Snook and Comcare (Compensation) - [2022] AATA 449

Snook and Comcare (Compensation) [2022] AATA 449 (14 March 2022)
Division:GENERAL DIVISION
File Number: 2020/3500
Re:Brian Snook
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:14 March 2022
Place:Perth

The decision dated 23 April 2020 which affirmed a determination of 14 February 2020 which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of “depression / anxiety / work related stress” is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – SRC Act s 14 – determination denied liability to pay compensation – claim for “depression / anxiety / work related stress” – whether applicant suffered a psychological injury – whether condition contributed to, to significant degree, by applicant’s employment with AFP (SRC Act s 5B) – whether liability excluded pursuant to SRC Act s 5A(1) – reasonable administrative action taken in a reasonable manner – respondent admits applicant suffered adjustment disorder which later developed into a major depressive episode – respondent admits condition significantly contributed to by applicant’s employment with AFP – applicant’s psychological condition was the result of reasonable administrative action taken in a reasonable manner under the circumstances – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A(1), 5A(2), 5A(2)(c), 5A(2)(d), 5A(2)(e), 7(4), 7(7), 14, 14(1), 16, 19
CASES
Beasley and Comcare [2012] AATA 411
Comcare v Mooi [1996] FCA 508; (1996) 69 FCR 439
Georges and Telstra Corporation Ltd [2009] AATA 731
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 4^th ed, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Publishing, 5^th ed, 2013)
REASONS FOR DECISION
Deputy President Boyle
14 March 2022
THE APPLICATION

The applicant seeks review of a decision dated 23 April 2020[1] which affirmed a determination of 14 February 2020 which denied liability to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in respect of “depression / anxiety / work related stress”.[2]
[1] R2, T58.
[2] R2, T48.
BACKGROUND
The applicant is a 59-year-old former employee of the Australian Federal Police (AFP).
The applicant says that on 24 January 2019, when he was employed as Shift Supervisor at the AFP’s Exmouth station, he suffered what he describes as a “workplace incident” following which he started “an extended period of sick leave”.[3]
[3] applicant's statement, R1/68.
The applicant provided a Workcover WA first certificate of capacity dated 24 January 2019 issued by Dr Johannes Grobbelaar which certified the applicant as having no capacity for work for the period from 24 January 2019 to 24 February 2019.[4] That certificate recorded that the applicant:
Presented with his wife
Stresses anxious
Sleep deprived and Head feels fuzzy
Not able to concentrate
Gets short tempered and impatient at work.[5]
(Without alteration)
[4] R2, T9/38.

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 Snook and Comcare (Compensation)

Details

AGLC: Snook and Comcare (Compensation) [2022] AATA 449
Case: [2022] AATA 449
Decision Date: 14 March 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review of a decision by Comcare that denied liability to pay compensation under section 14 of the *Safety, Rehabilitation and Compensation Act 1988* (Cth) (SRC Act). The applicant claimed compensation for "depression / anxiety / work related stress," alleging a psychological injury. Comcare admitted that the applicant suffered an adjustment disorder that developed into a major depressive episode, and that this condition was significantly contributed to by his employment with the Australian Federal Police (AFP). The central dispute was whether the applicant's psychological condition was a result of reasonable administrative action taken in a reasonable manner, which would exclude Comcare's liability.

The AAT was required to determine whether the applicant suffered a psychological injury within the meaning of the SRC Act, and if so, whether that injury was contributed to, to a significant degree, by his employment. Crucially, the Tribunal had to consider whether liability was excluded under section 5A(1) of the SRC Act, which provides that an injury does not include a disease or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. The Tribunal also had to consider the specific actions that may have caused the injury, such as being stood down from duty or not being returned to work when certified fit.

The Tribunal found, based on the evidence of medical experts, that the applicant had suffered a psychological condition. While Comcare admitted the condition was significantly contributed to by the applicant's employment, the Tribunal ultimately found that the applicant's psychological condition was the result of reasonable administrative action taken in a reasonable manner. This conclusion was reached even if the condition arose from the applicant not being returned to work, as the Tribunal found those actions also constituted reasonable administrative action taken in a reasonable manner. Therefore, the exclusion of liability under section 5A(1) of the SRC Act was applied.

Consequently, the AAT affirmed the decision of 23 April 2020, which affirmed an earlier determination of 14 February 2020, denying Comcare's liability to pay compensation under section 14 of the SRC Act.

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

On 10 June 2020, the applicant filed the application for review of the decision dated 23 April 2020 with the Administrative Appeals Tribunal (AAT). THE HEARING AND THE EVIDENCE The application was heard on 21, 22 and 23 September 2021. The applicant was self-represented and Mr A Burgess appeared for the respondent. The following documents were admitted into evidence:(a)Email dated 25 January 2019 from the applicant to Heath Davies (A1);(b)Tender bundle filed in the AAT 17 September 2021 (R1);(c)Section 37 T-documents filed in the AAT 15 July 2020 (R2);(d)Supplementary T-documents filed in the AAT 25 November 2020 (R3); The following witnesses gave evidence at the hearing:(a)the applicant; (b)Gregory Harrigan;(c)Heidi Haeusler;(d)Graeme John Smith;(e)Murray James Lewin;(f)Superintendent Peter Chwal;(g)Hayly Patricia Faithfull;(h)Heath Davies;(i)Commander Alison Margaret Wegg;(j)Dr Gemma Edwards-Smith; and(k)Dr Brendan Jansen.LEGISLATIVE FRAMEWORK Section 14(1) of the SRC Act relevantly provides: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. “Injury” is defined in s 5A(1) of the SRC Act to mean:…(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. Section 5A(2) of the SRC Act provides:(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.(Original emphasis) As noted at [8] above, the applicant’s claims were rejected by the determination of 14 February 2020 on the basis that there was no liability under s 14 of the SRC Act. While it is not relevant to the issues that I must determine, I note that that are no outstanding claims for compensation for medical expenses under s 16 of the SRC Act or compensation under s 19 of the SRC Act.[12] [12] transcript at 11–14.

Decision

Reasons for decision

The respondent admits that the applicant has suffered a psychological condition of an adjustment disorder which later developed into a major depressive episode.[80] I find that the psychological conditions suffered by the applicant were sustained in January 2019 when he was suspended from work by Ms Faithfull. The respondent further admits that the applicant’s condition was significantly contributed to by his employment with the AFP. I find that for the reasons set out above, the applicant’s psychological condition was the result of reasonable administrative action taken in a reasonable manner. Even if the applicant’s psychological condition was the result of his not being returned to work, I find that the respondent’s actions in relation thereto were reasonable administrative action taken in a reasonable manner. I therefore find that the exclusion of liability under s 5A(1) of the SRC Act applies.[80] respondent's SFIC para 53.DECISION The decision dated 23 April 2020 which affirmed a determination of 14 February 2020 which denied liability to pay compensation pursuant to s 14 of the SRC Act in respect of “depression / anxiety / work related stress” is affirmed.

Ratio Decidendi

Legal Principle Established

In the end the only material difference between Dr Edwards-Smith and Dr Jansen’s analysis was that Dr Jansen was of the view that there were two injuries: one on or immediately after the applicant was stood down on 23 January 2019, and a second when he was not returned to work when certified fit to do so in June 2019. Dr Edwards-Smith commented on this difference in her report dated 18 November 2020 (see [80] above) and was asked at the hearing to comment on Dr Jansen’s assessment of there being two injuries. Her evidence was as follows:COUNSEL: Dr Jansen’s opinion in his report was – in his initial report, that is the 20 – sorry, 30 May 2019, recorded or that appointment, sorry, was on 23 May 2019 and Dr Jansen recorded that he expected the applicant to be in remission from the adjustment disorder within two to four weeks. Having regard to what you – the history you took about how the applicant was in June of 2019, do you – what do you consider to be the continuum of the conditions that were first described by Dr Jansen? DR EDWARDS-SMITH: Well, it would seem that Dr Jansen’s hopeful prognosis didn’t come to pass. That the symptoms did not resolve completely and, in fact, deteriorated over the ensuing months.COUNSEL: Is that consistent with the opinions that you expressed in your report?DR EDWARDS-SMITH: Yes, it is.[70][70] transcript at 143.CONSIDERATION As I noted above, while the applicant’s claim or claims seem to be straight-forward, identifying the required legal elements for the claim or claims from the applicant’s evidence and the workers’ compensation claim forms as submitted, is not easy. In particular, the event or events which caused the applicant the injury are not clearly identified by the applicant. That is not meant as a criticism of the applicant, just a recognition, firstly, of the fact that the applicant is not legally represented and, secondly, of the fact that the nature of psychological injuries is such that often it not easy, even for the person claiming the injury, to specifically identify the stressors or the causes of the claimed condition. I am satisfied on the evidence, particularly the evidence of Dr Jansen and Dr Edwards-Smith, that the psychological condition suffered by the applicant was the result of either his standing down by Ms Faithfull on 23 January 2019 or his not returning to work between June 2019 when he was certified as fit to return to work and his making his claims for compensation on 9 December 2019 or a combination of those stressors. Insofar as there was any material difference between the opinions of Dr Jansen and Dr Edwards-Smith, I prefer the evidence of Dr Edwards-Smith that there was a single injury suffered by the applicant from which he did not recover and that his symptoms deteriorated after June 2019 when he did not return to work (see [85] above). I also note that in his report dated 5 July 2021, Dr Jansen stated that “[h]is adjustment disorder is likely to be significantly linked to being stood down from duty following the January 2019 incident” (see [73] above). In closing, Mr Burgess for the respondent summarised the respondent’s case as being:… the respondent accepts that the applicant has suffered from a psychological condition. It’s been diagnosed by Dr Edwards-Smith, and Dr Jansen as being an adjustment disorder which later met the threshold for a diagnosis of major depressive episode. And the respondent accepts that the commencement of that condition was significantly contributed to by the applicant’s employment.[71][71] transcript at 163.