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WNBR and Comcare (Compensation)

WNBR and Comcare (Compensation)

Case [2021] AATA 32 20 January 2021

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WNBR and Comcare (Compensation) [2021] AATA 32 (20 January 2021)
Division:GENERAL DIVISION
File Number(s): 2019/6324
Re:WNBR
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:20 January 2021
Place:Sydney

The decision under review is affirmed.
..................................[sgd]......................................
Deputy President B W Rayment OAM QC
CATCHWORDS
WORKERS’ COMPENSATION – aggravation of bipolar affective disorder and post-traumatic stress disorder – where applicant engaged in return to work process with employer – whether applicant’s pre-existing condition aggravated arose out of or in the course of employment – whether return to work process part of employment – whether aggravation satisfies s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – whether return to work process is administrative action – whether aggravation satisfies s 5B of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 14
CASES
Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 415
Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529
Federal Broom Company Pty Ltd v Semlitch [1964] HCA 31; (1964) 110 CLR 626
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21
Kavanagh v The Commonwealth (1960) 103 CLR 547
XRLC and Comcare [2019] AATA 3553
Wiegand v Comcare [2002] FCA 1464; 72 ALD 795
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
20 January 2021

The applicant worked for the Australian Prudential Regulation Authority (APRA) since 2012 as a Level 4 Principal Analyst. He was recruited from England and was appointed as a permanent staff member in 2014. He became depressed when he visited the UK on account of family concerns. He had some health issues in 2015. In 2016, he took unpaid leave for three months to recover, with some success as to his mental health.
His health issues led to the prescription of drugs, from which he had adverse side effects. In April 2018, he again took time off work. A psychiatrist had diagnosed him with Bipolar II with possible post-traumatic stress disorder and prescribed some medication that required the applicant to take time off work because the medication had possible serious side‑effects. The medication did need to be changed. He experienced no serious side‑effects from the changed medication and his GP, Dr Bartlett, issued a medical certificate stating that he would be fit to return to work in September 2018.
In August 2018, APRA began to discuss a return to work program and arranged for him to attend a rehabilitation specialist to discuss the program several days later on 3 September 2018. That came as a surprise to the applicant, who had expected the arrangements to be less formal. In September 2018 and thereafter, disputes arose between APRA and the applicant about details of the proposed program, which the applicant regarded as a…

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 WNBR and Comcare (Compensation)

Details

AGLC: WNBR and Comcare (Compensation) [2021] AATA 32
Case: [2021] AATA 32
Decision Date: 20 January 2021

CaseChat Overview and Summary

The applicant, WNBR, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning a claim for workers' compensation against Comcare. The dispute centred on whether WNBR's pre-existing bipolar affective disorder and post-traumatic stress disorder were aggravated by their employment, specifically through a return to work process. The matter came before Deputy President B W Rayment OAM QC.

The court was required to determine whether the applicant's pre-existing mental health conditions were aggravated out of or in the course of employment, and whether such aggravation satisfied the criteria under sections 5A and 5B of the *Safety, Rehabilitation and Compensation Act 1988* (Cth). Specifically, the court considered whether the return to work process constituted part of the applicant's employment and whether any aggravation arising from it qualified for compensation under the Act, including whether the return to work process was an administrative action.

The Deputy President found that the applicant failed to satisfy the test under section 5B of the Act. This section generally requires that an injury be suffered by an employee in the course of their employment and that the employment contributed to the injury to a significant degree. The reasoning implies that the aggravation of the applicant's pre-existing conditions, as it related to the return to work process, did not meet the statutory threshold for compensation.

Consequently, the Deputy President affirmed the reviewable decision of the AAT.

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

The applicant therefore fails the test in s 5B of the Act.DECISION I would therefore affirm the reviewable decision.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

WNBR and Comcare (Compensation) [2021] AATA 32

Most Recent Citation

McHugh and Comcare (Compensation) [2025] ARTA 1419

Cases citing this decision · 2 of 2 shown

McHugh and Comcare (Compensation)
[2025] ARTA 1419 Para 6

…to his accommodation difficulties as a result of his pets and his consequent blacklisting by local agents. [91] See WNBR v Comcare [2021] AATA 32, [58]. (3)Whether the exception of reasonable administrative action applies?…
McNaught and K & S Freighters Pty Ltd (Compensation)
[2023] AATA 3183

…WNBR and Comcare [2021] AATA 32…

View all 2 citing cases →

Cases cited in this decision · 22 of 22 shown

XRLC and Comcare (Compensation)
[2019] AATA 3553 Para 19

…wealth contribute to the aggravation of the ailment suffered by the applicant. I have discussed some aspects of s 5B of the Act in XRLC and Comcare [2019] AATA 3553 ( XRLC ) at [9]–[19]. I adopt those paragraphs of those reasons in this case. They are as follows: Disease is defined by s 5B to include an ailment suf…
Comcare v ZZRP
[2019] FCA 952 Para 19

…be substantially more than trivial. In Comcare v ZZRP [2019] FCA 952 Flick J said at [14]: The 2007 amendment, by requiring that a disease be one that was contributed “to a significant degree” by the relevant employment – being “a degree that is substantially more than material” – thus “strengthen[ed] the connect…
Comcare v Power
[2015] FCA 1502 Para 19

…Commonwealth. Section 5B(3) specifies that “significant degree” means a degree that is substantially more than material. In Comcare v Power [2015] FCA 1502; (2015) 239 FCR 187 Katzman J traced the legislative history of s 5B(3). The prior legislation had used the language of “contributed to in a material degree” w…
Zdziarski v Telstra Corporation Limited
[2015] FCA 207 Para 19

…a Corporation Limited [2015] FCA 207 at [15] per Perram J. Those are the tests to which the evidence called on this review and the findings made upon it must be subjected.…
Comcare v PVYW
[2013] HCA 41 Para 3

…The principle in Hatzimanolis was considered by the High Court in Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 ( PVYW ), where the majority, consisting of French CJ, Hayne, Crennan and Kiefel JJ (Bell and Gageler JJ dissenting) stated at 262: The starting point in applying what was said in Hatzimanolis, in o…
John Holland Group Pty Ltd v Robertson
[2010] FCAFC 88 Para 14

…r her engagement and his or her duties: cf John Holland Group Pty Ltd v Robertson (2010) 185 FCR 566 at 586 [72]-[73] per Dowsett J, with whom Spender J agreed. An analogy, although taken from a different statutory context, can be seen from the facts in The Commonwealth v Rutledge (1964) 111 CLR 1. Thereafter working…
Kowalski v Military Rehabilitation and Compensation Commission
[2010] FCAFC 10 Para 19

…d Compensation Commission [2010] FCAFC 10 at [54] per Marshall, Tracey and Foster JJ. This “tightening of the causation standard” followed the report of the Productivity Commission into workers compensation titled National Workers Compensation and Occupational Health and Safety Frameworks, Report No 27, 16 March 2…
Comcare v Sahu-Khan
[2007] FCA 15 Para 19

…r in his second reading speech. Her Honour next referred to the judgment of Finn J in Comcare v Sahu-Khan [2007] FCA 15; (2007) 156 FCR 536 who “observed that the legislative history of the definition of “disease” makes it plain that the term “material” in the phrase “in a material degree” in the [the Act] was n…
Wiegand v Comcare Australia
[2002] FCA 1464 Para 4

…Discussing s 5B of the Act in Wiegand v Comcare [2002] FCA 1464; 72 ALD 795, Von Doussa J said at [23]–[24]: In terms of the definition of disease, the question which the Tribunal was required to consider was whether Mr Wiegand’s ailment or an aggravation of the ailment “was contributed to in a material degree by…
Hatzimanolis v ANI Corporation Ltd
[1992] HCA 21 Para 2

…Kavanagh and Danvers , among other similar cases, were considered in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21 ( Hatzimanolis ). Chief Justice Mason, Deane, Dawson and McHugh JJ, with Toohey J agreeing, said at 484: Indeed, the modern cases show that, absent gross misconduct on the par…
Treloar v Australian Telecommunications Commission
[1990] FCA 511 Para 4

…not to be a ground for differently construing the requirements for the definition of “disease” in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323. It will be noted that Kitto J does not introduce any qualification or refinement to the meaning to be given to “employment” which would require some qualitative assessment of the inc…
Danvers v Commissioner for Railways (NSW)
[1969] HCA 64 Para 1

…istinction was discussed in Kavanagh v The Commonwealth (1960) 103 CLR 547 ( Kavanagh ) at 558 and in Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 ( Danvers ). In Kavanagh , Fullagar J observed that in the phrase ‘arising out of or in the course of’ employment, the words ‘out of’ connoted a causal rel…
Commonwealth v Rutledge
[1964] HCA 63 Para 14

…rent statutory context, can be seen from the facts in The Commonwealth v Rutledge (1964) 111 CLR 1. Thereafter working in her job for over four years, an employee, who was latently susceptible to developing paranoia, was required to perform new duties that involved her spying on fellow employees. Within two weeks t…
Federal Broom Co Pty Ltd v Semlitch
[1964] HCA 34 Para 4

…ntributing factor, the respondent concedes that the following passage from the judgment of Kitto J (with whom Taylor and Owen JJ agreed) in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 632 is directly applicable: “Where it is possible to identify a contributing factor to the aggravation, acceleration, exacerbation or deteriorat…
Adams v Perpetual Trustee Co (Ltd)
[1964] HCA 31 Para 34

…Mr Gollan relied upon the High Court decision in Federal Broom Company Pty Ltd v Semlitch [1964] HCA 31; (1964) 110 CLR 626 ( Semlitch ) in support of his submission.…
Kavanagh v The Commonwealth
[1960] HCA 25 Para 1

…hat kind of language is commonly used in workers’ compensation and other contexts. The distinction was discussed in Kavanagh v The Commonwealth (1960) 103 CLR 547 ( Kavanagh ) at 558 and in Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 ( Danvers ). In Kavanagh , Fullagar J observed that in the phrase ‘…
Wardlaw v Bonnington Castings Ltd
[1956] UKHL 1 Para 19

…matter. This approach was consistent with the common law jurisprudence. In Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 at 621 Lord Reid explained the meaning of a material contribution as follows: What is a material contribution must be a question of degree. A contribution which comes within…
Australian Telecommunications Commission v Treloar
[1989] FCA 470 Para 19

…. It did not expressly require the contribution to be a material one. In Australian Telecommunications Commission v Treloar (1989) 90 ALR 202, which was concerned with the 1971 Act, Davies J held at 204, however, that the contribution had to be of a causal nature and therefore “causally significant or, to use anothe…
[2005] FCAFC 262
[2005] FCAFC 262 Para 19

…large to come within the de minimis principle but yet too small to be material. However, in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 at [249], French and Stone JJ compared the language of the 1971 Act and the 1988 Act and concluded that more than a contributing factor was required, and that effect had…
Commonwealth Bank of Australia v Reeve
[2012] FCAFC 21 Para 12

…rogram an “administrative action”? That expression was discussed by the Full Court of the Federal Court in Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 415 ( Reeve ).…
Michael King v Catholic Education Office Diocese of Parramatta
[2014] FWCFB 219 Para 33

…tion. This duty is not limited solely to contractual obligations as shown in Michael King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 219 and also L Burns v Sacred Heart Mission (C2014/5268). In addition to this the work [sic] Health and Safety Act 2011 sets out the employee’s duty to follow comp…
[1956] AC 613
[1956] AC 613 Para 19

…pproach was consistent with the common law jurisprudence. In Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 at 621 Lord Reid explained the meaning of a material contribution as follows: What is a material contribution must be a question of degree. A contribution which comes within the exception d…

Legislation cited in this decision · 4

Safety, Rehabilitation and Compensation Act 1988 (Cth)
14, 5A, 5B 4 mentions (from Para 7)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
1 mention (from Para 19)
Workers Rehabilitation and Compensation Act 1986 (SA)
1 mention (from Para 13)
Workers' Compensation Act 1926 (NSW)
1 mention (from Para 4)