Voss and Comcare (Compensation) - [2016] AATA 515

Voss and Comcare (Compensation) [2016] AATA 515 (21 July 2016)

Division

GENERAL DIVISION

File Number(s)

2014/4481

Re

Michael Voss

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President Dr P McDermott

Date 21 July 2016

Place Brisbane
In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, the reviewable decision dated 24 July 2014 is set aside and in substitution it is decided that the applicant is entitled to compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 for the claimed condition of major depressive disorder. For the purposes of s 7(4) of the Safety, Rehabilitation and Compensation Act 1988, the applicant should be taken to have sustained an injury on 19 July 2013.
........................[sgd].............................................
Deputy President Dr P McDermott
CATCHWORDS
COMPENSATION – Major depressive disorder – Whether reasonable administrative action – Whether taken in a reasonable manner – Employment contributed to injury – Not reasonable administrative action – Not taken in a reasonable manner – Decision under review set aside – Applicant entitled to compensation
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 43(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 7(4), 14
CASES
Comcare v Mooi [1996] FCA 1587
National Australia Bank Ltd v KRDV (2012) FCR 436
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Peters v Comcare [2013] FCA 808
Peters v Comcare [2013] FCA 1361
National Australia Bank Ltd v KRDV (2012) FCR 436
Long v Comcare [2016] FCA 737
REASONS FOR DECISION
Deputy President Dr P McDermott
21/07/2016
INTRODUCTION

The applicant has sought a review of a Comcare decision dated 24 July 2014 which revoked a determination of 27 February 2014 and substituted a decision that the respondent was not liable to pay the applicant compensation in respect of a “major depressive disorder, single episode” condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
BACKGROUND
In 2011 the applicant was a regional manager working in the Supply Chain Assurance Framework (SCAF) section of the Department of Defence. His position was based in Brisbane. At about that time the Department established the Army Compliance and Assurance Agency (ACAA), which would assume the functions of the SCAF. There had been a number of consultations before the Chief of Army signed the Directive on 21 May 2013 regarding the final structure of the new ACAA.
On 19 July 2013 the applicant attended a meeting at which he was advised that a decision had been made to relocate his position to Canberra. Colonel Suzanne Melotte (the Deputy Adjutant General), Lieutenant Colonel Denise Oliver and Ms Stephanie Elwin were at that meeting. The applicant states that he suffered a depressive condition as a result of being told that his position would be relocated to Canberra. The applicant states that during the consultation process he had received a number of assurances that his position would remain in Brisbane.
CLAIM FORM
The applicant lodged a claim for workers’ compensation dated 18 October 2013 in relation to a…

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 Voss and Comcare (Compensation)

Details

AGLC: Voss and Comcare (Compensation) [2016] AATA 515
Case: [2016] AATA 515
Decision Date: 21 July 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by Comcare to revoke a previous determination and deny compensation to the applicant for a major depressive disorder. The applicant, a regional manager for the Department of Defence, claimed his condition arose from being informed of a relocation of his position from Brisbane to Canberra, contrary to assurances he believed he had received. The applicant lodged a claim for workers' compensation, nominating 19 July 2013 as the date of injury, which was also the date he was informed of the relocation.

The central legal issue before the Tribunal was whether the applicant's major depressive disorder constituted an "injury" under section 5A(1) of the *Safety, Rehabilitation and Compensation Act 1988* (the Act). Specifically, the Tribunal had to determine if the injury arose out of, or in the course of, the applicant's employment and, crucially, whether it was suffered as a result of reasonable administrative action taken in a reasonable manner. The Act defines "injury" to exclude diseases or injuries resulting from such actions, and further clarifies that reasonable administrative actions include appraisals, counselling, suspensions, disciplinary actions, and matters related to promotions or transfers.

Deputy President McDermott P found that the applicant's major depressive disorder was an injury under section 5A(1) of the Act. The Tribunal relied on medical evidence indicating that the meeting on 19 July 2013 was the date of the applicant's first impairment. The Tribunal concluded that the administrative action of relocating the applicant's position was not taken in a reasonable manner, and therefore, the exclusion in section 5A(1) did not apply. Consequently, the applicant was entitled to compensation.

The Tribunal set aside Comcare's decision of 24 July 2014 and substituted a decision that the applicant is entitled to compensation under section 14 of the Act for his major depressive disorder. For the purposes of section 7(4) of the Act, the applicant was deemed to have sustained his injury on 19 July 2013.

Orders

Orders of the court

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Background

Background to the litigation

The applicant has sought a review of a Comcare decision dated 24 July 2014 which revoked a determination of 27 February 2014 and substituted a decision that the respondent was not liable to pay the applicant compensation in respect of a “major depressive disorder, single episode” condition under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).BACKGROUND In 2011 the applicant was a regional manager working in the Supply Chain Assurance Framework (SCAF) section of the Department of Defence. His position was based in Brisbane. At about that time the Department established the Army Compliance and Assurance Agency (ACAA), which would assume the functions of the SCAF. There had been a number of consultations before the Chief of Army signed the Directive on 21 May 2013 regarding the final structure of the new ACAA. On 19 July 2013 the applicant attended a meeting at which he was advised that a decision had been made to relocate his position to Canberra. Colonel Suzanne Melotte (the Deputy Adjutant General), Lieutenant Colonel Denise Oliver and Ms Stephanie Elwin were at that meeting. The applicant states that he suffered a depressive condition as a result of being told that his position would be relocated to Canberra. The applicant states that during the consultation process he had received a number of assurances that his position would remain in Brisbane.CLAIM FORM The applicant lodged a claim for workers’ compensation dated 18 October 2013 in relation to a major depressive episode of moderate severity. The applicant nominated the date of 19 July 2013 as being the date when he was injured or when he noticed that he was ill. The applicant first sought treatment for the condition on 24 July 2013.LEGISLATION Under s 5A(1) of the 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. Section 5A(2) of the Act states:(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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I find that the major depressive disorder condition of the applicant is an injury under s 5A(1) of the Act. In reliance on the report of Dr Albrecht dated 31 January 2014 which identifies that the meeting on 19 July 2013 was the date of the first impairment of the applicant: the applicant shall be taken to have sustained an injury on 19 July 2013 for the purposes of s 7(4) of the Act.DECISION In accordance with s 43(1) of the Administrative Appeals Tribunal Act 1975, the reviewable decision dated 24 July 2014 is set aside and in substitution it is decided that the applicant is entitled to compensation under s 14 of the Safety Rehabilitation and Compensation Act 1988 for the claimed condition of major depressive disorder. For the purposes of s 7(4) of the Safety, Rehabilitation and Compensation Act 1988, the applicant should be taken to have sustained an injury on 19 July 2013.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number(s)	2014/4481
Re	Michael Voss
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President Dr P McDermott
Date	21 July 2016
Place	Brisbane