THTC and Comcare (Compensation)

Case [2016] AATA 884

THTC and Comcare (Compensation) [2016] AATA 884 (8 November 2016)

Division

GENERAL DIVISION

File Number

2015/3863

Re

THTC

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal

Senior Member CR Walsh
Brigadier AG Warner, Member
Date 8 November 2016
Place Perth

The Tribunal affirms the decision under review.

.......[Sgd].................................................................

Senior Member CR Walsh

CATCHWORDS

COMPENSATION – recurrent major depressive disorder – whether applicant made a wilful and false representation that he did not suffer, or had not previously suffered, from the claimed condition – whether the applicant’s claimed condition was contributed to, to a significant degree, by his employment – date of injury of applicant’s claimed condition – whether applicant’s claimed condition was as a result of reasonable administrative action taken in a reasonable manner in respect of his employment – decision under review affirmed

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 – s 4 - s 5A – s 5A(1) – s 5A(2) – s 5B – s 5B(1)(b) - s 7(7) - s 14

CASES

Comcare v Martinez (No 2) [2013] FCA 439

Comcare v Mooi [1996] FCA 508

Comcare v Porter (1996) 45 ALD 51

Commonwealth Bank of Australia v Reeve & Anor [2012] FCAFC 21; (2012) 199 FCR 463

Hart v Comcare [2005] FCAFC 16

Ianella v French (1968) 119 CLR 84

Jing Yu v Comcare [2010] AATA 960

Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42

Martin v Comcare [2015] FCAFC 169

National Australia Bank v Georgoulas [2013] FCA 1412

Re Georges and Telstra Corporation [2009] AATA 731

Re Georgoulas and National Australia Bank Ltd [2013] AATA 512

Re Makin and Comcare [2010] AATA 432

Re Thompson and Comcare [2012] AATA 752

Smith and Comcare [2007] AATA 1796

Von Stieglitz and Comcare [2010] AATA 263

REASONS FOR DECISION

Senior Member CR Walsh
Brigadier AG Warner, Member

8 November 2016

INTRODUCTION

  1. THTC has spent the majority of his working life as a Commonwealth public servant, including a 12 year period working overseas in Papua New Guinea, Vietnam, Laos and China.  THTC left school at the age of 15 and joined the Department of Civil Aviation. THTC later worked for the Department of Foreign Affairs and Trade and the National Native Title Tribunal.  On 28 July 2003, THTC commenced employment with the Department of Immigration and Border Protection (the Department).

  2. In late 2012, THTC joined the Returns and Removals Policy section (Refugees) of the Department, in Canberra.

  3. On 24 March 2014, following a 35 to 40 minute meeting with the then Assistant Secretary Mr David Walsh, in which THTC alleges that Mr Walsh verbally assaulted him, THTC left work and did not return.  This meeting is discussed in further detail in paragraphs 74 to 83 below.

  4. By email dated 8 August 2014, THTC lodged a “Claim for Compensation”, dated 31 July 2014, with Comcare for the following “injury or illness”:

    breakdown - mental illness - deep depression

    possible post traumatic stress disorder (the Compensation Claim).

  5. According to THTC:

    I consider the single…

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Details
AGLC
THTC and Comcare (Compensation) [2016] AATA 884
Case
[2016] AATA 884
Decision Date

CaseChat Overview and Summary

This matter concerned an application by THTC for a review of a decision by Comcare, which affirmed a previous determination. The dispute centred on Comcare's liability to pay THTC compensation under the Safety, Rehabilitation and Compensation Act 1998 (SRC Act) for a claimed condition, specifically recurrent major depressive disorder. The review was heard by Cr Walsh SM.

The court was required to determine several key issues. These included establishing the appropriate diagnosis of THTC's condition, whether the condition was excluded from being an "injury" under section 5A(1) of the SRC Act due to a wilful and false representation by THTC regarding his prior suffering from the condition, and whether THTC's claimed condition was contributed to, to a significant degree, by his employment. Further, the court needed to ascertain the date of injury for the claimed condition and whether the condition arose as a result of reasonable administrative action taken in a reasonable manner in respect of his employment, which would also exclude it from being an "injury" under section 5A(1).

The court's reasoning involved a detailed consideration of the relevant legislative provisions, particularly sections 14 and 5A of the SRC Act. Section 14 outlines the general circumstances for Comcare's liability to pay compensation for an injury, while section 5A defines "injury" and crucially excludes diseases, injuries, or aggravations resulting from reasonable administrative action taken in a reasonable manner. The court's task was to apply these definitions to the specific facts of THTC's case, including assessing the medical diagnosis, the applicant's representations, the causal link between employment and the condition, the date of injury, and the nature of any administrative actions taken.

The decision affirmed the Reviewable Decision, meaning Comcare was not liable to pay THTC compensation for the claimed condition. This outcome was based on the court's findings in relation to the issues outlined above, which ultimately led to the exclusion of THTC's condition from being a compensable "injury" under 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

Full text does not contain this section.

Decision

Reasons for decision

On 3 June 2015, Comcare affirmed the Determination (the Reviewable Decision). On 30 July 2015, THTC applied to the Tribunal for a review of the Reviewable Decision. THTC’s stated “Reasons for the Application” are as follows:I disagree with a number of conclusions of the delegate – namely that the cause of the injury was consistent with ‘reasonable administrative action’: The delegate suggested that her notification to DIBP ‘should encourage rectification’ my concerns DIBP has not acted in good faith in my rehabilitation, and that because this has happened after the date of the injury (28 March 2014) it has no bearing on my well-being is erroneous and contradicts professional medical reports nor the facts. I am inclined now to lodge another Workers Comp Claim for injuries sustained and aggravated by the actions of the DIBP since the initial injury ie 28 March 2014.ISSUES The ultimate issue to be decided by the Tribunal is whether Comcare is liable to pay THTC compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1998 (SRC Act) for the claimed condition. This requires the Tribunal to determine the following:(i)What is the appropriate diagnosis of THTC’s condition;(ii)Is THTC’s claimed condition excluded from being an “injury”, as defined in s 5A(1) of the SRC Act, as he made a “wilful and false representation” that he did not suffer, or had not previously suffered, from the claimed condition for the purposes of s 7(7) of the SRC Act;(iii)Was THTC’s claimed condition, contributed to, to a significant degree, by his employment with the Department;(iv)What is the date of injury for THTC’s claimed condition; and(v)Whether THTC’s condition is a result of “reasonable administrative action taken in a reasonable manner” in respect of his employment with the Department and is thus excluded from being an “injury” for the purposes of s 5A(1) of the SRC Act?CONSIDERATIONRelevant legislation Section 14 of the SRC Act sets out the circumstances in which Comcare is liable to pay compensation, as follows:14 Compensation for injuries(1)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.(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. The term “injury” is defined in s 5A of the SRC Act as follows:5A Definition of injury(1) In this Act:injury means:(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.(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. [Emphasis added]

Ratio Decidendi

Legal Principle Established

This requires the Tribunal to determine the following:(i)What is the appropriate diagnosis of THTC’s condition;(ii)Is THTC’s claimed condition excluded from being an “injury”, as defined in s 5A(1) of the SRC Act, as he made a “wilful and false representation” that he did not suffer, or had not previously suffered, from the claimed condition for the purposes of s 7(7) of the SRC Act;(iii)Was THTC’s claimed condition, contributed to, to a significant degree, by his employment with the Department;(iv)What is the date of injury for THTC’s claimed condition; and(v)Whether THTC’s condition is a result of “reasonable administrative action taken in a reasonable manner” in respect of his employment with the Department and is thus excluded from being an “injury” for the purposes of s 5A(1) of the SRC Act?CONSIDERATIONRelevant legislation Section 14 of the SRC Act sets out the circumstances in which Comcare is liable to pay compensation, as follows:14 Compensation for injuries(1)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.(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment. The term “injury” is defined in s 5A of the SRC Act as follows:5A Definition of injury(1) In this Act:injury means:(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.(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. [Emphasis added]