Sergei Zimin and Comcare - [2014] AATA 328

[2014] AATA 328

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

  2012/3791

Re

  Sergei Zimin

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton
Dr Williams Isles, Member

Date   27 May 2014

Place Sydney
The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member A K Britton
CATCHWORDS
COMPENSATION — Commonwealth employees — Psychological injury — Whether the Applicant suffers a mental ailment — Whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth — Whether the injury is a result of reasonable administrative action taken in a reasonable manner
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A; 5B; 14;
CASES
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare [2005] FCAFC 16
REASONS FOR DECISION
Senior Member A K Britton
Member, Dr W Isles
27 May 2014

Nuclear engineer, Dr Sergei Zimin, seeks review of the decision made by Comcare to refuse to accept liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) in respect of his claimed injury, “PTSD and major depression”. Dr Zimin was employed by the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA) between 1999 and 2014. He took leave of absence from ARPANSA between 2004 and January 2011.
Comcare contends that Dr Zimin was not suffering from a “mental ailment” when he made his claim for compensation under the Act in February 2012. In the alternative, Comcare contends that any mental ailment that he might have suffered “a result of reasonable administrative action taken in a reasonable manner in respect of [Dr Zimin’s] employment” and therefore, by the operation of s 5A(1) of the Act, Dr Zimin had no entitlement to compensation under that Act. Dr Zimin contends that he was suffering from a mental ailment in the form of an adjustment disorder in February 2012, which was caused by being marginalised by his managers and colleagues on his return to ARPANSA twelve months earlier, not, as contended by Comcare, any alleged reasonable administrative action.
Statutory framework
Comcare will be liable to pay compensation in accordance with the Act in respect of any “injury” suffered by Dr Zimin if it results in impairment or incapacity for work (s 14 of the Act).
The Act defines “injury” to mean (s 5A(1)):
(a)a disease suffered by an employee;
…
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. [Emphasis added]
“Disease” is defined to mean: “(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” (s 5B(1)). “Ailment” in turn is defined to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)” (s 4). “Significant degree” means “a degree that is substantially…

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.

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Details

Case: [2014] AATA 328
Decision Date: 27 May 2014

CaseChat Overview and Summary

In the case of Sergei Zimin and Comcare, the primary issue was whether Dr Zimin, an employee of the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA), suffered a psychological injury as a result of reasonable administrative action taken in a reasonable manner by his employer. The Federal Circuit and Family Court of Australia was tasked with determining whether Dr Zimin’s adjustment disorder, diagnosed in early 2012, was caused by his employment and if it resulted from reasonable administrative actions by ARPANSA. The court examined the evidence and expert opinions regarding the nature and cause of Dr Zimin’s psychological condition, focusing on the decision not to appoint him to an acting position in May 2011.

The central legal issues involved assessing whether Dr Zimin’s psychological injury was a result of reasonable administrative action taken in a reasonable manner, specifically regarding his employment status and career progression. The court needed to evaluate if Dr Zimin's adjustment disorder was indeed work-related and if it stemmed from specific administrative decisions by ARPANSA. This required a detailed analysis of the evidence presented, including expert medical opinions and Dr Zimin's personal account of his condition and its onset. The court had to determine if the decision not to appoint Dr Zimin to the acting position was reasonable and if this decision contributed significantly to his psychological injury.

The court concluded that Dr Zimin’s adjustment disorder was indeed work-related, particularly influenced by the decision not to appoint him to the acting position in May 2011. The court found that this decision was reasonable and was taken in a reasonable manner. While acknowledging that Dr Zimin suffered significant psychological symptoms, the court determined that these symptoms were not a result of unreasonable administrative action. Consequently, the court held that Dr Zimin did not suffer an injury within the meaning of the relevant legislation, affirming the decision under review. This decision underscores the importance of the reasonableness of administrative actions in determining employment-related psychological injuries.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We are satisfied that the decision not to appoint Dr Zimin was a reasonable one. Was the decision not to appoint Dr Zimin taken in a reasonable manner? We understand Dr Zimin to contend that the impugned decision was not taken in a reasonable manner. Apart from the unsupported allegations made by Dr Zimin in the course of corresponding with Mr Nasser about the “serious defect in the selection process” and references to racial discrimination we have not been taken to any evidence to suggest that the decision was not taken in a reasonable manner. We are satisfied that the decision not to appoint Dr Zimin was taken in a reasonable manner. Summary Employment was a substantial contributing factor to Dr Zimin’s adjustment disorder. That disorder was a result of multiple factors, including the decision made in May 2011 not to appoint him to head the Safety Analysis section and Compliance and Enforcement on an acting basis. That decision constitutes reasonable administrative action in respect of Dr Zimin’s employment and was taken in a reasonable manner. It follows that Dr Zimin did not suffer an injury within the meaning of the Act and therefore the decision under review must be affirmed.

Ratio Decidendi

Legal Principle Established

Dr Smith, on the other hand, was of the opinion that Dr Abeya’s assessment was further evidence that Dr Zimin did not suffer from an adjustment disorder pointing out that one of the criteria for diagnosis is that once the stressor or its consequences have terminated, symptoms do not persist beyond six months.Consideration In 2011 Dr Zimin reported suffering significant symptoms initially of anxiety and later depression. His GP was of the opinion that by January 2012 his symptoms were significant enough to warrant a diagnosis of major depression and referral to a psychiatrist. Dr Khan was of the opinion that when he saw Dr Zimin a week later his symptoms were severe and warranted intensive treatment and medication. His report to Comcare four months later indicates that in his opinion there had been no material improvement in Dr Zimin’s symptoms. As Dr Smith points out there is often no clear line between symptoms that are clinically significant and those that are “normal variants” in a person’s response to external stressors. He explained that an assessment of whether a person’s symptoms can be described as “clinically significant” requires consideration of their intensity and duration but ultimately is a matter of clinical judgement. Dr Smith accepts that Dr Zimin was suffering from the symptoms he reported following his return to ARPANSA in 2011 but disagrees with Dr Dinnen’s opinion that those symptoms could be properly described as clinically significant. Dr Smith was the sole expert to conclude that the symptoms experienced by Dr Zimin in late 2011/early 2012 were not clinically significant. Drs Dinnen and Smith agree that to warrant a diagnosis of an adjustment disorder a person’s symptoms must persist for at least a month. While plain that by August 2012 there had been a significant improvement in Dr Zimin’s condition, the weight of medical opinion is that he was suffering significant psychiatric symptoms in the latter part of 2011 and the first part of 2012. Dr Dinnen’s diagnosis is consistent with the observations and findings made by Dr Zimin’s treating doctors and not inconsistent with the opinion of Dr Abeya. Dr Zimin provided a reasoned explanation for the diagnosis he made. Of the available opinions we prefer that expressed by Dr Dinnen and find that Dr Zimin was suffering from an adjustment disorder with anxiety and depressed mood when he made his claim for compensation in February 2012.Was Dr Zimin’s condition a result of reasonable administrative action? Comcare concedes that if found that Dr Zimin was suffering from an adjustment disorder it was contributed to, to a significant degree, by his employment with ARPANSA. The point of difference between the parties is whether that disorder was “a result of” one or more of following actions and, if so, whether, as Comcare contends, each constitute “reasonable administrative action taken in a reasonable manner in respect of [Dr Zimin’s] employment”:i. Dr Zimin’s failure to obtain two Australian Public Service (APS) Executive Level 2 positions (the EL2 positions)ii.Dr Zimin’s failure to have his position upgraded to an EL2 positioniii.Dr Zimin's failure to have leave without pay between 2004 and 2011 treated as service for superannuation purposesiv.Dr Zimin's travel proposal being rejectedv.Dr Zimin's application to work from home being rejectedvi.Dr Zimin not being chosen to work on the Fukushima project/teamvii.Dr Zimin’s failure to be considered a 'specialist' at the EL2 level.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3791
Re	Sergei Zimin
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Senior Member A K Britton Dr Williams Isles, Member
Date	27 May 2014
Place	Sydney