Stephen and Comcare (Compensation) - [2018] AATA 344

Stephen and Comcare (Compensation) [2018] AATA 344 (28 February 2018)
Division:GENERAL DIVISION
File Number(s): 2016/1139
Re:Frank Stephen
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:28 February 2018
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
COMPENSATION – claim for compensation for disease – depressive disorder and generalised anxiety disorder – where the applicant alleged bullying and harassment against his colleague – where the applicant accidentally injured his colleague – where the applicant claimed to fear for his job and to have been ostracised – whether the injuries were caused by his employment – whether disease was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment – action taken in a reasonable manner – disorders not caused by employment – decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 5A(1), 5B, 14
CASES
Comcare v Martin [2016] HCA 43
Bropho v HREOC (2004) 135 FCR 105
Comcare v Martinez (No 2) (2013) 212 FCR 272
Dean v Australian Postal Corporation [2010] FCA 680
Kirkpatrick v Commonwealth of Australia (1985) 9 FCR 36
Australian Telecommunications Commission v Tzikas (1985) 5 AAR 173
Wiegand v Comcare (2002) 72 ALD 795
Re Moore and Comcare [2011] AATA 615
Lynch v Comcare [2010] AATA 38
Re Inglis and Comcare (1997) 49 ALD 183
SECONDARY MATERIALS
Diagnostic and statistical manual of mental disorders (5^th edition) – DSM-5
International Classification of Diseases, Tenth Revision
Customs and Border Protection Service ‘Ethics and Standards of Conduct – March 2009’
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
28 February 2018
INTRODUCTION

Mr Frank Stephen (“the applicant”) seeks review of a decision of Comcare (“the respondent”) dated 3 November 2015.
The respondent in that reviewable decision overturned the initial determination, dated 24 July 2015 (which accepted initial liability for depressive disorder and generalised anxiety disorder) and also decided that the respondent could not accept liability for the applicant’s claimed injuries.
CLAIM OF WORKPLACE INJURY
The applicant was employed by the then Department of Immigration and Border Protection within the Australian Customs and Border Protection Service, and undertook the role of Level 1 Customs Officer for 13 years.
The applicant in his claim form dated 19 May 2015 made a claim under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for a condition which he described as “Mental Health. Emotional Trauma. Anxiety. Paranoid. Stress”. The applicant in the claim form alleged the condition to be caused by discrimination and bullying as well as his career being threatened by senior officers.
The applicant claimed in his claim form that it was on 30 October 2011 when he first noticed his condition. The claim form indicates that it was on 21 May 2015 when he first sought medical treatment for the condition from Dr Anthony Watson, general practitioner.
LEGISLATION
Section 14 of the Act provides that the respondent is liable to pay…

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 Stephen and Comcare (Compensation)

Details

AGLC: Stephen and Comcare (Compensation) [2018] AATA 344
Case: [2018] AATA 344
Decision Date: 28 February 2018

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision by Comcare to reject his claim for compensation for a depressive disorder and generalised anxiety disorder. The applicant alleged that these conditions arose from bullying and harassment by a colleague, Mr. Flockhart, and a subsequent fear for his job and ostracisation. The applicant also admitted to accidentally injuring Mr. Flockhart during an incident on 30 October 2011. The case was heard by Deputy President McDermott.

The primary legal issues before the court were whether the applicant's alleged depressive and anxiety disorders constituted a "disease" or "injury" under the relevant Act, and if so, whether this condition was contributed to, to a significant degree, by his employment with the Commonwealth. A further consideration was whether any actions taken in relation to the applicant's employment were reasonable administrative actions taken in a reasonable manner.

The court found that the applicant's initial statements and those of Ms. Martin described the incident on 30 October 2011 as a "game" or "mucking around" that went out of hand, rather than an unprovoked assault or harassment. The contemporaneous documentary evidence, including the applicant's own letter of 3 November 2011 referring to himself and Mr. Flockhart as "good friends," did not support his later contentions of assault or harassment. Reports from other crew members also described the incident as a playful game. Consequently, the court concluded there was no cogent evidence that the applicant's mental health condition was caused by his employment.

The decision under review was affirmed.

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

The evidence given by the applicant, by associates of the applicant and referred to by the expert witnesses concerned the circumstances surrounding an incident that occurred in Darwin on 30 October 2011. There are various accounts, and accompanying documentary evidence, surrounding the actual incident and the sequence of events. As a summary, where the evidence refers to the “tackling incident”, this means the purported incident where the applicant engaged in a physical incident with a fellow crew member of a customs patrol vessel on the evening of 30 October 2011.Evidence of Applicant The statement of the applicant dated 14 October 2016 was tendered in evidence. The applicant in giving evidence remarked that the contents of his statement were true. In his statement the applicant stated that the information in his undated statement[1] is true and correct except for a number of corrections that were made to it in his later statement of 14 October 2016. The applicant stated that in October and November 2011 he had the email address of ‘punka@live.com.au’ which his wife used. The applicant stated he did not personally use that email address.[1] Exhibit A, T-documents, T3 The statements of the applicant[2] outline the applicant’s view of the incident:(a)A fellow employee Mr Flockhart had a few drinks on the night in question while the applicant did not;(b)There was a car ride in which Mr Flockhart called the applicant by a nickname “Big P” and that “P” was for “poofy” and that Mr Flockhart was acting childishly and inappropriately due to his level of intoxication;(c)After the car ride and when walking back to the vessel, Mr Flockhart and the applicant had a conversation about football codes after which Mr Flockhart ran at the applicant three times. The applicant states[3] this was not in an angry way, however the applicant felt it was unprofessional and he felt frustrated;(d)The third time Mr Flockhart ran at the applicant the applicant grabbed him around his body and as the applicant lifted him, Mr Flockhart misjudged the landing as he was intoxicated. Mr Flockhart was then on his back and threw a kick at the applicant; and(e)Following the incident, Mr Flockhart and the applicant had an argument and Mr Flockhart stated the applicant would lose his job, that he would write the applicant up and that “I will fry you”.[4][2] Ibid at p. 43-44 and Exhibit B, Statement of the Applicant dated 14 October 2016[3] Exhibit A, T-documents, T3 at p. 43[4] Exhibit B, Statement of the Applicant dated 14 October 2016 at [17] The applicant was subject to extensive cross-examination. The applicant gave oral evidence surrounding the tackling incident with Mr Flockhart which occurred on 30 October 2011. He confirmed that he was friends with Mr Flockhart and they had previously gone fishing together before the incident. The applicant stated that he and Mr Flockhart were engaging in friendly banter about whether AFL or Rugby was the best football code before the incident. Also before the incident, the applicant stated that Mr Flockhart put his “finger” in the applicant’s ears during a car ride that evening and that he had told Mr Murphy[5] on that night that Mr Flockhart had “…wet his fingers and put it in my ears from behind”. [5] The name of this person has been changed for confidentiality reasons.

Decision

Reasons for decision

There is no cogent evidence that the mental health condition of the applicant was caused by his employment. DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The conduct of the investigation was inextricably linked to the result of the investigation which was Mr Murphy talking to the applicant about his compliance with the code of conduct. If that event is found to be causative of the ailment the subject of the application for compensation (which is not the applicant’s case) it will be necessary to determine whether all of the actions of Mr Murphy and others that resulted in Mr Murphy ultimately reading the code of conduct to the applicant were reasonable for the purposes of the statute.CONSIDERATION The Tribunal will have to determine whether the condition for which the applicant seeks compensation can be considered a “disease” or an “injury” under the Act. There is no issue that the mixed depressive and anxiety disorder of the applicant is an “ailment” under section 5B(1) of the Act. The Tribunal has to consider whether the ailment is a disease that was contributed to, to a significant degree, by the applicant’s employment with the Commonwealth under section 5B(1) of the Act. In relation to the incident the applicant has contended that “no crew member has said that there was a game going on”. However, the applicant himself in his initial statement wrote: “The incident was just a game fun and game that went out of hand”.[65] Ms Martin in her initial statement remarked that the incident involved “two guys mucking around and having a playful game of footy”.[66] I do not accept the contention of the applicant that the incident on 30 October 2011 did not involve a game as this was contrary to the initial statements of both the applicant and Ms Martin.[65] Exhibit A, T-documents, T 7.1, p 68[66] Exhibit A, T-documents, T 7.91, p 90 The applicant now essentially contends that on the evening of 30 October 2011 he was the victim of harassment and an unprovoked assault by Mr Flockhart. The contemporaneous documentary evidence does not support the contentions of the applicant that he was assaulted on that evening or subjected to any harassment or inappropriate behaviour. The applicant’s letter which was provided on 3 November 2011 does not contain any claim that he was assaulted or harassed by Mr Flockhart. Indeed, in that letter he refers to both himself and Mr Flockhart as “good friends”. On about 3 November 2011 Mr Murphy was provided with reports from members of the crew being Mr Summers, Mr Ellison and Mr Thurtell. In none of those reports is there any allegation that the applicant was assaulted. Ms Martin in her report said that the incident was “two guys mucking around and having a playful game of footy”. Ms Martin also remarked: “It was discovered the next day Andrew was injured; this happened as a result of the playful footy match between himself and Frank. I believe that Frank had no intention or malice of injuring Andrew at all and unfortunately for Andrew he got hurt in one of his humorous tackles”. There is no allegation of wrongful behaviour by any member of the crew towards the applicant in these reports by Mr Summers and Mr Ellison.