WNBR and Comcare (Compensation)
[2021] AATA 32
•20 January 2021
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 3553Wiegand 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 form of demotion.
The effect of the disputes on the applicant was that, he said, he became very anxious and worried, his sleep deteriorated, and he experienced panic attacks. The applicant consulted his GP and his treating psychologist, Dr Masluk, about the return to work program. The applicant told APRA that he would return to work in accordance with the program if his GP and treating psychologist agreed that it was reasonable.
The psychologist and the GP requested changes to the program. On 30 October 2018, the applicant’s GP certified the applicant as unfit for work for one month. The applicant says that by that date, he was unfit for work by reason of his condition and that such unfitness continued for a time thereafter.
At the request of APRA, the applicant attended an independent medical appointment with a consultant psychiatrist. He saw Dr Lee, who wrote a report dated 19 November 2018. The applicant asked for a copy of Dr Lee’s report, but he did not receive a copy from APRA. He attended a meeting with APRA in January 2019, at which he was told that he was being made redundant.
The applicant made a claim for workers compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), which was rejected by the respondent on internal review on 5 September 2019, in respect of the claims of aggravation of bipolar affective disorder, unspecified and aggravation of post-traumatic stress disorder.
The issues for decision are as follows:
(a)Was the applicant, at a relevant time, incapacitated for work or impaired (the s 14 threshold question);
(b)Did the applicant suffer an injury as defined in s 5A of the Act? This issue raises:
(i)Whether the aggravation of his pre-existing condition arose out of or in the course of his employment; and
(ii)Whether the condition was the result of reasonable administrative action taken in a reasonable manner;
(c)If the injury was in the nature of an aggravation of an ailment, does it satisfy the definition in s 5B of the Act. This issue raises the question of whether the aggravation was contributed to, to a significant degree, by the applicant’s employment by the Commonwealth.
The s 14 threshold question
The first of those issues involves a factual matter, upon which the expert medical evidence is particularly relevant. Mr Gollan, who appeared for the respondent, submits that the applicant’s case fails on this threshold issue.
He submits that the applicant conceded the point in his oral evidence at the hearing at T‑23.20, T-25.44, T‑26.33, T-95.46 and T-96.39.
The question of whether the applicant’s health deteriorated is distinct from the question of whether he was incapacitated for work.
At T-96, Mr Gollan elicited evidence in his cross-examination of the applicant as follows:
MR GOLLAN: … Now, if you can just go to the supplementary T‑documents for me, please?
WNBR: Yes.
MR GOLLAN: This is the last page, page 136?
WNBR: Yes.
MR GOLLAN: Is the last of the medical certificates from Dr Bartlett. It’s dated 24 September 2018. Can you see that?
WNBR: Yes, yes.
MR GOLLAN: She says that she had medically cleared you, previously advised you are happy for him to return to previous role at reduced hours?
WNBR: Yes.
MR GOLLAN: No concerns regarding his cognition. That’s something that you noticed about yourself? You were able to still think clearly, weren’t you?
WNBR: Absolutely, and I offered to do a cognitive assessment.
MR GOLLAN: Yes, because you had confidence in your capacity that it wasn’t impaired?
WNBR: I was confident that I could do my job, yes.
MR GOLLAN: And she believed that you could function in your role?
WNBR: Absolutely, and this is the whole basis of my claim. Because prior to this whole extended process, I was able to function. At the end of it, I wasn’t.
MR GOLLAN: She was happy for you to continue to work with William Wykoff and happy for you to participate in your return to work plan?
WNBR: Yes. She was concerned that the longer this goes on, the worse the outcome for WNBR. And “I want to see him back in his role as soon as possible.”
The remark that ‘[a]t the end of it, I wasn’t’ is the only point in that exchange where the applicant asserts that he became incapacitated for work. In his closing submissions, the applicant nominated the end of October 2018 as the time when his incapacity for work commenced.
Mr Gollan also submitted that the applicant’s GP, in her medical certificate of 24 September 2018, the report of Dr Lee, and the medical opinion of Professor Parker, the applicant’s treating psychiatrist, supports the view that the applicant was not incapacitated for work. He submits that the treating psychologist’s report did not support any contrary view, and that the rehabilitation provider does not suggest that the applicant cannot work.
The GP’s note of 24 September 2018 at 136 of the supplementary T‑documents states that the applicant
has been medically cleared to return to work, and I was happy for him to start back in early September, as previously advised. I am happy for him to return to his previous role, at reduced hours. I have no concerns with regard to his cognition, and believe he should be able to function in his role. I am happy for him to continue to work with William Wykoff, and am happy to participate in his return to work planning. I feel that the longer this goes on the worse the outcome for [WNBR], and I would like to see him back in his role as soon as possible.
In Dr Lee’s report dated 19 November 2018, at [16], he noted that the applicant said that medically, he is fit to return to work. At [17], Dr Lee said:
He wants to return to work as long as his employers can demonstrate it is a safe work environment. His GP and psychologist have told him he may benefit from a graduated return to work from three to four and then five days, because at the moment he might just feel fine because he has been off work.
At [28] and [29], Dr Lee wrote:
On 30 October 2018, Dr Bartlett provided APRA with a medical certificate that he was unfit to work to be reviewed on 29 November 2018, because “the last two months uncertainty regarding his job future and plans, have caused a decline in his mental health again” and she was currently unable to determine whether he was able to perform the duties of Principal Analyst.
You are, accordingly, concerned about his fitness to perform the duties of a Principal Analyst now and in the immediate future.
At [37], he said:
Dr Bartlett’s letter of 30 October 2018, states that she certified him as unfit for work because the last two months of uncertainty regarding his job future have caused a decline in his mental health again. She requests more information regarding his duties both pre-leave and post-return to work so that she can measure his stability to work and regarding end points of each stage and what he is working towards as “this appears to be causing [WNBR] the most significant anxiety as he is not sure what is expected of him.
At [40], Dr Lee stated his opinion in the following terms:
Having reviewed the job requirements and work environment of a Principal Analyst, I can see no objective evidence that [WNBR] cannot perform these requirements currently, although he alluded to a recent worsening of his arthritis. He perceives that he has been bullied on the grounds of having a mental health condition. He states that these perceptions are “nonmedical but need to be clarified”, hence I would recommend mediation, and he said that he wanted my report to “trigger this discussion”. He would not comply with psychometric assessment.
Neither Dr Bartlett nor Dr Lee was called to give evidence before the Tribunal. Dr Lee recommended mediation, having noted that APRA was concerned about his fitness to perform the duties of a Level 4 Principal Analyst now and in the future. His use of the expression ‘no objective evidence’ may mean that he did not settle on any final view and thought a mediated outcome with the applicant might be a better way forward. Precisely what mediation he had in mind is not entirely clear, but it seems possible that he was referring to a mediation about the details of the return to work program. The other main alternative, less likely in my opinion, seems to be that Dr Lee was referring to a negotiation of terms of separation. I return to this question about the meaning of Dr Lee’s report below.
Professor Parker expressed the view in June 2019 that, to the extent that it is possible, the applicant was then quite able to work. He said that if he did return to work, he would be in an improved psychological state.
A consultant psychiatrist, Dr Ventura, wrote a report on 24 February 2020. That, of course, is not a report written at a critical time for present purposes. Dr Ventura’s report is relied upon, amongst other reports, by the applicant to refute Mr Gollan’s submissions on the s 14 issue.
Dr Ventura reported that the applicant had told her that by October 2018 his anxiety had increased to the point where he could no longer cope. At [7](f) and [7](g) of her report, Dr Ventura says:
(f)On the balance of probabilities (as distinct from possibilities), what employment characteristics or conditions or incident/s, if any, have contributed to any psychiatric condition or aggravation thereof? Please identify the particular incident(s) or characteristics or conditions of employment so contributing.
Failure to be able to engage in a return to work program and subsequent loss of occupation of role has contributed to his sense of hopelessness and worthlessness and a deterioration of some of his major depressive symptoms.
(g)On the balance of probabilities (as distinct from possibilities), did the employment characteristics or conditions or incident/s, identified above contribute to any psychiatric condition/s or aggravation thereof to a significant degree?
The employment characteristics described above contributed to an aggravation of his major depressive disorder.
At [7](i) she said:
(i)On the balance of probabilities (as distinct from possibilities), did the rehabilitation process contribute to any psychiatric condition/s or aggravation thereof to a significant degree? Please identify the relevant contributing processes and/or incidents
In my opinion, [WNBR’s] inability to negotiate a return to work program with his employer contributed to an aggravation of his psychiatric condition. I found no evidence, on reading the attached documents, that suggestions made during the rehabilitation process contributed to an aggravation of his psychiatric condition.
It therefore seems likely that if there is a s 14 claim, it applies to the period from October 2018 to June 2019.
The applicant also referred to remarks of his GP on 24 October 2018 at T11, stating that the last two months of uncertainty regarding his job’s future have caused a decline in his mental health.
Also, in a letter dated 1 November 2018, Dr Masluk referred to the applicant’s ‘uncertainty and stress associated with his return to work.’
It seems to me that the materials referred to by the applicant generally support the view that his mental condition deteriorated as a result of the disputed return to work program, such that for a period, he was no longer fit for work. In particular, his GP came to that view in late October 2018, and so certified. Dr Lee noted that fact, although he said that he could find ‘no objective evidence’ that he was not fit to return to work. I add that I see no reason to discount the self-reports of the applicant to his treating medical professionals, Dr Ventura and to the Tribunal. His credit was largely not put in issue and I found his evidence to be reliable.
Dr Ventura, although reviewing the matter retrospectively, expressly accepted that he suffered an aggravation of his major depressive disorder. However, she said that she found no evidence that suggestions made during the rehabilitation process contributed to the aggravation.
The last-mentioned matter goes to other matters argued by the respondent, as to the reasonable administrative action and whether the ailment was contributed to, to a significant degree, by the applicant’s employment, rather than what has been described as the threshold question arising under s 14 of the Act . I resolve that s 14 threshold question in favour of the applicant.
Did the applicant suffer an injury as defined in s 5A of the Act?
Mr Gollan next submitted that the injury of, or aggravation suffered by, of the applicant did not arise out of or in the course of the applicant’s employment, so that the injury or aggravation did not comply with s 5A(1) of the Act which provides as follows:
5A Definition of injury
(1)In this Act:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Mr Gollan puts it as follows at [16] of his written submissions:
In the present circumstances, the Applicant did not take up employment duties at all. He was seeking to negotiate terms of a return to work, having been affected by the non-work related condition, despite a capacity to perform the work offered, he did not return. There was no suggestion that the Applicant’s future with the organisation was being put in jeopardy and in fact that was expressly contradicted (see T-16, page 134) There is no suggestion that there was some event or occurrence in the course of the work performed that would allow a proper characterisation of any suggested aggravation as one “arising out of, or in the course of, the employee’s employment” (s.5A).
At [14]–[16] of the applicant’s submission, he submitted as follows:
The Respondent’s submission characterises the return to work process as a negotiation and not part of the Applicant’s employment. However, the return to work process was not a negotiation as the Applicant was following the instructions of APRA throughout the process. As part of the Applicant’s employment they have an obligation to follow lawful and reasonable directions provided by their employer as such, throughout this process the Applicant had a legal duty of obedience and co-operation. 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 company policies and procedures. Furthermore, the Applicant was complying with APRA’s rehabilitation Management Strategy (TB 8.3). As such at all times the Applicant’s action demonstrate that rather than negotiating they were meeting their legal obligations under the workplace health and safety regime.
The Applicant’s actions were not discretionary as failure to engage with the directions issued may have been construed as serious misconduct under 1.07 (2) of the Fair Work regulations and would have given grounds for dismissal.
The relative position of the parties is clearly set out in APRA’s letter dated 11 October 2018 (T16 p126). This letter clearly communicates that the Applicant was required to sign and agree to the plan as were the Applicant’s treating doctors. The only reason that the Applicant was unable to comply with APRA’s instructions was that a finalised and medically approved return to work plan was never presented to the Applicant. At no point did the Applicant refuse to comply with any lawful and reasonable direction given to them.
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.
In Semlitch, a claim for workers’ compensation succeeded in the Workers’ Compensation Commission and an appeal to the Full Court of the NSW Supreme Court failed by majority (Sugerman and Moffitt JJ, Else-Mitchell J dissenting). The worker had sustained an injury from lifting a box which was too heavy for her to hold. She suffered from schizophrenia, and after her physical injuries resolved, she suffered delusions of suffering great pain and was utterly unable to work. The High Court was satisfied that the worker suffered from a disease, and in the course of his judgment, Windeyer J discussed the causal question arising under the statute. His Honour at 641 remarked that:
When the Act speaks of “the employment” as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed.
Justice Kitto in the same case, with whom Taylor and Owen JJ agreed, remarked that:
Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc.
The definition in s 5A(1) of the Act does not use the same words as in Semlitch. Rather, it speaks of something ‘arising out of, or in the course of’ employment. That 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 forRailways (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 relationship but the words ‘in the course of’ did not, so that mere temporal connection was enough in the latter case. In Danvers, the High Court held that the use of a van by an employee on the worksite for the purposes of sleeping, although not required by his contract of employment, was ‘in the course of’ his employment. Injuries suffered when the van caught on fire were thus compensable, even if the employee could choose not to avail himself of the facility of sleeping in the van. It sufficed that sleeping in the van was incidental to the doing of his work and that sleeping in the van was reasonably required, expected or authorised to be done in order to carry out his actual duties.
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 part of the employee, an injury occurring during such an interval or interlude will invariably result in a finding that the injury occurred in the course of employment. Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment "and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen"
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 order to determine whether an injury was suffered in the course of employment, is the factual finding that an employee suffered injury, but not whilst engaged in actual work. The next enquiry is what the employee was doing when injured. For the principle in Hatzimanolis to apply, the employee must have been either engaged in an activity or present at a place when the injury occurred. The essential enquiry is then: how was the injury brought about? In some cases, the injury will have occurred at and by reference to the place. More commonly, it will have occurred while the employee was engaged in an activity. It is only if and when one of those circumstances is present that the question arising from the Hatzimanolis principle becomes relevant. When an activity was engaged in at the time of injury, the question is: did the employer induce or encourage the employee to engage in that activity? When injury occurs at and by reference to a place, the question is: did the employer induce or encourage the employee to be there? If the answer to the relevant question is affirmative, then the injury will have occurred in the course of employment.
The applicant was off work for some months. A graduated return to work program to reintroduce him to his workplace was usual, and the applicant’s co-operation for that purpose, in my opinion, satisfies the Hatzimanolis principle as explained in PVYW and therefore within the meaning of ‘in the course of’ his employment.
The contribution required by s 5B must be by the employment. When the applicant suffered an aggravation of his condition, he was not actively engaged in his work as a Level 4 Principal Analyst. Rather, he was off work, and was negotiating his (possible) return to work. Similarly, s 5A requires that the aggravation must be related causally or temporally to the employment.
An employee who is off work when the relevant injury or disease is acquired or aggravated may not cause to engage either s 5A or s 5B. If one asks whether as at October 2018 the applicant was still employed, the answer is yes. A person on leave, whether long leave or for a week, has not lost his employment. Yet being on leave generally gives the employee freedom from the directions of his employer.
The applicant’s written submissions at [14]–[16], quoted above at [33], suggests that he was, in relation to the return to work program, subject to directions given by his employer. APRA’s requirement that the applicant’s medical professionals sign off on the return to work program seems to proceed either on the basis that APRA could not give a direction or on the basis that it chose not to do so unless the applicant’s medical professionals were in agreement. Nevertheless, APRA had induced or encouraged the applicant to engage within the discussion and negotiation process of his return to work program, to use the words in Hatzimanolis. In my opinion, by application of the principle in Hatzimanolis, the necessary relationship between the employment and the return to work program is present although the employee was on leave at the time.
Mr Gollan next submitted that the unfitness for work was a reaction to reasonable administrative action taken in a reasonable manner. The return to work program, which the applicant rejected, was proposed by a rehabilitation specialist engaged by APRA. The applicant’s treating medical professionals signified their disagreement with the proposal, and to some extent so did Dr Lee, in his remarks about mediation being a desirable next step in the dealings with the applicant, possibly in relation to the return to work program, a suggestion which, if that was Dr Lee’s meaning, was not taken up by APRA. Nor did APRA accede to the applicant’s request to see Dr Lee’s report, which may show that APRA was unwilling to compromise about the return to work proposal.
The parties did not agree to a return to work schedule. The applicant’s GP and treating psychologist did not sign off on the first or any later version of the plan. The applicant did not sign off on any version of the plan, and his mental state deteriorated to the point, as I have found, that he became unfit for work.
I have difficulty regarding those facts as excluding his claim under s 5A of the Act. That is because attempting and failing to settle upon an agreed return to work program is difficult to describe as “administrative action”. It is true that the applicant had concerns that APRA was not proposing a genuine return to work program. It is also true that APRA thought that the applicant was seeking to control the terms of the program and was not negotiating in good faith, prevailing on his medical professionals not to sign off on the program. It is true that s 5A(2) does not limit s 5A(1), but it is to be noted that none of the administrative actions mentioned in s 5A(2) covers the present circumstances.
Subsection 5A(2) provides as follows:
(2)For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
All of the actions mentioned in s 5A(2) appear to be completed actions. Is a mutual failure to agree on a return to work program 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).
Justice Gray distinguished between ‘administrative action’ and operational directions given by employer to employee. At [31]–[33] his Honour said:
The use of the word “administrative” in the exclusion is significant. In accordance with normal principles, it is not to be assumed that a word in a legislative provision has no function to perform. The word “administrative” must have been inserted to distinguish the kind of action to which the exclusion is directed from other kinds of action that might also be taken with respect to the employment of a particular employee. Such action that is not “administrative” could be operational, in the sense that it relates to the activities or business of the institution or enterprise in which the employee is employed. Thus, an instruction to perform work at a particular location, to drive on a particular route, or to perform particular duties would not be regarded as “administrative” action, but as operational action with respect to the employee’s employment.
This conclusion is similar to that reached by Doyle CJ, with whom Prior and Williams JJ agreed, in construing the words “reasonable administrative action taken in a reasonable manner by the employer in connection with the worker’s employment” in s 30(2a) of the Workers Rehabilitation and Compensation Act 1986 (SA), in Workcover Corporation of South Australia v Summers (1995) 65 SASR 243 at 247. Doyle CJ said:
The appellant argued that “administrative action” referred to “every instruction given by the employer or action taken by the employer which relates to the performance of the worker’s duties, whether directly or indirectly”. That is how it was put in the appellant’s outline. In his submissions counsel for the appellant said that administrative action embraced every instruction or action by the employer, indirectly or directly...
I am unable to accept this submission.
If it is correct, it means that it becomes necessary to identify all instructions and directions given by the employer which did contribute or might have contributed to the stress, and then to examine the reasonableness of each one of them. That would be a daunting task, and I would hesitate to conclude that Parliament intended that it be performed. The appellant’s approach would also mean that as a matter of practice subpar (iii) would defeat most stress claims, or at least very many of them, because if the stress resulted from instructions or actions of the employer (and presumably an implied instruction would be as good as an express instruction), then the claim would fail unless the instruction or action was unreasonable. Commonsense suggests that many, and probably most aspects of a worker’s work could be related back to instructions given by an employer or action taken by an employer. It is clear that Parliament intended to restrict stress claims, but it is another matter whether it intended to go as far as this in subpar (iii)...
Moreover, the words chosen by Parliament — “administrative action” do not seem apt to embrace every instruction of and action by an employer. The expression chosen suggests that Parliament had in mind a particular type of action by an employer, and something other than a mere instruction or requirement that the worker perform her duties. In my opinion the appellant’s submission fails to give any effect to the adjective “administrative”.
In the case of s 5A(1) of the SRC Act, the requisite effect is given if the provision is seen to apply to action taken in respect of the administration of the relationship of employer and employee as between the particular employee making the claim, in his or her capacity as employee, and the employer in its capacity as employer. This meaning may have been the one the Tribunal was attempting to express in its reasons for decision, when it referred to “legitimate human resource management actions”. Although inapt, the description used by the Tribunal is not far removed from the proper construction of the exclusion. As the Tribunal pointed out correctly, matters of general administration, management and the implementation of policy are excluded, even if they affect the employment of employees. It is what is done with respect to the employment relationship that the particular employee has with the employer that is excluded from the definition of “injury”, unless the action taken was not reasonable, or was not reasonably taken.
Justices Rares and Tracey said at [57]–[61]:
However, in contrast to a disease that was contributed to by, or an injury or aggravation that arose out of, or in the course of, the employee’s employment, the exclusion in s 5A(1) applied to action taken in respect of that person’s employment. This suggests that the action referred to in the exclusion was intended to refer to action directed specifically to the employee as opposed to it affecting him or her because it was an ordinary feature of his or her work, workplace or environment or otherwise connected to his or her employment.
The Bank argued that the requirement for managers, such as Mr Reeve to attend at and report to the meetings that dealt with, among other topics, the customer satisfaction surveys fell within the meaning of “reasonable administrative action taken in a reasonable manner in respect of [Mr Reeve’s] employment”. It pointed to the fact that Mr Reeve’s bonus entitlement at the end of a financial period would be assessed in part based on his branches’ results in customer satisfaction surveys.
We are of opinion that this argument should be rejected. The Act gave non-exhaustive examples of an injury. These included those in s 6(1)(a) and (b) that were injuries taken to arise out of, or in the course of, an employee’s employment. Thus, a bank teller whose duties required him or her to work at a particular time and branch would be taken to sustain an injury if he or she were subjected to violence in an armed robbery at the branch. The concept of “reasonable administrative action taken in a reasonable manner in respect of” the teller’s employment in the exclusion of s 5A(1) could not have been intended to comprehend an employer’s direction or requirement to a teller to work in his or her job at the time of the robbery so as to exclude the teller’s right to compensation under the Act for an injury sustained in the robbery. The reason that the teller would have been in the position of being a victim of the robbery was because that was his employment; it was not because of administrative action taken in respect of the teller’s employment. The teller’s job would involve him or her being in the bank ready to serve customers. The mere fact that he or she was reasonably told or required to be there so as to do his or her job when, fortuitously, a robbery occurred cannot have been what the Parliament intended to fall within the exclusion in the definition of “injury” in s 5A(1). So much is made clear by the very words of s 6(1)(a) and (b) as they applied to the circumstances in which an “injury” would be sustained as arising out of, or in the course of, the employee’s employment.
The qualification in the final phase of the exclusion in s 5A(1) is important. It requires that the action be taken “in respect of the employee’s employment”. That qualification distinguishes the criterion of the exclusion in s 5A(1) from an action or circumstance that the Act uses to impose liability, namely an action or circumstance that arises out of, or in the course of, the employee’s employment. This suggests that the Parliament intended that the exclusory action be specific administrative action directed to the person’s employment itself, as opposed to action forming part of the everyday duties or tasks that the employee performed in his or her employment or job. The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment or, as s 5B(2)(b), provided “the nature of, and particular tasks involved in, the employment”. Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or 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 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 the employee developed into an active psychotic. As Menzies J put it (111 CLR at 11):
“… it is sufficient, however, if the spying which was her employment for the time being, had in its nature something to aggravate a pre-existing condition of latent paranoia or to accelerate a change from that condition into that of active psychosis. Here I think the evidence did have the requisite generality.” (emphasis added)
Here, Mr Reeve’s employment included the tasks of attending the teleconferences and dealing with the consequences, results and outcomes of the customer surveys. Thus, the teleconferences, customer surveys and their uses were not administrative action taken in respect of his employment – they were part and parcel of his employment.
At one stage of the negotiations, APRA set out its requirements in relation to the return to work program. It required the applicant and his two medical professionals, his GP, and his treating psychologist, to signify their assent to the program. Such assent was not given. The result was that the parties did not reach an agreement and the applicant did not return to work. It is hard to characterise the APRA’s demand as an action. The applicant said that he would agree to it if his medical professionals agreed to the plan, but they did not do so.
Mediation could perhaps have resolved the impasse, but APRA did not undertake any mediation. Failure to mediate is hard to describe as an action, let alone administrative action.
The applicant regarded the return to work program, as proposed, as work below his capacities, or his agreed work level. APRA disagreed. Asking an employee to work below his station is not administrative action, on the authority of Reeve, in the judgments of Gray J and of Rares and Tracey JJ, because it is operational rather than administrative.
I would therefore reject the respondent’s s 5A submission.
Does the applicant’s aggravation satisfy the definition in s 5B of the Act?
Finally, the respondent submits that the applicant fails the test specified in s 5B of the Act. This section requires that the employee’s employment by the Commonwealth 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 suffered by an employee, or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment by the 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” without a definition of the words “material degree”.
The predecessor statute, the Compensation (Commonwealth Government Employees) Act (Cth) 1971 had required that the employment be “a contributing factor” to the disease.
At [81] Katzman J said:
[The Act] replaced the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (the 1971 Act), which stipulated that the employment be “a contributing factor to the disease”. 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 another term, material”. His Honour’s opinion was that the new definition in the SRC Act was similar. In Treloar v Australian Telecommunications Commission [1990] FCA 511; (1990) 26 FCR 316 the Full Court endorsed this interpretation, observing at 323 that the insertion of the word “material” “served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of”, and, provided the causal connection were established on the balance of probabilities, the size of the contribution did not 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 the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too 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 to be given to the introduction of the word “material”. This remark reflected the language used by the Minister 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 not used to denote a contribution which was only greater than de miminis. Thus, it appears that, despite the common law approach to “material contribution”, the intention of the [the Act] was that the contribution of the employment to the disease of an afflicted employee had to be not just greater than trivial. In Sahu-Khan Finn J noted (at [15]) that the Shorter Oxford English Dictionary defined “materially” to include “substantially” and “considerably”.
Finn J had added at [86]:
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.
Thus, prior to the amendments to s 5B, steps had been taken to strengthen the contribution which the employment must make to the injury.
At [93] Her Honour said:
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to 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 connection necessary between the employment and the contraction or aggravation of a disease” than that required by the definition previously considered by Finn J in Sahu-Khan: Comcare v Power [2015] FCA 1502 at [93], (2015) 238 FCR at 204. The test inserted in 2007 was that of “significant degree” rather than “material degree”. This was unquestionably one of the “important changes to the definition”: Kowalski v Military Rehabilitation and 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 2004: Zdziarski v Telstra 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.
This submission by the respondent takes as its point of departure the findings made above on the s 14 threshold question. The applicant suffered, in the course of his dealings with APRA about the return to work program, an aggravation of his existing psychiatric condition.
The question is whether the aggravation was contributed to, to a significant degree, by his employment.
The aggravation was not produced by any work he did or was instructed to do. At most it was produced by the applicant’s perceptions about the employer’s intentions or motivations in the negotiations for his return to work, which had failed.
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 the employee’s employment”. In relation to the concept of employment as a contributing 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 deterioration of the disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I can see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc. It is in that sense that I should understand the language of the definition.”
Federal Broom Co Pty Ltd v Semlitch concerned the definition of “injury” in s 6(1) of the Workers’ Compensation Act 1926-1960 (NSW). That definition extended “injury” to include “the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration; …”. In the definition of “disease” in s 4 of [the Act], the notions of acceleration, exacerbation or deterioration are no longer mentioned, but for practical purposes I consider this provides no basis for distinguishing the observations of Kitto J. It will also be noted that the definition of “disease” in [the Act] requires that employee’s employment contributed to a “material degree”, but the introduction of the notion that the contribution must be “material” was held 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 incident or state of affairs to which the worker was exposed which would limit the meaning to an incident or state of affairs that could be characterised as a breach of reasonable workplace practices, discriminatory conduct, harassment, unlawful conduct, or conduct of a kind that a reasonable employer would guard against. All that is required is that the employee is exposed to some incident or state of affairs in the course of the performance of his duties and to which he would not otherwise have been exposed, which is a contributing factor to the ailment or an aggravation of the ailment suffered by the employee. A perception held by the employee will meet a “reality” test for the purpose of the definition of disease if it is a perception about an incident or state of affairs that actually happened.
The evidence was that the applicant felt undervalued, depressed and worthless as a result of his perception that APRA required him to perform work below his Level 4 Principal Analyst role, and as to their reasons for that stipulation. He felt he was being managed out of his employment. On his account, which I accept, he became so depressed about that perception that he became, for a time, unable to work at all. The facts were that he was asked (at least initially) to do work within his job specification, albeit work that did not require a high level of skill. The respondent called evidence from several employees that they had not required or intended for him to do work below his Level 4 Principal Analyst position for long, but rather intended him to initially perform lower level work and later to build up to his full duties or duties at a higher level of skill.
Other perceptions about the applicant also affected the employees concerned, or some of them, including that the applicant sought to control the duties he would be performing, but there is no evidence that the applicant also believed that to be so.
It seems to me that the applicant’s aggravation was not caused by a perception about an incident or state of affairs that was based on something that actually happened, and therefore that the test proposed by Von Doussa J is not satisfied. The applicant’s perception that APRA had motivations designed to enable them to manage him out of his employment was false. He understood the return to work program itself but wrongly attributed its contents to a lack of bona fides on the part of APRA.
Furthermore, I am not satisfied that the contribution made to the aggravation suffered by the applicant was substantially more than material, in the sense described in the cases referred to in XLRC above at [54]. The applicant’s false perceptions about APRA’s motivation for proposing initial duties requiring less skill, even if leading a pre-existing condition to worsen, are hard to fit within the category of strong contributing factors to the relevant aggravation.
The applicant therefore fails the test in s 5B of the Act.
DECISION
I would therefore affirm the reviewable decision.
I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
...................................[sgd].....................................
Associate
Dated: 20 January 2021
Date(s) of hearing: 22, 23 & 24 September 2020 Date final submissions received: 27 October 2020 Applicant: By video Counsel for the Respondent: Mr M Gollan Solicitors for the Respondent: Australian Government Solicitor
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