Yunupingu and Comcare (Compensation) - [2017] AATA 622

Yunupingu and Comcare (Compensation) [2017] AATA 622 (3 May 2017)

Division

GENERAL DIVISION

File Number

2014/5278

Re

Yuwan Yunupingu

APPLICANT

And

Comcare

RESPONDENT

DECISION

Tribunal
Deputy President K Bean

Date 3 May 2017

Place Adelaide
The decision under review is set aside and in substitution for that decision it is decided that the respondent is liable to pay compensation to Mr Yunupingu pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the condition of “major depression” with a date of injury of 8 February 2014.
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Deputy President K Bean
CATCHWORDS
WORKERS’ COMPENSATION – Major depression – Whether contributed to by employment – Whether condition arose as a result of reasonable administrative action taken in a reasonable manner – Meaning of “as a result of” – Decision under review set aside and substituted.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B
CASES
Lim v Comcare [2017] FCAFC 64
Comcare v Martin [2016] HCA 43
Hart v Comcare (2005) 87 ALD 341, [2005] FCAFC 16, (2005) 145 FCR 29
Hollis and Comcare [2017] AATA 49
REASONS FOR DECISION
Deputy President K Bean
3 May 2017

The applicant, Mr Yunupingu, is a remarkable person who has led an eventful life. Having overcome a great deal of disadvantage and adversity in his early life, at the age of 36 he returned to school and subsequently managed to obtain two university degrees, including Honours degrees at the University of Sydney.
Having worked in various roles in the intervening period, in May 2013 he applied for and obtained a position as a Senior Health Safety and Environment (HSE) advisor for NBN Co in the Northern Territory. While he was in that role, he was instrumental in NBN Co obtaining Federal Safety Commission (FSC) accreditation, which it did in October 2013.
Unfortunately, however, around the time accreditation was received by NBN Co, Mr Yunupingu began to have increasing difficulties in the workplace, which, in combination with other factors, caused him significant stress.
By early February 2014, he was acutely unwell and was subsequently diagnosed with major depression, which has persisted.
His employment with NBN Co was ultimately terminated by agreement on 28 November 2014.[1]
[1] Exhibit 3, Statement of Yuwan Yunupingu dated 16 August 2015, at [23].
On 19 February 2014, Mr Yunupingu lodged a claim for workers’ compensation in respect of his “mental state”.[2]
[2] Exhibit 1, T4/23.
By a determination dated 16 May 2014, a Comcare delegate disallowed this claim on the basis that his injury was suffered as a result of reasonable administrative action, taken in a reasonable manner in respect of Mr Yunupingu’s employment, within the meaning of s 5A(2) of the Safety, Rehabilitation and Compensation Act 1998 (the SRC Act).[3] The delegate concluded that Mr Yunupingu’s condition was contributed to by his employment, but that compensation liability was excluded by s 5A(2).
[3] Exhibit 1, T14/874.
Mr Yunupingu sought reconsideration of that determination and on 3 September 2014, 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 Yunupingu and Comcare (Compensation)

Details

AGLC: Yunupingu and Comcare (Compensation) [2017] AATA 622
Case: [2017] AATA 622
Decision Date: 3 May 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Yunupingu against a decision by Comcare regarding his claim for workers' compensation. Mr. Yunupingu sought compensation for a condition of major depression, which he alleged arose out of or in the course of his employment as a safety manager for NBN. The dispute centred on whether his employment, and specifically certain actions taken by his employer, caused or contributed to his condition. The decision was made by Deputy President K Bean.

The primary legal issue before the court was to determine whether Mr. Yunupingu's condition of major depression was contributed to by his employment. Specifically, the court had to consider whether the condition arose as a result of reasonable administrative action taken in a reasonable manner, as provided for under the relevant legislation. This required an examination of the meaning of "as a result of" in this context and an assessment of the evidence to establish causation.

Deputy President K Bean reasoned that the extensive medical evidence, including contemporaneous notes from Mr. Yunupingu's GP and a psychologist, strongly indicated that his depression was linked to workplace stressors. These stressors included being forced to breach a safety contract, subsequent victimisation, receiving threatening emails from his director, and feeling that his employer was not accepting his Aboriginal heritage. The court found that the actions taken by his employer, particularly the threats of disciplinary action and the manner in which a safety complaint was handled, were not reasonable administrative action taken in a reasonable manner. Consequently, the court set aside the previous decision and substituted a new decision.

The court ordered that Comcare is liable to pay compensation to Mr. Yunupingu pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of his condition of major depression, with a date of injury stipulated as 8 February 2014, the date he first sought medical treatment.

Orders

Orders of the court

The decision under review is set aside and in substitution for that decision it is decided that the respondent is liable to pay compensation to Mr Yunupingu pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the condition of “major depression” with a date of injury of 8 February 2014

Background

Background to the litigation

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Evidence

Evidence Before The Court

Before turning to this issue of causation, I will first discuss the medical evidence as to the causes of and contributors to Mr Yunupingu’s condition.The medical records and evidence The material before me includes a significant amount of contemporaneous medical information, which I consider to be of particular importance in assessing what the main causes of Mr Yunupingu’s condition were. In seeking medical assistance, Mr Yunupingu approached Dr Saeed at the Top End Medical Centre, on 9 February 2014. A contemporaneous note of that consultation records that Mr Yunupingu:stated that since last may he has been employed by NBN as a safety manager, during January he was forced to breach a safety contract and subsequently compiled a 7 page complaint, since then he feels he has been victimised and on Saturday received a threatening email from the Director.[50][50] Exhibit 1, T8/46. Dr Saeed also completed a medical certificate on 10 February 2014 in which he recorded the following against “Injury Details”:working as safety manager for NBNstates being bullied at workstates have been receiving increasing threats and intimidation for the last 2 weeks by Director of NT NBN that he will face disciplinary action.[51][51] Exhibit 1, T12/820. Also before me is a record of Mr Yunupingu’s attendance at the emergency department of the Royal Darwin Hospital on the evening of 8 February 2014. The nursing notes indicate the following:Pt went to GP concerned that work stressors will start him drinking again. Pt states received a threatening email from boss threaten to sack patient. … *Feels work not accepting his aboriginal heritage.[52][52] Exhibit 5. In a subsequent report of 27 March 2014, Dr Saeed stated:He presented to me for the first time on 09/02/2014 at 1734 pm with feeling suicidal and thinking about it for the 2 weeks … He stated that he was working as safety manager for NBN recently and reported being bullied at work. He stated he had been threatened for the last 2 weeks by his Director of NT NBN that he will face disciplinary action and received a threatening email from his Director on Saturday. He stated that he had informed his HR/GM/employer that workplace was not safe and making them accountable for safety as he lodged a complaint against them but they were not taking any action.[53][53] Exhibit 1, T8/45. Also of relevance to this issue are the notes and reports of a psychologist Mr Yunupingu consulted during March and April 2014, Mr Gregory Goodluck. In a comprehensive report apparently prepared in October 2014, Mr Goodluck set out his contemporaneous notes of some of his consultations with Mr Yunupingu. Excerpts of his notes taken at the first consultation on 8 March 2014 include the following:Bullied by workplace…National security breach was discussed with senior managementOpen investigation on Yuwan – Breached a corporate directive around asbestos removal [allegedly].Wrote a safety management system to comply…Corrective Actions were needed to be implement too quickly.Had a meeting with manager from down southConstruction and HSE manager and director. To discuss how to up standard OHS … (The director was attacking his personality …) and was told that he [Mr Yunupingu] was to blame for safety non-compliances although he [Yuwan] was asking them to lift standards.- Passed performance management, but wasn’t present.…- Describes lots of double binds and no win situations..- slandered? Libeled? (sic) Defamed? - very litigious?…NBN muddied his name with regard to a bullying complaint that was not even a bullying thing and was investigated and cleared… non-aboriginal woman complained he was bullying her when he told her she had no jurisdiction in his role… demarcation… sensitive issue needs further exploration… .[54][54] Exhibit 1, T9/49-50.

Decision

Reasons for decision

I have accordingly decided to set aside the decision under review and substitute a decision accepting liability for Mr Yunupingu’s condition pursuant to s 14 of the SRC Act. I will stipulate a date of injury of 8 February 2014, given that was the date on which Mr Yunupingu first sought medical treatment.[75][75] Safety, Rehabilitation and Compensation Act 1998 s 7(4); Exhibit 5.DECISION The decision under review is set aside and in substitution for that decision it is decided that the respondent is liable to pay compensation to Mr Yunupingu pursuant to s 14 of the SRC Act in respect of the condition of “major depression” with a date of injury of 8 February 2014.

Ratio Decidendi

Legal Principle Established

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Division	GENERAL DIVISION
File Number	2014/5278
Re	Yuwan Yunupingu
APPLICANT
And	Comcare
RESPONDENT

Tribunal	Deputy President K Bean
Date	3 May 2017
Place	Adelaide