Shardlow and Comcare

Case [2012] AATA 10


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

In the matter of Shardlow and Comcare, the dispute centred on whether Comcare, the Commonwealth entity responsible for the provision of workers' compensation, was liable for the psychological injury suffered by Mr. Shardlow, who was an employee of the Commonwealth. The Federal Circuit Court was tasked with determining the extent of Comcare's liability in relation to Mr. Shardlow's condition, specifically whether his depressive disorder and its aggravation were injuries within the scope of the relevant legislation and whether they were materially contributed to by his employment. The court was also required to interpret the term 'administrative action' as it pertained to the exclusion of liability under the applicable provisions.

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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