Want and Comcare (Compensation) - [2018] AATA 877

Want and Comcare (Compensation) [2018] AATA 877 (12 April 2018)
Division:GENERAL DIVISION
File Number(s): 2015/2353; and 2016/3847
Re:Gary Want
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:12 April 2018
Place:Canberra

The Tribunal:
(a)sets aside the reviewable decision dated 23 April 2015 and finds instead that the Applicant, Mr Gary Want, suffered an injury under s 14 of the Safety, Rehabilitation and Compensation Act 1988, being an adjustment disorder with depression and anxiety, with a date of injury of 21 June 2013 in matter 2015/2353; and
(b)affirms the reviewable decision dated 22 July 2016 in matter 2016/3847.

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Deputy President Gary Humphries
Catchwords
COMPENSATION – whether disease is clinically significant i.e. abnormal behaviour in the circumstances of the Applicant – whether psychological ailment contributed to, to a significant degree, by employment – whether reasonable administrative action taken in a reasonable manner in respect of the Applicant’s employment – where there is a multiplicity of work related and non-work related factors – date on which the psychological ailment was suffered – reviewable decision set aside and substituted.
Whether psychiatric injury sequela to back injury – whether disease clinically significant i.e. abnormal behaviour in the circumstances of the Applicant – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 7, 14
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No2) 302 ALR 608
Comcare v Mooi (1996) 42 ALD 495
Comcare v Muir [2016] FCA 346
Commonwealth Bank v Reeve [2012] FCAFC 21
Hart v Comcare (2005) 145 FCR 29
Lim v Comcare [2017] FCAFC 64
Smith v Comcare[2013] FCAFC 65
REASONS FOR DECISION
Deputy President Gary Humphries
12 April 2018
BACKGROUND

Mr Gary Want, the Applicant, is a public servant who previously served in the Royal Australian Air Force (RAAF) for 12 years. He commenced work for the Department of Defence at RAAF Tindal in the Northern Territory in an Executive Level 1 (EL1) position in 2006, and transferred to Darwin in 2008 at the same level, becoming an Estate Development Manager.
Mr Want’s service for the Department of Defence (the Department) in the Northern Territory has, however, been marred both by injury and significant workplace issues. He had an accident in February 2010 when he fell from a chair, leading to Comcare’s acceptance of liability for a back injury the following month. In addition, both at RAAF Tindal and in Darwin there were episodes where Mr Want found himself in conflict with both subordinates and supervisors. He took extensive periods of leave between 2010 and 2014 which appear to have related to both his physical condition and stress arising from workplace conflict, as well as other personal factors.
He was assessed by a psychiatrist in April 2012 at the behest of the Department and began to see a psychologist from mid-2013. In February 2014, after some months of hip-related pain, he had hip replacement surgery. In May 2013 he was subject to performance…

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 Want and Comcare (Compensation)

Details

AGLC: Want and Comcare (Compensation) [2018] AATA 877
Case: [2018] AATA 877
Decision Date: 12 April 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Want against decisions by Comcare to deny liability for workers' compensation claims. The initial claim, lodged on 22 September 2014, alleged nausea and anxiety, which Comcare denied on 12 February 2015, and affirmed on reconsideration on 23 April 2015. Mr. Want subsequently sought acceptance for a psychiatric injury as a sequela to a back injury for which Comcare had accepted liability in March 2010. Comcare denied this second claim on 21 June 2016 and affirmed it on 22 July 2016. The Tribunal was asked to conduct a merits review of these decisions.

The Tribunal was required to determine several key issues. These included identifying the date on which Mr. Want suffered his psychological ailment, whether a work-related factor contributed to a significant degree to that ailment, and if so, whether that factor constituted reasonable administrative action taken in a reasonable manner. Furthermore, the Tribunal had to consider whether Mr. Want would have suffered his ailment if the reasonable administrative action had not been taken. A preliminary issue also arose regarding the jurisdiction to review a decision that Comcare conceded had been inaccurately processed.

In its reasoning, the Tribunal noted that while the approach approved for physical injuries might be less useful for psychological injuries with multiple contributing factors, the parties agreed that Mr. Want was mentally injured by his employment, but disagreed on the timing. The Tribunal found that Comcare's concession that it had wrongly treated the second claim as identical to the first, and its late change of position, meant that the 2016 claim had not undergone the full review process contemplated by the Act. Regarding the merits, the Tribunal could not be satisfied that Mr. Want would not have suffered his disease if the Performance Improvement Plan (PIP) process had not occurred, meaning the exclusion under s 5A(1) could not apply.

Consequently, the Tribunal set aside the reviewable decision of 23 April 2015, finding that Mr. Want suffered an injury under s 14, specifically an adjustment disorder with depression and anxiety, with a date of injury of 21 June 2013. The Tribunal affirmed the reviewable decision of 22 July 2016.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

He submitted a claim for workers compensation on 22 September 2014 claiming nausea and anxiety. On 12 February 2015 Comcare denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for adjustment reaction with mixed emotional features.[1] It affirmed that decision on reconsideration on 23 April 2015. Mr Want has appealed to the Tribunal for merits review of that reviewable decision (matter 2015/2353). On 15 April 2016, through his solicitors, Mr Want asked Comcare to accept liability for a psychiatric injury as a sequela of the back injury for which Comcare had accepted liability in March 2010. Comcare denied liability under s 14 for such an injury on 21 June 2016 and affirmed that decision on 22 July 2016. The delegate refused liability on the basis that There is no evidence before me to support that the psychological injury you are currently claiming compensation for, is a separate psychological injury to the claim you have appealed to the AAT. Mr Want has appealed to the Tribunal for merits review of this decision also (matter 2016/3847).[1] The use of italics herein generally indicates quotations from tendered documents or from live evidence.RELEVANT FACTS Mr Want gave evidence to the Tribunal that he was transferred from RAAF Tindal to Darwin in May 2008. He served in an EL1 position in the Department. He told the Tribunal about low morale among staff in the area in which he worked, and of conflict between himself and other members of staff. In September 2009 Mr Marcus Jeffrey, Mr Want’s then supervisor, wrote to Mr Want regarding the outcome of a so-called Quick Assessment regarding concerns surrounding Mr Want’s general management of [his] staff and in particular, his communication style. Mr Jeffrey indicated that: Regarding the complaints made by your staff, I agree with the [Quick Assessment] recommendation that your actions do not constitute a breach of either the code of conduct or APS values. However, I do believe there is a fundamental issue with your management style that has resulted in your entire staff taking such a serious action. This issue must be recognised by you and addressed as a matter of urgency…Based on the consistent observations of both your supervisors during the reporting period I am obliged to assess you as ineffective and therefore deferred for salary progression in November 2009.As you will be deemed as ineffective and deferred for salary progression, upon your return from leave, your manager will work with you to develop a Performance Improvement Plan (PIP)… A PIP in relation to Mr Want commenced on 26 October 2009. A final Performance Assessment was completed on 10 December 2009 in which the following comments were recorded:Gary has generally met the KER [Key Expected Results] requirements, however his leadership, staff management & communication skills would benefit with ongoing development & mentoring from his supervisor. In February 2010 he fell from a chair at work while attempting to pick up some keys from the floor causing him severe hip and lower back pain. He was diagnosed with sciatica and L5/S1 disc prolapse, and the following month Comcare, as insurer for the Department, accepted liability for two conditions: aggravation of degeneration of intervertebral disc and aggravation of sciatica (left). He took some weeks leave, followed by a graduated return to work over several months until October that year.

Evidence

Evidence Before The Court

Evidence was also given by Ms Kari Lynn, the rehabilitation case manager who handled Mr Want’s injury management from 2011 to 2014. She said that in mid-2013 Mr Want had failed to authorise contact between the Department and his treating GP – leading to Ms Lynn closing his file. She told the Tribunal of difficulties in dealing with Mr Want because sometimes he is extremely agreeable and sometimes he is extremely belligerent.THE MEDICAL EVIDENCE In March 2010 Comcare accepted liability for two conditions of Mr Want arising from the workplace accident the previous month where he fell off a chair: aggravation of degeneration of intervertebral disc and aggravation of sciatica (left). On 2 June 2010 Dr Phillip Haynes, a consultant occupational physician, diagnosed an L5/S1 disc protrusion with left sided sciatica and opined:Any recovery will be slow and will take many months…Mr Want is not currently fit to undertake work in his pre-injury environment because he has significant ongoing back pain. He is fit to continue on his current graduated return to work program, working for four hours per day on four days of the week from home and one in the office… Mr Want was able to return to his normal duties by December 2010. On 6 July 2011 a decompressive laminectomy left S1 plus discectomy plus Rhizolysis left L5/S1 was performed by Dr Ba Nyunt, consultant orthopaedic surgeon, at the L5/S1 level of Mr Want’s back. Dr Haynes reported to the Department on 21 October 2011 that he was not currently fit for work and that the prognosis was going to be for protracted recovery. Dr Haynes thought Mr Want would not be able to return to the full range of his pre-injury duties. On 17 October 2011 Dr Nyunt reported to Mr Want’s GP, Dr Giese, that:He has a bit of pressure at work too and he felt very tired at the end of the week and he is feeling stressed because he has to do performance improvements [sic] plan at a fixed date. Another GP at the same medical centre, Dr Janet Wong, examined him on 14 February 2012. Her clinical notes include:2-3wks of low energy, poor concentration. Getting depressed at work. Social withdrawal from people. Anhedonia and poor motivation to things he normally enjoys… Poor sleep. Fluctuating appetite… Mood flat and irritable. In summary, she recorded nonspecific complaints constellation suspicious of depression. Following a further consultation on 28 February 2012 her clinical notes record Sx consistent with Mild depression, but also record Scores mostly DASS 42 Scores mostly Extreme severe category for Depression and Anxiety. REpeated 3x. References in the centre’s clinical notes to his mental health recur periodically over the next three years. In March 2012 he was prescribed amitriptyline, an antidepressant, but by August this had ceased. No specific mention of symptoms of mental illness appears in the clinical notes between April 2012 and March 2013. On 14 March 2013 Dr Julian Charles, a GP, records Moods: Up and down but Not feeling depressed.

Decision

Reasons for decision

In the circumstances, the Tribunal cannot, with any reasonable level of satisfaction, find that Mr Want would not have suffered his disease if the PIP process had not occurred. If it cannot make that finding, then the exclusion in s 5A(1) cannot apply.DECISION Based on the evidence before it, the Tribunal:(a)sets aside the reviewable decision dated 23 April 2015 and finds instead that Mr Want suffered an injury under s 14, being an adjustment disorder with depression and anxiety, with a date of injury of 21 June 2013; and(b)affirms the reviewable decision dated 22 July 2016.

Ratio Decidendi

Legal Principle Established

The approach approved by the Full Court in Smith is efficacious in relation to a physical injury; with respect, it is less useful in the context of a psychological injury to which, the parties concede, both work and non-work-related factors were actively contributing over an extended period. In any case, the parties here agree that Mr Want was mentally injured by his employment, but disagree as to when this occurred. The Tribunal considers, in the present case, that the issues it must determine are best characterised as follows: (a)On what date did Mr Want suffer this psychological ailment?(b)Did a work-related factor (or factors), contribute, to a significant degree, to the psychological ailment he was suffering on that date (s 5B(1))?(c)If a work-related factor (or factors), did so contribute, does that factor, or any of those factors, constitute reasonable administrative action taken in a reasonable manner (s 5A(1))?(d)If a factor or factors constituted reasonable administrative action taken in a reasonable manner, would Mr Want have suffered his ailment if that factor, or one of those factors, constituting reasonable administrative action had not been taken (pursuant to Comcare v Martin [2016] HCA 43)?CONSIDERATIONMatter 2016/3847 It is convenient to dispose first of this matter, the reviewable decision made on 22 July 2016 to refuse liability for a psychiatric injury said to be a sequela of the back injury for which Comcare had accepted liability in March 2010 (the 2016 claim). Comcare‘s delegate refused liability on the basis that There is no evidence before me to support that the psychological injury you are currently claiming compensation for, is a separate psychological injury to the claim you have appealed to the AAT (i.e. the injury claimed in matter 2015/2353 – the 2015 claim). Mr Want had submitted the claim for a psychiatric sequelae to the back injury because Comcare considered that he did not suffer an injury before September 2014. He pointed to the evidence of his psychological distress in the period following the work-related injury to his back in February 2010. Comcare had determined, in rejecting the 2016 claim, that the condition being claimed for was the same condition which was the subject of the 2015 claim. However, before the Tribunal, it conceded that this approach had been wrong and that there were two separate episodes of alleged injury which should be considered separately. In relation to the earlier episode, it conceded that Mr Want may have suffered psychological symptoms from as early as 2010, possibly related to his accepted back condition, but that the back condition had resolved by May 2012 at the latest and that, in any case, Mr Want’s mental state at that time did not constitute a diagnosable psychiatric condition. It should be observed that, because of this late change of position, Comcare did not subject the 2016 claim to the full gamut of consideration and reconsideration provided for by Part VI of the Act before making its reviewable decision. It simply determined – inaccurately, as it now concedes – that the claim was the same as one already made. This is unfortunate, because it gives rise to the question of whether the Tribunal has jurisdiction to undertake merits review of a decision which, on one reading, has not passed through the gateway of review under Part VI (see Comcare v Muir [2016] FCA 346 at [28]-[37]). While it might satisfy the technical requirements of that Part, it must be doubted that it received the substance of the actual review the Part contemplates.