Webber and Comcare (Compensation) - [2023] AATA 4032

Webber and Comcare (Compensation) [2023] AATA 4032 (4 December 2023)
Division:GENERAL DIVISION
File Number:2021/3235
Re:DAVID WEBBER
APPLICANT

AndCOMCARE
RESPONDENT

DECISION
Tribunal:Member Andrew McLean Williams
Date4 December 2023
Place:Brisbane

The decision of the Respondent dated 26 March 2021 is affirmed.
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Member Andrew McLean Williams
CATCHWORDS
Workers Compensation (Cth) - Injury – Disease – Ailment – Whether injury arose out of or during the course of employment – Whether injury arising out of or during the course of employment aggravated an underlying condition – Pre-existing condition – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Martin (2016) 258 CLR 467
Mitchell and Comcare [2021] AATA 3376
REASONS FOR DECISION
Member Andrew McLean Williams
4 DECEMBER 2023

The Applicant, Mr David Webber (‘Mr Webber’), seeks a review before the Tribunal of a decision made by Comcare (‘the Respondent’) to deny his claim for compensation pursuant to s.14 of the Safety, Rehabilitation and Compensation Act (‘the SRC Act’). The claim was brought in respect of a claimed condition of Adjustment Disorder with mixed anxiety and depression, (or an aggravation thereof), which Mr Webber claims he suffered on 29 or 30 July, 2020.
The Tribunal has determined that the decision by the Respondent to deny liability for the Applicant’s claim was the correct decision.
In light of the following reasons, the Tribunal now affirms the decision under review.
Relevant Chronology and Factual Background:
Mr Webber is a 57-year old married man, who commenced working as a Services Officer with Services Australia, on 28 February 2000.
At all relevant times Mr Webber remained employed at Services Australia, in Bundaberg. It is also uncontentious that Mr Webber qualifies as an “employee” within the meaning of section 5 of the SRC Act.
On 9 November 2020 Mr Webber made a claim for workers’ compensation for ‘depression/anxiety’ (T4, p.20). On 15 November 2020 Mr Webber submitted a short statement of events in support of his claim (T7.1). In part therein, Mr Webber said:
I have worked as a public servant since 2000 in Bundaberg in Customer face to face service.
The claim is for anxiety/Depression bought on by challenging work environment, culminating in an incident that occurred at work on the 30/07/2020.
On 15 January 2021 a Delegate of the Respondent declined any liability to pay compensation to Mr Webber in respect of the claimed condition (T15). This determination was later affirmed on internal review, on 26 March 2021 (T1.2).
On 14 May 2021 Mr Webber applied to the Tribunal for a review of the Respondent’s internal review decision, that dated 26 March 2021 (T1).
Mr Webber contends that in March 2020, in consequence of the Covid-19 pandemic, his workload increased dramatically, such that he was required to work six days per week. Mr Webber says that in consequence of COVID-19, Services Australia customers were also often irritable, and angry.
On 25 July 2020 Mr Webber started to experience…

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 Webber and Comcare (Compensation)

Details

AGLC: Webber and Comcare (Compensation) [2023] AATA 4032
Case: [2023] AATA 4032
Decision Date: 4 December 2023

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Webber against a decision by Comcare to decline his claim for workers' compensation for depression and anxiety. Mr. Webber, employed as a Services Officer with Services Australia since 2000, alleged that his condition arose from a challenging work environment, exacerbated by the COVID-19 pandemic, culminating in an incident on 30 July 2020. Comcare had initially declined liability, a decision affirmed on internal review. The Administrative Appeals Tribunal was tasked with reviewing this decision.

The primary legal issues before the Tribunal were whether Mr. Webber's claimed condition constituted an injury within the meaning of the relevant legislation, and if so, whether that injury arose out of or during the course of his employment. A further consideration was whether any employment-related events aggravated a pre-existing underlying condition. The Tribunal also had to consider whether the claim fell within any exceptions to liability, such as reasonable administrative action taken in a reasonable manner.

The Tribunal affirmed Comcare's decision, finding that to the extent the injury was caused by events on 29 and 30 July 2020, it was due to reasonable administrative action taken in a reasonable manner. However, the Tribunal concluded that this exception did not apply because the employment at Services Australia did not contribute to the occurrence of Mr. Webber's injury, which was characterised as a disease, in any significant degree. The Tribunal noted Mr. Webber's extensive prior medical history, including previous prescriptions for Valium and sertraline, and reports of prior nervous breakdowns, indicating a pre-existing vulnerability.

Orders

Orders of the court

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Background

Background to the litigation

In light of the following reasons, the Tribunal now affirms the decision under review.Relevant Chronology and Factual Background: Mr Webber is a 57-year old married man, who commenced working as a Services Officer with Services Australia, on 28 February 2000. At all relevant times Mr Webber remained employed at Services Australia, in Bundaberg. It is also uncontentious that Mr Webber qualifies as an “employee” within the meaning of section 5 of the SRC Act. On 9 November 2020 Mr Webber made a claim for workers’ compensation for ‘depression/anxiety’ (T4, p.20). On 15 November 2020 Mr Webber submitted a short statement of events in support of his claim (T7.1). In part therein, Mr Webber said:I have worked as a public servant since 2000 in Bundaberg in Customer face to face service.The claim is for anxiety/Depression bought on by challenging work environment, culminating in an incident that occurred at work on the 30/07/2020. On 15 January 2021 a Delegate of the Respondent declined any liability to pay compensation to Mr Webber in respect of the claimed condition (T15). This determination was later affirmed on internal review, on 26 March 2021 (T1.2). On 14 May 2021 Mr Webber applied to the Tribunal for a review of the Respondent’s internal review decision, that dated 26 March 2021 (T1). Mr Webber contends that in March 2020, in consequence of the Covid-19 pandemic, his workload increased dramatically, such that he was required to work six days per week. Mr Webber says that in consequence of COVID-19, Services Australia customers were also often irritable, and angry. On 25 July 2020 Mr Webber started to experience chest pains, and during the following week he experienced symptoms of anxiety at work; thus making it more difficult to concentrate and communicate. On 30 July 2020 Mr Webber left work because of these symptoms. On 31 July 2020 Mr Webber attended his general practitioner, Dr Kaufman, and was placed on sick leave for two weeks. After those two weeks leave, Mr Webber returned to work, and requested that he be placed on alternate duties, those involving less interaction with customers. Mr Webber says however that he continued to experience symptoms of anxiety, and that his memory and concentration also remained poor. In October 2020 Mr Webber took annual leave, for two weeks. Yet, when Mr Webber returned from that leave, he still found that he continued to struggle. Mr Webber ceased work altogether on 25 November 2020, having lodged his application for workers’ compensation on 9 November 2020. There is some prior medical history of relevance. Mr Webber was first prescribed Valium in 2002 (R8, p. 5)). Mr Webber also reports having had a nervous breakdown in September 2003, and then another, in 2012 (T17, p. 130). Mr Webber was first prescribed sertraline (ie: Zoloft) on 11 March 2004, which continued to be prescribed until 23 March 2021. (R8, pp. 14-26). It is also relevant to record that Mr Webber took the following periods of leave, prior to the events on 29 and 30 June which are at the centre of this claim:-4 – 28 February 2020: Carer’s Leave;-2 – 13 March 2020: Annual Leave;-8 – 29 June 2020: Long Service Leave, and Annual Leave;-14 April 2020, 11 May 2020 and 21 July 2020: Personal Leave, attributable to illness (R16).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

To the very small extent that Mr Webber’s injury may have been ‘caused by’ events at work on 29 and 30 July 2020 it is non-compensable, by reason of it having been caused by reasonable administrative action taken in a reasonable manner in respect of the employee's employment. Ultimately however the reasonable administrative action exception does not apply by reason that any contribution to the occurrence of Mr Webber’s injury (in the form of a disease) by that administrative action was not contributed towards in any significant degree by his employment at Services Australia.DECISION The decision of Comcare made on 26 March 2021 is affirmed.

Ratio Decidendi

Legal Principle Established

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