Terbizan and Comcare (Compensation) - [2018] AATA 3862

Terbizan and Comcare (Compensation) [2018] AATA 3862 (15 October 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5353
Re:John Terbizan
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Member A Ward
Member M O'Loughlin
Date:15 October 2018
Place:Adelaide

The decision under review is affirmed.
..............................[SGD]..........................................
Deputy President P Britten-Jones
CATCHWORDS
COMPENSATION – Adjustment disorder – Temporary role discontinued – Notification of discontinuance given by letter - Whether adjustment disorder suffered as a result of administrative action - Whether administrative action in respect of the employment of the applicant - Whether administrative action reasonable - Whether administrative action taken in a reasonable manner – Decision under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 14
CASES
Comcare v Martin (2016) 258 CLR 467
Lim v Comcare [2017] FCAFC 64
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463; [2012] FCAFC 21
Comcare v Drinkwater [2018] FCAFC 62
Drenth v Comcare [2012] FCAFC 86
Keen v Workers Rehabilitation & Compensation Corporation (1998) 71 SASR 42
Comcare v Martinez (No. 2) [2013] FCA 439
Lee v Comcare [2012] AATA 867
SECONDARY MATERIALS
Explanatory Memorandum, Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006
REASONS FOR DECISION
Deputy President P Britten-Jones
Member A Ward
Member M O’Loughlin
15 October 2018

The applicant seeks review of a decision made by Comcare (the respondent) dated 27 July 2016, which denied compensation for a worker’s compensation claim for an “adjustment disorder with depressed and anxious mood” under the Safety, Rehabilitation and Compensation Act1988 (the Act).
Section 14 of the Act provides that the respondent is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee that results in death, incapacity for work or impairment. But the definition of “injury” in s 5A(1) of the Act excludes a condition that would otherwise satisfy the definition if the condition was a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment. This case concerns that exclusion.
FINDINGS OF FACT
From 1982 until 2013 the applicant was employed as an aviation firefighter with Airservices Australia (Airservices). Airservices is a government owned organisation providing rescue and firefighting services to the aviation industry, including at Adelaide airport.
In 2013 the applicant was approached by his Adelaide airport station manager, Geoff Skewes, to see if he would be interested in the role of fire alarm administrator. The role was described in an email dated 27 February 2013 as “a short term fix to assist Business Support manage a number of fire alarm monitoring issues”. The role included “[a]ssisting Business Support with the customer fire alarm monitoring application process”, “[a]ssist in the update of our fire alarm documentation”, “[f]ollow up with customers to resolve issues” and “[l]iaise between Business Support and Stations on troublesome customers”. The email said it would be ideal if there was a senior officer on long term sick leave and concluded:
In the long…

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: [2018] AATA 3862
Decision Date: 15 October 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Terbizan, against a decision by the respondent, Comcare, to deny compensation for an adjustment disorder. The applicant contended that his condition arose as a result of administrative action taken by his employer concerning his employment. The core of the dispute revolved around whether the applicant's adjustment disorder was caused by the administrative action, and if so, whether that action was taken in a reasonable manner.

The court was required to determine several legal issues. Firstly, it needed to ascertain what constituted the relevant "administrative action" for the purposes of the applicant's claim. Secondly, the court had to decide whether the applicant's adjustment disorder was suffered "as a result of" this administrative action, applying the principles established in High Court jurisprudence. Finally, the court was to consider whether the administrative action was taken in a reasonable manner.

The court reasoned that the relevant administrative action encompassed not only the notification of the decision to discontinue the applicant's role but also the decision itself, as it was nonsensical to consider the reasonableness of the notification without reference to the underlying decision. Applying the principles from *Comcare v Martin*, the court held that an injury is suffered "as a result of" administrative action if that action is a cause in fact of the injury. This requires establishing a causal connection where the employee would not have suffered the ailment if the administrative action had not been taken. The court noted that the psychiatrists agreed that the applicant would not have suffered the adjustment disorder if his employer had not informed him that his position was no longer required, thus establishing the necessary causal link. The court affirmed the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The letter of 24 November 2014 was the first notice that the applicant received that his role was to be phased out. The email from Mr Sciortino to the applicant dated 5 November advising that “we have commenced a process to wrap up the work you are currently undertaking” was not notice that his role would discontinue. MEDICAL EVIDENCE There was no real dispute between the psychiatrists who provided written reports and concurrent oral evidence. Dr Davis, for the applicant, diagnosed the applicant’s condition as a chronic adjustment disorder with anxiety and depressed mood with the onset of disruptive psychological symptoms in late 2014. He said that the notice of termination of his role as fire alarm administrator in November 2014 triggered the onset of more disruptive psychological symptoms. Dr Ewer, for the respondent, said that the applicant was suffering from a chronic adjustment disorder with depressed and anxious mood and that the clinical onset of this condition was November 2014. He said that his adjustment disorder was precipitated in November 2014 by the employer notifying him that his position was no longer required. He said that this notification probably significantly contributed to his adjustment disorder. He said that the way the applicant was informed that his position was no longer required also contributed to him developing an adjustment disorder but that he probably would have developed an adjustment disorder irrespective of how that information was conveyed to him. He did not think that there was a way to tell the applicant his position was no longer required that would have resulted in him not suffering from an adjustment disorder. The psychiatrists were asked concurrently whether certain factors contributed to the applicant’s adjustment disorder to a significant degree. They said “no” to his belief that he was paid inadequately. They said “no” to his belief that the employer was not adhering to appropriate safety practices. They said “yes” to his employer informing him that his position was no longer required. The psychiatrists were asked what it was about the employer informing the applicant that his position was no longer required that precipitated or triggered his adjustment disorder. They said that it was the fact that his employer believed that it was no longer required. Further, they said that it was the applicant being informed that his position was no longer required. They both agreed that it was not the way in which the applicant was informed that his position was no longer required. As to whether the applicant would still have suffered the adjustment disorder under certain different scenarios they agreed that the applicant would not have suffered the adjustment disorder if his employer did not inform him that his position was no longer required.LEGISLATION Under s 14(1) of the Act the respondent is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.

Decision

Reasons for decision

There was a further issue as to what constituted the relevant administrative action. The respondent contended that the relevant administrative action was the notification of the applicant by letter to him dated 24 November 2014 and that it did not include the making of the decision itself. This is too narrow an approach. For example, in order to properly determine whether the notification was reasonable, it is necessary to consider the reasonableness of the decision itself. It would be nonsensical to divorce the decision from the notification. The relevant administrative action was the notification by letter dated 24 November 2014 to the applicant of the decision to discontinue the applicant’s role as fire alarm administrator (hereinafter referred to as the Decision Notification).Was the Adjustment Disorder suffered as a result of the administrative action? The High Court in Comcare v Martin (2016) 258 CLR 467 held that an employee has suffered an injury “as a result of” administrative action if the administrative action is a cause in fact of the injury which the employee has suffered. What must be established is a causal connection between the administrative action and the suffering of the disease. The Court said further:[45] … The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment. [46] That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to “ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation” and as including, in particular, to prevent claims “being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of” such action. The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction. [47] Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment. [48] The causal connection giving rise to the exclusion from the definition of injury is met where the disease suffered by the employee is a mental condition or an aggravation of a mental condition suffered by the employee in reaction to a failure to obtain promotion, including in reaction to a perceived consequence of that failure to obtain promotion. The nature of the perceived consequence – whether personal or professional, direct or indirect, real or imagined – is beside the point.(citations omitted)

Ratio Decidendi

Legal Principle Established

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