Wieczorek and Comcare (Compensation) - [2017] AATA 994

Wieczorek and Comcare (Compensation) [2017] AATA 994 (27 June 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )  No: 2016/0355
GENERAL DIVISION  )
Re: Anna Wieczorek
Applicant

And: Comcare
Respondent
DIRECTION
TRIBUNAL:               Deputy President Gary Humphries
DATE:   4 July 2017
PLACE:                     Canberra

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

at paragraph 6(a), the date “27 March 2015” be replaced with “27 March 2014”;

at paragraph 94, in the fourth sentence of paragraph 94, line 8 of paragraph 94, the word “Comcare” be replaced with the words “the employer”;

at paragraph 94, in the fourth sentence of paragraph 94, line 9 of paragraph 94, the passage which reads “if it wishes to claim the exemption” the word “it” in that passage be replaced with the word “Comcare”.

....................[sgd]...............................................
Gary Humphries
Deputy President
Division:GENERAL DIVISION
File Number(s): 2016/0355
Re:Anna Wieczorek
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Gary Humphries
Date:27 June 2017
Place:Canberra

The Respondent's decision of 20 January 2016 is set aside, and instead the Tribunal finds that the Applicant suffered an injury, pursuant to s 14 of the Act, on or about 21 May 2015.
.......................[sgd].................................................
Deputy President Gary Humphries
Catchwords
WORKERS COMPENSATION – psychological injury – whether new injury – whether aggravation of previous injury – administrative action - whether administrative action taken in respect of employment – whether administrative action reasonable – whether administrative action carried out in a reasonable manner – causal link between administrative action and compensable condition must exist – broad departmental actions not administrative action in relation to employment for purposes of section 5A – reasonable administrative action need not be ‘perfect’ administrative action – failure by employer to adhere to departmental Managing Underperformance document constitutes administrative action not reasonably taken – unreasonable action on part of employee not relevant – decision set aside in part.
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Comcare v Martin [2016] HCA 43
Comcare v Martinez (No2) 302 ALR 608
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
Findlay and Comcare [2013] AATA 324
Lee and Comcare [2012] AATA 867
Lim and Comcare [2017] FCAFC 64
Wilson and Comcare [2010] AATA 396
REASONS FOR DECISION
Deputy President Gary Humphries
27 June 2017
BACKGROUND

Ms Anna Wieczorek has been a Commonwealth public servant since 2001. She joined the Department of Health (the Department) in 2006. By 2011 she was working in the Immunisation Policy Section (the Immunisation Section) of the Department’s Office of Health Protection. On 27 March 2014, while she was temporarily seconded to the Therapeutic Goods Administration (TGA), she suffered from a work-related psychological condition. After a period of leave she returned to work, and eventually was placed again in the Immunisation Section. There she again suffered from a work-related psychological condition, on or about 21 May 2015. She went on leave that day and…

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.

Keep reading for free

Create a free CaseChat account to read Wieczorek and Comcare (Compensation) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] AATA 994
Decision Date: 27 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by Ms Wieczorek against a decision by Comcare regarding compensation for psychological injuries. The dispute centred on whether Ms Wieczorek's adjustment disorder, diagnosed in 2014 and 2015, was excluded from compensation under section 5A of the relevant Act, which exempts injuries arising from reasonable administrative action taken in a reasonable manner in respect of employment. Comcare contended that both injuries fell within this exemption, while Ms Wieczorek argued they did not. The case was heard by Deputy Gary Humphries P.

The primary legal issues before the Tribunal were whether the administrative actions taken by Ms Wieczorek's employer constituted reasonable administrative action taken in a reasonable manner in respect of her employment, and crucially, whether there was a direct causal connection between these actions and her psychological conditions. The Tribunal was required to consider the scope of the reasonable administrative action exemption as clarified by recent High Court and Federal Court decisions, which added the requirement of a direct causal link.

The Tribunal reasoned that while the 2014 injury was likely caused by administrative actions related to performance issues and uncertainty about her role, these actions were taken in a reasonable manner and were reasonable in the circumstances, thus attracting the section 5A exemption. However, the Tribunal found that the 2015 injury, which was considered an aggravation of the 2014 condition, did not attract the exemption. This was because the employer's failure to adhere to its own "Managing Underperformance" document in relation to the 2015 events constituted administrative action not reasonably taken.

Consequently, the Tribunal ordered that the 2014 injury was not compensable as it was excluded by section 5A. However, the 2015 injury was found to be compensable, as the administrative actions leading to it did not meet the criteria for the exemption.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The parties further agree that the conditions are each diagnosed as an adjustment disorder with anxious mood (or a diagnosis to similar effect) and that Ms Wieczorek continues to suffer from this condition. What the parties are not agreed on is whether the conditions are excluded from compensation by force of s 5A of the Act in that they were suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment. Comcare’s position is that they are, Ms Wieczorek’s is that they are not.THE EVIDENCEMs Wieczorek’s evidence Ms Wieczorek was moved from the Immunisation Section to a newly-created Business Services Centre (BSC) in December 2013. The BSC was created to accommodate employees of the Department whose positions had been defunded. Those employees were to constitute a labour pool that could be drawn upon to support other areas of the Department as required. During her 12 months attached to BSC she worked for a large number of supervisors, according to a statement she made dated 4 April 2016. In February 2014 she began work in the Office of Device Authorisation within the TGA. There she experienced more turnover of supervisors. A document entitled a Movement Instrument was tendered, setting out details of her temporary movement to TGA. The document describes the Period of assignment as 21 February to 20 August 2014. On 20 March 2014 Mr Ben Hanns, her supervisor, sent Ms Wieczorek a lengthy email following what the email described as our discussion the other day regarding data entry. The bulk of the email consists of descriptions of 12 particular applications to the TGA; under each description are detailed what appear to be instructions or corrections pertaining to the application. Ms Wieczorek denied that the email’s purpose was to describe mistakes she had made or areas which she should improve in future. Rather, she said that this was training, given that she had been told to learn data entry processes by trial and error. They were not mistakes because she had not previously been told by anybody to enter the data in any particular way. The email was a summary of my learning in the new database. She agreed that Mr Hanns had raised some of these issues with her, as feedback, prior to the email of 20 March. On 21 March 2014, there was a meeting between Ms Wieczorek, Mr Hanns and Ms Antares Wood, the section director. Ms Wieczorek was advised that her position within the TGA was not ongoing, and that she would have to transfer back to BSC. Ms Wieczorek said that the reason she was given for this was that there was no budget for my position. An email later that day between Mr Hanns and Ms Wood referred to Ms Wieczorek being told that her role there was not an appropriate fit for her and her skill set. Ms Wieczorek agreed that this was discussed at the meeting, and that she was not an appropriate fit for the role. The email makes reference to Ms Wieczorek being advised at the meeting that her position had been subject to a one-month trial, to see if it would continue for a full six months. Ms Wieczorek denied that she was told this at the meeting.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Dr Gertler considered that the 2015 condition was an aggravation of the 2014 condition. Dr Knox opined that Ms Wieczorek got better, but didn’t completely recover from her psychological injury of March 2014. The events of 2015 caused her condition to be reactivated and made worse. On balance, I consider the medical evidence to establish that there were two separate injuries suffered by Ms Wieczorek, each bearing a similar diagnosis.CONSIDERATION As Ms Wieczorek clearly sustained two work-related injuries, the circumstances in which each arose must be examined by the Tribunal separately. Comcare asserts that neither injury is compensable by virtue of the operation of the exemption in s 5A. To take advantage of the exemption, Comcare must establish, in respect of each injury and on the balance of probabilities, that the injury arose out of administrative action which was:(a)taken in respect of Ms Wieczorek’s employment;(b)reasonable; and(c)carried out in a reasonable manner. In light of the recent decisions in Comcare v Martin [2016] HCA 43 and Lim and Comcare [2017] FCAFC 64 (where the scope of the reasonable administrative action exemption was clarified by the High Court and Federal Court respectively), a fourth test must be added to establish the exemption: was there a direct causal connection between the administrative action and the condition? Put another way: without the taking of that particular administrative action, would Ms Wieczorek have suffered that injury? Without that causal connection, the exemption is not available. On balance, the Tribunal considers that the 2014 injury attracts the s 5A exemption, and thus is not compensable. However, it considers that the 2015 injury does not attract the exemption, and is compensable. The Tribunal’s reasons follow below.The 2014 Injury The medical evidence suggests that two factors in particular contributed to Ms Wieczorek’s injury on 27 March 2014: being told that she was not equipped for the work she was doing at TGA, and uncertainty about whether she would stay there or go back to BSC. Although at this time she does not appear to have been subject to a structured performance management process – as she clearly was in early 2015 – it is clear that she was experiencing problems in meeting the expectations of her superiors. Ms Wieczorek denied that it was initially put to her that there was a problem with her performance; for example, though Comcare characterised Mr Hann’s email to her of 20 March 2014 cataloguing errors in her processing of applications as performance management, she insisted that it was merely feedback or training. Indeed, there was frequently a stark difference between what the Department said was happening and what Ms Wieczorek thought was happening during 2014 and 2015. Notwithstanding that divergence, the evidence before the Tribunal strongly suggests that Ms Wieczorek’s performance during this period sometimes fell below that expected of an APS 6. Email traffic across different areas of the Department, where concerns of this kind were aired, suggests this view was shared by several of her supervisors. It leads reasonably to the conclusion that Ms Wieczorek faced challenges in reaching appropriate standards in her written expression, concision and time management. In these circumstances, the Tribunal considers that it was reasonable for the Department to activate steps for addressing and remediating employee underperformance.