Williams and Comcare (Compensation) - [2022] AATA 1584

Williams and Comcare (Compensation) [2022] AATA 1584 (10 June 2022)
Division:GENERAL DIVISION
File Number: 2021/1967
Re:Laura Williams
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:10 June 2022
Place:Brisbane

The decision under review is affirmed.
....................[SGD]....................................................
Deputy President J Sosso
CATCHWORDS
COMPENSATION – Applicant denied interview or feedback on application for role she had been acting in for two years – period off work – claim for “reactive depression” – liability for injury denied – whether applicant suffered an ailment – medical evidence outlining no psychological condition – Mooi principles – Applicant’s condition not outside the boundaries of normal mental functioning – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Mooi (1996) 69 FCR 439
Fittock and Comcare [2022] AATA 72
Richardson and Comcare [2010] AATA 245
REASONS FOR DECISION
Deputy President J Sosso
10 June 2022
INTRODUCTION

Ms Laura Williams (the Applicant) seeks review of a reconsideration decision of 19 February 2022, which affirmed a determination of 13 January 2021, that Comcare was not liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) to pay compensation for the claimed condition of “reactive depression” – Exhibit 1 T21 pp. 136 – 141, T2 pp. 9 – 19.
The Applicant was born in Sydney in August 1967 and, at the time of the Hearing, was 54 years of age – Exhibit 1 T4 p. 21, T18 p. 118. She moved to the United Kingdom with her family when she was three and completed her schooling, entered the workforce and got married overseas. When she was approximately 30 years of age, she returned to Australia and settled in Queensland – Exhibit 1 T18 p. 118.
On 21 June 1999, the Applicant commenced working at Centrelink (now Services Australia) and in 2000, she separated from her husband – Exhibit 1 T4 p. 26, T18 p. 118. The Applicant initially performed call centre work before moving to face-to-face service delivery at Mount Gravatt, Brisbane, for approximately six years – Exhibit 1 T18 p. 118.
In 2012, the Applicant was transferred to the Random Sample Survey Program as a Random Sample Survey Officer at the APS-4 level. The Random Sample Survey Team carried out audits to determine if social welfare recipients were still alive and entitled to payments – Exhibit 1 T4 p. 26, T18 p. 119.
In June 2018, the Applicant was offered to act in the position of Quality Development Officer at the APS-5 level for a month while an officer was on leave. The Applicant enjoyed the role and she was asked again in September 2018 to apply to perform this role on an ongoing basis via an Expression of Interest. The Quality Development Officer checked the work of the Random Sample Survey Officers and also offered support and training – Exhibit 1 T4 p. 26, T18 p. 119.
In July 2019, while the Applicant was on long leave, she was informed…

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 Williams and Comcare (Compensation)

Details

AGLC: Williams and Comcare (Compensation) [2022] AATA 1584
Case: [2022] AATA 1584
Decision Date: 10 June 2022

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision by Comcare to deny liability for a claim for "reactive depression". The applicant had been acting in a role for two years and was subsequently denied an interview or feedback on her application for that position, leading to a period off work. Comcare denied liability on the basis that the applicant had not suffered an ailment.

The primary legal issue before the Tribunal was whether the applicant had suffered an "ailment" or an aggravation of an existing ailment, as defined by section 4(1) of the relevant Act. This definition includes "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)". Comcare accepted that if an ailment was found, it was contributed to to a significant degree by the applicant's employment, thus making the existence of an ailment the threshold question.

The Tribunal considered the medical evidence, noting the limited and uncross-examined reports of Dr Mawer for the applicant, and the detailed report and testimony of Dr Ng for Comcare. Applying the principles from *Comcare v Mooi*, the Tribunal focused on whether the applicant's condition fell outside the boundaries of normal mental functioning and behaviour. The Tribunal found that the medical evidence did not establish that the applicant suffered from a condition that could be characterised as a compensable ailment or an aggravation of an existing ailment.

Consequently, as the threshold question of whether the applicant suffered an ailment was answered in the negative, the Tribunal found it unnecessary to consider the remaining issues of significant contribution by employment or reasonable administrative action. The decision under review, which affirmed Comcare's denial of liability, was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

As the Tribunal has answered the first, and threshold, question in the negative, it is not necessary to deal with the remaining two questions.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Finally, “ailment” is defined in s 4(1) to mean:“any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”CONSIDERATIONIntroduction There are potentially three issues that require attention in this matter:(a)did the Applicant suffer an ailment, or aggravation of such an ailment;(b)if so, was it contributed to, to a significant degree, by the Applicant’s employment; and(c)if so, was it suffered as a result of reasonable administrative action taken in a reasonable manner? As will be seen, the threshold issue in this matter is whether the Applicant has suffered an ailment, or aggravation thereof, as defined by the Act. If the answer to this question is resolved in the negative, then it is unnecessary to consider the remaining two issues. Mr Dube explained at the Hearing that Comcare accepted that if the Tribunal found that the Applicant suffered an ailment, or aggravation thereof, then it was contributed to, to a significant degree by her employment – Transcript (Tr.) 15.2.2022 p. 5. Consequently, if the Tribunal resolves the first issue in the affirmative, the only other issue requiring resolution is the question of reasonable administrative action.Did the Applicant suffer an ailment, or aggravation of such an ailment? The threshold issue is whether the Applicant suffered an ailment or an aggravation of an existing ailment. The Tribunal has been presented with very little medical evidence on this fundamental question. For the Applicant, there are the relatively brief diagnoses and reports of Dr Mawer. As explained above, Dr Mawer was not called to give evidence and, as such, she was not subject to cross-examination and the Tribunal did not have the benefit of observing her give evidence. Conversely, the Tribunal has before it, the detailed report of Dr Ng dated 22 December 2020, as well as his testimony at the Hearing. Before turning to the medical evidence, it is desirable to refer to the much-quoted judgment of Drummond J in Comcare v Mooi (1996) 69 FCR 439 (Mooi). The legal representatives of Comcare drew part of his Honour’s judgement to the Tribunal’s attention – Exhibit 3 pp. 2 – 3 para 4.2. Drummond J, very helpfully, explained what constitutes a compensable mental ailment, or aggravation thereof, highlighting, inter alia, that it is not necessary to put a label on such a condition (443 – 444):“There may be difficulties in a particular case in determining whether a bodily condition, ie, one not involving any effect on a person's mental faculties, amounts to a disease; it can also be difficult to determine whether a worker is suffering from a disease in the sense of a mental ailment. Medical opinion changes too: regularly encountered signs may eventually come to be acknowledged as comprising a disease or as symptomatic of an underlying disease when previously, medical opinion rejected that notion. But these considerations, in my opinion, provide no ground for disregarding the meaning given by the various definition provisions to the term ‘injury’ for the purposes of s 14(1) of the Act.The definition provisions, which bring within the concept of ‘injury’ mental diseases and mental ailments, disorders, defects or morbid conditions, do not provide any precise criteria for determining whether an employee's mental condition is within the concept of an ‘injury’ within s 14(1). In the medico-legal context, the concept of mental illness is a notoriously difficult one to define or describe… But in my opinion, the expressions used in the Safety, Rehabilitation and Compensation Act to define the various forms of mental condition that can amount to ‘injuries’ compensible under s 14(1), do not appear to be used in any technical medical sense, but have the meanings they bear in ordinary usage. It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker’s body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour. In short, I consider that Dr Tym, in drawing a distinction between clinically significant, ie, abnormal behaviour in the circumstances of the particular patient, and behaviour which, even though unusual, can be said to fall within the range of behaviour that persons unaffected by mental disease or illness could be expected to exhibit in those same circumstances, showed a correct appreciation of what must be established before an employee could show that he was suffering from a mental condition that is compensible under s 14(1).”