling action (whether formal or informal)’ taken in respect of the Applicant’s employment with the Department. The acute Mixed Anxiety Depression was not therefore as a result of reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment.
[124]         Respondent’s submissions in reply, [13].
[125]Exhibit 1, T Documents, T17, page 205, Section 36 medical report of Associate Professor T (consultant psychiatrist).
[126]         Exhibit 1, T Documents, T16, page 192, Medical report of Dr M (consultant psychiatrist).
[127]Exhibit 1, T Documents, T17, page 205, Section 36 medical report of Associate Professor T (consultant psychiatrist).
[128]         Ibid.
Subject to Part II
Sub-section 14(1) of the Act starts with the phrase ‘subject to this part’. Section 14 is in Part II, “Compensation”, in the Act. Part II includes sections 14 to 33. The submissions of the parties do not refer to specific sections in the Part, other than section 14. 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 words “in accordance with this Act” in the sub-section do indicate that the sub-section is a threshold to the entitlement to compensation, which is then to be paid in accordance with other provisions of the Act. The Applicant and the Respondent have not made submissions as to the specific sections in the Part other than section 14, despite sub-section 14(1) being ‘subject to the Part’, with those words being at the commencement of the sub-section.
There is some limited evidence relevant to other sections within the Part. The Respondent’s investigation report[129], produced in response to the claim[130], refers to a certificate from Dr S dated 22 February 2017, certifying the Applicant as unfit for work until 1 March 2017[131]. The report states that that certificate did not state the details as to why the Applicant was unfit for work[132]. As referred to above, in answer to the question on the claim form, “When will you be returning to work?”, the Applicant answered: “Less than 12 weeks”[133]. After leaving work on 10 November 2017, the Applicant consulted a general practitioner, Dr C, who stated that the Applicant is unfit for work for the period 10 November 2017 to 24 November 2017 inclusive “due to a medical condition”[134]. Dr M’s report dated 28 December 2017 stated that the Applicant could resume substantive pre-injury duties and make a full symptomatic and functional recovery within three months[135] and that once the stressors and its consequences have resolved, symptoms are not expected to persist longer than six months[136]. Neither party made submissions or provided evidence that the Applicant has been employed since departing work on 10 November 2017 or that the Applicant’s injury or disease has improved enough to allow the Applicant to return to work. The parties have not made submissions as to the other sections in Part II: sections 15 to 33 of the Act.
[129]Exhibit 1, T Documents, T22.3, pages 250 - 260, Recommendation by Allianz to delegate in respect of Applicant’s claim for compensation.
[130]         Exhibit 1, T Documents, T3, page 83, Worker’s Compensation Claim.
[131]         Exhibit 1 (n 132), T22.3, page 256.
[132]         Ibid.
[133]         Exhibit 1, T Documents, T3, page 83, Worker’s Compensation Claim.
[134]Exhibit 1, T Documents, T14.10, page 172, Attachment K: Medical certificate, unfit from 10.11.2017 – 24.11.2017.
[135]         Exhibit (n 127), T16, page 199.
[136]         Ibid.
Section 7 of the Act
The Respondent submits that even if the injury is found to be caused or significantly contributed to by the Applicant’s employment with the Department, it should not be taken to be an injury for the purposes of the Act on the ground that the Applicant made a willful and false representation that the Applicant did not suffer or had not previously suffered from the same disease[137].
[137] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions, [2.4].
Sub-section 7(7) of the Act states:
“A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
The Respondent submits that the previous injury is the same as the present one because the Applicant was prescribed the same medication in both instances[138]. The basis for the submission regarding the earlier prescription is a file note of Dr L relevantly stating[139]: “In the past [the Applicant] informed me that [the Applicant] has trailed Zoloft 25mg up to 50mg once daily over a five month period in 2014/15 in the context of work based harassment/discrimination.” The same file note under the heading Impression & Recommendations states[140]: “My impression is that [the Applicant] may well have ADHD.” There is nothing in the file note resembling or recording an “anxiety or depression” diagnosis or similar.
[138] Ibid, [66] – [67] and [69].
[139] Exhibit 10, ST68, page 240, Br Llewellyn Report.
[140] Ibid.
In addition to the identical prescription, the Respondent submits that “the condition for which the Applicant seeks compensation – ‘anxiety and depression’ – is the same, or substantially the same condition which [the Applicant] suffered in 2014 and 2015”[141].
[141] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions, [69].
The identification of the earlier medication is from a third party, whom the Respondent submits does not have first-hand or contemporaneous experience of the treatment. There is very limited, if any, evidence on the earlier diagnosis or the reason for the previous prescription of Zoloft, if that is the correctly identified medication.
[142] Exhibit 1 (n 127), T16, page 197.
Dr M’s report states that there “is no pre-existing condition”, that the condition would not have occurred irrespective of the Applicant’s employment within the Department, and that the Applicant “has not suffered an exacerbation of a pre-existing condition. This is a new diagnosis”[142]. Both parties refer to Dr M’s report.
The Respondent submits that the Applicant’s statement was willfully false because the Applicant “perceived that the truth would jeopardise [the Applicant’s] chances of gaining employment”[143]. There is no evidence before the Tribunal for this submission.
[143] Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions, [68].
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’.
Therefore, section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) states that, for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing setting aside the decision under review and remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. The decision under review will be set aside and the matter remitted to the Respondent for reconsideration in accordance with a direction that the exclusion in section 5A(1) of the Act does not apply: “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”.
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.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

......................[SGD]..................................................
Associate
Dated: 23 May 2022

Dates of hearing:
2, 3 November 2020 and 28, 29 September 2021

Date final submissions received:

Applicant:

17 January 2022

Appeared in person

Counsel for the Respondent: Mr C. J. Clark

Solicitors for the Respondent: Sparke Helmore Lawyers

[2022] AATA 1327

20 May 2022

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Causation

Remedies

Dates of hearing:	2, 3 November 2020 and 28, 29 September 2021
Date final submissions received: Applicant:	17 January 2022 Appeared in person
Counsel for the Respondent:	Mr C. J. Clark
Solicitors for the Respondent:	Sparke Helmore Lawyers