Sedaitis and Comcare - [2016] AATA 465

Sedaitis and Comcare (Compensation) [2016] AATA 465 (1 July 2016)

Division

GENERAL DIVISION

File number

2015/0414

Hanna Sedaitis

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal Dr James Popple, Senior Member

Date 1 July 2016

Place Canberra
Comcare’s decision on 22 January 2015 is affirmed.

...............[sgd].........................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employee — claim for psychological condition as a result of bullying and harassment — whether accepted disease suffered as a result of reasonable administrative action taken in a reasonable manner in respect of employment — decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 14

CASES
Comcare v Martinez (No 2) (2013) 212 FCR 272

Drenth v Comcare (2012) 128 ALD 1

REASONS FOR DECISION
Dr James Popple, Senior Member
1 July 2016
Summary

The applicant had a meeting with her manager and her manager’s manager. At that meeting, the applicant was told about complaints that she had dealt with some staff in a rude and disrespectful manner. Comcare concedes that the applicant suffered a “major depressive disorder, single episode” as a result of the meeting, and that her condition is a “disease” for the purposes of s 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).
However, the meeting—and what the applicant’s manager and manager’s manager did at the meeting—was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.
Background
Mrs Hanna Sedaitis started working for what is now the ACT Government’s Health Directorate (ACT Health) in 2002.
On 22 July 2014, she made a claim for compensation for “psychological injury”. In her claim form, she stated that her condition developed as a result of “bullying and harassment by senior officer”. On 5 September 2014, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act.
On 14 November 2014, Mrs Sedaitis requested a reconsideration of that determination. On 22 January 2015, Comcare affirmed its determination.
On 30 January 2015, Mrs Sedaitis applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
Decision under review
The decision under review is Comcare’s decision on 22 January 2015 to affirm its determination that Comcare is not liable to pay compensation to Mrs Sedaitis.
Issues
Comcare concedes that Mrs Sedaitis suffered a “major depressive disorder, single episode” which was contributed to, to a significant degree, by her employment by ACT Health. That means that her condition is a “disease” as defined in s 5B of the SRC Act.
The issue in this review is whether Mrs Sedaitis’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A…

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 Sedaitis and Comcare

Details

AGLC: Sedaitis and Comcare [2016] AATA 465
Case: [2016] AATA 465
Decision Date: 1 July 2016

CaseChat Overview and Summary

This matter concerned an application by Mrs Hanna Sedaitis for review of a decision by Comcare to affirm its determination that it was not liable to pay her compensation. Mrs Sedaitis had lodged a claim for compensation for a psychological injury, stating it arose from bullying and harassment by a senior officer. Comcare initially denied liability, and upon reconsideration, affirmed that decision. Mrs Sedaitis then applied to the Administrative Appeals Tribunal for a review of Comcare's affirmed decision.

The central legal issue before the Tribunal was whether Mrs Sedaitis's diagnosed "major depressive disorder, single episode," which Comcare conceded was contributed to by her employment, constituted an "injury" for the purposes of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). Specifically, the Tribunal had to determine if the disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, the disease would be excluded from the definition of "injury" under s 5A of the SRC Act, and Comcare would not be liable for compensation.

The Tribunal, presided over by Senior Member Dr James Popple, found that the meeting Mrs Sedaitis attended on 11 September 2013 with two other ACT Health staff constituted reasonable administrative action taken in a reasonable manner in respect of her employment. The parties agreed that Mrs Sedaitis suffered her disease as a result of this meeting. Applying the principles of s 5A(1) of the SRC Act, which excludes diseases suffered as a result of such action from the definition of "injury," the Tribunal concluded that Comcare was not liable to pay compensation.

Consequently, the Tribunal affirmed Comcare's decision.

Orders

Orders of the court

Decision under review affirmed

Background

Background to the litigation

However, the meeting—and what the applicant’s manager and manager’s manager did at the meeting—was reasonable administrative action taken in a reasonable manner in respect of the applicant’s employment. That means that the applicant’s disease is excluded from the definition of “injury” in s 5A of the SRC Act. So, Comcare is not liable to pay her compensation.Background Mrs Hanna Sedaitis started working for what is now the ACT Government’s Health Directorate (ACT Health) in 2002. On 22 July 2014, she made a claim for compensation for “psychological injury”. In her claim form, she stated that her condition developed as a result of “bullying and harassment by senior officer”. On 5 September 2014, Comcare denied that it was liable to pay her compensation under s 14 of the SRC Act. On 14 November 2014, Mrs Sedaitis requested a reconsideration of that determination. On 22 January 2015, Comcare affirmed its determination. On 30 January 2015, Mrs Sedaitis applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 22 January 2015 to affirm its determination that Comcare is not liable to pay compensation to Mrs Sedaitis.Issues Comcare concedes that Mrs Sedaitis suffered a “major depressive disorder, single episode” which was contributed to, to a significant degree, by her employment by ACT Health. That means that her condition is a “disease” as defined in s 5B of the SRC Act. The issue in this review is whether Mrs Sedaitis’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A of the SRC Act, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14. The parties agree that, if Mrs Sedaitis’s disease is an injury for the purposes of the SRC Act, the date of that injury is 12 September 2013—the date when she first sought medical treatment for the disease.Reasonable administrative action taken in a reasonable manner Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. On 11 September 2013, Mrs Sedaitis met with two other ACT Health staff: Ms Karen Faichney and Ms Trudi Thompson. Mrs Sedaitis says that this meeting was a formal counselling session, with elements of a formal investigation. Comcare says that it was an informal meeting. I will call it the meeting. What transpired at the meeting is crucial to this review. The parties agree that Mrs Sedaitis suffered her disease as a result of the meeting, but Comcare says that the meeting (and what Ms Faichney and Ms Thompson did at the meeting) was reasonable administrative action taken in a reasonable manner in respect of Mrs Sedaitis’s employment.[1][1] Mrs Sedaitis does not say that there was any other cause of her disease apart from the meeting. In any event, if only one cause of a disease satisfies the exclusion in s 5A(1), the exclusion applies and the disease is not an “injury”. See Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.Events before the meeting

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 30 January 2015, Mrs Sedaitis applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.Decision under review The decision under review is Comcare’s decision on 22 January 2015 to affirm its determination that Comcare is not liable to pay compensation to Mrs Sedaitis.Issues Comcare concedes that Mrs Sedaitis suffered a “major depressive disorder, single episode” which was contributed to, to a significant degree, by her employment by ACT Health. That means that her condition is a “disease” as defined in s 5B of the SRC Act. The issue in this review is whether Mrs Sedaitis’s disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. If it was, it is excluded from the definition of “injury” in s 5A of the SRC Act, and Comcare is not liable to pay her compensation. If it was not, Comcare is liable to pay her compensation under s 14. The parties agree that, if Mrs Sedaitis’s disease is an injury for the purposes of the SRC Act, the date of that injury is 12 September 2013—the date when she first sought medical treatment for the disease.Reasonable administrative action taken in a reasonable manner Under s 14 of the SRC Act, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 5A(1) defines “injury”, and provides that it “does not include a disease … suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”. On 11 September 2013, Mrs Sedaitis met with two other ACT Health staff: Ms Karen Faichney and Ms Trudi Thompson. Mrs Sedaitis says that this meeting was a formal counselling session, with elements of a formal investigation. Comcare says that it was an informal meeting. I will call it the meeting. What transpired at the meeting is crucial to this review. The parties agree that Mrs Sedaitis suffered her disease as a result of the meeting, but Comcare says that the meeting (and what Ms Faichney and Ms Thompson did at the meeting) was reasonable administrative action taken in a reasonable manner in respect of Mrs Sedaitis’s employment.[1][1] Mrs Sedaitis does not say that there was any other cause of her disease apart from the meeting. In any event, if only one cause of a disease satisfies the exclusion in s 5A(1), the exclusion applies and the disease is not an “injury”. See Drenth v Comcare (2012) 128 ALD 1 at 7 [29] per Rares, McKerracher and Murphy JJ.Events before the meeting I make the findings set out in [15]–[20] below, on the balance of probabilities. These findings are based on the evidence before me, especially statements made by Mrs Sedaitis, Ms Thompson, Ms Faichney and Ms Jann Reardon, and evidence that they gave at the hearing. These findings are generally not contested. As noted above, Mrs Sedaitis started working for ACT Health in 2002. From January 2008, she worked as a manager at the Tuggeranong Health Centre (the Centre) in Canberra.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File number	2015/0414
Hanna Sedaitis
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Dr James Popple, Senior Member
Date	1 July 2016
Place	Canberra