Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 10
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4731
GENERAL ADMINISTRATIVE DIVISION ) Re WARREN SHARDLOW Applicant
And
COMCARE
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member Date12 January 2012
Place Canberra
Decision The Tribunal sets aside the decision of 19 October 2010, and in substitution it is ordered that Comcare is liable for the condition of ‘aggravation of major depressive disorder, recurrent episode’ from which Mr Shardlow has been suffering since 14 January 2010.
.............................[sgd]..............................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – depressive disorder – whether injury or disease suffered, being psychological ailment or aggravation – whether materially contributed to by employment – whether liability excluded because the significant cause of the condition was due to reasonable administrative action conducted in a reasonable manner – interpretation of ‘administrative action’ – failure to obtain benefit – appraisal of employee performance
Acts Interpretation Act 1901 (Cth) s 15AA
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4,5A, 5B,
DC Pearce, RS Geddes Statutory Interpretation in Australia (7th edn, LexisNexis, 2011)
Macquarie Concise Dictionary (5th edn, Macquarie, 2009)
Comcare v Chenhall (1992) 109 ALR 361
Comcare v Mooi (1996) 69 FCR 439
Comcare v Sahu-Khan (2007) 156 FCR 536
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 35 ALR 151
Dyer and Comcare [2011] AATA 748
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
Re Archer and Comcare [1999] AATA 940
Re Carpenter and Comcare (2010)116 ALD 190
Re Hardy and Comcare [2010] AATA 342.
Re Piccolo and McVeigh [2001] AATA 623
Re Radulovic and Comcare (2010) 120 ALD 311
Re Riverside Nursing Care Pty Ltd and Secretary, Department of Health and Aged Care [2003] AATA 248
Re Soswowski and Commissioner of Superannuation [1987] AATA 206
Trewin v Comcare (1998) 84 FCR 171
Workcover Corporation of South Australia v Summers (1995) 65 SASR 243
REASONS FOR DECISION
12 January 2012 Professor RM Creyke, Senior Member
1. Mr Warren Shardlow lodged a claim for compensation, dated 14 May 2010, for ‘adjustment disorder mixed with anxiety and depression’. He claimed the condition related to his employment with The Canberra Hospital, conducted under the auspices of the ACT Department of Health (Department).
2. The application for a condition described as ‘adjustment reaction’ and an ‘aggravation of major depressive disorder, recurrent episode’ was rejected by Comcare on 28 July 2010. Comcare deemed the date of injury to be 14 January 2010.
3. The decision was upheld by Comcare in a ‘reviewable decision’ on 19 October 2010.
4. Comcare accepted that Mr Shardlow suffered from a psychological condition that was significantly contributed to by his employment. Comcare was further satisfied, however, that Mr Shardlow’s condition resulted from reasonable administrative action, taken in a reasonable manner, by the Department (section 5A of the Act).
5. Mr Shardlow sought further review by the Tribunal on 28 October…
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- AGLC
- Shardlow and Comcare [2012] AATA 10
- Case
- [2012] AATA 10
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved discerning whether Mr. Shardlow's psychological condition qualified as an injury under the workers' compensation scheme, given the nature of his employment and the events leading up to the onset of his condition. A critical issue was whether the condition was a result of reasonable administrative actions taken by his employer. The court needed to interpret the term 'administrative action' and determine if the actions in question were indeed reasonable and whether they constituted a significant cause of Mr. Shardlow's condition. The court's analysis also included an assessment of the failure to obtain benefit and the appraisal of Mr. Shardlow's employee performance as potential contributing factors.
The Federal Circuit Court found that Comcare was liable for Mr. Shardlow's condition, as it was determined that his depressive disorder and its aggravation were indeed injuries that arose from his employment. The court concluded that the term 'administrative action' did not exclude Comcare's liability because the actions taken were not the significant cause of Mr. Shardlow's condition. Furthermore, the court found that the failure to obtain benefit and the appraisal of employee performance did not absolve Comcare of its obligations under the workers' compensation legislation. Consequently, the Tribunal set aside the previous decision and ruled that Comcare was liable for the aggravation of Mr. Shardlow's major depressive disorder, effective from 14 January 2010.
Orders
Orders of the court
The Tribunal sets aside the decision of 19 October 2010, and in substitution it is ordered that Comcare is liable for the condition of ‘aggravation of major depressive disorder, recurrent episode’ from which Mr Shardlow has been suffering since 14 January 2010.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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