Walker Kaye and Comcare (Compensation) - [2017] AATA 2998

Walker Kaye and Comcare (Compensation) [2017] AATA 2998 (13 December 2017)

Division:GENERAL DIVISION
File Number(s): 2016/5396
Re:Alison Walker Kaye
APPLICANT

ComcareAnd
RESPONDENT

DECISION

Tribunal:Deputy President Greg Melick AO RFD SC
Date:13 December 2017
Date of written reasons: 8 February 2018
Place:Canberra

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the reconsideration made on 8 September 2016 affirming the original determination made on 29 July 2016, and decides that the Applicant is entitled to payment of compensation from 2 December 2015 until 15 May 2016.

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Deputy President Greg Melick AO RFD SC

CATCHWORDS

COMPENSATION – Commonwealth employees – whether the actions taken by the employer or a continuum of them were reasonable administrative actions carried out in a reasonable manner – whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action- what is relevant is an objective assessment of the reasonableness of the action, and the way in which it was carried out - work-related injury - refusal to participate in a salary review was an unreasonable action – adjustment disorder with anxiety and mixed emotional features

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 4, 5A, 5B, 6, 7, 14

CASES

Bropho v Human Rights and Equal Opportunity Commission (2004) FCAFC 16; 135 FCR 105

Comcare v Martin [2016] HCA 43; 258 CLR 467
Comcare v Martinez (No 2) [2013] FCA 439 (2013) 212 FCR 272
Hart v Comcare [2005] FCAFC 16; 145 FCR 29
Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
Re Georges v Telstra Corporation [2009] AATA 731
RSBQ v Comcare (Compensation) [2017] AATA 1965

WRITTEN REASONS FOR ORAL DECISION

Deputy President Greg Melick AO RFD SC

8 February 2018

The applicant seeks a review of a reviewable decision of the respondent dated 8 September 2016 whereby it was decided that the respondent was not liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) in relation to the applicant’s adjustment disorder with anxiety and mixed emotional features.
The matters are considered to be the same injury in accordance with the definitions set out in ss 4, 5A, 5B, 6 and 7 of the SRC Act and whether the applicant is entitled to compensation under s 14 of the Act.
It is conceded that the applicant’s employment has significantly contributed to her medical condition as set out in the claim for compensation dated 6 May 2016. It is also conceded that the applicant’s condition has impaired the capacity for work that the exclusive provisions set out in s 5A relied upon by the respondent deny liability.
In short, the matters that I have to consider are whether the four sets of actions, or a continuum of them, referred to below, were reasonable administrative actions…

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 Walker Kaye and Comcare (Compensation)

Details

AGLC: Walker Kaye and Comcare (Compensation) [2017] AATA 2998
Case: [2017] AATA 2998
Decision Date: 13 December 2017

CaseChat Overview and Summary

This matter concerned an appeal by Walker Kaye against a decision of the Administrative Appeals Tribunal (AAT) which had affirmed a determination by Comcare to refuse compensation for an adjustment disorder with anxiety and mixed emotional features. The applicant argued that the disorder was a result of a work-related injury, specifically the employer's actions in relation to a salary review process.

The central legal issue before the Federal Court was whether the AAT had erred in law by failing to properly consider whether the employer's actions, or a continuum of them, constituted reasonable administrative actions taken in a reasonable manner. The court was required to determine the correct legal test for assessing whether administrative actions are reasonable and carried out reasonably in the context of Commonwealth employees' compensation claims.

Deputy President Greg Melick Ao Rfd Sc P held that the AAT had made an error of law. His Honour explained that the reasonableness of administrative action and the manner in which it is carried out must be assessed objectively, considering the specific administrative action and the facts and circumstances that necessitated it. The refusal to participate in a salary review was found to be an unreasonable action, and the AAT had failed to apply the correct legal principles in its assessment of this conduct.

The court set aside the AAT's decision and remitted the matter to the AAT for redetermination according to law.

Orders