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Woodward and Comcare (Compensation)

Woodward and Comcare (Compensation)

Case [2018] AATA 1835 14 June 2018

Statutory Construction

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Woodward and Comcare (Compensation) [2018] AATA 1835 (14 June 2018)
Division:GENERAL DIVISION
File Number: 2016/5834
Re:Melissa Woodward
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:14 June 2018
Place:Brisbane

The Tribunal affirms the reviewable decision made by Comcare on 27 October 2016.
.........................[Sgd]...............................................
Member D K Grigg
Catchwords
COMPENSATION — Commonwealth employees - whether applicant entitled to compensation – whether injury contributed to by employee’s employment – whether injury suffered as a result of reasonable administrative action undertaken in a reasonable manner - decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Comcare v Drinkwater [2018] FCAFC 62
Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29
Comcare and Martinez (No 2) [2013] FCA 439
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463
Ferguson v Commonwealth Bank of Australia [2012] AATA 718
Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42
Lim v Comcare [2017] FCAFC 64
Radulovic and Comcare [2010] AATA 777
Wiegand v Comcare Australia [2002] FCA 1464
REASONS FOR DECISION
Member D K Grigg
14 June 2018
INTRODUCTION & CLAIMS HISTORY

Ms Woodward has been an employee of the Department of Human Services (“DHS”) since 2010. In June 2015, at Ms Woodward’s request, Ms Woodward was transferred from a Coffs Harbour Service Centre to a Gold Coast Centre and commenced as a Customer Service Officer (“CSO”) at the Beenleigh Customer Service Centre (“BCSC”).[1]
[1] Exhibit 2, T Documents, T5, page 19, Ms Woodward’s Workers’ Compensation Claim Form dated 20 June 2016.
Ms Woodward commenced at BCSC on 29 June 2015 and between 21 September 2015 and 22 December 2015, worked in the South Queensland Virtual Team.[2] Ms Woodward’s role involves:
“…undertaking face-to-face customer interaction / service tasks for the majority of her work day including both: 1:1 interviews with customers and front-of-house functions. The role also combines phone contact with customers and relevant administrative / processing duties”.[3]
[2] Exhibit 2, T Documents, T12.2, pages 53-59, Statement of Mrs Luccitti dated 12 July 2016, para 4.
[3] Exhibit 2, T Documents, T4, page 10, Initial Assessment Report dated 16 June 2016.
Prior to transferring to BCSC, Ms Woodward was employed as an APS 4 customer service officer (“CSO”) in the Coffs Harbour Service Centre and assisted customers over the telephone, as opposed to face-to-face, with disabilities and carer’s enquiries.[4]
[4] Oral evidence of Ms Woodward produced at hearing (4 October 2017; 11 April 2018).
On 20 June 2016, Ms Woodward applied for compensation under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for “Adjustment Disorder (Anxiety + Depression)” which she claims resulted from a “[l]ack of training + increase in work rolls” (sic).[5] Ms Woodward claims that the lack of training and increased work duties resulted in her experiencing “high anxiety, panic attacks [and] tears” and that she first noticed these…

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 Woodward and Comcare (Compensation)

Details

AGLC: Woodward and Comcare (Compensation) [2018] AATA 1835
Case: [2018] AATA 1835
Decision Date: 14 June 2018

CaseChat Overview and Summary

This matter concerned an application for compensation by Ms Woodward against Comcare. The dispute centred on whether Ms Woodward was entitled to compensation under the *Safety, Rehabilitation and Compensation Act 1988* (Cth) for an ailment she suffered. The decision was made by the Administrative Appeals Tribunal.

The Tribunal was required to determine whether Ms Woodward's ailment constituted an "injury" for the purposes of the Act. Specifically, it needed to consider whether the ailment was contributed to by her employment and, crucially, whether it was suffered as a result of reasonable administrative action taken in a reasonable manner in respect of her employment.

The Tribunal found that a direction given to Ms Woodward not to "cherry pick" her duties constituted administrative action taken in a reasonable manner. This action was considered a form of counselling regarding her performance of duties under section 5A(2)(b) of the Act. Consequently, the exclusionary provision in section 5A(1) of the Act was engaged, meaning Ms Woodward's ailment was not considered an "injury" for the purposes of the Act.

As a result of this determination, Ms Woodward was not entitled to compensation under section 14 of the Act. The Tribunal affirmed the reviewable decision dated 27 October 2016.

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

Therefore, the Tribunal finds that the direction given to Ms Woodward not to “cherry pick” was an “administrative action”, being a “counselling” action about how Ms Woodward was to perform her duties under section 5A(2)(b) of the Act and that it was taken in a “reasonable manner” in respect of her employment. The exclusionary provision in section 5A(1) of the Act applies and Ms Woodward’s ailment is not an “injury” for the purposes of the Act. Therefore, Ms Woodward is not be entitled to compensation under section 14 of the Act.DECISION The reviewable decision dated 27 October 2016 is affirmed.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Woodward and Comcare (Compensation) [2018] AATA 1835

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 18 of 18 shown

Comcare v Drinkwater
[2018] FCAFC 62 Para 5

…ed the construction and application of the exclusion contained in the definition of “injury” in section 5A of the SRC Act in Comcare v Drinkwater [2018] FCAFC 62. The decision was handed down on 26 April 2018, after the completion of the hearing in this matter. The Full Court notes (at [51]) that in Reeve , it was…
Hollis v Comcare
[2017] FCA 558 Para 16

…not have suffered an ailment (or aggravation of an ailment) if the administrative action had not been taken.[146] [146] See also Hollis v Comcare [2017] FCA 558, at [5].…
Comcare v Martin
[2016] HCA 43 Para 14

…The High Court in Comcare v Martin [2016] HCA 43; 339 ALR 1; 91 ALJR 29 held, at [45] (“ Martin ”), that: “…an employee has suffered a disease “ as a result of ” administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need no…
Comcare v Martinez (No 2)
[2013] FCA 439 Para 19

…The Federal Court in Comcare and Martinez (No 2) [2013] FCA 439 (“ Martinez ”) at [83] agreed with the statement of Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42: “Whether the administrative action was taken in a reasonable manner by the employer will d…
GEORGE THOMPSON and COMCARE
[2012] AATA 752 Para 18

…utes and circumstances, including the emotional state of the employee concerned.[161] [161] Stieglitz v Comcare [2010] AATA 263; Thompson and Comcare [2012] AATA 752, at [61]…
Lucie Ferguson and Commonwealth Bank of Australia
[2012] AATA 718 Para 8

…In Ferguson v Commonwealth Bank of Australia [2012] AATA 718 (“ Ferguson ”) the Tribunal found that the employer had cause to talk to Ms Ferguson about how she was performing her job and that it was therefore administrative action. The Tribunal noted that this was contrary to the employer giving Ms Ferguson direct…
National Australia Bank Limited v KRDV
[2012] FCA 543 Para 20

…nst which the decision was made or implemented.” (Emphasis added) [162] Cited with approval by Cowdroy Jin National Australia Bank Limited v KRDV (2012) 204 FCR 436 at [51].…
Drenth v Comcare
[2012] FCAFC 86 Para 2

…Section 5A(2) of the Act is not an exhaustive list.[156] [156] The Full Federal Court in Drenth v Comcare (2012) 128 ALD 1, at [21] held that the 'action' referred to in s.5A(l) is not qualified by the non-exhaustive list of examples of 'reasonable administrative action' provided for in s.5A(2)…
Re Radulovic and Comcare
[2010] AATA 777 Para 9

…b. Further, the action by Ms Mackenzie involved “ counselling ”. The meaning of “ counselling ” was considered in Radulovic and Comcare [2010] AATA 777, where the Tribunal said at [76]-[77]: “It is clear that ‘counselling’ in the therapeutic sense is not the intended meaning. In Domburg v Nurses Board of Victoria…
Re von Stieglitz and Comcare
[2010] AATA 263 Para 18

…tively, taking into account the attributes and circumstances, including the emotional state of the employee concerned.[161] [161] Stieglitz v Comcare [2010] AATA 263; Thompson and Comcare [2012] AATA 752, at [61]…
Re Gilbert and Comcare
[2009] AATA 224 Para 14

…This case is somewhat similar to Gilbert v Comcare [2009] AATA 224 (“ Gilbert ”). In that case the applicant was placed in a new role as a CSO at Centrelink, having previously been a personal assistant. One of the incidents Mrs Gilbert complained about was an incident where she was “questioned” by a senior practit…
Wiegand v Comcare Australia
[2002] FCA 1464 Para 21

…out not being adequately trained was an accurate reflection of the true state of affairs, and referred to von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 where he said (at [31]):[163] “... there is no requirement at law that the interpretation placed on the incident or state of affairs by the employee,…
Bropho v Human Rights and Equal Opportunity Commission
[2002] FCA 1510 Para 24

…e manner, is not the point. In [Martinez] Robertson J held at [82], after referring to Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82],: “I would of course agree with French J, as his Honour then was, that the word 'reasonable' allows the possibility that there may be more than one w…
Domburg v Nurses Board of Victoria
[2000] VSC 369 Para 9

…77]: “It is clear that ‘counselling’ in the therapeutic sense is not the intended meaning. In Domburg v Nurses Board of Victoria [[2000] VSC 369], Ashley J said that ‘counselling’ in an employment relations context ‘has an industrial relations flavour’ and involves ‘something less than a caution or reprimand’. It…
Keen v Workers’ Rehabilitation and Compensation Corporation
[1998] SASC 7056 Para 19

…(No 2) [2013] FCA 439 (“ Martinez ”) at [83] agreed with the statement of Lander J in Keen v Workers Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42: “Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the f…
Commonwealth Bank of Australia v Reeve
[2012] FCAFC 21 Para 29

…In the Full Federal Court decision of Commonwealth Bank of Australia v Reeve [2012] FCAFC 21; (2012) 199 FCR 463 (“ Reeve ”) Rares and Tracey JJ held that “ administrative action ” referred to in the exclusion part of section 5A(1): “[57]… was intended to refer to action directed specifically to the employee as op…
Lim v Comcare
[2017] FCAFC 64 Para 16

…Therefore, as outlined by the Full Federal Court in Lim v Comcare [2017] FCAFC 64 (“ Lim ”) (at [41]), applying Martin , to satisfy the causal requirement in the exclusion in section 5A(1), the Tribunal has to be satisfied that Ms Woodward would not have suffered an ailment (or aggravation of an ailment) if the ad…
Bropho v Human Rights & Equal Opportunity Commission
[2004] FCAFC 16 Para 24

…have been conducted differently, or in a more reasonable manner, is not the point. In [Martinez] Robertson J held at [82], after referring to Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [82],: “I would of course agree with French J, as his Honour then was, that the word 'reasonable' allows the possibility that there may be mor…

Legislation cited in this decision · 1

Safety, Rehabilitation and Compensation Act 1988 (Cth)
1 mention (from Para 4)