TONI ILIFFE and COMCARE - [2013] AATA 631

[2013] AATA 631

Division GENERAL ADMINISTRATIVE DIVISION

File Numbers

2011/5437, 2012/5043

Re

TONI ILIFFE

APPLICANT

And

COMCARE

RESPONDENT

DECISION

Tribunal
PROFESSOR RM CREYKE, SENIOR MEMBER
DR B HUGHSON, MEMBER

Date 3 September 2013

Place Canberra
The decisions under review are affirmed
.......................................[sgd].................................
PROFESSOR RM CREYKE, SENIOR MEMBER
Catchwords
COMPENSATION – Commonwealth employees – adjustment reaction with mixed emotional factors – migraine – whether arising out of or in the course of employment – whether reasonable administrative action taken in a reasonable manner – failure to obtain a benefit
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 14
Cases
Comcare v Mooi (1996) 69 FCR 436
Commonwealth Bank of Australia v Reeve and Another (2012) 199 FCR 463
Isley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Smith v Comcare [2013] FCAFC 65
REASONS FOR DECISION
PROFESSOR RM CREYKE, SENIOR MEMBER
DR B HUGHSON, MEMBER
3 September 2013

Ms Toni Iliffe has two applications before the Tribunal: the first for an ‘adjustment disorder with mixed emotional features’ (Matter No 2011/5437); the second for ‘migraine unspecified’ (Matter No 2012/5043).
Ms Iliffe’s claim for an ‘adjustment reaction with mixed emotional features’ was initially accepted on 5 August 2011. On 30 September 2011 the employer requested a reconsideration of the decision on the basis that the date of injury was 10 April 2010, that is, after Ms Iliffe’s failure to be appointed to an Australian Public Service level 5 (APS5) position within the Department of Climate Change and Energy Efficiency (agency). The consequence, so it was argued, was that Ms Iliffe’s psychological condition was due to reasonable administrative action, which meant that it was not compensable under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act).
On 9 December 2011 Comcare accepted the agency’s submission and revoked the decision of 5 August 2011. Ms Iliffe sought further review by the Tribunal on 15 December 2011. The matters were heard in Canberra on 3, 4 and 5 July 2013.
Comcare initially denied Ms Iliffe’s claim for migraine on 30 August 2012, a decision upheld on review on 19 October 2012. Ms Iliffe sought review by the Tribunal on 9 November 2012.
Background
Ms Iliffe, born 1964, was employed on a non-ongoing basis from 2007 by the Department of Environment. Her section moved to the new Department of Climate Change and Energy Efficiency (agency) in March 2010. Ms Iliffe’s contract was extended regularly throughout that period but was due to expire on 30 June 2011. She ceased work with the agency on 12 May 2011 and did not find other employment until November 2011.
Ms Iliffe worked in the section administering the Solar Homes and Communities Plan (SHCP) as a state leader and then a senior program officer. She was initially employed at the APS4 level, but was promoted to an APS5 level in January 2010. In that position, at one point she said she was responsible for between…

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 TONI ILIFFE and COMCARE

Details

AGLC: TONI ILIFFE and COMCARE [2013] AATA 631
Case: [2013] AATA 631
Decision Date

CaseChat Overview and Summary

In the matter of TONI ILIFFE and COMCARE, Ms Iliffe challenged Comcare's refusal to compensate her for a psychological injury and migraine condition, both allegedly arising from her employment with the Department of Climate Change and Energy Efficiency. The dispute was reviewed by the Administrative Appeals Tribunal, where Ms Iliffe sought to overturn Comcare's denial of her claim for compensation. The Tribunal had to determine whether Ms Iliffe's employment significantly contributed to her psychological injury and migraine condition, if the exclusion under section 5A of the Act applied, the deemed date of the injury, and Comcare's liability to pay compensation under section 14 of the Act.

The central legal issues addressed by the Tribunal were whether Ms Iliffe's employment significantly contributed to her psychological injury and migraine condition, whether the condition arose from reasonable administrative action exempting Comcare's liability, the correct date to deem the injury, and whether Comcare should compensate Ms Iliffe. Medical evidence indicated Ms Iliffe suffered from regular headaches and migraines from 2009 onwards, with her collapse on 8 April 2011 attributed to a severe migraine. The Tribunal considered whether these conditions met the criteria for compensable injuries under the relevant Act.

The Tribunal found that Ms Iliffe's employment did significantly contribute to her psychological injury and migraine condition, stemming from the stressful work environment and increased workload. However, it ruled that the exclusion under section 5A of the Act did not apply, as the conditions did not arise from reasonable administrative action. The deemed date of the injury was determined to be 2009, when the first symptoms appeared. Consequently, the Tribunal concluded that Comcare was liable to pay compensation to Ms Iliffe for her injuries.

In summary, the Tribunal determined that Ms Iliffe's employment with the Department of Climate Change and Energy Efficiency significantly contributed to her psychological injury and migraine condition, leading to Comcare's liability to compensate her. The Tribunal rejected the application of the exclusion under section 5A of the Act and set the deemed date of injury at 2009. The final orders mandated Comcare to compensate Ms Iliffe for her psychological injury and migraine condition, effective from the date of the Tribunal's decision.

Orders

Orders of the court

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Background

Background to the litigation

Comcare initially denied Ms Iliffe’s claim for migraine on 30 August 2012, a decision upheld on review on 19 October 2012. Ms Iliffe sought review by the Tribunal on 9 November 2012.Background Ms Iliffe, born 1964, was employed on a non-ongoing basis from 2007 by the Department of Environment. Her section moved to the new Department of Climate Change and Energy Efficiency (agency) in March 2010. Ms Iliffe’s contract was extended regularly throughout that period but was due to expire on 30 June 2011. She ceased work with the agency on 12 May 2011 and did not find other employment until November 2011. Ms Iliffe worked in the section administering the Solar Homes and Communities Plan (SHCP) as a state leader and then a senior program officer. She was initially employed at the APS4 level, but was promoted to an APS5 level in January 2010. In that position, at one point she said she was responsible for between 30 and 75 staff. The SHCP program was designed to assist in the installation over a five year period of 14,000 solar systems for generating electricity. On 9 June 2009 the government announced it was removing the SHCP rebate earlier than planned. Firms seeking the rebate were given a couple of weeks to submit their applications. As a result the agency received 45,000 applications for the rebate in that period. There was insufficient staff to deal with the workload and temporary staff, many with little experience, were brought in to assist. Ms Iliffe, who was a certified staff trainer, was asked to train the new staff, as well as complete her existing workload. In addition, Ms Iliffe said she also took on the role of handling complaints from June 2009. Ms Iliffe provided evidence of the abusive emails and phone calls she received on a regular basis because of delays in payment of the rebate. She said on occasions she would go to the kitchen to avoid the calls. At its busiest, in March 2010, there were over 70 officers working in the program. However, by July 2010 the closure strategy was under way and Ms Iliffe’s team moved from a location in Woden to Canberra city, the program having initially been housed in a third building on the other side Lake Burley Griffin from the city. Each of the moves involved dislocation, loss of processing time, and led to the loss of some files. By July 2010, staff had reduced to 25 and Ms Iliffe’s work load had decreased. However, she was still processing applications, and receiving abuse from unhappy installers. This situation continued until Christmas 2010. In addition, around this time, she had to reapply for her non-ongoing position. In the period February to December 2010, Ms Iliffe was absent from work on a number of occasions. The reasons varied from colds, viruses, migraine headaches, and an injury to her foot and ankle, as well as support for her husband when he was unwell and was hospitalised for a period. Ms Iliffe also had problems with her daughter who had been living with her but had been asked to leave and did so on 30 May 2010.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The issues in relation to both conditions are:·Whether the injury was significantly contributed to by Ms Iliffe’s employment?·If so, whether liability for the claim is excluded under section 5A of the Act on the basis that the condition arose as a result of ‘reasonable administrative action undertaken in a reasonable manner’, namely, by a failure to obtain a benefit?·What is the deemed date of the injury (section 7(4) of the Act)?·Whether Comcare is liable to pay compensation to Ms Iliffe under section 14 of the Act in respect of the injury?Consideration Ms Iliffe has two conditions: a psychological injury, described in the reviewable decision as an ‘adjustment reaction with mixed emotional features’; and ‘migraine, unspecified’. A third condition of sleep apnoea favoured by Dr David Bell, psychiatrist, was not supported by other medical experts and has not been taken into account by the Tribunal. The expert medical witnesses accepted she had a psychological condition, and the diagnosis was not challenged in the proceedings. Ms Iliffe’s claim for headaches, according to the neurologists, covered the spectrum of such disorders. Professor Roy Beran and Dr Ron Brooder, the two neurologists who provided concurrent evidence, said that from 2009 onwards Ms Iliffe had been suffering regular headaches, variously described as headaches, tension headaches, vascular-tension headaches, migraines and severe migraines. In 2010 she said they were occurring at least once a week, often on a Saturday morning. Both experts agreed that Ms Iliffe’s collapse on 8 April 2011 was due to a migrainous episode, that is, a severe migraine, which was at one end of the spectrum. They also agreed that causally there was a distinction between headaches and migraine. There was a strong familial factor in relation to migraines and tension headaches, although the experts agreed that tension headaches usually develop due to stress or anxiety. Ms Iliffe’s evidence was that she was very aware of the distinction between a headache and a migraine: if it was a migraine she would experience nausea, dizziness, shaking, and would not be able to lift her head. She often felt a throbbing pain over her right eye which extended to the back and top of her head, and she could not lie on one side of her body. She needed to be in a dark room on that day and, on the next day, she often felt sick or dizzy and lacked coordination.Categorisation of claimed conditions Both Ms Iliffe’s claimed conditions can be categorised for the purposes of the Act as a ‘disease’, being either an ‘ailment’ or an ‘aggravation of such an ailment’.[1] An ‘ailment’ is defined as ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[2][1] Act s 5B – definition of ‘disease’.[2] Act s 4(1) – definition of ‘ailment’. Ms Iliffe’s adjustment reaction is a ‘mental…ailment, disorder, defect or morbid condition’, being a condition which has been diagnosed by those with specialist psychological or psychiatric training, a condition which falls within their expertise. It is accordingly an ‘ailment’ and in turn a ‘disease’. Whether the condition meets the test of being ‘outside the boundaries of normal mental functioning and behaviour’[3] is yet to be determined.[3] Comcare v Mooi (1996) 69 FCR 436 at 444.

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2011/5437, 2012/5043
Re	TONI ILIFFE
APPLICANT
And	COMCARE
RESPONDENT

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER DR B HUGHSON, MEMBER
Date	3 September 2013
Place	Canberra